Atma Linga Reddy & Ors v. Union of India & Ors, 2008
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".
R. Krishnaiah v. Union of India, 1996
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".
Andhra Pradesh v. Karnataka & Ors, 2000
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.
Cauvery presidential reference, 1991
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.
Tribunal interpretations
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.
ISDA section 6 (A)
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)
