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PETITIONER: TAMIL NADU CAUVERY NEERPPASANAVILAIPORULGAL VIVASAYIGAL NALA

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT04/05/1990

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH SAWANT, P.B. RAMASWAMY, K.

CITATION:  1990 AIR 1316            1990 SCR  (3)  83  1990 SCC  (3) 440        JT 1990 (2)   397  1990 SCALE  (1)866  CITATOR INFO :  RF         1992 SC 522  (1)

ACT:     Inter-State Water Disputes Act 1956--Sections 3, 4 &  11 Cauvery  Water  Dispute--Government directed  to  constitute Tribunal.

HEADNOTE:     The appellant is a registered society of  agriculturists of Tamil Nadu, who are entitled to riparian rights of  Cauv- ery  river  in cultivating their lands over  the  years.  It seeks from this Court that directions be given to the  Union of  India Respondent No. 1 to refer the dispute relating  to the  water  utilization of the Cauvery river  and  equitable distribution  thereof  in terms of section 4  of  the  Inter State  Water Disputes Act 1956. Also to issue a mandamus  to the  State  of  Karnataka not to proceed  to  construct  dam projects,  reservoirs  across the said river or  its  tribu- taries  within the state and to restore supply of  water  to the State of Tamil Nadu as envisaged in the agreements dated 18th  February, 1924. In this petition State  of  Karnataka, Tamil  Nadu, Kerala and Union Territory of Pondicherry  have also been added as Respondent No. 2 to 5 respectively.     In  the  year 1970, the State of  Tamil  Nadu  requested Union  of India to set up a Tribunal for settling the  ques- tion of equitable distribution of waters under sec. 3 of the Act. A suit was filed under Article 131 of the  Constitution in  this Court but was withdrawn on political  consideration so as to evolve a mutual and negotiated settlement.     According to the petitioners it is submitted that sever- al  attempts  were made through bilateral  and  multilateral talks  for a negotiated settlement but no solution could  be reached and the problem continued- 84     The State of Karnataka filed several affidavits opposing the  maintainability of the petition and the Union of  India has also opposed the application on the basis of section  11 of the Act.     The  petition  was  filed on November 18,  1983  and  on 12.12.83  the Court directed issue of notice. The  State  of

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Tamil  Nadu supported and associated itself with  the  peti- tioner  seeking  the same relief on 6.5.87  the  State  also filed  an affidavit in this Court supporting the  contention of the petitioner and also effectively joined the dispute by adopting the stand of the petitioner.     The  mainstream of the river Cauvery has its  origin  in the  hills  of  Coorg. Some tributaries of  the  river  have origin  in  the State of Kerala and others in the  State  of Karnataka.  The river flows for about 300 Kms. in the  State of  Karnataka and almost for an equal span within the  State of  Tamil  Nadu before joining the Bay of Bengal. It  is  an inter-state river as per Article 262, Entry 56 of List I  of 7th  Schedule  of the Constitution, so  the  regulation  and development  of the said river is under the control  of  the Union  of India and is declared by Parliament by law  to  be expedient in the public interest.     Article  262 of the constitution provides for  adjudica- tion  of disputes (1) with respect to the use,  distribution and control of the waters (2) Parliament may by law  provide that  neither  the Supreme Court or any  other  Court  shall exercise  jurisdiction in respect of any such dispute as  is referred to in clause (1).     As per section 3 of the Act if it appears to the Govern- ment  of any State that a water dispute with the  Government of  another  State  has arisen or likely to  arise  and  the interests of the State or of any of the inhabitance, thereof are  likely to be affected prejudicially, the State  Govern- ment in the prescribed manner request the Central Government to refer the Water dispute to a Tribunal for adjudication. Allowing the petition, this Court,     HELD:  This  dispute in question is one over  which  the people and the State of Tamil Nadu have been clamouring  for more  than  20 years. The matter has been  pending  in  this Court for the last 6 1/2 years. It is on 85 record that over these years 26 sittings of the Chief Minis- ters of Karnataka, Tamil Nadu have been there and in some of these  even  the Central Ministers of Water  Resources  have also  participated but have not succeeded in bringing  about negotiated settlement. No serious attempt seems to have been made  to  have the dispute resolved. This  Court  has  given several adjournments to accommodate the attempts for negoti- ations  because of the nature of the subject  matter.  Ulti- mately on 26.2.90 order by the Court was given that the Writ Petition would be listed for final hearing on 24.4.90  since sufficient  opportunity and time to these two states at  the behest of the Central Government or otherwise has been given to  arrive at negotiated settlement. On 26th April 1990  the Union of India also informed the Court that Central  Govern- ment did not want to undertake any further negotiations  and left  the  matter for the disposal by  this  Court.  [89G-H; 90B-C; 91D]     There was no reason for the dispute to protrect for such a  long  period.  Any further delay  in  taking  statutority mandated action is bound to exasperate the feelings  further and lead to more bitterness. [91H; 92A]    Section  4 of the Act indicates that on the basis of  the request  referred to in Section 3, if Central Government  is of  the  opinion  that water dispute cannot  be  settled  by negotiation,  it is mandatory for the Central Government  to constitute a Tribunal for adjudication of the dispute. [92B]     The  Central Government to fulfil the statutory  obliga- tion  notify in the official Gazette the constitution of  an appropriate  tribunal  for  the adjudication  of  the  Water Dispute.  The  same should be done within a  period  of  one

