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PETITIONER: STATE OF ANDHRA PRADESH

       Vs.

RESPONDENT: STATE OF KARNATAKA & ORS.

DATE OF JUDGMENT:       25/04/2000

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

JUDGMENT:

PATTANAIK, J.

     The  State of Andhra Pradesh has filed the suit  under Article  131  of the Constitution of India,  impleading  the State  of Karnataka, Union of India and State of Maharashtra as  party  defendants,  seeking relief  of  declaration  and mandatory  injunction  on the allegation that the  State  of Karnataka,  in  particular has made gross violations of  the decision  of  Krishna  Water   Disputes  Tribunal  and  such violations  have  adversely  affected the residents  of  the State  of Andhra Pradesh.  The relief sought for in the suit are as under:

     (a)   declare  that  the   report   /decision   dated 24.12.1973  and the further report/deecision dated 27.5.1976 of  the  Krishna  Water Disputes Tribunal  (KWDT)  in  their entirety  are  binding  upon the three  riparian  States  of Maharashtra, Karnataka and Andhra Pradesh and also the Union of  India;   (b) declare that the riparian States  are  duty bound  to fully disclose to each other and also to the Union of  India  all  particulars of all  projects  undertaken  or proposed  after  December, 1973 and May, 1976 and to  direct the  defendants  to  ensure that execution  thereof  are  in conformity  with  and  do not conflict with or  violate  the decisions  of the KWDT and they do not adversely affect  the rights  of the other riparian States;  (c) declare that  the party  States  are  entitled to utilise not  more  than  the quantity  of  water which is allocated or permitted  by  the decisions  of  the KWDT for the respective projects  of  the respective  party States before the Tribunal;  and that  any variation  in either storage or utilisation of the waters by each  such  state in respect of each of such projects  could only  be with the prior consent or concurrence of the  other riparian States;  (d) declare that all the projects executed and/or which are in the process of execution by the State of Karnataka which are not in conformity with and conflict with or  violate  the  decisions  of the  KWDT,  as  illegal  and unauthorised.

     (e)  declare  that approvals  /sanctions/  clearances/ in-principle  clearances granted by the Union of India on or after  KWDT  decisions  on 24.12.1973 and  on  27.5.1976  in

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respect of schemes/projects/ undertaken by the Government of Karnataka  are  invalid and direct the Union  Government  to review  /reconsider  all such schemes/ projects  proposed  / undertaken  by Karnataka, afresh, after obtaining the  views thereon of the other riparian States;

     (f)   declare   that  the   State  of  Karnataka   and Maharashtra  shall  not  be  entitled to  claim  any  rights preferential or otherwise in respect of storage, control and use  of waters of the inter- State river Krishna in  respect of  the schemes /projects not authorised by the decision  of the  KWDT;   (g) declare that the Union Government  is  duty bound  to  consult all the riparian States  of  Maharashtra, Karnataka  and Andhra Pradesh before according any approvals /  sanctions  / clearances / in-principle clearances to  any schemes  /  projects  proposed / undertaken by  any  of  the riparian  States on the inter-State river Krishna and direct the   Union  Government  to  act  in  terms  of   the   said declaration;  (h) grant a mandatory injunction directing the State  of  Karnataka to undo all its  illegal,  unauthorised actions  regarding  projects/ schemes and in particular  the following  projects executed by it contrary to the decisions of  KWDT  so  as to bring them in conformity with  the  said decisions:

     Almatti Dam under UKP

     Construction   of  Canals/Lifts   Schemes  on  Almatti Reservoir.

     Upper Krishna Projects in K-2 Sub-basin.

     Hippargi Weir/Irrigation Schemes.

     Construction  of  Indi  and  Rampur  lift  schemes  on Narayanpur reservoir and the canals.

     (i) grant a permanent injunction restraining the State of Karnataka from undertaking, continuing or proceeding with any  further  construction  in   respect  of  the  following projects:    Almatti   Dam  under    UKP   Construction   of Canals/Lifts Schemes on Almatti Reservoir

     Upper Krishna Projects in K-2 Sub-basin.

     Hippargi Weir/Irrigation Schemes.

     Construction  of  Indi  and  Rampur  lift  Schemes  on Narayanpur reservoir and the canals.

     (j)   appoint  a  team  of   experts  for   making   a comprehensive  techno-economic evaluation and  environmental impact  analysis  in respect of the following projects  and, pending  orders  of this Honble Court on the report of  the team  of  experts, grant an order of injunction  restraining the  Defendant  No.  1  State of Karnataka from  proceeding with  any  further  construction  in any  of  the  following projects/schemes:   Almatti  Dam under UKP  Construction  of Canals/ Lifts Schemes on Almatti Reservoir

     Upper Krishna Projects in K-2 Sub-basin.

     Hippargi Weir/Irrigation Scheme.

     Construction  of  Indi  and  Rampur  lift  schemes  on

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Narayanpur Reservoir and the canals.

     (k)  to  issue a permanent injunction restraining  the Defendant No.  1 State of Karnataka from growing or allowing to  grow sugarcane or raising other wet crops in the command areas  falling  under the projects/schemes within the  Upper Krishna  Project;  (l) pass a decree in terms of prayers (a) to  (k);   and (m) award costs of the present proceeding  in favour of the Plaintiff;

     (n)  pass  such  further decree or  decrees  or  other orders  as this Honble Court may deem fit in the facts  and circumstances of the case.

     Though  there are as many as 14 reliefs sought for  as stated  above,  but  essentially the reliefs relate  to  the construction  of Almatti Dam under Upper Krishna Project  by the State of Karnataka to a height of 524.256 M.  Though the averments  of  facts  in  the plaint have been  made  in  71 paragraphs,  shorn of minute details, the same may be stated as  under:   That  the dispute between  the  three  riparian States namely Maharashtra, Karnataka and Andhra Pradesh with respect  to  use, distribution and control of the  water  of inter-  State river Krishna stood resolved by the  decisions of  the  tribunal,  constituted  under   Section  4  of  the Inter-State  Water Disputes Act, 1956 (hereinafter  referred to  as  the Act) by the decision rendered in 1973 and  the Further decision rendered in 1976.  The said decision having been  notified  by the Central Government under  Section  6, became binding on all parties.  All the parties-States being constituents  of  the Federation of Republic of  India,  the plaintiff  expected that each State, while undertaking their projects  for utilisation of the quantity of water allocated in their favour by the tribunal would consult with the other concerned States and would so use, which will not be against the  decision of the tribunal in any manner.  But the  State of  Karnataka  has  not been acting in accordance  with  the letter and spirit of the decision of the tribunal and on the other  hand has violated the expressed terms and  conditions of the tribunal, which compelled the State of Andhra Pradesh to  invoke  the  jurisdiction  of the  Supreme  Court  under Article  131  of  the Constitution.   After  indicating  the topography of the river as well as the three riparian States and  the  disputes which arose between the States that  lead the  Central  Government  to constitute  the  Krishna  Water Disputes  Tribunal,  the  plaintiff   has  stated  that  the tribunal  framed  seven main issues and under issue No.   II with its eight sub-issues, decided the question of equitable apportionment  of  the beneficial use of the waters  of  the river  Krishna  and the river Valley by evolving Scheme  A and  making  the same as its Final Order or decision,  which became  binding  on  all  the parties, after  the  same  was notified by the Union Government under Section 6 of the Act. It  is  not  necessary  for us to reiterate  all  the  facts leading  to the raising of disputes and constitution of  the tribunal,  which  we  have already narrated in  judgment  in O.S.1  of  1997,  filed  by the  State  of  Karnataka.   The plaintiff  then  has  averred  as to how  on  the  basis  of agreement  between  the parties, the 75% dependable flow  at Vijayawada  was  found to be 2060 TMC and while  considering the  case  of each State for allocation of their  respective share of water in respect of the aforesaid 75% of dependable flow,   several  projects  in   the  river  basin,   already undertaken  by  the States as well as the quantity of  water required for the projects were considered by the tribunal on

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the  basis  of which the ultimate figure of allocation  were arrived  at.   According to the plaint, the tribunal,  while restraining  the States of Maharashtra and Mysore from using more  water than allocated in their favour, granted  liberty to  the  plaintiff-State  of  Andhra   Pradesh  to  use  the remaining  water  with  the rider that the State  of  Andhra Pradesh will not acquire any right to the user of such water except  to  the extent allocated to it.  The plaintiff  also averred that while making allocation to the three States, no express  provisions were made for sharing of any  deficiency and  further the tribunal took note of the fact that out  of 100  years,  deficiency may occur in 25 years.  It was  also averred that to relieve the State of Andhra Pradesh from the aforesaid  difficulty,  the tribunal permitted the State  of Andhra  Pradesh to store water in the Nagarjunasagar Dam and in Srisailam Dam and held that for such storage, there would not  be  any deduction from its share out of the  dependable flow  on  the ground that if the water is not allowed to  be stored  by the plaintiff-State, then it would flow down  and get  submerged  in  the sea.  According to the  plaint,  the tribunal  did  consider the different project reports  which had  been  produced  before  it, in relation  to  the  Upper Krishna  Project  and allowing the protected utilisation  of 103  TMC, it came to the conclusion that the demand of State of  Karnataka  to  the extent of 52 TMC to  be  utilised  by Narayanpur  Right Bank Canal is worth consideration.   After enumerating  the different clauses of the Final Order of the tribunal  in its original report of 1973, the plaintiff  has averred  that though the tribunal has made allocation enbloc in a negative form namely that the State cannot utilise more than  the  allocable quantity of water in its share  in  any water  year but the said enbloc allocation has to be read in the  light  of the relevant stand of the parties before  the tribunal, the facts and figures produced before the tribunal and  the ultimate basis on which the conclusion was  arrived at.   According to the plaintiff, by taking recourse to  the aforesaid  method,  it  would be crystal clear  that  party- States   were  restrained  from   utilising   in   different sub-basins   of  river  Krishna   within  their   respective territory,  beyond what was considered as the protective use and  the  additional quantity allocated to their share.   It has  been averred in the plaint that so far as Upper Krishna Project  is  concerned  within the State of  Karnataka,  the tribunal  has allocated only 160 TMC of water for being used and  the  construction of Almatti Dam to the height  of  524 Meters,  as  indicated  by the State  of  Karnataka,  would, therefore,  on  the  face  of it, is  in  violation  of  the decision  of the tribunal.  After referring to the different applications  for  clarifications  sought for  by  different States  under Section 5(3) of the Act and the answer of  the tribunal  on the same, the plaintiff has also averred as  to how  the  tribunal dealt with the contentions raised by  the State  of  Maharashtra  before  it,   in  relation  to   the allocation  of  52 TMC of water from Narayanpur  Right  Bank Canal.   According to the plaintiff, though, no doubt in the Final  Order  of  the  tribunal,   there  has  been  a  mass allocation  of water in favour of the three riparian  States out  of the 2060 TMC of water under 75% of dependability  at Vijayawada,  which  figure was arrived at by consent of  the parties, but a closer scrutiny of the report in its entirety being  examined, it would be apparent that the allocation in respect  of different sub-basins had been made on the  basis of projects undertaken in those sub-basins and consequently, no  State  would be entitled to use the entire  quantity  of water allocated in their favour in any particular sub-basin.

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The  plaintiff,  then  has  averred   that  the  post  award developments undertaken by the State of Karnataka, intending to  raise the height of Almatti Dam to 524 Meters is nothing but  a gross violation of the decision of the tribunal  and, therefore,  this Court should injunct the State of Karnataka in  going ahead with the Almatti Dam upto the height of  524 Meters,  as  indicated in its project.  The  plaintiff  then referred to several correspondence made between the State of Karnataka  and State of Andhra Pradesh inter se, as well  as correspondence between these States and Union Government and Central  Water  Commission.  It has also been  averred  that allowing  the  State  of Karnataka to construct the  dam  at Almatti  up  to  a  height of 524 Metres  would  be  grossly detrimental  to  the lower riparian state of Andhra  Pradesh inasmuch  as  for  three  months  in a  year  from  July  to September,  the  State of Andhra Pradesh may go dry and  the entire  crop  in the State would get damaged for paucity  of water.  The plaintiff also has averred in several paragraphs of  the  plaint,  as  to how the  plaintiff-State  has  been demanding  from  the  State of Karnataka  to  have  suitable information  in  relation to the construction of the dam  at Almatti  and how the plaintiff-State has been prevented from being  favoured with any such information.  In paragraph  34 of  the plaint, the plaintiff refers to the letter addressed to  the  Chief Minister of Andhra Pradesh by the then  Union Minister for Water Resources, proposing to convene a meeting of  Chief  Ministers  of  the   Krishna  Basin  States   for discussing Upper Krishna Project Stage-II and along with the said  letter,  the observation of Central Water  Commission, indicating  how  the project at Almatti creates  a  physical capability  of water utilisation in excess of 173 TMC, which would  be possible in view of the proposed top of the radial gate  at FRL 521 meters against the required level of  518.7 meters  for  utilisation  of  173  TMC  of  water.   In  the subsequent  paragraph  of  the  plaint,  it  has  also  been indicated  as  to how the State of Andhra Pradesh  has  been objecting to the proposals of the State of Karnataka to have the  height of Almatti dam at 524 meters under the guise  of flood  protection  measure and then how the plaintiff  State requested  the  Prime Minister of India to intervene in  the matter  to avoid violation of the award of the Krishna Water Disputes  Tribunal.   In paragraph 39 of the plaint, it  has been  averred  that  the  Union Government as  well  as  the Central Water Commission which are responsible for clearance of  inter-State  Projects,  bent upon clearing  the  Almatti Project  up  to  a  dam height of 524  meters  without  even consulting the State of Andhra Pradesh, though, according to the plaintiff in a Federal Structure of the Government, each constituent  State would be entitled to know the progress of any  project in relation to inter-State river, since it  may have  several  adverse  effects on the  other  States.   The plaintiff  also  averred that at the behest of the State  of Andhra  Pradesh,  the United Front Government, which was  at the  Centre, constituted a Committee of four Chief Ministers to  examine  the  issues  relating to  the  construction  of Almatti  Dam, which committee in turn, decided to constitute an  Expert  Committee with a representative of  the  Central Water  Commission and Planning Commission, who, however, did not  ultimately  participate in the proceedings.   The  said Expert  Committee  has found that the proposal of the  Upper Krishna  Project with FRL of 524.256 meters for Almatti  Dam is  under  consideration  and has not been approved  by  the Government  of India, though many canals have been  designed and  constructed  for larger capacity meant for future  uses and it is not necessary to build a bigger storage of 227 TMC

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at  Almatti dam with top of shutter at 524.256 meters.   The said  Committee had also observed that the FRL on the top of the  shutter  be fixed for the present at 519 .6 meters  and the  gates be manufactured and erected accordingly and  this will  be adequate to take care of the annual requirements of 173 TMC presently envisaged under the Upper Krishna Project. The  said Committee, therefore, suggested the restriction of the  height  of  the  dam at 519.6  meters.   The  plaintiff however  does  not  accept of the entitlement of  the  first defendant to use 173 TMC under UKP and the height of the dam at  519.6 meters.  From paragraph 52 onwards, the  plaintiff then  has  made  averments indicating the  negotiations  and further  developments in the matter and then states that the Ministry of Power, Government of India having indicated that in  principle  clearance of construction of Upper  Krishna Hydro-  electric power project at Almatti, contemplating the height  of  the  dam at 524.256 meters was contrary  to  the award  of  the tribunal, and therefore, the  plaintiff-State lodged its objections by letter dated 18th of October, 1996, to which the reply came that in principle clearance is not a   techno-  economic  clearance  and   it  is   purely   an administrative    action   to    facilitate    developmental activities.   The plaintiff, thereafter by its letter  dated 18th of December, 1996, requested the Secretary, Ministry of Water  Resources,  Govt.  of India to ensure  forthwith  the publication  in  the  Gazette of India the decision  of  the Krishna  Water  Disputes  Tribunal i.e.   the  report  dated 24.12.1973  and  the further report dated 27.5.1976  in  its entirety.   But since it became apparent that the  Defendant No.  1 State of Karnataka was not at all inclined to resolve the problem by any amicable discussion nor did it desire any effort  for mediation being undertaken by anyone whatsoever, the  plaintiff had no other alternative but to approach this Court under Article 131 of the Constitution for declarations and injunctions against the Defendants for protection of the rights  of the plaintiff State as well as the rights of  its inhabitants  flowing from the decision of the Krishna  Water Disputes Tribunal.  From paragraph 65 onwards, the plaintiff has  narrated  several facts constituting violations of  the decision  of the tribunal by the State of Karnataka and from paragraph  69 onwards, the plaintiff has indicated the  role played  by the Central Government in the matter of  allowing the State of Karnataka to raise the height of the dam, which would  ultimately  lead  to  violation   of  the  terms  and conditions  as well as the restrictions in the award of  the tribunal and which would infringe the rights of the State of Andhra Pradesh and its inhabitants.  The cause of action for filing  the  suit has been indicated in paragraph 73 of  the plaint, namely indulgence of the State of Karnataka in going ahead with the Upper Krishna Project Stage I and II with the construction of the Almatti Dam which is in violation of the decision of the tribunal in letter and spirit.

