Telangana river waters, irrigation & agriculture-12 (Basins- a primer)

A quick recapitulation

In the last several chapters, we tried to decipher water rights especially as applied to trans-boundary water sharing. We looked at the elements of both the Indian water regime and international law.

However, we are still not close to determining what Telangana's "fair share" of river waters, especially in the Krishna basin, should have been. Indian law leaves the job of determining the "fair share" to tribunals while this role is assigned to the Supreme Court in the US. The methodology of doing so is to be decided by the tribunal/court.

CWDT (volume III, page 6) summarizes the position: "No doubt, the principle in respect of equitable apportionment of the water is settled, but what shall be the equitable apportionment in respect of different riparian States so far the water of such inter-State river is concerned is itself a big question". GWDT (page 123) concurs: "There is no rigid formula for the equitable apportionment of waters of a river. Each river system has its own peculiarities".

Before embarking on a study of agreements, tribunal reports and case law, it is useful to look at the hydrological factors. This will help us understand these technical aspects better. This work therefore takes a "hydrology detour" before returning to water law.

River basin

Most people understand (or believe they understand) rivers quite well. However even this is not without controversy. In Kansas v. Colorado, Colorado claimed the Arkansas is in fact two rivers and that its irrigators were confined to the "Colorado Arkansas". Justice Brewer rejected the contention and held it to be one river, even if it was "broken".

The nature of river systems (i.e. a river together with all its components including tributaries) is more difficult but still within the perception of "lay men". Understanding what constitutes a basin (sometimes called river basin, river valley, drainage basin or catchment area) is more complex and may require the assistance of experts.

Hydrologists are unanimous in their agreement that a basin is an indivisible entity. Every basin is separated from the neighboring basins. Every drop of stream runoff whether resulting from snowmelt or rainfall ends up in the appropriate river system. Every square meter of land is necessarily a part of an appropriate basin and only that one basin.

Basins, like contour lines, do not cross each other. Basin boundaries are much more rigid than "real world" features like rivers or "conceptual lines" like seashore. The fact that basins are not yet accurately mapped can not change or distort this scientific position.

Basins are often divided into sub-basins. For instance, Krishna sub-basins are labeled K-1 through K-12. These divisions do have a physical connotation (and occasionally legal implications too) although the primary purpose is convenience.

KWDT (volume I, page 98) goes into the nature of a basin at great detail. KWDT cites WG Moore's Dictionary of Geography: "The entire area drained by the river and its tributaries is called the river basin". KWDT (on the same page) refers to a textbook on Applied Hydrology: "The river basin is necessarily completely bounded by the watershed or divide which separates it from other adjacent basins".

The tribunal accordingly ruled: "The expressions "Krishna basin", "Krishna river basin" and "Krishna drainage basin" used in this Report mean the entire area drained by the Krishna river and its tributaries. The Krishna basin is bounded by the watershed or divide which separates if from other adjacent basins".

This point is elaborated and reiterated as follows (in part relying on HA Smith's The Economic uses of International Rivers):

"River basin an indivisible physical unit. Each river basin is an indivisible physical unit, a more or less self-contained unit of drainage. Nature's laws treat the river and its tributaries as the arteries of a single circulatory system. The surface streams converge, ever seeking a lower level and unite to form one mainstream. All the waters that find their way towards a common outlet form an interconnected and interdependent system, capable of transmitting within itself any disturbance caused by changes affecting water in any part of the basin. Water is a moving resource which implies that changes in quality or quantity of water in one place may directly affect uses of water somewhere else".

Basin vs. boundaries

Political boundaries are defined based on several parameters. These often include social, cultural, economic factors etc. but almost never consider hydrological factors.

Cartographers often use features like rivers or hills when they draw maps. This stems partly from the fact such features are obstacles to transport & movement. This is why rivers & streams often form boundaries between districts, states or countries. The cartographic concept of a "natural boundary" makes it much more likely that basins crisscross political divisions.

The Supreme Court in the 1991 Cauvery presidential reference stated "Though the waters of an inter-State river pass through the territories of the riparian States such waters cannot be said to be located in any one State".

KWDT observes (volume I, page 99): "Division of an inter-State river by the boundaries of several States merely limits the geographic limits of the authority of a given State; but unlike land resources whose distribution among the States is resolved by the very establishment of their boundaries, the water resources of the common river are not subjected to automatic allocation among them by the delineation of their political frontiers".

Basin vs. command area

Because waters within a state are effectively at its command, states distribute these based on their own requirements. This right is recognized by all authorities. For example, KWDT final order Clause XV reads "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 waters within that State in a manner not inconsistent with the Order of this Tribunal".