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month. [92D]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 13347 of 1983. (Under Article 32 of the Constitution of India).        K.K.  Venugopal, C.S. Vaidyanathan and K.V.  Viswana- than for the Petitioner.     P.K. Goswami,Additional Solicitor General, P.S. Poti, K. Parasaran,  S.S.  Javalai, and F.S. Nariman,  B.V.  Acharya, Advocate  General,  P.R. Ramasesh, Ms. A.  Subhashini,  T.T. Kunhikanan,  V. Krishnamurthy, K. Ramkumar and R.  Karuppan, in-person the Respondents. 86 The Judgment of the Court was delivered by     RANGANATH MISRA, J. This is an application under Article 32  of  the  Constitution filed by the  Tamil  Nadu  Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimal Padhugappu Sangam  which is said to be a society registered  under  the Tamil Nadu Societies Registration Act asking this Court  for direction to the Union of India, respondent No. 1, to  refer the dispute relating to the water utilisation of the Cauvery river and equitable distribution thereof in terms of section 4  of  the Inter-State Water Disputes Act, 1956, and  for  a mandamus  to the State of Karnataka not to proceed with  the construction  of  dams, projects and reservoirs  across  the said river and/or on any of its tributaries within the State and to restore supply of water to the State of Tamil Nadu as envisaged in the agreements dated 18th of February, 1924. To the petition States of Karnataka, Tamil Nadu and Kerala  and the  Union Territory of Pondicherry have been added  as  re- spondents 2 to 5 respectively.     In  the petition it has been alleged that the  petition- er’s  society is an organisation of agriculturists of  Tamil Nadu  and they are entitled to the lower reparian rights  of Cauvery  river for cultivating their lands over  the  years. The  petitioner alleges that inflow into the Cauvery at  the Mettur  dam point as also down the stream  has  considerably diminished  due  to construction of new dams,  projects  and reservoirs  across river Cauvery and its tributaries by  the State  of Karnataka within its own boundaries. In  the  year 1970  the  State of Tamil Nadu had requested  the  Union  of India to set up a tribunal and refer the question of equita- ble  distribution of Cauvery waters under section 3  of  the Act.  A suit filed under Article 131 of the Constitution  by the Tamil Nadu State in this Court was withdrawn on  politi- cal  consideration and in anticipation of the evolving of  a mutual  and negotiated settlement. Petitions of the  present type had also been filed in this Court being writ  petitions Nos. 303 and 304 of 1971 but on 24.7.75 they were  withdrawn on  account of suspension of the Fundamental  Rights  during the period of Emergency. Petitioner has further alleged that the  sharing of the Cauvery waters between the  then  Madras State and the then princely State of Mysore was covered by a set of agreements reached in 1892 and 1924. According to the petitioner several attempts were made through bilateral  and multilateral talks for a negotiated settlement for equitable distribution of the Cauvery waters but no solution could  be reached  and the problem continued. Since we are not on  the merits  of the matter relating to distribution of waters  it is unnecessary to give any details of the further pleadings. 87     The State of Karnataka by filing several affidavits  has opposed  the  maintainability of the petition  as  also  the