     Defendant  No.   1- State of Karnataka in its  written statement, took the stand that the tribunal had not made any project-wise   allocation  and  on   the  other  hand,   the allocation   is  enbloc  and  as   such  the   question   of interpreting the decision of the tribunal to the effect that there  is restriction in the user of water in any particular Basin  is not correct.  It has been further averred that the State of Karnataka had contemplated the height of the Dam at Almatti  as  524.256 m in the Project Report of 1970  itself and  that Report had been filed before the tribunal and  had been marked as document MYPK-3.  Neither the State of Andhra Pradesh  nor any other State had raised any objection to the

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said  Project  Report  and  there was no  issue  before  the tribunal on that score and in fact the height of the Almatti Dam  was  not a matter of adjudication before the  tribunal. In  this  view  of the matter, the  plaintiff-State  is  not entitled  to  raise that issue on the  purported  allegation that  it  amounts  to  violation  of  the  decision  of  the tribunal.   It  is  also contented that an  identical  issue having  been  raised  by  an individual  by  filing  a  writ petition  in  the Andhra Pradesh and after dismissal of  the same,  the matter having been brought to this Court and  the order  of  the Andhra Pradesh High Court has been  affirmed, the  same question cannot be re-agitated by filing a suit by the  State  under Article 131 of the Constitution of  India. In  respect  of the decision of the Committee, which  stated about  the  FRL 519.6 m, it has been averred in the  written statement  that the said Committee considered the height  at 519.6  meters  to  be sufficient, taking  into  account  the storage  capacity  of  the dam which will take care  of  the annual requirement of 173 TMC in a water year but it did not take  into account the further water that may be needed  for generation  of  power  and the project at Almatti  with  the height  of  the  dam beyond 519.6 meters and up  to  524.256 meters  being  only for power generation and the water  thus used for power generation being non-consumptive, there is no question  of violation of any direction of the tribunal when the State of Karnataka has decided to have the height of the dam  at Almatti at 524.256 meters.  It has been specifically averred  in  the written statement that the decision of  the tribunal  which has been Gazetted under Section 6 of the Act has   not  imposed  any  restriction   on  any   State   for construction  of any Project and on the other hand Clause XV expressly  mentioned  that :  Nothing in the order  of  the tribunal shall impair the right or power or authority of any State to regulate within its boundaries the use of water, or to  enjoy the benefit of water within that State in a manner not  inconsistent  with the order of this tribunal  and  in view  of such specific provision, it is futile for the State of  Andhra Pradesh to contend that the height of the dam  at Almatti  should  not  be  raised  to  524.256  meters.   The defendant  has  further averred that the Project at  Almatti has  been  undertaken at huge cost exceeding Rs.6000  crores and  it  is not in national interest to stop the project  at this  advance  stage  and the suit has been filed  with  the design  to  cause  delay in the completion of  the  projects undertaken  by  the  State  of   Karnataka.   It  has   been reiterated  that the utilisation of water would be  entirely within   the  allocated  quantity   made  by  the  tribunal. According  to  Defendant No.  1, the plaintiff has not  made out  any  case of breach of its legal rights and,  therefore the  suit  under  Article  131 of the  Constitution  is  not maintainable.   The  defendant also narrated the  background under  which the Central Government set up the tribunal  for adjudication of the disputes between the riparian States and how ultimately the tribunal gave its report, stating therein the  facts  found  as  well as the  decision  thereon.   The defendant  State  has also stated in the  written  statement that  the  Almatti Dam has been designed for utilisation  of 173  TMC  for  Upper Krishna Project in two stages  and  the State  had  indicated that height, right from the  inception before  the tribunal itself, though neither any party raised any  objection  nor any issue was struck, nor  any  decision thereon  has  been given by the tribunal itself and in  this view  of the matter any grievance with regard to the  height of  the  dam at Almatti would be a fresh water  dispute  and would  not come within the adjudicated dispute and  decision

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thereon  by  the  tribunal itself and, therefore,  the  suit filed  under  Article 131 is not maintainable.  It has  been specifically  averred that the storage level at Almatti  Dam from  519.6  meters  to  524.256 meters is  not  at  all  an increase,  particularly, when the tribunal itself  expressly noted  the contemplated completion of the Almatti Dam to the full  height  that  is the height in  Exhibit  MYPK-3.   The defendant  also referred to the report of the Central  Water Commission  dated  January 30, 1994, whereunder it has  been indicated  that  since the power generation is  contemplated under  the project at Almatti by way of utilising the  extra storage  of water between 519.60 meters and 521 meters,  the project may be treated as a multi-purpose project (the level required  to  utilise  173 TMC of water  for  irrigation  is 519.60  meters).   The  Defendant-State   of  Karnataka  has specifically  averred  that  even though the dam  height  is raised  to this final level of 524.256 meters, the  quantity of  water that could be utilised for irrigation is only  173 TMC  as per allocation made in the Award and any  additional quantity  over  and above 173 TMC will be let out  into  the river  after  generating power.  It has also been  contended that  the dispute raised being a water dispute in respect of an inter-State river, the same is governed by Article 262 of the  Constitution  read with Section 11 of  the  Inter-State Water Disputes Act, and therefore, suit under Article 131 is not  maintainable.   All allegations made by  the  plaintiff about  the misuse of position have been denied.  It has also been  denied  that neither there is any requirement  of  the decision of the tribunal nor any liability which compels any State  to consult another State in the matter of planning of the  projects for utilisation of its water resources and the contention  raised  by the State of Andhra Pradesh  in  this regard  is  wholly  mis-conceived.   The  defendant  further contends  that  the  State  of  Andhra  Pradesh  not  having utilised the opportunity to seek clarification under Section 5(3)  of  the Act with regard to the height of or any  other specification  of  the Almatti Dam is not entitled to  raise this  dispute  in this Court by filing a suit under  Article 131  of the Constitution.  The defendant-State of  Karnataka reiterated  that  the utilisation of water under the  U.K.P. first  at  Almatti  and later at Narayanpur  downstream,  is entirely within the scope of 173 TMC and in any event within the  aggregate  share of 734 TMC allocated to the  defendant Karnataka  and the construction of the Upper Krishna Project at Almatti and at Narayanpur is all consistent with the work specifications  prescribed by the Expert technical bodies in all  respect including the provision for river sluices.   In respect of Clause XV of the Final Order of the tribunal, the defendant averred that the quantity of 155 TMC considered in respect  of  Upper  Krishna Project does  not  restrict  the defendant  Karnataka from planning increased utilisations by taking  into  account quantities of 34 TMC regeneration,  23 TMC  of water by diversion of Godavari waters and of 50%  of the  surplus flows becoming available after the adoption  of Scheme  B  devised by the tribunal.  It is contended  that the   tribunal  having  not   provided  for  allocation   or utilisation  project-wise,  so  long as there  has  been  no contravention of the mass allocation made, the plaintiff has no  grievance and is not entitled to file the suit.  It  has been  stated  in  the  written statement  that  in  the  re- submitted  modified  proposal dated 21st of April, 1996  for Upper  Krishna  Project Stage II as  multi-purpose  project, incorporating  compliance of the various comments of CWC and also  then again proposing a FRL of 524.256 meters,  clearly stating  that  even though the dam was to be raised  to  its

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final  level  of 524.256 m, the utilisation  for  irrigation would  be  only  173  TMC as per  the  readjustment  of  the project-wise allocations in the Master Plan within the scope of  the Scheme A allocation of 729 TMC and as such,  there has  been  no deviation, so far as the height of the dam  at Almatti  is concerned.  With regard to the allegations  made in  the  plaint, concerning development seeking a  political solution  to the dispute, the defendant-Karnataka denies all the  averments  made  in  that   respect  and  asserts  that execution  of projects is within its entitlement and  limits permitted  by the decision of the tribunal.  With regard  to the  initiative  taken  by the Prime Minister  of  India  by holding a meeting on 10.8.1996, it has been stated that such initiative   was  frustrated  by   the  uncompromising   and unreasonable  attitude  of  political   leaders  of   Andhra Pradesh.   So  far as the Committee of four Chief  Ministers are  concerned,  it has been averred that the  Committee  of Experts,  constituted  by the four Chief Ministers even  did not  frame any terms of reference for consideration,  though requested  by  the State of Karnataka and it  conducted  the proceedings  in  a  summary manner.  The Chief  Minister  of Karnataka  in  fact had apprised the Chief Minister of  West Bengal  about the same by letter dated 19.12.1996 and  after receipt of the so-called report of the Expert Committee, the Chief Minister of Karnataka had conveyed its reaction to the findings  by  his letter dated 25.2.1997 to which the  Chief Minister  of  West  Bengal had replied that the  points  are being  examined and according to the State of Karnataka, the matter  remained  inconclusive and as such cannot  have  any binding effect.  In the written statement, the defendant No. 1  also  averred  that  the  findings  of  the  said  Expert Committee  are erroneous.  With regard to the allegations in the  plaint  that  storage  of huge  quantity  of  water  by construction  of  Almatti Dam would affect the  interest  of Andhra  Pradesh and its inhabitants, the defendant Karnataka denies  the same and also stated that the dam is intended to utilise  about  173  TMC  of water for  irrigation  and  the remaining  storage  water will be used  for  non-consumptive purpose  i.e., production of power and, therefore, the water will flow down to Andhra Pradesh and the said State will not be  affected in any manner.  With respect to allegations  in the  plaint  regarding  incorporation   of  Chamundi   Power Corporation  Ltd.,  the State of Karnataka has averred  that the  State  is  pursuing  the   matter  before  the  Central Electricity  Authority  in  accordance   with  law  and  the question  of  getting the consent of the plaintiff does  not arise.   So  far as the assertions made in the plaint  about the  cascading and far-reaching effect on the environment is concerned,  the State of Karnataka denies the same.  On  the question  of  alleged submergence, it has been averred  that the  State  of  Karnataka would take all adequate  steps  to provide compensation in accordance with law and rehabilitate the  displaced  population,  if any.   The  assertions  that Almatti  Dam  would  render  the major  projects  in  Andhra Pradesh  redundant,  has  been  denied.    So  far  as   the allegation  regarding  violation  of  environmental  law  is concerned, it has been averred in the written statement that the  applications  for  environmental  clearance  are  under process  by  the  Government  of  India  and  the  State  of Karnataka  has  not  done anything without  the  appropriate clearance  from  the Appropriate Authorities.  According  to the  defendant-State  of  Karnataka, the  averments  in  the plaint  are  mis-leading and lacking of bona fides  and  all allegations  and insinuations against the Chief Minister  of Karnataka  are denied.  All other allegations of  illegality

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being  perpetuated  by  the  State of  Karnataka  have  been denied.   So  far as creation of Jal Nigam is concerned  for effective  execution of the Upper Krishna Project, the State of  Karnataka  contends  that  the   said  Nigam  is  wholly Government   owned  company  and   all  its  activities  are controlled  by  the  Department  of  Irrigation,  Govt.   of Karnataka  and,  therefore, the allegation of the  plaintiff that  the  State  is abdicating its responsibility  for  the execution of the project is incorrect and is denied.  It has been categorically averred that the Karnataka State would be subjected  to  irreparable loss if the works at Almatti  are stopped  and  the State of Andhra Pradesh wants to reap  the benefit  of the liberty to use the surplus water flowing  in the  river in view of the mass allocation made in favour  of the three States.  It has been specifically averred that the storage  of additional water between the height of 519.6  to 524.256  meters  will be used for power production only  and not  for  irrigation  till  the augmentation  of  waters  by Godavari  diversion  and surplus waters under Scheme B  is made  available.  It has been specifically averred as to how the  Government  of  Karnataka has sought for  approval  for taking  up  the cluster of hydel projects at  Upper  Krishna Project  in phases and how the Central Electricity Authority has  accorded  in-principle  clearance.  At  the  cost  of repetition,  the  State of Karnataka has averred that  there has  been  no deviation of the decision of the tribunal  and the  Almatti  Dam  has been planned for utilisation  of  the allocated  water  by the tribunal in favour of the State  of Karnataka.  According to this defendant, the State of Andhra Pradesh  being  the  last riparian State  is  receipient  of abundant  waters  comprising the un-utilised share of  upper riparian  States in addition to its allocations made in  its own  favour  and,  therefore,  no case  has  been  made  out establishing  any  injurious hardships so as to entitle  the State  to  get  a discretionary relief of  injunction.   The defendant  also averred that the plaintiff has not placed an iota   of   evidence  based  of  any   acceptable   material establishing the alleged loss of drinking water, food grains or  unemployment  and  all such allegations  are  falacious. According to the State of Karnataka, all the revised schemes at  all  relevant  times  had   been  submitted  before  the Appropriate  Authorities  of  the   Central  Government  and projects  are  being taken up only after  getting  clearance from  the competent authorities.  It has been averred at the end  that  the basis of the suit being that  the  allocation made  by  the  tribunal is project-wise and the  said  basis being  in-correct,  the  plaintiff is not  entitled  to  the reliefs  prayed for by filing the suit under Article 131  of the Constitution.

     Union  of  India   defendant no.  2  in  its  written statement  raised  the  preliminary   objection  about   the maintainability  of the suit on the ground that the suit  as framed  is  not maintainable in view of Article 262  of  the Constitution  of  India read with Section 11 of  Inter-State Water Disputes Act, 1956.  Generally denying the allegations made  in  the  plaint the Union of India took  the  positive stand  that  Karnataka multipurpose project Stage  II  which envisages   generation   of  Hydropower   is   still   under examination  and the project report provides for  Hydropower generation by storing water at the addition of storage space from  519.6  M to 524.256 M and it has been  indicated  that after  generating  the Hydropower the tail race water  after power  generation will be let into the river Krishna and the utilisation  of river Krishna water under UKP will be within

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173  TMC.   With regard to the plaint allegation that  under the  Award  Tribunal  has allocated water  projectwise,  the Union  of  India submitted that the allocation of  water  is gross  allocation  and not the project wise allocation.   It has  been  further  stated  that the State  is  entitled  to utilise  the gross amount of water for any such projects and so  long  as  utilisation by Karnataka is within  173TMC  in upper  Krishna  project,  there is no violation  of  Krishna Water  Disputes Tribunal Award.  It has also been  indicated that  Stage I of UKP has been approved and Stage II is under various  examination  and not yet been approved.  So far  as the  plaint  case  that Central Government  is  required  to consult  other States while clearing projects of one  State, it  has  been  averred that there is no  obligation  on  the Central  Government  to  consult   said  party  State  while clearing projects of other party State of Krishna basin when they  are within the framework of KWDT Award.  The financial assistance by Central Government is being given to the State in the shape of grants and loans.  So far as Almatti project in particular is concerned the stand of the Union Government in  its  written statement is that UKP stage I  has  already been approved and it was approved by the Planning Commission on  22nd April, 1978 under which the construction of Almatti Dam  to  a partial height corresponding to FRL 512.2 m  with solid  spillway crest level at EL 500 m and with 12.2 m high gates.   But  in  view  of   the  technical  difficulty   of dismentaling  and reerecting the radial gates of such height in  Stage  II,  the Government of Karnataka  desired  to  do construction  of  Almatti dam with full section as  required for ultimate stage and solid crest upto 512 m in UKP Stage I itself.  The revised proposal of Government of Karnataka was examined  by the Central Water Commission and considered  by Technical  Appraisal  Committee in its 20th Meeting held  on 12.5.1982.   The  TAC recommended that the clearance of  the Government  of  India for raising Almatti Dam in full  width upto  EL  500 m may be accorded subject to  the  observation that  revised estimate be submitted by the State Government. Subsequently,  the  State Government came up  with  modified proposals  with Almatti spillway crest at EL 509 m and  15.2 high  radial  gates with a view to reduce submergence  under Stage  I of the project.  This revised stage I estimate  got the  approval  of  the  Planning  Commission  on  24.4.1990. According   to   the  written   statement  of  the   Central Government,  Stage I of UKP was duly approved by the Central Water  Commission as well as by the Planning Commission with certain  modifications enabling the State Government to take upto  Stage II at later stage.  It has further been  averred that  the  Karnataka  Government has revised  Upper  Krishna project Stage II (1993) as UKP Stage II Multipurpose project (1996)  and that project is under examination.  The State of Andhra  Pradesh has sent their comments to the said  project and  various appraising agencies are checking the design  of gates from the structural aspect.  But no final approval has been  given.  The allegation of State of Andhra Pradesh that Central Government adopted partisan attitude has been denied and  on the other hand it has been stated that the State  of Andhra   Pradesh  has  not  been   able  to  prove  that  by constructing  Almatti  Dam  the State of Karnataka  will  be utilising  more water than allocated by KWDT.  It is in this context  the  Central Government has also averred  that  the State of Andhra Pradesh is constructing Telugu Ganga Project which is an unapproved Project.  So far as the allegation in the  plaint  that  State  of Andhra  Pradesh  had  not  been consulted  before  the Department of Environment and  Forest cleared  the Upper Krishna Project, it has been averred that

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there  is  no  obligation  on  the  part  of  Department  of Environment  and  Forest, Government of India to obtain  the views of State of Andhra Pradesh while clearing of the Upper Krishna  Project  of State of Karnataka.  According  to  the Central  Government the Award of the Tribunal is binding  on the  parties and the plaintiff has not been able to show any violation of the decision of the Tribunal.

