In the case of Atma Linga Reddy & Ors v. Union of India & Ors, 2008, the petitioners owning lands in the RDS (Rajolibunda Diversion Scheme) ayacut approached the Supreme Court praying for a stay against construction of a power project in Karnataka. They contended that the bar on judicial intervention under section 11 does not extend to private individuals. Justice CK Thakker rejected the contention.
The court noted "another equally sustainable and well-founded reason for not entertaining the so-called grievance of the petitioners". The issue was already being considered by KWDT-II (issue 22A: "Whether the State of Karnataka is entitled to construct Mini Hydel Power Project from the common bondage of Rajolibunda Diversion Scheme without the consent of State of Andhra Pradesh?") and AP was acting as parens patriae in this matter. The subject matter was therefore clearly a water dispute taken up by an appropriate tribunal.
Justice Thakker took a dim view of AP's withholding information about KWDT-II's consideration of the issue. In his stricture, he wrote:
"The contesting respondents referred to those applications and the orders of the Tribunal. Respondent No. 3 is `State' and a public authority. This Court, therefore, obviously expects from such authority to place all the facts before this Court so as to enable the Court to consider them and to take an appropriate decision in accordance with law. In our considered opinion, the third respondent- State of Andhra Pradesh, in fairness, ought to have placed all facts subsequent to filing of the counter affidavit when the matter was heard by this Court. The State, however, failed to do so".
One R. Krishnaiah approached the AP high court under article 226 praying for implementation of the Bachawat Commission (sic!) award. The petitioner's primary interest was AP & Karnataka governments were among those impleaded as respondents.
On the question of the scope of section 11, Chief Justice Prabha Shankar Mishra wrote: "The Supreme Court or any other Court, if its jurisdiction is not otherwise barred, can always issue a direction to the Central Government to perform its duty and to restrain other States who are likely to violate the award/decision of the Tribunal".
Justice Mishra found AP had "maintained as vigorous if not more vigorous position as the petitioner". The learned judge accordingly rejected the leave for appeal to Supreme Court sought by the petitioner and held the issue has to be resolved between AP & Karnataka.
Explaining the rationale behind the decision, Justice Mishra wrote: "Parens Patriae status of the Government of the State under the scheme of our Constitution is indeed recognized as water disputes are not always raised on a just a cause and people arrayed on both sides take on many occasions very hard and uncompromising stands. While State Governments in their sovereign capacity are expected to protect and represent the interests of all its people they do not act as at adversaries in the usual sense".
As a fallout of the R. Krishnaiah judgment, AP approached the Supreme Court (Andhra Pradesh v. Karnataka & Ors, 2000 i.e. the Almatti dam case) praying the court to "declare 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 and also the Union of India" and an injunction against the construction of several projects including the Almatti dam.
AP's case was the enbloc allocation to Karnataka "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". In other words, AP claimed KWDT allocated water to specific projects listed in the report. Interpreting sections 5 (2) and 6 of ISDA, the court rejected AP's contention that the entire tribunal report should be treated as equal to a judgment and the decision was similar to a decree. The phrase ""facts as found by it and giving its decision" in 5 (2) was interpreted as the report being ""facts as found by it" while the gazetted decision (award) was covered by "giving its decision".
Justice Gopal Ballav Pattanaik wrote: "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".
Justice Pattanaik also decided "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 in the Official Gazette and on such publication that decision becomes final and binding on the parties".
AP's request that all riparian states are duty bound to disclose to each other & the central government details of projects taken up after 1973 was denied. Justice Pattanaik ruled: "Though 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 utilization of its own water resources would take the consent of other riparian States in case of an Inter-State river".
In a separate but related issue, the learned judge rejected AP's contention that AP's concurrence was required for the Almatti dam. He held: "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".