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tenability of the plea for relief. The Union of India in the Ministry  of Water Resources has also opposed the  maintain- ability  of the application. Reliance has been placed on  s. 11 of the Act to which we shall presently made a reference.     At  the hearing, Mr. Nariman on behalf of the  State  of Karnataka  along with the Advocate General of the State  and the Solicitor General appearing for the Union of India  have reiterated the aforesaid stands.     The State of Tamil Nadu filed an affidavit in this Court on  6th  of  May, 1987, wherein it not  only  supported  the contention  of  the petitioner but  effectively  joined  the dispute  by adopting the stand of the petitioner. The  State of Kerala has left the matter to the good sense of Union  of India to bring about an amicable settlement. At the  hearing of  the  matter the Union Territory of Pondicherry  was  not represented though we were told that their stand was  common with that of the State of Tamil Nadu.     This  petition  was  filed  on  November  18,  1983;  on 12.12.83 this Court directed issue of notice and as  already pointed out the State of Tamil Nadu by its affidavit of  6th of  May, 1987, came to the support the petitioner  in  toto. The adoption by the State of Tamil Nadu of the  petitioner’s stand  by associating itself with the petitioner is  perhaps total.  Before this Court, societies like the petitioner  as also  the  State of Tamil Nadu and earlier applied  for  the same  relief  as the petitioner seeks. In view of  the  fact that  the  State  of  Tamil  Nadu  has  now  supported   the petitioner  entirely  and without any  reservation  and  the Court  has kept the matter before it for about 7 years,  now to  throw  out the petition at this stage by  accepting  the objection raised on behalf of the State of Karnataka that  a petition  of  a society like the petitioner for  the  relief indicated  is not maintainable would be ignoring the  actual state of affairs, would be too technical an approach and  in our view would be wholly unfair and unjust. Accordingly,  we treat this petition as one in which the State of Tamil  Nadu is  indeed the petitioner though we have not made  a  formal order of transposition in the absence of a specific request.     The  main stream of river Cauvery has its origin in  the hills  of Coorg. Some tributaries have their origin  in  the State of Kerala while some having their origin  in Karnataka have joined the river. The 88 river  flows  for a distance of about 300  Kms.  within  the State of Karnataka and almost an equal span within the State of Tamil Nadu before it ultimately joins the Bay of  Bengal. It  has  not been disputed that Cauvery is  an  inter-State. river within the meaning of Article 262 of the Constitution. Entry 56 of List I of the Seventh Schedule to the  Constitu- tion runs thus: "56.  Regulation and development of inter-State  rivers  and river  valleys  to the extent to which such  regulation  and development  under the control of the Union is  declared  by Parliament by law to be expedient in the public interest." Article 262 provides: "Adjudication of disputes relating to waters of  inter-State rivers  or river valleys--(1) Parliament may by law  provide for  the adjudication of any dispute or complaint  with  re- spect to the use, distribution or control of the waters  of, or in, any inter-State river or, river valley. (2)  Notwithstanding anything in this Constitution,  Parlia- ment  may by law provide that neither the Supreme Court  nor any  other court shall exercise jurisdiction in  respect  of any  such dispute or complaint as is referred to  in  clause (1)."