     On behalf of Ministry of Power who is Defendant No.  2 (C) a separate written statement has been filed giving reply to  the averments made in paragraphs 56 and 57 of the plaint and it has been indicated that the expression In Principle clearance  given  by  the Central Electricity  Authority  to Upper  Krishna  Project  at Almatti does not  tantamount  to sanction   of  the  project  by  the  competent   authority. According  to  the said defendant while  appraising  various proposals  for  power project received from the  States  due care   is  taken  by  the   Ministry  of  Power  for  proper evaluation.

     The  State  of  Maharashtra  Defendant No.3  filed  a written  statement  fully supporting the stand taken by  the State  of  Karnataka and it has been averred in the  written statement  that the complaint of State of A.P.  proceeds  on certain  assumptions which are not correct.  With regard  to the   main  question,  namely,   whether  there  was  enbloc allocation or project wise allocation the defendant State of Maharashtra  categorically avers that the Tribunal equitably allocated  the waters of the river Krishna by allocating the quantities  enbloc  or  in mass quantities.  Though  it  has discussed  individual  projects of each State only  for  the limited  purpose  of  assessing the needs of each  State  in accordance  with  the principles of equitable  distribution. It  has  further been stated in the said  written  statement that  apart  from the restrictions expressly stated  in  the final  order of the Tribunal which has been notified by  the Central  Government no other restrictions have been  imposed on  the  method  of use by each State within  the  allocated share  of  the State concerned and Tribunal has not put  any restriction  on  the storage by each State and according  to Clause  VII of the final order the storage of water by  each State  would not be considered as use of water by the  State concerned.  In the very written statement several paragraphs of  the Report of the Tribunal have been quoted to  indicate that  the ultimate allocation was enbloc and not projectwise and  further  there  has been no  restriction  or  restraint placed  by  the  Tribunal with regard to storage,  size  and height  of  dams in the Krishna Basin.  The State  has  also referred   to  the  subsequent   conduct,  that  after   the submission  of  original  report  and the  decision  of  the Tribunal   the   State  of   Andhra  Pradesh  infact   filed clarification note 9 and 10 on 7.5.1975 and 8.5.1975 raising objection to the storage but ultimately withdrew those notes and did not want any clarification on the subject of storage which fortifies stand of the State of Maharashtra that there is  no  restriction  on any State in respect of  storage  of water within the Krishna Basin so long as it does not exceed the  enbloc allocation given by the Tribunal.  According  to this  defendant  the relief sought for in the  plaint  would tantamount  to a complete re-writing of the decision of  the Tribunal  which  would be outside the scope of a suit  under Article  131 of the Constitution.  After refuting the  stand taken  by  the  State  of Andhra Pradesh in  the  plaint  in paragraph  16  of  the  written   statement  the  State   of Maharashtra submitted , that the plaintiff does not deserve

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to be granted any of the prayers prayed for in this para and the  Suit should be dismissed with costs.  Having filed the aforesaid   written  statement  on   7th  July,  1997  fully supporting  the  stand taken by the State of  Karnataka  and seeking  relief  of the dismissal of the suit filed  by  the State  of Andhra Pradesh an additional written statement was filed by the said State on 9th April, 1999 giving a clear go bye  to the earlier wirtten statement and taking a new stand in  relation to the alleged construction of Almatti Dam with FRL  RL  524.56  m.   by the State of  Karnataka.   In  this additional  written  statement it has been averred  that  by raising  the  dam height at Almatti, there is likelihood  of enormous  damage to private and public properties and  works and   structures  including   archeological  structures  and pilgrimage  places in the State of Maharashtra.  There would also  be disruption of communications, enhanced distress and damages  during  floods each year due to sedimentation.   It has  been further averred that the details of the magnitude, duration  and  extent of submergence were not clear  to  the State  of  Maharashtra as the said submergence has not  been discussed  by the Tribunal itself but on getting  subsequent documents  from  the State of Karnataka and on  ascertaining the  effect  of  the proposed Almatti Dam at  524.256  m  it appears  that there would be large scale submergence of area in  the State of Maharashtra and no State should be  allowed to  have its project which will have deleterious and adverse effect  on the other State.  It is in this connection in the additional  written  statement it has been  further  averred that  the  said  State  of Karnataka has  not  obtained  the relevant  clearance  from different environment  authorities and forest authorities and even the Central Water Commission has  not  given the clearance and, therefore, the  State  of Karnataka  should  be injuncted from raising the dam  height from  519.00 m.  to 524.256 m.  until and unless the  actual area  likely to be submerged is made known after due survey. In  the written statement the adverse effect of  submergence have  been indicated in different paragraphs and  ultimately it  has  been prayed that the prayer h, i & j sought for  by the  plaintiff so far as it relates to Almatti Dam under UKP should  be allowed, namely, the State of Karnataka should be injuncted.   Though  the  State  of  Maharashtra  filed  the aforesaid  additional  written  statement taking  the  stand totally contrary to the stand taken earlier but no order had been  passed on the same and it is only when the hearing  of this  suit  began  the Court passed an  order  that  without prejudice  to  the contention of the State of Karnataka  the said   additional   written   statement    be   taken   into consideration  on the basis of which an additional issue  is also required to be framed.

     On the pleadings of the parties, 22 issues were framed which are extracted hereinbelow:-

     1.Whether  the  State  of Karnataka has  violated  the binding  decisions dated 24.12.1973 and 27.05.1976  rendered by  the KWDT by executing the projects mentioned in para 66, 68n & 69 of the Plaint?  (A.P./KAR) 2.Has this Honble Court jurisdiction  to  entertain  and try this suit?   (MAH.)  3. Does  the  Plaintiff  prove that the allocation  of  Krishna Waters  by  the  KWDT in its Final Order  are  specific  for projects  and  not  enbloc as contended  by  the  Defendant? (MAH.)  4.Does the Plaintiff prove that the upper States are not  entitled to construct project without reference to  and consent of the other States?  (MAH.) 5.Whether the Plaintiff is  entitled to a declaration that all the projects executed

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and/or which are in the process of execution by the State of Karnataka,  and  not in conformity with or in conflict  with the  Decisions  of  the KWDT are illegal  and  unauthorised? (A.P.)  6.Is not the Union Government duty bound to  consult all    the   riparian    States    before   according    any approval/sanction/clearance  in principle clearances to  any schemes,  projects  proposed/undertaken,  by   any  of   the riparian  States  on the Inter-State river Krishna?   (A.P.) 7.Whether the sanctions and the approvals granted by the 2nd Defendant  to  the  State  of  Karnataka  for  the  projects referred  to  in Issue I, without the prior  concurrence  of State  of  Andhra  Pradesh are valid and  binding  upon  the Plaintiff?(A.P.)  8.Whether  sanctions   and  the  approvals granted  by  the  2nd defendant are liable to  be  reviewed, reconsidered  afresh,  after obtaining the views thereon  of the  other  riparian  States?(A.P.).    9.(a)  Whether   the construction  of  the  Almatti dam with a FRL of  524.256  m together  with all other projects executed, in progress  and contemplated  by  Karnataka would enable it to utilise  more water  than  allocated by the Tribunal?  (A.P.) (b)  Whether Karnataka could be permitted to proceed with construction of such a dam without the consent of other riparian States, and without  the  approval  of the Central  Government?   (A.P.) 10.Whether  the  Plaintiff  proves that  the  reservoir  and irrigation  canals as alleged in paragraph 68 of the  Plaint are  oversized.  If so, are they contrary to the Decision of the  Tribunal?   (A.P.)  11.Whether the Plaintiff  State  of Andhra  Pradesh  proves specific allocation/utilisation  for UKP  and  canals  as alleged?  (A.P.)  12.Whether  State  of Karnataka  is  entitled to provide for any irrigation  under Almatti canals and other new projects, when no allocation is made under the decisions of the KWDT?  (A.P.) 13.Whether the Defendant  State  of Karnataka is entitled  unilaterally  to reallocate/readjust the allocation/utilisation under the UKP or  any  other  project?  Is concurrence of  other  riparian States  necessary?  (A.P.) 14.Whether the Union of India can permit  and/or  is  justified  in permitting  the  State  of Karnataka  to  proceed  with various projects which  are  in violation  of  the  decisions   rendered  by  KWDT?   (A.P.) 15.Whether Upper Krishna Stage-II Multipurpose Project could be  executed  without the environmental clearance under  the Environment (Protection)Act,1986 and the Notification issued by  the Central Government in 1994 in exercise of its  power under  the  said  Act and the Rules  made  thereunder  which mandatorily  requires  various analysis including dam  break analysis?(A.P.)   16.Whether  the  acts  of  the  State   of Karnataka  adversely  effect or would adversely  effect  the State   of   Andhra   Pradesh,  and   if   so,   with   what consequences?(KAR)  17.Whether  Hippargi was always part  of the UKP and on that basis the KWDT awarded 5 TMC utilisation thereunder ?(A.P.) 18.Whether the utilisation of water under Chikkapada Salagi, Heggur and 5 other barrages is not 33 TMC as  assessed  by the Plaintiff State?(A.P.)  19.Whether  the cumulative  utilisations  in the K2 sub-basin is 173 TMC  as claimed  by the State of Karnataka or 428.75 TMC as assessed by  the  Plaintiff  State?(A.P.)  20.Whether  the  State  of Karnataka  has  violated the KWDT award by  proceeding  with several  new projects in the sub-basin such as K-6, K-8  and K-  9  in  respect  of  which  restrictions  in  quantum  of utilisation  have been imposed in the final decision of  the Tribunal?  (A.P.) 21.Whether utilisation under Almatti would be  of the order of 91 TMC as claimed in para 66(iii) of the plaint?(A.P.)  22.To  what reliefs if any, the plaintiff  is entitled  to?(A.P.)  The  additional issue framed  as  9(C), because  of the additional written statement filed on behalf

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of  defendant no.3 is to the effect, Whether Karnataka  can be  permitted  to  raise the storage level at  Almatti  dam, above  RL 509.16 meters in view of the likely submergence of territories in Maharashtra.

     Before  we take up the different issues framed by  the Court  and  answer the same in the light of the  contentions raised  as well as with reference to the documents filed  in support of the same it would be appropriate for us to notice the  order of this Court dated 30th September, 1997 and  its effect on the ultimate decision of the suit itself

     On  30th  of  September, 1997, this Court  passed  the following Order:

     Sh.   F.S.   Nariman, learned Senior counsel for  the State   of   Karnataka-defendant  No.   1  and   Sh.    T.R. Andhyarjuna,  learned  Solicitor General appearing  for  the State  of  Maharashtra-  defendant No.  3  referred  to  the prayer  (a) (at page 72 of the Paper book) and submits  that both  these States namely, Karnataka and Maharashtra  accept this  claim of the plaint of the State of Andhra Pradesh and agree  to the grant of relief in the suit in terms of prayer in   clause   (a)  as  under:    (a)   declare   that   the report/decision   dated   24.12.1973     and   the   further report/decision  dated  27.5.1976  of   the  Krishna  Waters Dispute  Tribunal (KWDT) in their entirety are binding  upon the  three  riparian  States of Maharashtra,  Karnataka  and Andhra Pradesh and also the Union of India.  In other words, there  is  no controversy in the Suit between the  plaintiff and  Defendants 1 and 3 i.e.  Andhra Pradesh, Karnataka  and Maharashtra  and  that the report/decision dated  24.12.1973 and  the  further  report/decision dated  27.5.1976  of  the Krishna Water Disputes Tribunal (KWDT) in their entirety are binding  upon  the  three riparian  States  of  Maharashtra, Karnataka  and Andhra Pradesh.  There is thus no controversy between  the  three  riparian States to  this  extent.   The learned  Attorney  General appearing for the Union of  India submits  that  he is unable to make any statement  today  in this  behalf  as he has to seek instructions in the  matter. This  statement  made by the learned counsel for  the  three riparian  States  is  placed on record to  indicate  that  a partial  decree to this extent on the basis of admission  of the  defendants (1 and 3, Karnataka and Maharashtra) can  be passed and therefore, there is no need to frame any issue to cover this aspect of the Suit.

     In  course  of hearing of the suit arguments had  been advanced on behalf of the State of Karnataka by Mr.  Nariman that  the aforesaid partial decree in terms of prayer a of OS  No.   2 of 1997 unequivocally indicates that the  entire report  i.e.   24.12.1973  and   the  further  report  dated 27.5.1976  in entirety must be held to be binding upon three riparian  States,  and that being the position, there is  no logic  on the part of the State of Andhra Pradesh to  resist the  prayer of Plaintiff No.  1 in OS No.  1 of 1997 to make Scheme  B binding on parties which Scheme obviously form a part  of  the report and the further report.  Mr.   Ganguli, learned  senior  counsel appearing for the State  of  Andhra Pradesh  on the other hand contended, that a prayer made  by the  plaintiff  has to be understood in the context  of  the averments  made  in the plaint itself and not bereft of  the same.   According to Mr.  Ganguli prayer a in the case  in hand,  if  read  in the light of the averments made  in  the plaint  itself  it would only mean that the plaintiff  State

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having  averred  in  the plaint that the Tribunal  had  made projectwise  allocation which should be read into the  final decision  of  the  Tribunal which has been notified  in  the Official  Gazette by the Government of India and, therefore, the  State of Karnataka is not entitled to raise the  height of  the Dam at Almatti to 524.256 meters whereby it would be able  to  store  more  than  200   TMC  of  water  with  the utilisation  capacity  of  about  400 TMC.  It  is  in  this context  Mr.   Ganguli placed before us paragraphs 3.1,  3.2 and 3.3 of the written statement to indicate to us as to how the  said defendant understood the prayer a in the plaint. Mr.   Ganguli  ultimately urged that the final order of  the Tribunal  can  be equated with a decree in a civil suit  and decree  must be consistent with the judgment and, therefore, applying  the  said analogy the final order requires  to  be read  in the light of the adjudication made by the  Tribunal in the final report.  The learned counsel placed reliance on the   following  decisions  in   support  of  the  aforesaid contentions:-

     (i)  Kalikrishna Tagore vs.  The Secretary of State LR  15 Indian Appeals 186 at 192.3 (ii) Law Report 25 Indian Appeals at 107-08 (iii) 1913 Vol.  25 Madras Law Journal 24.