Justice Shailesh Majmudar in his concurring opinion held the dispute related to execution of KWDT decision and therefore not a water dispute under section 3. He ruled: "The grievance of the plaintiff State is that though the decision is binding on the upper riparian States namely, defendant nos. 1 and 3, the executive action of the concerned States amount to flouting and violation of the binding decision of the Tribunal. This clearly raises a question of execution and implementation of an already adjudicated water dispute. Once that conclusion is reached, it becomes obvious that Article 262 would be out of picture and only Article 131 will remain operative for being invoked by the disputant State against the defendant States, as it would certainly raise a dispute regarding execution and implementation of binding award of the Tribunal and, therefore, a contest does arise between two or more States on this score".
Karnataka filed a counter case that was decided at the same time. Karnataka's contention scheme B was a part of KWDT decision was also rejected on the same interpretation of section 6 as above.
Tamil Nadu (TN) petitioned CWDT to prevent Karnataka from impounding or utilizing water in excess of beyond the past extent. TN followed up by praying for release of 20 TMC as an emergency relief. Karnataka & Kerala objected arguing the tribunal had a limited jurisdiction without any inherent powers. The tribunal refused to grant relief on the ground that interim relief was not included in its reference.
TN & Pondicherry approached the supreme court. The apex court held the interim relief was under the purview of the dispute and directed the tribunal to decide the interim relief request on merit. The tribunal accordingly considered the request on merit and granted relief to TN. Karnataka passed an ordinance in an attempt to nullify the tribunal's order. The central government raised a presidential reference seeking supreme court's opinion under article 143.
Before going further, it may be noted the jurisdictional bar in section 11 of ISDA was not deemed to prevent the supreme court from hearing the case. This firmly establishes section 11 is limited to inter-state water disputes referred or liable to be referred to a tribunal.
Karnataka argued the ordinance was covered under entry 17 and, in the absence of a river board setup under RBA, a state retained full legislative powers under entry 17. It also submitted that ISDA envisaged only one decision and therefore the impugned interim award could not termed as a "decision" under section 5 (2).
TN inter alia argued that a tribunal had "inherent jurisdiction" to grant interim relief and such a decision would be a "decision" under section 5 (2). TN also contended the impugned ordinance was extra-territorial and therefore Karnataka had no right under entry 17.
The court opined the ordinance was an "an extra-territorial operation, and is thus beyond the legislative competence of the State and is ultra vires the provisions of Article 245(1) of the Constitution". The court passed severe strictures against Karnataka stating "it has assumed the role of a judge in its own cause". Karnataka was also held to have challenged the apex court's order directing CWDT to consider the interim relief on merit.
Karnataka's claim that interim award was not a part of the tribunal reference was negated: "Sub-section (1) of Section 5 expressly empowers the Central Government to refer to the Tribunal not only the main water dispute, but any matter appearing to be connected with or relevant to it. A request for an interim relief, whether in the nature of mandatory direction or prohibitory order, whether for the maintenance of status quo or for the grant of urgent relief or to prevent the final relief being rendered infructuous, would be a matter connected with or relevant to the main dispute".
Karnataka's contention that the interim award was not a decision was rejected: "It is not correct to say that since the Order does not say that it is a report and decision it is not so under Section 5 (2) of the Act. Either the Order is such a report and decision because of its contents or not so at all. If the contents do not show that it is such a report, it will not become one because the Order states so. The contents of the order clearly show that it is a report and a decision within the meaning of Section 5 (2)".
It should be noted that the supreme court's response to a reference under article 143 is an "opinion". The foregoing should be read accordingly. Having said this, there are no known cases where such an "opinion" was treated as being inferior to a judgment insofar as stare decisis is concerned.
KWDT asserts (volume I, page 100) "The decision of the Tribunal overrides all repugnant State legislation and executive action. In this manner, the plenary powers of a State over the waters of the inter-State river and river valley within its jurisdiction are regulated and controlled by the decision of the Tribunal". This is based on the phrase "final and binding on the parties" in section 6 of ISDA and the fact that state legislation is covered by section 3 (a).