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   It is not disputed before us that the Inter-State  Water Disputes Act, 1956 (33 of 1956) is a legislation within  the meaning of this Article. Section 3 of the Act provides: "3.  If  it appears to the Government of any  State  that  a water  dispute  with  the Government of  another  State  has arisen or is likely to arise by reason of the fact that  the interests of the State, or of any of the inhabitance  there- of,  in the waters of an inter-State river or  river  valley have 1Seen, or are likely to be, affected prejudicially by-- (a)..................... (b)..................... (c)..................... 89 the State Government may, in such form and manner as may  be prescribed,  request  the Central Government  to  refer  the water dispute to a tribunal for adjudication." Section 11 of the Act provides: "11.  Notwithstanding anything contained in any  other  law, neither the Supreme Court nor any other court shall have  or exercise jurisdiction in respect of any water dispute  which may be referred to a Tribunal under this Act.     It  is thus clear that s. 11 of the Act bars the  juris- diction  of  all courts including this  Court  to  entertain adjudication  of disputes which are referable to a  tribunal under  s. 3 of the Act. Therefore, this Court has no  juris- diction to enter upon the factual aspects raised in the writ petition.     No  serious dispute, however, has been raised before  us challenging  our jurisdiction to consider the claim  in  the writ petition confined to the question of a reference of the dispute to a tribunal within the meaning of s. 3 of the Act. Section 4 of the Act provides: "4.  (1) When any request under section 3 is  received  from any State Government in respect of any water dispute and the Central  Government  is of opinion that  the  water  dispute cannot  be settled by negotiations, the  Central  Government shall, by notification in the official Gazette, constitute a Water  Disputes Tribunal for the adjudication of  the  water dispute. (2)..................... (3).....................     Undoubtedly  s.  4 while vesting power  in  the  Central Government for setting up a Tribunal has made it conditional upon  the  forming of the requisite opinion by  the  Central Government.  The dispute in question is one over  which  the people and the State of Tamil Nadu have been clamouring  for more than 20 years now. The matter has been pending in  this Court for more than 6 1/2 years. It is on record that during this  period as many as 26 sittings spread over  many  years have been held in which the Chief Ministers of the Karnataka and  Tamil  Nadu have unsuccessfully tried  to  bring  about settlement; some of 90 these have been at the instance of the Central Government in which the Union Minister for Water Resources and others have participated.     There  was  a time, after the dispute  arose,  when  the Governments  in  the States of Karnataka and Tamil  Nadu  as also  at the Centre were run by one common political  party. Perhaps  if  the Centre had intervened in an  effective  way during that period there was considerable chance of  settle- ment  by negotiation. No serious attempt seems to have  been made  at that time to have the dispute resolved and  it  has been shelved and allowed to catch up momentum and give  rise