     At  the outset we are unable to accept the  contention of  Mr.  Ganguli that the decision of the Tribunal which  is ultimately  notified under Section 6 of the Act can be  held to  be a decree of a suit and the report being the  judgment and,  therefore, the decided case laws on which reliance has been  placed  has  no application at all.   The  inter-State Water  Disputes  Act  having been framed by  the  Parliament under  Article 262 of the Constitution is a complete Act  by itself  and  the  nature and character of  a  decision  made thereunder  has  to  be  understood  in  the  light  of  the provisions  of the very Act itself.  A dispute or difference between two or more State Governments having arisen which is a  water dispute under Section 2(C) of the Act and complaint to  that  effect  being made to the Union  Government  under Section 3 of the said Act the Central Government constitutes a  Water  Disputes  Tribunal  for the  adjudication  of  the dispute  in  question,  once it forms the opinion  that  the dispute  cannot  be settled by negotiations.   The  Tribunal thus  constituted,  is required to investigate  the  matters referred  to it and then forward to the Central Government a report  setting out the facts as found by him and giving its decision  on it as provided under Sub-Section (2) of Section 5  of  the  Act.  On consideration of such decision  of  the Tribunal  if the Central Government or any State  Government is  of  the opinion that the decision in  question  requires explanation  or  that guidance is needed upon any point  not originally referred to the Tribunal then within three months from  the date of the decision, reference can be made to the Tribunal  for  further consideration and the  said  Tribunal then  forwards  to the Central Government a  further  report giving  such  explanation  or  guidance  as  it  deems  fit. Thereby the original decision of the Tribunal is modified to the  extent  indicated in the further decision  as  provided under  Section 5(3) of the Act.  Under Section 6 of the  Act the Central Government is duty bound to publish the decision of  the Tribunal in the Official Gazette whereafter the said decision  becomes  final and binding on the parties  to  the dispute  and  has  to  be given effect  to,  by  them.   The language  of  the  provisions  of Section  6  is  clear  and unambiguous  and unequivocally indicates that it is only the decision  of the Tribunal which is required to be  published

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in  the  Official  Gazette  and  on  such  publication  that decision  becomes  final and binding on the parties.  It  is not  required  that the report containing the  arguments  or basis  for  the  ultimate decision is also  required  to  be notified  so  as to make that binding on the parties.   This being  the  position,  it  is difficult  to  appreciate  the contention of Mr.  Ganguli that the decision of the Tribunal as  notified,  is in fact a decree of a civil suit and  that decree  has to be understood in the light of the judgment of the  suit.   We accordingly are not persuaded to accept  the submission  of  Mr.  Ganguli on this point but, at the  same time  we cannot accept the argument of Mr.  Nariman that the order of this Court dated 30th September, 1997 passed in the suit  in  terms  of prayer a must be held to mean  that  a decree  is to be drawn up in OS 2 of 1997 making the  entire report  and the further report binding on the parties.  When a  prayer  is made in the plaint the said prayer has  to  be understood  in the light of the assertion of facts on  which the  prayer has been made.  The defendant State of Karnataka understood the prayer on that basis as would appear from the averments  made in the written statement of defendant no.  1 in  paragraphs  3.1, 3.2 and 3.3.  The aforesaid prayer  had been  made  for  the   relief  that  notwithstanding  enbloc allocation  made in the final order of the Tribunal which is the decision of the Tribunal but the very basis to arrive at that  decision being the projectwise allocation contained in the report the said projectwise allocation must be read into the   enbloc  allocation  and,   therefore,  there  must  be restriction on the part of the State of Karnataka not to use more  water  in  Upper Krishna Project  than  the  allocated quantity  of  160  TMC.  Thus read the order of  this  Court dated 30th September, 1997, cannot be construed to mean that a  decree has to be passed making the entire report as  well as  the  further  report  of the  Tribunal  binding  on  the parties.   So  far as the question whether  allocation  made enbloc  or  projectwise  the same has  been  answered  while discussing  issues nos.  1, 3 and 5 and in this view of  the matter the earlier order dated 30th September, 1997 is of no consequence in disposing of the suit in question.

     ISSUE  Nos.  1, 3 and 5:  Though, there are as many as 22  issues,  which  have been framed and necessarily  to  be answered in the suit, but in course of arguments advanced by Mr.   Ganguli, the learned senior counsel, appearing for the State  of  Andhra  Pradesh, the entire emphasis was  on  the height  of  Almatti  Dam  Stage-II  at  524.256  meters,  as proposed  by  the State of Karnataka and as it appears  from various  project reports.  In view of the arguments advanced by  the  counsel  for  the   parties,  these  three   issues essentially form the bone of contention.  It is necessary to be stated that too many issues have been framed by the three different States and Court has also permitted such issues to be struck and most of the issues over-lap one another and in fact  have no bearing in relation to the prayer made by  the plaintiff.   But instead of re-framing the issues, arguments having  been  advanced  by the counsel for the  parties,  we would  deal with each of them, but with specific emphasis on the  vital issues.  So far as the three issues with which we are  concerned at the moment, when read with the  paragraphs of  the  plaint, dealing with the same, it appears that  the plaintiff  Andhra Pradesh has made out a case in the  plaint that  under Scheme A which is the decision of the tribunal and  which has been notified by the Central Government under Section  6  of  the Inter-State Water Disputes  Act,  though

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there  has  been  allocation of water enbloc  but  on  going through  the  report itself and the very basis on which  the mass  allocation has been quantified, it would indicate that project-wise allocation must be read into the so-called mass allocation.   This  being  the position,  in  Upper  Krishna Project,  the  tribunal  having allocated only  160  TMC  of water,  construction  of Almatti Dam to a height of  524.256 meters  itself constitutes an infraction of the decision  of the  tribunal, and, therefore, the Court should injunct  the State  of Karnataka from constructing a dam at Almatti up to the  height  of 524.256 meters.  The stand of the  State  of Karnataka  in  the  written statement filed as well  as  the stand  of  Union Government and State of Maharashtra in  its original  written statement filed however is that, there has been  an enbloc allocation by the tribunal and consequently, there has been no fetter on any State to utilise water up to a  limited  quantity  in any of its  project,  except  those mentioned in the order of the tribunal itself and that being the  position,  the  plaintiff would not be entitled  to  an order  of  injunction  in relation to  the  construction  of Almatti  Dam to a height of 524.256 meters.  Before we focus our  attention to the evidence on record in answering  these three  issues,  in  the light of arguments advanced  by  the counsel  for  the  parties, it must be borne  in  mind  that injunction  being  a discretionary remedy, a Court  may  not grant  an  order  of  injunction,  even  if  all  the  three necessary  ingredients are established and those ingredients are  prima  facie case of infraction of legal  rights,  such infraction  causes  irreparable  loss   and  injury  to  the plaintiff and the injury is of such nature that it cannot be compensated  by  way of damages.  In the case in hand,  when the  plaintiff  has  prayed  for   an  order  of   mandatory injunction   to   injunct  the   State  of  Karnataka   from constructing  the  dam  at Almatti to a  height  of  524.256 meters  and makes out a case of infringement of legal rights of the State of Andhra Pradesh, flowing from the decision of the  Krishna  Water  Disputes Tribunal, which  decision  has become  final  and  binding on being notified by  the  Union Government  under  Section  6,  what   is  required  to   be established  is  that  in fact in the said decision  of  the tribunal,  there  has  been  a  project-wise  allocation  in respect of Upper Krishna Project and if this is established, then  the further fact required to be established is whether by  construction  of Almatti Dam up to a height  of  524.256 meters,  there has been any infraction of the said  decision of  the  tribunal  which has caused irreparable  injury  and damage to the lower riparian State of Andhra Pradesh and the said  damage cannot be compensated by way of damages.  Since the  plaintiff-State  has  to establish  all  the  aforesaid requirements, so that an order of injunction, as prayed for, can  be  granted, let us examine the very  first  ingredient namely whether under the decision of the tribunal, there has at  all  been a project-wise allocation as contended by  Mr. Ganguli,  appearing  for the State of Andhra Pradesh or  the allocation  was  enbloc,  as   contended  by  Mr.   Nariman, appearing  for the State of Karnataka and reiterated by  Mr. Salve,  the learned Solicitor General and Mr.  Andhyarujina, appearing  for the State of Maharashtra.  While deciding the Original  Suit  No.   1  of  1997, filed  by  the  State  of Karnataka,  negativing  the contention of the said State  to the  effect that Scheme B evolved by the tribunal, whether forms  a  decision of the tribunal or not, we  have  already recorded  the  finding that Scheme B cannot be held to  be the  decision  of the tribunal inasmuch as it is  only  that order of the tribunal which conclusively decides the dispute

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referred to, and is capable of being implemented on its own, can  be held to be a decision of the tribunal under  Section 5(2)  of the Act.  In fact the plaintiff in the present suit also  bases  its  case on the Scheme A and  contends  that there  has been an infraction of the said Scheme A by  the defendant-State of Karnataka.  If we examine the Final Order of  the  tribunal contained in Chapter XVI of  the  Original Report  Exhibit  PK1  as well as the  modified  order  after answering  the  application  for   clarifications  made   by different States, in the Further Report of December, 1976 in Chapter  VII  of Exh.  PK2, which has been notified  by  the Central Government under Section 6 of the Act in the Gazette of  India dated 31st of May, 1976, it is crystal clear  that the  allocation  made, has been enbloc and not  project-wise and,  therefore, there is no fetter on any of the States  in utilising  water  in  any  project   to  a  limited  extent, excepting  those  contained in Clause (IX) of the  decision. The  allocation  made  to the three States  of  Maharashtra, Karnataka  and  Andhra Pradesh for their beneficial use  has been  provided in Clause (V) and subject to such  conditions and restrictions as are mentioned in the subsequent clauses. Clause  (V)  of  the  decision   which  in  fact  makes  the allocation, may be quoted herein below in extenso:

     Clause  V (A) The State of Maharashtra shall not  use in  any  water year more than the quantity of water  of  the river  Krishna  specified hereunder:- (i) as from the  water year  commencing on the 1st June next after the date of  the publication  of the decision of the Tribunal in the Official Gazette  upto the water year 1982-83 560 TMC.  (ii) as  from the  water year 1983-84 up to the water year 1989-90 560 TMC plus  a  quantity of water equivalent to 10 per cent of  the excess  of  the  average  of  the  annual  utilisations  for irrigation in the Krishna river basin during the water years 1975-76,  1976-77 and 1977-78 from its own projects using  3 TMC  or  more  annually  over   the  utilisations  for  such irrigation  in  the water year 1968-69 from  such  projects. (iii)  as  from the water year 1990-91 up to the water  year 1997-98  560  TMC plus a quantity of water equivalent to  10 per  cent  of  the  excess  of the  average  of  the  annual utilisations  for  irrigation  in the  Krishna  river  basin during the water years 1982-83, 1983-84 and 1984-85 from its own  projects  using  3  TMC  or  more  annually  over   the utilisations  for such irrigation in the water year  1968-69 from  such  projects.  (iv) as from the water  year  1998-99 onwards  560  TMC plus a quantity of water equivalent to  10 per  cent  of  the  excess  of the  average  of  the  annual utilisations  for  irrigation  in the  Krishna  river  basin during the water years 1990-91, 1991-92 and 1992-93 from its own  projects  using  3  TMC  or  more  annually  over   the utilisations  for such irrigation in the water year  1968-69 from  such projects.  (B) The State of Karanataka shall  not use in any water year more than the quantity of water of the river  Krishna  specified hereunder:- (i) as from the  water year  commencing on the 1st June next after the date of  the publication  of the decision of the Tribunal in the Official Gazette  up  to the water year 1982-83 700 TMC (ii) as  from the  water year 1983-84 up to the water year 1989-90 700 TMC plus  a  quantity of water equivalent to 10 per cent of  the excess  of  the  average  of  the  annual  utilisations  for irrigation in the Krishna river basin during the water years 1975-76,  1976-77 and 1977-78 from its own projects using  3 TMC  or  more  annually  over   the  utilisations  for  such irrigation  in  the water year 1968-69 from  such  projects. (iii)  as  from the water year 1990-91 up to the water  year

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1997-98  700  TMC plus a quantity of water equivalent to  10 per  cent  of  the  excess  of the  average  of  the  annual utilisations  for  irrigation  in the  Krishna  river  basin during the water years 1982-83, 1983-84 and 1984-85 from its own  projects  using  3  TMC  or  more  annually  over   the utilisations  for such irrigation in the water year  1968-69 from  such  projects.   (iv)as from the water  year  1998-99 onwards  700  TMC plus a quantity of water equivalent to  10 per  cent  of  the  excess  of the  average  of  the  annual utilisations  for  irrigation  in the  Krishna  river  basin during the water years 1990-91, 1991-92 and 1992-93 from its own  projects  using  3  TMC  or  more  annually  over   the utilisations  for such irrigation in the water year  1968-69 from such projects.  (C) The State of Andhra Pradesh will be at liberty to use in any water year the remaining water that may be flowing in the river Krishna but thereby it shall not acquire any right whatsoever to use in any water year nor be deemed to have been allocated in any water year water of the river   Krishna   in  excess  of  the   quantity   specified hereunder:- (i) as from the water year commencing on the 1st June  next after the date of the publication of the decision of the Tribunal in the Official Gazette up to the water year 1982-83.   800 TMC (ii) as from the water year 1983-84 up to the  water  year 1989-90.  800 TMC plus a quantity of  water equivalent  to  10 per cent of the excess of the average  of the  annual utilisations for irrigation in the Krishna river basin  during  the water years 1990-91, 1991-92 and  1992-93 from  its own projects using 3 TMC or more annually over the utilisations  for such irrigation in the water year  1968-69 from such projects.  (iii) as from the water year 1990-91 up to  the water year 1997-98 800 TMC plus a quantity of  water equivalent  to  10 per cent of the excess of the average  of the  annual utilisations for irrigation in the Krishna river basin  during  the water years 1982-83, 1983-84 and  1984-85 from  its own projects using 3 TMC or more annually over the utilisations  for such irrigation in the water year  1968-69 from  such  projects.  (iv) as from the water  year  1998-99 onwards  800  TMC plus a quantity of water equivalent to  10 per  cent  of  the  excess  of the  average  of  the  annual utilisations  for  irrigation  in the  Krishna  river  basin during the water years 1990-91, 1991-92 and 1992-93 from its own  projects  using  3  TMC  or  more  annually  over   the utilisations  for such irrigation in the water year  1968-69 from  such  projects.  (D) For the limited purpose  of  this Clause,  it  is  declared that :- (i) the  utilisations  for irrigation  in  the  Krishna river basin in the  water  year 1968-69  from projects using 3 TMC or more annually were  as follows:-  From projects of the State of Maharashtra-  61.45 TMC From projects of the State of Karnataka- 176.05 TMC From projects  of  the State of Andhra Pradesh- 170.00  TMC  (ii) annual  utilisations  for  irrigation in the  Krishna  river basin  in  each  water  year after  this  Order  comes  into operation  from the project of any State using 3 TMC or more annually  shall  be  computed on the basis  of  the  records prepared  and  maintained by that State under  Clause  XIII. (iii) evaporation losses from reservoirs of projects using 3 TMC  or more annually shall be excluded in computing the  10 per cent figure of the average annual utilisations mentioned in  sub-Clauses A(ii), A(iii), A(iv), B(ii), B(iii),  B(iv), C(ii), C(iii) and C(iv) of this clause.

     The  aforesaid  Clause  V, no doubt is in  a  negative form,  prohibiting  the  State of Maharashtra and  State  of Karnataka  from using in any water year more than the  water that  has been allotted in their favour respectively but  by

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no  stretch  of imagination, any restriction can be said  to have  been put on any of the States in the aforesaid  Clause V,  so  long  as  they do not use  more  than  the  quantity allotted  in their favour in any water year.  In other words under  Clause V of the decision, the State of Maharashtra is entitled  to  use  up to 560 TMC in any water year  and  the State  of  Karnataka similarly is entitled to use up to  700 TMC in any water year.  The language used by the tribunal in formulating   Clause  V  of  the   decision  is  clear   and unambiguous  and  as such it is difficult for the  Court  to read  into  it any restrictions as submitted by the  learned senior  counsel, appearing for the State of Andhra  Pradesh. We  may mention at this stage, that the original report  and the  decision of 1973 was marked as Exhibit PK-1 in OS  1/97 and the further repot and the decision of 1976 was marked as Exhibit PK-2 in OS 1/97, and those two documents having been referred  to by the parties in course of arguments as PK-  1 and  PK-2.   We have also in judgment referred as  PK-1  and PK-2 which were exhibited as such in OS 1/97.