On the same page, KWDT states "If there is competent legislation by Parliament on the subject of the apportionment of the waters of an inter-State river and river valley, that law binds all the States and there is no room for an inconsistent apportionment. The Tribunal has no power to override the paramount Central Legislation". While the source of this assertion is apparently based on Arizona v. California, 373 U.S. 546 (1963), ISDA does not provide any such right to a tribunal. Only state legislation is covered by section 3 (a).
KWDT (volume I, page 105) states: "However, the Union Government and the Planning Commission have no statutory authority to allocate the water resources among the States or to fix the order of priorities for their projects. If a water dispute arises and the same cannot be settled by negotiations, a reference has to be made to a Tribunal appointed under the Inter-States Water Disputes Act, 1956, for adjudication of the dispute". The phrase "has to be" is based on "shall" used in section 4 (1) of ISDA.
KWDT report text (volume II, pages 42-47) relates to the proposed Krishna Valley Authority (KVA). The first draft of the proposed water sharing formula (Scheme B) is provided in pages 64-65 of the same volume. This was modified in response to Karnataka's clarification III after the final request was submitted. Scheme B as finalized is provided in pages 32-39 of volume IV.
Maharashtra, Karnataka & AP filed a document (exhibit MRK-340) before the KWDT. This inter alia envisages the setting up of "a joint control body to give effect to the decision of the Tribunal". While the states differed on the water volume to be apportioned and percentage shares, this was left to the tribunal's adjudication. The tribunal accordingly submitted drafts of the scheme for the parties to consider.
After considering the drafts, Maharashtra agreed to the proposal while Karnataka while agreeing suggested certain modifications. AP, on the other hand, made a U-turn stating "Andhra Pradesh is unable to give its formal consent to set up the Krishna Valley Authority having the constitution and powers as mentioned in Part II".
Maharashtra objecting to AP's volte face submitted that AP's acceptance was not necessary. Relying on the word "final and binding" in section 6 and the jurisdictional bar cited in section 11, the state argued "A final and binding adjudication of a water dispute can only be made by the Tribunal which has power to make its decision effective by setting up, if necessary, a controlling body or authority which would implement the decision of the Tribunal". Maharashtra, in short, sought to apply the principle "ubi aliquid concediture, concediture etiam id sine quo res ipsa non esse potest" (a duty imposed or a power granted by Parliament carries with it the power necessary for its performance or execution).
Maharashtra also stressed other grounds including the argument that MRK-340 constituted an agreement. Karnataka pleaded the proposed KVA "is a necessity which cannot be avoided".
AP rejected the argument that MRK-340 was an agreement claiming only Parliament can create such a body and also on grounds of implementation shortcomings. The state also argued KVA was a Corporation and setting this up falls in the jurisdiction of Parliament, not tribunal. It was also submitted that "power to adjudicate is different from the power to execute the decision and in the absence of conferment of any express power on the Tribunal to pass an executable order the Tribunal cannot exercise this power".
KWDT rejected AP's contention on the limitations of adjudication. The tribunal did not accept Maharashtra's argument that MRK-340 constituted an agreement due to the implementation shortcomings pointed out by AP. While rejecting AP's "corporation" argument, KWDT did not elaborate as it gave up the KVA idea. Interestingly the tribunal did not delve into Maharashtra's "duty carries with it necessary powers" argument. This is not surprising given the importance given to the wider encompassing concept of "judicial intent" in Indian jurisprudence.
Concluding the matter, KWDT wrote: "After deeply pondering over the matter we have come to the conclusion that it would be better if we devise two schemes for the division of the waters of the river Krishna between the States of Maharashtra, Mysore and Andhra Pradesh. These schemes will be called Schemes A and B. Scheme A will come in operation on the date of the publication of the decision of this Tribunal in the Official Gazette under Section 6 of the Inter-State Water Disputes Act, 1956. Scheme B may be brought into operation in case the States of Maharashtra, Mysore and Andhra Pradesh constitute an inter-State administrative authority which may be called the Krishna Valley Authority by agreement between them or in case such an authority is constituted by legislation made by Parliament". It noted "propriety of the matter rather than legality" as the prime factor behind this decision.