States do not limit water use by basins. They base their planning on the concept of command area (sometimes also called "culturable command area") of a project. MoWR defines this as "the area which can be irrigated from a scheme and is fit for cultivation".

The differences between the two concepts is summarized below:

·         Command area is an administrative concept that may have no hydrological or topographic connotation

·         Command area relates to a project while basin relates to a river system

·         Every square meter of land is a part of one basin or another. This is not true of command areas: due to several reasons including government policies, a piece of land may not be a part of any project's command area

·         A command area can crisscross two (or even more) basins if the state resorts to trans-basin diversion

While the scientific definition of a basin is not questioned by any authority, there is some occasional confusion among administrators. AP quoting a couple of cases argued before KWDT that a basin includes "all territories outside the river drainage basin to which the waters of the river may be diverted and beneficially applied". In other words, AP tried to club the basin & command area concepts. KWDT dismissed this "artificial definition" and proceeded to present the correct situation detailed earlier. Trans-basin diversion was held to be permissible "but those areas cannot be regarded as parts of the river basin".

AP's "confusion" appears to persist. Before the second Krishna Water Disputes Tribunal (KWDT-II), AP made (pages 796-800) several contentions that indicate this:

·         A list of fluoride affected inhabitants cutting across basin borders

·         Out of the seven proposed new schemes, three (Srisailam Left Bank Canal, Kalwakurthy & Nettempaddu lift irrigation schemes) totaling 77 TMC are within the Krishna basin. The other four projects totaling 150 TMC are trans-basin diversions

·         When requested for details of drought prone areas, AP contended 67,650 sq. km including areas outside the basin. This is in sharp contrast to Maharashtra & Karnataka who listed only the drought prone areas within the Krishna basin (each state around 50,000 sq. km). Karnataka disputed AP's claim and submitted an estimate of 45,493 sq. km based on information obtained from AP. This led KWDT-II to record "The highest drought prone area in Krishna basin is in the State of Karnataka whereas State of Andhra Pradesh has smallest drought prone area in Krishna basin".

AP claimed its contention was based on KWDT statement (volume II, page 8) "the relevant consideration is the interest of the State as a whole and all its inhabitants and not merely the interest of the basin areas of the State". This is untenable as the context was to the injury caused to a state by the action of its riparian neighbors: "the crucial question is whether the interest of the State or of any of its inhabitants in the waters of the inter-State river and river valley is prejudicially affected by the action of another State".

A reading of ISDA sections 3 & 3a will serve to confirm the above:

"3. Complaints by State Governments as to water disputes. 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 inhabitants thereof, in the waters of an inter-State river or river valley have been, or are likely to be, affected prejudicially by--

(a) any executive action or legislation taken or passed, or proposed to be taken or passed, by the other State; or"

It may be noted that AP did not list the entire state drought prone area 89,109 sq. km in its submission. This does not tally with the purported understanding of "state as a whole".

From the above, it emerges AP continues to treat non-basin areas benefitting from trans-basin diversions as a part of the basin. As this contention flies in the face of both accepted science and practice as established by tribunals, it may be concluded that the posturing reflects the state policy. This approach is likely to have impacted the data provided by the state too.

Basins of Andhra Pradesh

SKC page 219 shows a basin map of AP together with district boundaries. While this map's nature (raster) and scale is not amenable to spatial database creation or analysis, it does provide some interesting information based on a visual examination:

·         AP consists of 40 basins including 12 inter-state river systems

·         Khammam is spread in four basins: Godavari (# 20), Thammileru (# 22), Budameru (# 24) & Krishna (# 25)

·         With the exception of the small area in Khammam covered by Thammileru & Budameru basins, the rest of Telangana is fully in either Krishna or Godavari basins

·         Adilabad & Nizamabad districts are totally in the Godavari basin

·         Mahabubnagar & Nalgonda districts are totally in the Krishna basin

·         All other districts crisscross a minimum of two basins

·         Contrary to intuitive perceptions, both Andhra and Rayalaseema are largely outside the Krishna & Godavari basins

The map does have some shortfalls. For instance, it does not delineate sub-basins. It also ignores AP's boundary with Pondicherry (Yanam) and treats Yanam as a part of East Godavari district. This should not detract from the fact the map is otherwise useful.

Andhra Pradesh basin areas

The publication Water Resources Statistical Abstract-2010 (WRSA-2010 or WRSA) published by AP's Irrigation & Command Area Development (I&CAD) department lists (pages 25-26) lists each of the 40 basins with the "catchment" area in the state. The total works out to 262,277 sq. km i.e. 12,768 sq. km less than the state's area!