     Mr.   Ganguli,  the  learned  senior  counsel  however contended  before  us that before the tribunal, each of  the three  riparian  States  claimed  water  for  their  various projects,  covering utilisation to the order of 4269.33 TMC, as  is  apparent  from  Exhibit PKI itself  and  then  at  a subsequent stage of the proceedings before the tribunal, all the  party  States  agreed that 75% dependable  flow  up  to Vijayawada  in  the  river Krishna is 2060  TMC,  which  is, therefore  much  less than the total demand made by each  of the  States, amounting to 4269.33 TMC.  The learned  counsel further  urged  that  all the three States entered  into  an agreement  on  7.5.1971, indicating therein that 20  of  the projects  in  Maharashtra, 13 projects in Karnataka  and  17 projects  in  Andhra  Pradesh should be  protected  and  the parties also agreed to the specified quantity of utilisation of  water in respect of each of the projects which could  be treated as protected utilisation and total of such protected utilisation  came  to  751.20 TMC, as is apparent  from  the Original  Report Exhibit PKI.  It is the further  contention that  since  in respect of one project in Maharashtra,  five projects  in Karnataka and five projects in Andhra  Pradesh, the  parties could not agree to the quantity of  utilisation which  should  be protected and all the States  invited  the tribunal to decide the extent of utilisation to be protected in respect of those 11 projects and the tribunal adjudicated the  additional  utilisation to the extent of 714.91 TMC  in respect  of  9  out of the 11 projects and  thus  the  total protected  utilisation  out  of the dependable flow  at  75% dependability  worked  out at 1693.36 TMC , which of  course includes  227.25  TMC  on minor  irrigations.   Having  thus arrived  at  the  figure  of   1693.36  TMC  for   protected utilisation, the balance quantity out of the dependable flow to  the extent of 366.64 TMC was further distributed by  the tribunal  to  the extent of 50.84 TMC to Andhra Pradesh  for Srisailam   reservoir  and  Jurala   Project.   Out  of  the remaining  315.80 TMC, taking into consideration all germane factors,  the  tribunal allocated 125.35 TMC to  Maharashtra and  190.45  TMC to Karnataka.  Mr.  Ganguli  contends  that while  making  these  allocations, so far as  Upper  Krishna Project in the State of Karnataka is concerned, the tribunal merely  permitted  utilisation of only 52 TMC in  the  Right Bank  Canal  of  Narayanpur  in addition  to  the  protected utilisation  of  103 TMC already granted in respect  of  the Left  Bank Canal under the Narayanpur Canal and,  therefore, the  total  worked  out  at 155 TMC and there  had  been  no

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allocation  made  by the tribunal so far as Almatti  Dam  is concerned.   At  a  later stage when in its  Further  Report Exhibit  PK2,  the tribunal allocated additional 5  TMC  for utilisation  under  Hippargi  Project,   the  conclusion  is irresistible  that  in Upper Krishna Projects  in  Hippargi, Almatti  and  Narayanpur,  a total quantity of 160  TMC  was allocated  and  this  must be read into the Final  Order  in Clause  (V), though not specifically mentioned therein.   It is  in  this  connection, Mr.  Ganguli took us  through  the different pages of Exhibit PKI as well as the plaint and the written  statement  of the State of Karnataka.  But  as  has been  stated earlier, if the decision of the tribunal is its Final  Order,  as  notified  by the  Central  Government  in exercise of power under Section 6 of the Act, we really fail to  understand,  how the aforesaid limitations can  be  read into the said decision, particularly, when Clause (V) of the decision is clear and there is no ambiguity in the same.  It is  undoubtedly true that while considering the question  of extent  of  allocation  of  water in  favour  of  the  three riparian   States   out  of  2060   TMC  of  water  at   75% dependability,  the  tribunal  did  take  into  account  the different  projects  already undertaken by different  States but  consideration of those projects is only for the purpose of arriving at the quantity of water to be allocated and not for  making any project-wise allocation, as contended by Mr. Ganguli.  In Exhibit PKI itself, the tribunal records to the following  effect :  Our examination of the project reports and  other relevant documents has a very limited purpose and it  is to determine what are the reasonable needs of the two States  so  that  an  equitable way may  be  found  out  for distributing the remaining water between the two States.  It is of course, always to be borne in mind that the allocation of  waters though based on consideration of certain projects being  found  to  be  worth consideration are  not  on  that account  to  be  restricted and confined to  those  projects alone.   Indeed  the  States (and this applies  to  all  the States)  would be entitled to use the waters for  irrigation in  such  manner as they find proper subject always  to  the restrictions and conditions which are placed on them.

     This unequivocally indicates the purpose for which the projects  of different States were being examined and it  is explicitly  made clear that the States should be entitled to use  the  waters for irrigation in such manner as they  find proper,  subject, always to the restrictions and  conditions which   are   placed  on   them.   Unless,  therefore,   any restriction  or  conditions in the decision of the  tribunal can  be found out for utilisation of a specific quantity  of water  out of the total allocated share in the Upper Krishna Project, there cannot be any fetter on the part of the State of  Karnataka  to  make such user.  In the decision  of  the tribunal,   there  does  not  appear  to  be  an   iota   of restrictions  or conditions, which even can be inferred and, therefore, the submission of Mr.  Ganguli, appearing for the State of Andhra Pradesh on this score cannot be accepted.

     In  the report of the Krishna Water Disputes  Tribunal Exhibit  PK-1 for the purpose of allocation of water in  the Krishna Basin the Tribunal has examined each project of each of  the three States and then recorded its conclusion as  to whether  the  project is worth consideration.  The  Tribunal expressed   the   meaning   of    the   expression    worth consideration  by saying that the expression is used in the sense that it means the requirements of an area in the State concerned.   It would be appropriate at this stage to  quote

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the exact findings of the Tribunal in this regard:-

     In  saying that the project is worth consideration we do  not  wish to be understood to say that the  project,  if feasible,  should be adopted.  Likewise when we say that the project  is  not worth consideration we do not say  that  no water should ever be allowed for it.  If at some future date more  water  becomes  available  it is  possible  that  more projects may come upto the worth consideration standard.  In assessing  whether the project is worth consideration or not we  have taken into account the physical characteristics  of the  area  like  rainfall  etc.,  the  catchment  area,  the commanded  area, the ayacut of the project, the fact whether the project is meant for irrigating the scarcity area or not and  such  other  facts.   In other words  we  determine  on pragmatic  considerations  what  needs  of  the  States   of Maharashtra and Mysore can be satisfied so that an equitable way  may  be found out for distributing the balance  of  the dependable  flows between the two States.  It should not  be taken  our  observations relating to the projects  which  we have  noted as worth consideration are to be accepted in any way  as final and binding by the Planning Commission or  any other authority.

     The  aforesaid finding fully negatives the  contention of  Mr.  Ganguli, appearing for the State of A.P., that  the allocation  was projectwise which can be read into the final order.   Clause IX of the final order has placed restriction on  the  use  of  water in the Krishna Basin  by  the  three States.   The reasons for putting such restrictions  appears to  be  that  on  the  main   stream  there  has  been  only restriction on river Bhima whereas on the side streams there has  been  restriction in case of Tungbhadra  and  Vedavathi sub-basin.   Even  in case of sub-basin K-3 there  has  been restriction on the State of Maharashtra from using more than 7  TMC in any water year from Ghataprabha and the reason for such  restriction  is that the requirements of the State  of Mysore  for  the  projects  in that  sub-basin  may  suffer. Similarly restriction has been placed on the State of Andhra Pradesh not to use more than 6 TMC from the catchment of the river  Koyna,  the idea being that the waters of that  river would  reach  the main streams of river Bhima.   Even  while placing  such restriction the Tribunal has placed the  upper limit slightly above the total requirements of that State as assessed  from  the  demands  made  which  had  been  either protected  or  which have held as worth consideration.   The very fact that restrictions have been put by the Tribunal in several sub-basins and no restriction has been put so far as sub-basin  K-2 wherein Upper Krishna Project of the State of Karnataka  is being carried on clinches the point raised  by the  State  of Andhra Pradesh and discussed in  these  three issues,  namely, it is not possible to read any  restriction for  quantity  of user of water in Upper Krishna Project  by the  State  of Karnataka and so long as the total user  does not  exceed  mass  allocation, it cannot be  said  that  the decision  of  the Tribunal is being violated infringing  the rights  of  the  State  of   Andhra  Pradesh  which  can  be prohibited  by  issuing  any  mandatory  injunction.   After receiving  the  copy of the report and the decision  of  the Tribunal  under  Exhibit  PK-1 the State of  Andhra  Pradesh filed  application  for clarification,  being  clarification No.4  under Section 5(3) of the Act, requesting reduction of 1.865  TMC  from the Koyna Project of State of  Maharashtra. Having  filed  such  application  on 5th  March,  1976,  the learned  Advocate General of the State of Andhra Pradesh did

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not press the said clarification No.4 on the ground that the allocations  are enbloc which is apparent from Exhibit  PK-2 dealing with clarification no.4.  Having made an unequivocal statement  before  the Tribunal itself that the  allocations are  enbloc  we fail to understand how the State  of  Andhra Pradesh  has filed the suit making out a case that there has been  any  project-wise  allocation  by  the  Krishna  Water Disputes  Tribunal.  The aforesaid statement of the  learned Advocate  General  made  before the Tribunal  has  not  been explained  either in the plaint filed by the State nor  even in course of hearing of the suit, and in our view, the State of Andhra Pradesh also fully understood that the allocations made  under Scheme A was enbloc.  It further appears  from Exhibit  PK-2  that the State of Andhra Pradesh did  file  a clarification  no.  5 under Section 5(3) of the Act  praying that the maximum quantity which could be utilised in K-5 and K-  6  sub-basin of the State of Maharashtra  and  Karnataka should be specified and ultimately on 23rd August, 1974, the learned  Advocate  General for the said State did not  press the  clarification as it had no materials on record on which he  could substantiate it.  The very fact that State had not filed  any clarification application so far as K-2 sub-basin is concerned, though it did file such application in respect of sub-basin K-5 and K-6 as well as in case of Quana Krishna Lift  Irrigation  Scheme  unequivocally indicates  that  the State  had no grievance so far as the allocation enbloc made by  the Tribunal and not putting any restriction of the user in  K-2  sub-basin  which  consists  of  the  Upper  Krishna Project.   This  in our view, fully clinches the matter  and the  conclusion  is irresistible that under the decision  of the  Tribunal  there  has  been   mass  allocation  and   no project-wise  allocation as contended by the State of Andhra Pradesh  in the suit.  In the aforesaid premises, we  answer the  three issues against the plaintiff and in favour of the defendants  and hold that under the decision of the Tribunal the  allocation of water in river Krishna was enbloc and not project-wise  excepting those specific projects mentioned in clauses IX and X of the decision.

     ISSUE NO.2

     Though this issue has been raised at the behest of the State  of Maharashtra but in view of the stand taken by  the said  State  in  the additional written  statement  and  the additional  issues  framed  thereon,   the  learned  counsel appearing  for  the State of Maharashtra did not  argue  the question  of jurisdiction, and on the other hand  contended, that  the jurisdiction of this Court in a suit under Article 131 of the Constitution should not be restricted or narrowed down  and  on the other hand the Court should be capable  of granting  all necessary reliefs in adjudicating the  dispute raised.   That  apart  on the basis on which  the  plaintiff State  filed the suit and the relief sought for it cannot be said  that  the  suit is not maintainable.   We,  therefore, answer this issue in favour of the plaintiff.

     ISSUE NOS.  4, 6, 7 and 8

     These  four  issues  are inter-linked  and  have  been framed  in view of the positive stand taken by the State  of Andhra Pradesh that in case of an inter State river when any project  of  one  State is considered by the  Government  of India  or  any other appropriate authority the  other  State should  also be made aware of and their consent should  also

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be  taken.   Though  this  stand   had  been  taken  by  the plaintiff-State   of  Andhra  Pradesh   but  all  the  three defendants  refuted  the same.  In course of hearing of  the suit  the learned counsel Mr.  Ganguli has not placed before us  any  material  or any law which  compels  the  concerned authority   to  consult  all   the  riparian  States  before sanctioning  a project of one State.  In the absence of  any legal basis for such stand we are not able to agree with the stand  taken by the State of Andhra Pradesh that the Central Government  was  duty  bound to take the  consent  of  other States  while sanctioning any project of any of the riparian States.   That  apart,  these  issues are  academic  in  the context  of  the  Upper  Krishna Project  of  the  State  of Karnataka and,in particular, the construction of the Almatti Dam.   Before  the  Tribunal  the  State  of  Karnataka  had submitted  the report of Upper Krishna Project of July  1970 which  was  exhibited before the Tribunal as MYPK-3 and  the said  document  has  been marked as Exhibit  PAP-42  in  the present  suit.  The salient features of the said project, so far  as  Almatti Dam height is concerned, was shown  as  FRL 524.256  m  and  top of the Dam at 528.786  m.   The  entire project  itself being there before the Tribunal, though  the Tribunal  did  not  consider  it necessary  to  discuss  the project  in particular in view of enbloc allocation made  by it,  the  grievance of the State of Andhra Pradesh that  the project  was being surreptitiously constructed is devoid  of any  substance.  We, therefore, answer the aforesaid  issues against the plaintiff.

     ISSUE NO.  9 (a) (b)

     This  issue is an important issue in the present  suit and  the  relief  sought for essentially  depends  upon  the findings  arrived at on this issue.  The entire issue has to be  decided  on  the basis as to whether  there  exists  any prohibition   in   the  decision  of   the   Tribunal   from constructing  Dam  at  Almatti upto 524.256  meter  or  from storing  any  particular quantity of water therein.  And  if the answer is in the negative then the prayer for injuncting the  State of Karnataka to raise the Dam height upto 524.256 has  to  be  rejected.  If the decision of the  Tribunal  is examined  from the aforesaid stand point and in view of  our conclusion  that  it  is  that final order  which  has  been notified  in the Official Gazette by the Central  Government under  Section  6  of the Act which is the decision  of  the Tribunal,  we find nothing stated therein which even can  be held  to be a prohibition or restriction on the power of the State  of  Karnataka  to  have  the height  of  Dam  upto  a particular  height.   In  this  view   of  the  matter   the plaintiffs  prayer  to injunct the State of Karnataka  from constructing  the  Dam height at Almatti upto 524.256  meter cannot  be  granted.   The  issue   has  two  sub-issues   ; Sub-issue  a  relates  to the height of Almatti  Dam  ;and sub-issue  b  being  on  the  question  whether  State  of Karnataka   could   be  permitted  to   proceed   with   the construction  without  the  consent of  the  other  riparian States  and without the approval of the Central  Government? At  the  outset  it may be stated that though the  State  of Karnataka  had  produced its project report relating to  the construction  of  the Almatti Dam as per Exhibit PAP-42  but neither  the  Tribunal  had  considered  the  same  nor  any decision  has  been arrived at on the question of height  of the  said  Dam.   Even  after the original  report  and  the decision  being made known under Section 5(2) of the Act  as per  Exhibit  PK-1 the State of Andhra Pradesh also did  not