The subject came up again after the final report was submitted. The central government in its clarification 6 requested for a modus operandi for water sharing in deficit year. KWDT replied: "Scheme ' B ' which provides for sharing of both surplus and deficiency in the entire Krishna river basin could not be implemented for reasons given in the Report and on account of the opposition by Andhra Pradesh, In the scheme of allocation embodied in the Final Order, Andhra Pradesh will be at liberty to use the excess flow in surplus years and at the same time will have to bear the burden of the deficiency in lean years save as indicated in this Report".
Karnataka's clarification II requested for implementation of scheme B. The tribunal in response outlined the previous initiatives in this direction and wrote (volume IV, page 30):
"However, one of the States did not agree to Part II of the Scheme, see Report Vol II pages 521-522 We have pointed out that it, is unwise and impractical to impose an administrative authority by a judicial decree without the unanimous consent and approval of the parties, see Report Vol II page 539 Even to day, the State of Andhra Pradesh is opposed to the implementation of Scheme 'B' and to the constitution of Krishna Valley Authority Consequently the Krishna Valley Authority which includes a nominee of Andhra Pradesh as envisaged by the common draft of Part II of Scheme 'B' cannot be constituted Unless the Krishna Valley Authority is constituted, Scheme ' B' cannot implemented". The tribunal reiterated that the best way to setup the authority was agreement among the parties or central legislation.
Justice Umesh Chandra Banerjee in his concurring judgment in Andhra Pradesh v. Karnataka & Ors, 2000 touched upon the subject. He initially expressed surprise that KWDT chose to take upon itself the framework of scheme B without the necessary power to constituite KVA. Going into the KVA related discussions at KWDT, he comes to "an unmistakable conclusion that the Tribunal wanted to provide certain guidelines to the Krishna Valley Authority as and when it is so constituted and significantly, the Tribunal itself has left it to the good sense and better appreciation of the parties or the legislative intent for the formation of such an authority".
Justice Pattanaik in Karnataka's counter case dwelt into the matter at some length stating: "While placing Scheme 'B' in its Report the idea was that the labor of the Tribunal in evolving the Scheme would not be totally lost and that is why it hoped that the parties may agree for constituting an authority or if they fail to agree the Parliament also could make a law but unfortunately, neither of the two contingencies has happened".
Issue # 8 in Karnataka's counter case reads: "8. Whether insertion of Section 6A in 1980 in the ISWD Act, 1956, ipso facto entitles Karnataka to seek implementation of Scheme 'B' as referred to in the reports of the Tribunal by framing a scheme? (Karnataka as modified by AP)". The court did not take up the issue on merit as scheme B & KVA have already been held not to be a part of the KWDT decision. This is based on the phrase "necessary to give effect to the decision of a Tribunal" in 6 (A) (1).
It is pertinent to note here that the amendment of 1980 inserting section 6 (A) was enacted after the KWDT-I decision came into force after the due process of gazette notification.
KWDT-II notes (pages 828-829): "it is the duty of each State to the dispute to act in accordance with the decision rendered by the Tribunal. The decision given by the Tribunal is to be followed and given effect to by the parties without there being anything else to happen or to be provided for. But for the purposes of better implementation of the provisions made in the decision, it may be helpful to have a machinery to do so. It may be helpful to the parties to the dispute also as they would be getting assistance in giving effect to the decision. We find that under sub-section (1) of section 6A of the Act, the Central Government has also been authorized to frame a scheme, if it so chooses to do, for implementation of the decision of the Tribunal". Accordingly the tribunal finalized a scheme for setting up of Krishna Waters Decision- Implementation Board (KWD-IB). This was included in clause XVIII of the decision with the details of the scheme together with Appendix-I of the decision.
"The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written": Chief Justice John Marshall in Marbury v. Madison, 5 U.S. 137 (1803)