The same publication (pages 21-22) 58 rivers flowing in the state together with their "catchment" area in the state. The total works out to 318,208 sq. km i.e. 43,163 sq. km more than the state's area!

While the reasons for these discrepancies is not readily ascertainable, this is definitely a serious lapse not to be expected in a work of this nature. It may be stressed here that WRSA appears to be the most important source cited by various contenders including LSP.

In any case, WRSA does not provide region (or district) wise breakup of the river basins. This information is available from KWDT & GWDT reports. The reports provide basin area (in square miles) for each of the basin districts as well as the proportion of the basin area in the district to the entire district.

Converting at the rate of 1 mile= 1.61 km, KWDT's estimates show that AP covers 76,313 sq. km of the Krishna basin. Telangana accounts for 52,274 sq., km i.e. 68.5% of the Krishna basin in the state. Similarly, GWDT estimates show Telangana at 58,006 i.e. 79.2% of AP's 73,261 sq. km. These percentages are widely quoted and so familiar to most people on both sides of the debate.

However, a rather different picture emerges when one tries to validate the tribunal data. Bellary district is shown to be entirely within the Krishna district with an area of 9,915 sq. km whereas the district's current area is only 8,450 sq. km. Khammam district's area after prorating works out to around 11,925 sq. km against the current area of 16,029 sq., km i.e. around 4,100 sq. km short. The area of East Godavari, in contrast, is estimated at 14,967 sq., km, around 4,160 sq. km more than its present area.

On a careful examination of the discrepancies, I am led to believe the tribunal data is based on a pre-1956 estimate. The East Godavari & Khammam discrepancies are almost exact & opposite: this must be the area transferred after 1956 to Khammam. The excess estimate of Bellary district reflects the area transferred to AP in 1956. The other discrepancies are almost certainly traceable to reorganization & other territorial transfers.

Andhra Pradesh basin distribution

As most of Telangana (with the exception of 561 sq. km in two minor basins) is in Krishna & Godavari basins, I classified the AP basins in three categories: Krishna, Godavari & "Others" (i.e. all the 38 basins lumped together).

Srikakulam, Vizianagaram, Prakasam, Nellore, Chittoor & Cuddapah pose no problems as these districts entirely fall in the other basins. Nizamabad & Adilabad are also easy as these districts are entirely within the Godavari basin. Mahabubnagar & Nalgonda are similarly totally in the Krishna basin.

The districts of Visakhapatnam & West Godavari basins are also easy: I assume the GWDT estimate to be correct while the rest of the districts fall in the other basins. The districts of Krishna & Guntur were treated in a similar manner assuming KWDT estimates to be accurate.

The case of the former Hyderabad district was not too difficult either: I assumed the present Hyderabad district to be totally in the Krishna basin and assigned the insignificant Godavari basin area to Ranga Reddy.

I resolved the East Godavari discrepancy by deducting the excess GWDT estimate from its Godavari basin and allocating the balance to other basins. I similarly resolved the Khammam discrepancy by assuming the Krishna & other basin areas to be correct and assigning the balance to Godavari basin.

In the case of Medak, I assumed KWDT estimate to be accurate assigning the balance to Godavari basin. For Warangal, I took the opposite route assuming GWDT estimate to be correct.

The only problem remaining was between Anantapur & Kurnool districts. Bellary district ceded land to both in 1956 with no information on the exact extent. I assigned the Krishna basin area transferred from Bellary to Anantapur. While this is not factually correct, I had no other option as no information is available on these territories. This error should not reflect too much on the study as both Anantapur & Kurnool belong to the same region.

The end result is as follows:

·         Krishna basin: 77,721 sq. km with Telangana at 67.7% (52,587 sq. km)

·         Godavari basin: 72,787 sq. km with Telangana at 84.8% (61,692 sq. km)

·         Other basins: 124,537 sq. km

"Rivers are not human artifacts; they are natural phenomena, integral components of ecological systems, and inextricable parts of the cultural, social, economic and spiritual lives of the communities concerned. They are not pipelines to be cut, turned around, welded and rejoined": R. Ramaswamy Iyer

Telangana river waters, irrigation & agriculture-11 (International trans-boundary water sharing)

Inter-state water sharing in the US

The American position can be understood from the Supreme Court decisions. Excerpts from Justice Brewer's opinion in Kansas v. Colorado explain the situation.