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raise  any dispute or clarificatory application objecting to the construction of the Almatti Dam or even to the height of such Dam under Section 5(3) of the Act.  In the absence of a decision  of the Tribunal on the question of construction of Dam at Almatti or its height and mass allocation made, being binding  upon all parties after being notified under Section 6  of the Act, the grievance relating to the construction of Dam  at Almatti or to its height would be a matter of  water dispute within the meaning of Section 2(C), in as much as it would  be a matter concerning use of water of river  Krishna and,  therefore,  cannot be a matter for adjudication  in  a suit under Article 131 of the Constitution of India.  If the complaint  of  the  State  of  Andhra  Pradesh  is  that  by construction  of Almatti Dam which is an executive action of the State of Karnataka the State of Andhra Pradesh is likely to  be  prejudicially affected then also on  such  complaint being  made  to the Union Government under Section 3(a)  the matter  could  be referred to a Tribunal  for  adjudication. But,  we  fail to understand how this Court could  entertain the aforesaid lis and decide the same, particularly when the Tribunal  has not focussed its attention on the same nor has made  any adjudication in respect to the construction of Dam at  Almatti  or  its  height.    Needless  to  mention  that notwithstanding  the  allocation of water in  river  Krishna being made enbloc no State can construct any project for use of water within the State unless such project is approved by the  Planning  Commission, the Central Water Commission  and all  other  Competent Authorities who might  have  different roles  to play under different specific statutes.  Under the federal  structure,  like  ours,   the  Central   Government possesses  enormous power and authority and no State can  on its  own  carry  on  the   affairs  within  its   territory, particulary  when  such projects may have adverse effect  on other  States,  particularly  in respect of an  inter  State river  where each riparian State and its inhabitants through which  the  river flows has its right.  From  the  averments made  in  the plaint it is crystal clear that the  State  of Andhra  Pradesh feels aggrieved by the proposal of the State of  Karnataka to have the Dam height at Almatti FRL  524.256 m.   In the plaint itself in paragraph 51 the plaintiff  has referred  to the observation of the Committee to the effect: For  required  utilisation of 173 TMC at UKP the height  of the  Dam  at FRL 519.6 m would be adequate.  The  Committee referred  to in the said paragraph is Expert Committee which the  four Chief Ministers had appointed, which Committee had examined  the  pros  and  cons of the Almatti  Dam  and  the aforesaid  views of the Expert Committee was approved by the four  Chief  Ministers who had been requested by  the  Prime Minister  of India to intervene and find out the efficacy or otherwise of the stand of Karnataka to have Almatti Dam upto the  height of FRL 524.256 m.  The said Expert Committee had observed  that  the  proposal of the State of  Karnataka  of having  Upper Krishna Project with FRL 524.256 m in Stage II at Almatti has not been approved by the Government of India. And  it has been further observed that it would be desirable to proceed with utmost caution in the larger interest of the Nation to wait and watch operation of various Krishna system upstream and down stream before embarking on creating larger storage  at  Almatti  Dam than what is needed  to  suit  the prevailing   conditions.    We  are   taking  note  of   the observations  made  by the Expert Committee for the  purpose that  the plaintiff having failed to establish its case  for getting an injuction, would it be appropriate for this Court to  allow  the State of Karnataka to have the height of  the Dam  at Almatti at 524.256 m or it would be obviously in the

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larger  interest of the country and all the States concerned to  allow the Dam upto the height of 519.6 m and then  leave it  open  to  the  States   concerned  to  put  forth  their grievances  before  the  Tribunal  to be  appointed  by  the Central  Government  for resolving the disputes relating  to sharing  of water in river Krishna.  Reading the plaint as a whole it appears to us that the plaintiff State had not made any  grievance for having a Dam at Almatti upto a height  of FRL  519.6  m  and on the other hand, the  entire  grievance centers round the proposal of the State of Karnataka to have the height at 524.256 m.  The report of the Expert Committee referred  to  in  the plaint has been exhibited  as  Exhibit PAP-212 and even that report indicates that the complaint of Andhra  Pradesh  was that the height of Almatti Dam  at  FRL 524.256m  which  has  not  been   approved  as  yet  by  the Government  of  India,  would  adversely  affect  the  lower riparian  State  of  Andhra Pradesh both in  the  matter  of irrigation  as well as generation of power.  The said report further  reveals that the State of Karnataka is desirous  of having  the Dam height at FRL 524.256 m so that it can store its  share of water available to it under Scheme B when it comes.   It is only on fructification of Scheme B the need for  a larger storage at Almatti would arise, and therefore, the State is planning ahead to have the height of the Dam at 524.256m.   According  to  the  report of  the  said  Expert Committee  even if the height is allowed not upto 524.256  m it  can be allowed later only when the necessity arises  and technically  it  is feasible.  The report also records  that for  utilisation  of  173 TMC at Almatti and  Narainpur  the height of the Dam required would be 519 m and not 524.256 m. Thus an expert body appointed by the four Chief Ministers of 4 different States who are not in any way connected with the inter-State  river  Krishna taking into account the  present need  envisaged by the State of Karnataka for utilisation of 173 TMC at Upper Krishna project and taking into account the report submitted by Indian Institute of Science at Bangalore did record a finding that the top of the shutters at Almatti should  be fixed at 519.6 m which will provide a storage  of about  173TMC  which  along  with storage  of  37.8  TMC  at Narainpur   will  be  adequate  to   take  care  of   annual requirement  of  173  TMC   envisaged  under  Upper  Krishna Project.   In  view  of our conclusion in O.S.   1  of  1997 holding  that Scheme B is not a decision of the  Tribunal, and as such, cannot be implemented by a mandatory order from this  Court  and the stand of the State of Karnataka  before the so called Expert Committee being that they have designed the  height of Almatti Dam at 524.256 m keeping in view that in the event Scheme B fructifies the State will be able to get  the  surplus  water  and  store  it  as  a  carry  over reservoir,   as   observed   by    the   Tribunal    itself, notwithstanding  the  fact that the plaintiff has failed  to establish  a  case  on  its own for getting  the  relief  of injunction in relation to the construction of Almatti Dam by the  State of Karnataka, it would be reasonable to hold that though  the State can have the Dam at Almatti but the height of  the  said  Dam  should  not   be  more  than  519.6   m, particularly  when the State of Karnataka has not been  able to  indicate as what is the necessity of having a height  of Dam at 524.256 m when Scheme B is not going to be operated upon  immediately.   The  Upper Krishna  Project  Stage  II, detailed  project  report  of October 1993  which  has  been exhibited  in the present case as PAP 45 also indicates that minimum  FRL required to get 173 TMC utilisation is found to be 518.7 m.  It is in that report it has been indicated that it  is because of probable maximum flood of 31000 qmx.,  the

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water level is expected to go upto 521 m and, therefore, the proposal  is to keep the height of the gate to 521 from  the crest  level  with  2 mts.  as the gate height.  It  may  be stated  at  this  stage that the height of  the  Almatti  as approved by the Competent Authority is crest level 509 meter and  it is in this context to have the height at FRL 524.256 m  the  State  of Karnataka has proposed to  have  the  gate height  of  15 meters.  But as has been  indicated  earlier, since the entire basis of the State of Karnataka to have the height   of  the  Dam  at   524.256  m  is  contingent  upon implementation  of  Scheme  B  of  the  Tribunal   thereby entitling  the State of Karnataka to get its share in excess water and continue the Almatti Dam as a carry over reservoir and  since we have decided against the State of Karnataka in O.S.  1 of 1997 which the State had filed for implementation of  Scheme B, there is absolutely no justification for the said  State to have the Dam height at Almatti of 524.256  m. We  hasten to add that at the same time there cannot be  any injunction or prohibition to the said State of Karnataka for having  the Dam height at Almatti upto 519.6m which would be in the interest of all concerned.

     Mr.   Ganguli,  the learned senior counsel,  appearing for  the State of Andhra Pradesh submitted that the State of Karnataka  in  the Project Report filed before  the  Central Water  Commission  in  respect  of   UKP  Stage  II,  itself indicated that the minimum FRL required at Almatti Reservoir is 519.60 M as per Exhibit PAP 46.  In the written statement also,   the   State  of   Karnataka  also   indicated   that contemplated  height  of  Dam  at   524.256  meters  is  for additional  storage, though for the purpose of generation of power  which  is  non-consumptive  use and at  a  height  of 524.256  meters, it would utilise 302 TMC, which would be in excess  of  the enbloc allocation of 734 TMC.  Mr.   Ganguli also  contended that the Upper Krishna Multipurpose Stage II Project  Report of 1996 as per Exh.  PAP 48, would  indicate that  the  State  has planned irrigation from the  water  at Almatti which the State would receive under Scheme B being implemented.   This  being  the position, the very  idea  of having  the  dam height at Almatti at FRL 526.256,  is  even contrary  to  the mass allocation made in its  favour  under Scheme  A  and, therefore, the State should be  injuncted. We  are unable to appreciate this contention of the State of Andhra  Pradesh inasmuch as on today the Central  Government as well as the appropriate authority have not sanctioned the Upper  Krishna  Project  Stage-II  with the  dam  height  at 524.256  meters.  It would not be possible for this Court to pronounce  that  there  will  be a  violation  of  the  mass allocation  if the State of Karnataka is allowed to have the dam  height  at Almatti at 524.256 meters, though as  stated earlier,  according  to  the State of Karnataka  itself  for utilisation  of  173 TMC, the required dam height  is  519.6 meters.   It  is  under these circumstances, we are  of  the considered  opinion that there should not be any bar against the  State of Karnataka to construct the dam at Almatti upto the  height  of  519.6 meters and the  question  of  further raising  its height to 524.256 meters should be gone into by the  tribunal,  which  learned Solicitor General  agreed  on behalf  of  Govt.   of India to be  constituted  immediately after  the delivery of judgment of these two suits, so as to mitigate  the grievance of each of the riparian States on  a complaint  being  made  by any of the States..   So  far  as sub-issue  (b)  is  concerned,  we really do  not  find  any substance  in  the contention of Mr.  Ganguli,  the  learned counsel  appearing for the State of Andhra Pradesh.   Though

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it  may be fully desirable for all the States to know  about the  developments of the other States but neither the law on the subject require that a State even for utilisation of its own water resources would take the consent of other riparian States  in  case  of an Inter-State river.  So  far  as  the second  part  of  Issue  b is  concerned,  the  answer  is irresistible  that  the  project  of each State  has  to  be approved  by  the  Central Government as well  as  by  other statutory  authorities and the Planning Commission, but  for which  a  State should not proceed with the construction  of such project.  Issues 9(a) and (b) are answered accordingly.

     ISSUE  9(C) Issue 9(C) had been framed while  allowing the   additional   written  statement  of   the   State   of Maharashtra,  which relates to the question of  submergence. It  is  to be noted that in the original  written  statement filed by the State of Maharashtra, a positive stand had been taken  that  under the decision of the tribunal,  there  has been  an enbloc allocation of water in favour of each of the three  riparian  states and as such there was no bar on  the State of Karnataka to have a dam at Almatti up to any height and,  therefore,  it was prayed that the suit filed  by  the Andhra  Pradesh  should  be  rejected.   In  the  additional written   statement  that  was  filed   by  the   State   of Maharashtra,  it has however been averred that the  eventual submergence  of area within the State of Maharashtra had not been  known  earlier  and,  therefore,  neither  before  the tribunal  nor  in the original written statement filed,  any grievance  had been made with regard to the construction  of dam  at Almatti to a height of 524.256 meters, but since the joint  study  made by the officers of both the  states  have brought   out  that  a  large   area  within  the  State  of Maharashtra  would get submerged, if Karnataka is  permitted to  have the dam height at Almatti up to 524.256 meters, the State  of Maharashtra has brought these facts to the  notice of  this  Court in the additional written statement and  the additional  issue  has been framed.  In the absence  of  any relief  being  sought  for in the plaint  by  the  plaintiff against  the  State  of Maharashtra, whether  the  defendant State  of  Maharashtra can claim any relief against the  co- defendant  is itself a debatable issue.  Mr.   Andhyarujina, the  learned  senior  counsel, appearing for  the  State  of Maharashtra  ,  however contended that a suit filed  in  the Supreme  Court under Article 131 of the Constitution is of a very  peculiar  nature  and the normal principle of  a  suit filed  in  an  ordinary  civil   Court  should  not   apply. According to Mr.  Andhyarujina, if a dispute between the two states involving the existence or extent of a legal right of one  State is being infringed by the action or in-action  of another  State,  is  brought   before  this  Court  invoking jurisdiction  under  Article 131 of the  Constitution,  this Court   would  be  fully   justified  in  entertaining   and adjudicating the said dispute, no matter whether the dispute is  raised  as a plaintiff or a defendant in any  proceeding before the Court.  It is in this context the learned counsel referred  to the observations of Bhagwati J and  Chandrachud J,  in  the case of State of Karnataka vs.  Union of  India, 1978(2) SCR 1, wherein Honble Bhagwati J had indicated that the original jurisdiction of the Supreme Court under Article 131  on  being invoked by means of filing a suit, the  Court should be careful not to be influenced by the considerations of cause of action which are germane in suit and the scope and ambit of the said jurisdiction must be determined on the plain  terms of the article without being inhibited by any a priori  considerations.   The  learned  Judge  in  the  same

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decision  had also indicated that the very object of Article 131  seems  to be that there should be a Forum, which  could resolve  such  disputes between two States or the State  and the  Union and that forum should be the highest Court in the land  so  that the final adjudication of disputes  could  be achieved  speedily  and expeditiously without  either  party having  to  embark  on a long tortuous  and  time  consuming journey  through  a hierarchy of Courts.  Mr.   Andhyarujina also  relied  upon  the observations of Bhagwati  J  in  the aforesaid case to the effect:

     What article 131 requires is that the dispute must be one  which  involves  a question on which the  existence  or extent  of  legal right depends.  The article does  not  say that the legal right must be of the plaintiff.  It may be of the  plaintiff  or of the defendant.  What is  necessary  is that  the existence or extent of the legal right must be  in issue  in  the  dispute  between  the  parties.   We  cannot construe  Article 131 as confined to cases where the dispute relates to the existence or extent of the legal right of the plaintiff,  for  to  do so, would be to read  words  in  the article which are not there.  It seems that because the mode of  proceeding  provided  in Part III of the  Supreme  Court Rules  for bringing a dispute before the Supreme Court under Article  131 is a suit, that we are unconsciously influenced to  import the notion of cause of action, which is germane in  a suit, in the interpretation of Article 131 and to read this article as limited only to cases where some legal right of  the  plaintiff is infringed and consequently, it  has  a cause  of  action against the defendant.  But it  must  be remembered that there is no reference to a suit or cause of action in Article 131 and that article confers jurisdiction on  the Supreme Court with reference to the character of the dispute  which  may be brought before it  for  adjudication. The  requirement of cause of action, which is so necessary in  a suit, cannot, therefore, be imported while  construing the scope and ambit of Art.  131.

     The  learned  counsel Mr.  Andhyarujina,  also  relied upon  the observations of Bhagwati J in the said decision to the following effect:-

     What has, therefore, to be seen in order to determine the  applicability  of  Art.131  is  whether  there  is  any relational legal matter involving a right, liberty, power or immunity  qua the parties to the dispute.  If there is,  the suit would be maintainable, but not otherwise.

     Reliance  was  also  placed  on  the  observations  of Chandrachud J, in the self same case, which may be extracted herein under:-

     By the very terms of the article, therefore, the sole condition which is required to be satisfied for invoking the original  jurisdiction  of  this Court is that  the  dispute between  the parties referred to in clauses (a) to (c)  must involve  a  question on which the existence or extent  of  a legal  right depends. Chandrachud J also had  categorically stated:-

     I  consider  that the Constitution  has  purposefully conferred on this, Court a jurisdiction which is untrammeled by  considerations which fetter the jurisdiction of a  Court of  first  instance, which entertains and tries suits  of  a civil  nature.  The very nature of the dispute arising under

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Article  131 is different, both in form and substance,  from the  nature of claims which require adjudication in ordinary suits.

     Mr.   Andhyarujina,  also referred to the comments  of Mr.   Seervai in his book, wherein the author has said  that it is reasonable to hold that the court has power to resolve the  whole  dispute, unless its power is limited by  express words  or  by necessary implications and the  Supreme  Court would  have the power to give whatever reliefs are necessary for  enforcement  of a legal right claimed in the  suit,  if such  legal  right is established.  Mr.   Andhyarujina  also contended   that  once  the  grievance   of  the  State   of Maharashtra having brought forth before the Supreme Court in a  pending proceeding under Article 131 of the Constitution, the  jurisdiction having been invoked by the State of Andhra Pradesh,  the Court has ample power under Article 142 of the Constitution  and  for  doing complete justice  between  the parties,  the Court would not be bound by the provisions  of any  procedure and can make a departure of the same.  It  is in  this  context, reliance was placed on  the  observations made  by  the  Supreme Court in the case of  Delhi  Judicial Services  vs.  State of Gujarat, 1991(4) SCC 406, whereunder this Court has observed as follows:-

     No enactment made by Central or State legislature can limit  or restrict the power of this Court under Article 142 of  the  Constitution, though while exercising  power  under Article  142  of the Constitution, the Court must take  into consideration the statutory provisions regulating the matter in dispute.  What would be the need of complete justice in a   cause  or  matter  would   depend  upon  the  facts  and circumstances  of each case and while exercising that  power the   Court  would  take   into  consideration  the  express provisions  of  a substantive statute.  Once this Court  has taken  seisin  of a case, cause or matter, it has  power  to pass  any order or issue direction as may be necessary to do complete justice in the matter.