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to  issues of sensitivity. This case after a number  of  ad- journments  freely  granted  by this Court in  view  of  the nature  of the subject-matter, was called on 26.2.1990  when the following order was made: "The  writ  petition  is adjourned to  24.4.1990  for  final hearing  and  is to be listed at the top of  the  board.  No further adjournment shall be granted.           The  Advocate Generals of the States of  Karnataka and  Tamil  Nadu  are present in  Court.  Learned  Solicitor General  is also present. Counsel in W.P. No.  13347/83  in- sists  that  the matter should not be further  adjourned  as several  adjournments  on the same  plea  of  reconciliation between  the  two States have not borne any  fruit.  Learned Solicitor General has told us that in course of the month of March, the Chief Ministers of the two States shall meet.  He has  also  told that in the month of February a  meeting  of Chief Ministers of Kerala, Karnataka, Tamil Nadu and  Pondi- cherry had been called but that could not be held on account of  the  air  crash at Bangalore.  In  these  circumstances, leaving  the parties to negotiate, we have decided that  the matter shall now be heard on merits in the event no  settle- ment takes place by then." A  long adjournment of about two months was then granted  to provide  a further opportunity of negotiation. We  have  now been  told that the two Chief Ministers met on the  19th  of April, 1990, and a further meeting was stipulated to be held on the following day when the Minister of Water Resources of the Central’ Government was also to participate. The meeting of the two Chief Ministers failed to bring about any  result and  the meeting stipulated for the following day  for  some reason  or the other did not take place. When we  heard  the matter on the 24th of April, 1990, the counsel for the State of Tamil 91 Nadu in clearest terms indicated that the Chief Minister  of the  State was not further prepared to join the  negotiating table.  An affidavit along with the telex  message  received from Madras supporting its stand has now been made a part of the record.     26  attempts within a period of four to five  years  and several more adjournments by this Court to accommodate these attempts for negotiation were certainly sufficient  opportu- nity  and  time  to these two States at the  behest  of  the Centre or otherwise to negotiate the settlement. Since these attempts have failed, it would be reasonable undoubtedly  to hold  that  the dispute cannot be settled  by  negotiations. Yet,  since  the requisite opinion to be formed  is  of  the Central  Government  as required by s 4 of the Act  when  we reserved judgment on the 24th of April, 1990, we allowed two days’  time to the learned Additional Solicitor General  for the  Central Government to report to the Court the  reaction of  the Central Government. Mr. Goswami, learned  Additional Solicitor General appearing for the Union of India  informed us  on the 26th April, 1990, in the presence of the  counsel for  the other parties that the Central Government  did  not want  to  undertake  any further negotiation  and  left  the matter for disposal by the Court. In these circumstances, we have  no  option but to conclude that a  clear  picture  has emerged that settlement by negotiation cannot be arrived  at and taking the developments in the matter as indicated above it must be held that the Central Government is also of  that opinion  particularly when the Chief Minister of Tamil  Nadu has indicated that he is no more prepared to loin the  nego- tiations.      We are cognizant of the fact that the matter is a  very

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sensitive one. Judicial notice can be taken of the fact that the Government at the Centre is by one political party while the  respective  Governments in the two States  are  run  by different political parties. The dispute involved is, howev- er, one which affects the southern States of Kerala,  Karna- taka and Tamil Nadu and the Union Territory of  Pondicherry. The disputes of this nature have the potentiality of  creat- ing  avoidable feelings of bitterness among _the peoples  of the  States concerned. The longer the disputes linger,  more the  bitterness. The Central Government as the  guardian  of the  interests of the people in all the States must,  there- fore,  on  all such occasions take prompt steps to  set  the Constitutional machinery in motion. Fortunately, the Parlia- ment  has by enacting the law vested the Central  Government with  the  power  to resolve such  disputes  effectively  by referring the matter to an impartial Tribunal. There was  no reason,  therefore, for the dispute to protract for  such  a long time. Any further delay in taking the statutorily 92 mandate  action is bound to exasperate the feelings  further and  lead  to more bitterness. It is,  therefore,  necessary that  the legal machinery provided by the statute is set  in motion before the dispute escalates. A stitch in time  saves nine.  What is true for an individual is perhaps  more  true for the nation.     Section  4  indicates that on the basis of  the  request referred to in s. 3 of the Act, if Central Government is  of the  opinion  that the water dispute cannot  be  settled  by negotiation, it is mandatory for the’ Central Government  to constitute  a Tribunal for adjudication of the  dispute.  We were  shown the Bill where in s. 4 the word ’may’ was  used. Parliament, however, substituted that word by ’shall’ in the Act. Once we come to the conclusion that a stage has reached when the Central Government must be held to be of the  opin- ion  that  the  water dispute can no longer  be  settled  by negotiation, it thus becomes its obligation to constitute  a Tribunal and refer the dispute to it as stipulated under  s. 4 of the Act. We therefore, direct the Central Government to fulfil  its statutory obligation and notify in the  official gazette the constitution of an appropriate tribunal for  the adjudication  of  the water dispute referred to  in  earlier part  of  this  judgment. We further direct  that  the  same should be done within a period of one month from today.  The writ petition is accordingly allowed. There shall,  however, be no order as to costs. S.B.                                                Petition allowed. 93