     Mr.   Andhyarujina  submitted that the  likelihood  of submergence  within  the State of Maharashtra on account  of height of dam at Almatti being raised to 524.256 meters, was disclosed  only during the pendency of the present suit  and the  State  of Karnataka itself in its letter dated 10th  of August,  1998  had communicated to the State of  Maharashtra that  the  State need not approach the Court of law on  this issue  as the matter can be resolved amicably.  According to the  learned  counsel, the State of Karnataka too agreed  to carry out actual field surveys and calculations to determine the  extent  of submergence under the directions of  Central Water  Commission  in its meeting dated 22.2.1999 and  those studies  are  still under progress and further  the  Supreme Court  itself had passed an order of status quo relating  to the  height  of  Almatti Dam by order  dated  2.11.1998  and consequently,  the State of Maharashtra never thought it fit to  file  an independent suit, invoking the jurisdiction  of the  Court  under Article 131.  But the State  of  Karnataka having  obtained  the  liberty from this  Honble  Court  to proceed further with the installation of the assembly of the gates  by  order  dated  4.11.1998 and  the  said  State  of Karnataka  refusing  to give an undertaking to the State  of Maharashtra  not  to  raise the height of  the  Almatti  Dam beyond  the  present  level  of 509  meters,  the  State  of Maharashtra  was compelled to put forth its grievance on the question  of  likely  submergence of its territory  and  has

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prayed  for  the relief of injunction against the  State  of Karnatka  for  raising the dam height up to 524.256  meters. Mr.   Andhyarujina  also submitted that the exact extent  of area to be submerged in the event the Almatti Dam is allowed to  be  constructed  upto 524.256 meters, has not  yet  been ascertained  and  surveys are still on, but there cannot  be any doubt that a large scale of the area within the State of Maharashtra  would get submerged.  Mr.  Nariman, the learned senior counsel, appearing for the State of Karnataka did not seriously  dispute the right of a co-defendant like State of Maharashtra  to put forth the grievances so as to get relief against   another  co-defendant,   though  he   undoubtedly, submitted  that  in the event, the State of Maharashtra  was allowed  to  have  the additional written statement  and  an adjudication  of the additional issues framed, the State  of Karnataka  should  have been given an  opportunity,  putting forth  its  case.   He however contended  that  the  dispute relating  to  submergence  of territory  of  Maharashtra  on account  of the height of the dam at Almatti being raised to 524.256 meters, cannot be a matter of adjudication in a suit under  Article  131, since the State of Maharashtra had  not raised  the dispute before the tribunal itself, even  though the  Project  Report  submitted by the  State  of  Karnataka before  the  tribunal  indicated the height of  the  dam  at 524.256  meters.  According to Mr.  Nariman, such a  dispute would  be  a fresh water dispute and would not be a part  of adjudicated  dispute  and as such under Article 131  of  the Constitution  this dispute cannot be entertained and decided upon  by  this Court.  Mr.  Nariman also contended that  the materials  on  record  do not establish or do not  help  the Court  to come to a positive finding that in the event,  the Almatti  Dam is raised to 524.256 meters, a large extent  of the State of Maharashtra would get submerged inasmuch as the submergence,  if any and the flow back, if any, would be  in the  river  itself and not any territory beyond  the  river. Mr.  Nariman further urged that the State of Maharashtra did anticipate submurgence of its territory as would appear from its  stand  before  the  tribunal  which  is  apparent  from paragraph 6.3.1(k) of Exh.  MRK-1.  It is true, according to the  learned counsel that the tribunal did not consider  the said  question but after the Original Report was  submitted, Maharashtra  could  have filed an application under  Section 5(3)  of the Act, seeking clarifications on the question  of submergence  but, that was not admittedly done, which  would indicate  that  it  had  no grievance  on  the  question  of submergence.   Having examined the rival contentions on this issue,  we have no hesitation to hold that the issue must be answered against the State of Maharashtra.

     It is no doubt true that the jurisdiction of the Court in  a  suit under Article 131 of the Constitution  is  quite wide,  which is apparent from the language used in the  said article and as has been interpreted by this Court in the two cases  already referred to (see 1978 (2) SCR 1 and 1978  (1) SCR  64).   It  is also true that Article 142  confers  wide powers  on  this  Court to do complete justice  between  the parties  and  the  Court  can pass any order  or  issue  any direction  that  may  be necessary, but at  the  same  time, within the meaning of Article 131, the dispute that has been raised  in  the present suit is between the State of  Andhra Pradesh  and  State  of Karnataka and  question,  therefore, would  be  whether it involve any existence or extent  of  a legal  right of such dispute.  In answering such a  dispute, it  may  be difficult to entertain a further dispute on  the question   of  submergence  as  raised   by  the  State   of

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Maharashtra, a co-defendant.  But in view of the stand taken by Mr.  Nariman, without further delving into the matter and without  expressing any final opinion, whether such a stand, as  the  one  taken  by Maharashtra is  possible  for  being adjudicated  upon,  we would examine the merits of the  said contention.   A  bare perusal of the report of the  tribunal setting out the facts as found by it and giving its decision on  the matters referred to it as per Exh.PK1 as well as the Further  Report of the said tribunal, giving explanation  to the  application  for clarifications filed by the  different States,  as  per  Exh.  PK2, we find that  the  question  of submergence within the territory of the State of Maharashtra on  account of Almatti Dam in the State of Karnataka has not at  all  been discussed nor any opinion has  been  expressed thereon.   The  tribunal  having given its decision  on  the question  of sharing of the water in river Krishna on enbloc allocation  basis, if the user of such water in a particular way,  becomes  detrimental  to another State,  then  such  a grievance  would  be a fresh dispute within the  meaning  of Section 2(C) read with Section 3 of the Act and it cannot be held  to be an adjudicated dispute of the tribunal.  We have already  indicated  that it is only an  adjudicated  dispute between  the States on which a decision has been given by  a tribunal  constituted  under  Section 4 of the  Act  by  the Government of India, can be a subject matter of a suit under Article 131, if there is any breach in implementation of the said  decision  of the tribunal.  But a dispute between  the two  states  in  relation  to the said  Inter-  State  river arising out of the user of the water by one State would be a fresh  water  dispute  and  as such would  be  barred  under Article  262  read with Section 11 of the Inter-State  Water Disputes  Act,  1956.  The question of submergence  of  land pursuant  to the user of water in respect of an  Inter-State river  allocated  in  favour  of   a  particular  State   is inextricably  connected with the allocation of water  itself and  the present grievance of the State of Maharashtra would be  a  complaint  on account of an executive action  of  the State  of  Karnataka within the meaning of Section 3(A)  and also  would  be a water dispute within the ambit of  Section 2(C)  and,  therefore, it would not be appropriate for  this Court  to entertain and examine and answer the same.  We  do appreciate  the concern of the State of Maharashtra, when it comes  to  its  knowledge that there  would  be  large-scale inundation and submergence of its territory if the height of Almatti  Dam  is allowed to be raised to 524.256 meters,  as per the latest Project Report of the State of Karnataka, but such  concern of the State of Maharashtra alone would not be sufficient for this Court to decide the matter and issue any order  of injunction as prayed for in the additional written statement filed by the State of Maharashtra and on the other hand,  it would be a matter for being agitated upon before a tribunal  to  be constituted by the Govt.  of India  in  the event,  a  complaint is made to that effect by the State  of Maharashtra.   We  also do not find sufficient materials  in this  proceeding before us to enable this Court to come to a positive  conclusion  as to what would be the effect on  the question of submergence, if the height of the dam at Almatti is  allowed to be constructed up to 524.256 meters  inasmuch as, according to the State of Maharashtra, the joint surveys are  still  on.   It is too well settled that no  Court  can issue  an order of mandatory injunction on mere apprehension without  positive  datas  about the  adverse  effects  being placed  and without any definite conclusion on the  question of  irreparable  injury  and balance of  convenience.   Then again, while allowing a particular State to use the water of

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an  inter-  State river, if the manner of such  user  really submerges  some land in some other State, then the  question has  to  be  gone  into as to what would be  the  amount  of compensation and how the question of rehabilitation of those persons  within  the submerged area can be dealt with  which really   is  an  aspect  of   the  doctrine   of   equitable apportionment and all these can be gone into, if a complaint regarding  the  same  is made and the  Government  of  India appoints  a tribunal for the said purpose.  But these things cannot  be gone into, in a suit filed under Article 131 as a part  of  implementation  of  an adjudicated  dispute  of  a tribunal.   It  is also surprising to note that even  though the  Original Project Report of 1970 in relation to  Almatti Dam  had  been  produced  before  the  tribunal,  which  was adjudicating  the  disputes raised by different States,  yet the  State  of Maharashtra never thought of the question  of submergence and never attempted to get that question decided upon.   In the aforesaid premises, howsoever wide the  power of  the Court under Article 142 of the Constitution may  be, we  do  not  think it proper to entertain  the  question  of submergence,  raised  by  the State of  Maharashtra  in  its additional  written  statement  and decide the  question  of injunction, in relation to the height of Almatti Dam on that basis.  Issue 9 (c) is accordingly decided against the State of Maharashtra.

     It  would also be appropriate to notice at this  stage another  argument advanced by Mr.  Andhyarujina, the learned senior  counsel  appearing for the State of Maharashtra,  to the  effect that in view of Clause XV of the decision of the Tribunal  each  State is entitled to use water allocated  in their favour within its boundary, the moment by user of such water  by  one  State, any territory of  another  State  get submerged  then  it would be a violation of the decision  of the Tribunal contained in Clause XV, and therefore, the said State  should be injuncted from such user.  Clause XV of the decision reads thus:-

     Nothing  in  the order of this Tribunal shall  impair the  right  or power or authority of any State  to  regulate within  its  boundaries  the use of water, or to  enjoy  the benefit  of  water  within  that State in a  manner  not  in consistent with the order of this Tribunal.

     The  aforesaid  Clause does not in any  way  interfere with the rights of a State from using the water allocated by the  Tribunal  within  its  boundaries nor  is  this  Clause capable of being construed that if any submergence is caused in  any  other State by such user, then the user becomes  in consistent   with   any   order  of   the   Tribunal.    Mr. Andhyarujinas  entire argument is based upon the expression regulate  within its boundary but that expression  applies to  the use of water or enjoys benefits of water within that State.  Since the question of submergence of any other State by  the  user  of water by another State  allocated  in  its favour  is  not  a  subject matter of  adjudication  by  the Tribunal  and  in  fact the Tribunal has not  expressed  any opinion  on  the same it would be difficult for us  to  hold that  submergence  ipso  facto even if admitted  to  be  any within  the  State  of Maharashtra by user of water  by  the State  of  Karnataka  at  Almatti  can  be  held  to  be  in consistent  with the order of Tribunal.  In this view of the matter  we  are  unable  to accept  the  submission  of  Mr. Andhyarujina, learned senior counsel appearing for the State of  Maharashtra  that  the  user of water by  the  State  of

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Karnataka  by constructing a Dam at Almatti is in consistent with  Clause  XV of the decision of Tribunal.   Issue  9(C), therefore, is answered against the State of Maharashtra.

     ISSUE NO.  10

     The  aforesaid  issue has been framed in view  of  the averments  made  in  paragraph  68 of the  plaint.   In  the aforesaid   paragraph  of  the   plaint  the  plaintiff  has indicated  the figure in terms of acreage of land planned to be irrigated by different projects and excess utilisation of the  water  beyond  the allocation made by the  Tribunal  in respect  of different projects.  The plaintiff obviously  is under  a misconception that in the decision of the  Tribunal there  has been a projectwise allocation of water in respect of  different projects in different States.  We have already considered  the  matter  at  length and  have  come  to  the conclusison  that  the  allocation was made enbloc  and  not projectwise  and as such, the question that construction  of oversized  reservoir at Almatti is contrary to the  decision of  the Tribunal does not arise.  Besides Clause VII of  the decision of the Tribunal indicates as to how use of water in a  water year will be measured and it stipulates that  while use  shall  be  measured by the extent of depletion  of  the waters  of  the  river  Krishna  in  any  manner  whatsoever including  losses of water by evaporation and other  natural causes  from  man  made reservoirs and other  works  without deducting  the quantity of water which may return after such use  to  the  river,  but  so far as  water  stored  in  any reservoir  across any stream of the Krishna river system  is concerned,  storage  shall  not  of itself  be  reckoned  as depletion of the water of the stream except to the extent of the  losses  of  water from evaporation  and  other  natural causes  from  such reservoir.  The water diverted from  such reservoir  for  its own use, however, has to be reckoned  as use  by  that  State  in the water year.  In  view  of  this decision of the Tribunal assuming the State of Karnataka has the  potentiality  of  storage of water at Almatti,  in  the absence of any materials placed by the plaintiff to indicate as  to  any  diversion from such reservoir by the  State  of Karnataka  for its own use, it is not possible to come to  a conclusion  that there has been a violation of the  decision of  the  Tribunal  by  the  State  of  Karnataka  by  having potentiality of storage of water at Almatti, as contended by the  plaintiffs  counsel.  It is in this connection  it  is worthwhile to notice that after submission of the report and the  decision  in  the  year 1973 as per  Exhibit  PK-1  the Government   of   India  had   filed  the  application   for clarification  which  was registered as Reference No.  1  of 1974  by  the  Tribunal and Clarification 1(b)  was  to  the following effect :-

     While  the Tribunal have laid down restriction on the use  of water in certain sub-basins as well as the total use by  each  State, there may be locations where  huydro  power generation (within the basin) may be feasible at exclusively hydro-sites or at sites for multi-purpose projects.  At such sites,  part of the waters allocated to the States, as  also water  which  is to flow down to other States could be  used for  power generation either at a single power station or in a  series  of power stations.  The Tribunal may kindly  give guidance  as  to  whether  such   use  of  water  for  power generation within the Krishna basin is permitted even though such  use may exceed the limits of consumptive use specified by  the Tribunal for each State or sub- basin or reach,  and

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if so, under what conditions and safeguards.

     The   State  of  Andhra   Pradesh  to  the   aforesaid application  for  clarification submitted two Notes Nos.   9 and  10  before the Tribunal on 7th May, 1975 and  8th  May, 1975.   In  this note it was specifically pleaded  that  the Tribunal may be pleased to explain that the Upper State have no right to store water in excess of share allocated to them and  in a manner which will affect the right of the State of Andhra  Pradesh in the dependable flow.  Several grounds had been  advanced by the State of Andhra Pradesh as to why such guidance  is  needed,  particularly when  under  Scheme  A allocation  there has been no express provision for  sharing of  deficiency.   The  Tribunal   considered  the  same  and ultimately  noted  in its further report under Exhibit  PK-2 that  the State of Andhra Pradesh withdrew the said note and consequently  no  ground for any further  clarification.   A note  having  been submitted by the State of Andhra  Pradesh seeking  a  clarification  for fixation of a  limit  in  the matter  of storage of water by the upper riparian States and then  ultimately  having  withdrawn  the  same  the  present grievance that construction of large sized Dam at Almatti by the  State of Karnataka would adversely affect the State  of Andhra Pradesh and its right could be infringed is devoid of any  substance.   The issue is accordingly answered  against the plaintiff.

     ISSUES NO.  11 & 12 :

     These  two issues center round the same question as to whether  there was any specific allocation or utilisation at Upper  Krishna Project and whether providing for  irrigation under  Almatti  Canal  is contrary to the  decision  of  the Tribunal  since  no allocation for irrigation has been  made thereunder.    We  have  already   discussed  the   relevant materials  placed by the State of Andhra Pradesh as well  as the  decision  of  the  Tribunal and we  have  come  to  the conclusion that the plaintiff  the State of Andhra Pradesh, has  utterly  failed to establish that infact there was  any specific  allocation  by  the Tribunal in respect  of  Upper Krishna  Project  or the Almatti Reservoir and on the  other hand,  the  allocation  was  enbloc   making  it  clear  and unambiguous  that  States can utilise the quantity of  water allocated  in  their  favour within their  territory.   This being the position we have no hesitation to answer these two issues  against the plaintiff State  Andhra Pradesh and  we hold  that the plaintiff has failed to produce any materials in  support  of the aforesaid two issues.  These two  issues accordingly are answered against the plaintiff.

     ISSUE NO.13

     So  far  as  this issue is concerned the  question  of entitlement  of  the  State of Karnataka  to  reallocate  or re-adjust  utilisation  under  UKP  or  any  other   project unilaterally  does not arise at all.  If the Tribunal  would have   made  any  projectwise   allocation  and  would  have restricted  the  user of water under UKP to  any  particular quantity  then the question of re-allocation by the State of Karntaka  on its own would have arisen but the Tribunal  not having  made any allocation in respect of the Upper  Krishna Project  which  includes Almatti and having made  an  enbloc allocation  so  long  as  the total user  by  the  State  of Karnataka  does  not  exceed the enbloc  allocation  in  its favour  it cannot be said that there has been any  violation

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by  the State of Karnataka by planning to use any particular quantity  of  water at Almatti.  Then again the question  of getting  concurrence  of other riparian States, as has  been raised   by   the  State  of   Andhra  Pradesh   is   wholly misconceived.   Neither  there exists any law which  compels any  State  to get the concurrence of other riparian  States whenever  it uses water in respect of inter-State river  nor the  decision  of the Tribunal which allocates the water  in the  Krishna  Basin on the basis of 75% dependability  which figure  was  in turn arrived at by an agreement  of  parties puts any condition to have the concurrence of other riparian State.   In this view of the matter without further dilating on this issue, we answer the same against the plaintiff.

     ISSUE NO.  14

     The  aforesaid issue has been raised on the hypothesis that  the  Union  of India is going  to  sanction  different projects  within  the  State  of   Karnataka  which  are  in violation   of  the  decision  of  Krishna  Water   Disputes Tribunal.   As  has  been indicated earlier, so far  as  the Upper  Krishna Project is concerned, the Government of India has  approved  the Dam height at crest level of 509  meters. The  subsequent  revised project submitted by the  State  of Karnataka  in 1993 and re- submitted in 1996 are still under consideration  and no final decision has been taken thereon. The   Union   of  India  in   its  counter   affidavit   has categorically  refuted the allegations made by the State  of Andhra  Pradesh in this regard and on the other hand, it has been  averred  that State of Andhra Pradesh is  going  ahead with  some  project not sanctioned by the Union  Government. In  course  of hearing Mr.  Ganguli, learned Senior  counsel appearing  for the State of Andhra Pradesh, has not produced any  materials in support of the aforesaid stand  pertaining to  issue  no.   14.  We, therefore, decide the  said  issue against the plaintiff.

     ISSUE NO.15

     The  aforesaid issue has been framed on the allegation of  the  plaintiff that the State of Karnataka is likely  to execute  the  Upper  Krishna Stage II  multipurpose  project without  getting  the  environmental   clearance  under  the Environment  Protection  Act as well as in violation of  the Notification issued by the Central Government in exercise of its  power under the same Act and the Rules made thereunder. Under  Article  256 of the Constitution it is an  obligation for  the States to exercise their power ensuring  compliance with  laws made by Parliament and even it enables the  Union Government  to  give  such direction to a State  as  may  be necessary  for  that purpose.  In a federal  structure  like ours,   the  Constitution  itself   maintains   balance   by distributing powers between the Centre and the States and by conferring  power on the Central Government to regulate  and to  issue  directions  whenever   necessary.   The   several provisions  of the Constitution have been tested in the last 50  years and there is no reason to conceive that any  State will  force ahead with its project concerning user of  water in  respect  of  Inter State reservoir without  getting  the sanction/concurrence  of  the  Appropriate  Authorities  and without  compliance with the relevant statutes or laws  made by  the Parliament.  It is a common knowledge that the large scale  projects  planned  by  each   of  these  States,  are submitted  to  the Planning Commission for its approval  and for  getting  financial assistance.  Such projects are  then

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examined  by  different  authorities and it  is  only  after getting  approval  of  the Planning Commission the  same  is submitted  to the appropriate departments of the  Government of India where again all the formalities are scrutinised and final  sanction or permission is granted.  So far as user of water  in respect of an Inter State Reservoir is  concerned, the plans are also examined by the Central Water Commission, who is an expert body and the views given by such Commission also is taken into consideration by the Government of India. This  being the entire gamut of procedure we really fail  to understand  on  what basis the State of Andhra  Pradesh  has made  the  allegation and the issue has been struck in  that respect.   Needless  to  mention that  every  such  projects whether  being  executed  in  the State  of  Maharashtra  or Karnataka  or  Andhra  Pradesh  must   be  approved  by  the appropriate  authority  of  the   Government  of  India  and necessarily, therefore, before any approval is accorded, the project must be found to have complied with all the relevant laws dealing with the matter.  It has not been placed before us  that the State of Karnataka has carried out any  project in  contravention  of the provisions of any  particular  law made  by  Parliament  or in contravention of  any  direction issued  by the Government of India.  This issue accordingly, in  our  opinion, is pre-mature.  But we hasten to add  that all  the  projects  of different States concerning  user  of water  available to them in respect of an Inter State  River must  be  duly sanctioned by the Appropriate Authorities  of the Government of India after proper scanning and it is only then the State would be entitled to carry out the same.  The issue is answered accordingly.

     ISSUE NO.16

     If  the  issue in question is examined in relation  to the  construction of Almatti Dam, which in fact is the  bone of  contention in the suit itself, we have not been able  to find  out as to how the State of Andhra Pradesh has been  or would   be  adversely  affected  or   what  would   be   the consequences  thereon.   When  a plaintiff wants to  seek  a relief  of  injunction  by  the action or  inaction  of  the defendant  on  the ground that such action or  inaction  has been  grossly  detrimental to the interest of the  plaintiff State  and  has infringed the rights of the plaintiff  State then  in  such a case it is obligatory for the plaintiff  to put   materials  on  record   and  establish  the  necessary ingredients  to  enable the Court to come to the  conclusion that  by  such  action  or inaction  of  the  defendant  the plaintiff  has  suffered  irreparable  damages  .   When  we examine the averments in the plaint as well as the documents sought  to be relied upon by the plaintiff on this score, we find that there exists no materials on the basis of which it is  possible  for  a Court to come to a conclusion  that  on account  of the construction of Almatti Dam within the State of  Karnataka  the lower riparian State  the plaintiff  has been  adversely  affected  or  is  likely  to  be  adversely affected.   The  complaint  and grievance of  the  plaintiff State  is  rather imaginary than real and on the records  of this  proceedings no materials have been put forth to enable the  Court  to  come  to a conclusion  on  the  question  of so-called  adverse effect on the State of Andhra Pradesh  on account  of  the  construction  of   Dam  at  Almatti.   Mr. Ganguli,  learned Senior Counsel appearing for the State  of Andhra  Pradesh referred to the written memorandum furnished to  the Committee by the State of Karnataka wherein the said State had unequivocally admitted that the additional storage

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in  Almatti  will cause a temporary reduction in quantum  of flows  going  to Andhra Pradesh for a period of about  three months during August to October which is made good later on. According  to  the learned counsel since those three  months are  vital for the crops in the State of Andhra Pradesh  the State  will sustain irreparable damages and, as such on  the admission  of  the  State of Karnataka a  finding  could  be arrived  at.   At the outset we must state that the  written memorandum  furnished  by the State of Karnataka  cannot  be read  in isolation by spinning out a particular sentence and must  be  read  as a whole.  Thus read we do  not  find  any admission  on the part of the State of Karnataka  indicating any  reduction of flows to the State of Andhra Pradesh.  Mr. Ganguli  also  pointed  out  to  Clause  XV  of  Scheme  B whereunder  the  Tribunal itself had come to the  conclusion about  the  possibility of water shortage and had  empowered the  concerned authority to make necessary adjustment.   But what  has  been  stated  thereunder is in  relation  to  the adoption  of  Scheme  B  which has not  been  possible  on account  of lack of sincerity of the State of Andhra Pradesh and  even  thereunder the Krishna Valley Authority has  been empowered  as  often  as  it thinks  fit  to  determine  the quantity  of  water which is likely to fall to the share  of each  State and adjust the uses of the authorities in such a matter  so  that  by  the end of water year  each  State  is enable,  as  far as practicable, use the water according  to their  share.   We  need  not further  examine  this  aspect particularly  when Scheme B has not been operative so  far and  even  this  Court has refused to  issue  any  mandatory injunction  for adoption of Scheme B in OS 1 of 1997 filed by the State of Karnataka.  In the aforesaid premises, we do not have enough materials to come to the conclusion that the construction of Almatti Dam by the State of Karnataka has in any  way  affected or likely to affect the State  of  Andhra Pradesh  in any manner and consequently the said issue  must be answered against the plaintiff.

     ISSUE  NO.   17 - Under this issue, the question  that arises  for consideration is whether by the decision of  the Krishna  Water Disputes Tribunal, only 5.00 TMC was  awarded for  utilisation at Hippargi.  While answering Issue No.  3, we  have  already  held that the tribunal only  made  enbloc allocation  and  not  any specific allocation  for  specific projects, excepting those mentioned in Clause (IX) and under Clause (IX) so far as Hippargi is concerned, coming under K2 sub-basin,  the same does not find mention therein.  In this view  of the matter, the said issue is answered against  the plaintiff.

     ISSUE  NO.  18- The aforesaid issue has been framed on the basis of averments made in paragraph 66(v) and paragraph 68(b)  item  No.  4.  The averment in paragraph 66(v) is  on the  basis  of  Newspaper Report and the  averment  made  in paragraph  68(b) item No.  4 is the own estimation of  State of  Andhra  Pradesh.  Defendant No.  1- State  of  Karnataka denies  the  contents  of the averments in the  plaint  vide paragraph No.  12.88 and paragraph No.  12.111.  The counsel appearing for the State of Andhra Pradesh also did not place any  material in support of the aforesaid issue in course of the  arguments  and the averments in the plaint having  been denied  in the written statement, the issue in question must be answered against the plaintiff.

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     ISSUE  NO.  19- Though, the plaintiff-State of  Andhra Pradesh  on  its  own estimation, has made  an  averment  in paragraph  68(b) to the effect that the plan utilisation  by the  State of Karnataka in K2 sub-basin is 428.75 TMC on the basis  of which the aforesaid issue has been framed, but  no positive  datas  have been placed before us to come  to  the aforesaid  conclusion.   On  the other hand,  the  State  of Karnataka  in its written statement has asserted that  under Upper  Krishna Project, the utilisation would be to the tune of  173  TMC  and this is apparent  from  several  documents placed  before the tribunal as well as in this proceeding In this  view  of the matter, we answer this issue  by  holding that  the  plaintiff  has  failed   to  establish  that  the cumulative  utilisation  in  K2 sub-basin of  the  State  of Karnataka  would be to the tune of 428.75 TMC.  At any rate, since  we  have already held that the allocation was  enbloc and  there is no restriction for utilisation in K2 sub-basin in  the decision of the tribunal.  The issue really does not survive   for   consideration.   The   issue   is   answered accordingly.

     ISSUE  NO.  20- This issue relates to the decision  of the   tribunal   in  Clause   (IX),  under   which   Clause, restrictions   have  been  put  to  the   extent   indicated thereunder.   But  the State of Andhra Pradesh has not  been able  to  establish the allegation made in this  regard  nor even  the  counsel,  appearing for the State  has  made  any submission  thereon.   During the course of hearing  of  the suit,  on  behalf  of the State of Andhra  Pradesh,  written submissions  had been filed and even after the close of  the hearing,  the  State of Andhra Pradesh has filed  a  written submission  on 15th of March, 2000, in which also, there has been  no  mention about the alleged violation  in  sub-basin K-6,  K-8  and  K-9.  We, therefore, answer  this  issue  by holding  that the plaintiff has failed to establish the same and the issue is answered against the plaintiff accordingly. ISSUE NO.  21-

     This  issue  relates  to utilisation  of  water  under Almatti.   In paragraph 66(iii), the plaintiff has made  the averment, which has been denied and explained in the written statement by the State of Karnataka vide paragraph 12.85 and the  State  of  Karnataka further averred  that  the  entire utilisation  at Almatti is within its allocable share and no injury  is caused to the State of Andhra Pradesh thereunder. Since,  we have already held that under the decision of  the tribunal,  the  allocation was enbloc and not  project-wise, even  if it is held that utilisation under Almatti would  be of  the  order  of 91 TMC, as claimed, the  same  would  not violate the decision of the tribunal.  That apart, we do not have any positive material, on the basis of which, it can be said  that  the  utilisation under Almatti would be  of  the order of 91 TMC.  The issue is answered accordingly.

     In  course  of  arguments Mr.   Ganguli,  the  learned Senior  counsel for the State of Andhra Pradesh had raised a contention  that  the  State of Karnataka to  frustrate  any decree  to be passed by this Court injuncting the  defendant no.1  from raising the construction of the Dam at Almatti at a  height of 524.256 has already incorporated an  autonomous body,  called  Krishna Bhagya Jala Nigam Limited  (KBJNL)and the  State  Government  has divested itself  of  all  powers relating  to  the  construction of Dam at Almatti  with  the aforesaid  Nigam  and this has been designedly made so  that

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any  order  or decree for injunction would not  be  binding. Since this argument had been advanced towards the concluding stage  and  there  was no assertion in the  plaint  in  this regard,  nor  any  issue had been struck by the  Court,  the State  of Karnataka had been permitted to file an  affidavit indicating  the correct state of affairs in relation to  the constitution  of  KBJNL and to allay or apprehension in  the minds  of the plaintiff State.  An affidavit had been  filed by  the Secretary to the Government of Karnataka, Irrigation Department,  who  has  also been nominated  as  Director  of KBJNL,  the  said nomination having been made under  Article 147(c)  of the Articles of Association of the Companies.  It has been categorically stated in the said affidavit that for facilitation  of  mobilising funds and providing  sufficient funds  to  complete irrigation projects the constitution  of KBJNL  has  been constituted with the sole idea to  complete the works of Upper Krishna Projects by 2000AD.  This company is  a Government Company which has been established with  an approval  of  the Cabinet in the State of Karnataka  by  its decision  dated 6th May, 1994 and the Chief Minister of  the State  of  Karnataka is the Chairman of the Company  whereas Deputy  Chief Minister is the Vice- Chairman of the Board of Directors.   All  the  Subscribers  to  the  Memorandum  are Government  Officials  and  it  has been declared  to  be  a Government   Company.   The  Memorandum   of   Articles   of Association  have been exhibited as Exhibited PAP 210.   The affidavit  has  given  the  details  as  to  how  the  State Government  retains  full  control over KBJNL and  on  going through  the said affidavit we have no hesitation to come to the  conclusion that the apprehension of the plaintiff State is wholly mis-conceived and devoid of any substance.

     In  view of our conclusions drawn on different issues, it  is  not  possible for the Court to grant the  relief  of permanent  mandatory  injunction, so far as construction  of the  Dam  at  Almatti is concerned as well  as  the  reliefs sought  for in paragraphs (b) to (k).  But at the same time, we make it clear that there is no bar for raising the height of  the Dam at Almatti upto 519.6 meters subject to  getting clearance  from  the  Appropriate Authority of  the  Central Government and any other Statutory Authority, required under law.  The question of raising the height upto 524.256 meters at  Almatti could be appropriately gone into by a  Tribunal, to  be  appointed  by  the   Central  Government,  on  being approached  by  any  of the three riparian States  and  such Tribunal  could also go into the question of apprehension of submergence within the territory of the State of Maharashtra and  give  its decision thereon, in the event the height  of the  Dam  at  Almatti is allowed to be raised  upto  524.256 meters.   The Tribunal would also be entitled to go into the question  of  reallocation  of the water  in  river  Krishna basin,  if new datas are produced by the States on the basis of improved method of gazing.

     The suit is disposed of accordingly.  There will be no order as to costs.