"In a qualified sense and to a limited extent, the separate states are sovereign and independent, and the relations between them partake something of the nature of international law. This Court in appropriate cases enforces the principles of that law, and in addition, by its decisions of controversies between two or more states, is constructing what may not improperly be called a body of interstate law".

"If the two states were absolutely independent nations, it would be settled by treaty or by force. Neither of these ways being practicable, it must be settled by decision of this Court".

On the role of the federal government, Justice Brewer quotes Chief Justice John Marshall's opinion in McCulloch v. Maryland, 17 U.S. 316 (1819): "This government is acknowledged by all to be one of enumerated powers. The principal that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted".

Justice William O. Douglas in his opinion in Nebraska v. Wyoming, 325 U.S. 589 (1945) reiterates the position writing "a clash of interests which, between sovereign powers, could be traditionally settled only by diplomacy or war. The original jurisdiction of this Court is one of the alternative methods provided by the Framers of our Constitution".

I can not find a single judgment where a state organ was treated as an appropriator. In Nebraska v. Wyoming, the federal government claimed it acquired water rights by appropriation for two projects and retains the rights to the extent not disposed of. The secretary of interior filings for the projects were accepted by state officials. Justice William O. Douglas in his opinion did not accept the plea that this act conferred proprietorship rights to the federal government.

Justice Douglas cited several precedents including Ickes v. Fox, 300 U.S. 82 (1937): "Although the government diverted, stored, and distributed the water, the contention of petitioner that thereby ownership of the water or water rights became vested in the United States is not well founded. Appropriation was made not for the use of the government, but, under the Reclamation Act, for the use of the landowners, and, by the terms of the law and of the contract already referred to, the water rights became the property of the landowners, wholly distinct from the property right of the government in the irrigation works".

He ruled: "The rights of the United States in respect to the storage of water are recognized. So are the water rights of the landowners. To allocate those water rights to the United States would be to disregard the rights of the landowners. To allocate them to the States, who represent their citizens parens patriae in this proceeding, in no wise interferes with the ownership and operation by the United States of its storage and power plants, works, and facilities. Thus, the question of the ownership by the United States of unappropriated water is largely academic so far as the narrow issues of this case are concerned".

It may be noted the American constitution confers no rights to the federal government respect to inter-state flowing waters. Considering this and the above together it emerges that inter-state water sharing in the US was an uncharted territory. While states are free to manage water flowing through their territories, the federal government has no right of oversight. Inter-state water disputes therefore fall in the original jurisdiction of the Supreme Court. While the states can act as parens patriae of their citizens, they do not posess any water rights themselves.

Helsinki rules

International Law Association (ILA) adopted a set of guidelines called "Helsinki Rules on the Uses of the Waters of International Rivers" ("Helsinki rules" in common parlance) at its fifty second conference held at Helsinki in 1966. While these guidelines have no formal status and lack an enforcement mechanism, these represent a pioneering effort in trans-boundary water management.

The Helsinki rules consist of 37 articles spread over 6 chapters. We will go into the relevant aspects to the extent necessary below.

Chapter 1 (articles 1-3) covers scope and definitions. It may be noted that the scope excludes "as may be provided otherwise by convention, agreement or binding custom among the basin States".

Chapter 2 (articles 4-8) is the most relevant for our study as it deals with "equitable utilization of the waters of an international drainage basin". Article 4 states: "Each basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin".

Article 5 has three sections. The first section requires that the reasonable and equitable share shall be ascertained "in the light of all the relevant factors in each particular case".

The second section of article 5 provides a non-exhaustive list of some relevant factors. The third section states: "The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is reasonable and equitable share, all relevant factors are to be considered together and a conclusion reached on the basis of the whole".

The list provided in 5 (2) is produced in full below:

1.     The geography of the basin, including in particular the extent of the drainage area in the territory of each basin State

2.     The hydrology of the basin, including in particular the contribution of water by each basin State

3.     The climate affecting the basin

4.     The past utilization of the waters of the basin, including in particular existing utilization

5.     The economic and social needs of each basin State

6.     The population dependent on the waters of the basin in each basin State

7.     The comparative costs of alternative means of satisfying the economic and social needs of each basin State

8.     The availability of other resources

9.     The avoidance of unnecessary waste in the utilization of waters of the basin

10.  The practicability of compensation to one or more of the co-basin States as a means of adjusting conflicts among uses

11.  The degree to which the needs of a basin State may be satisfied, without causing substantial injury to a co-basin State

Article 6 precludes inherent preference of any use over others. Article 7 prohibits denial of reasonable use to a basin state on the basis of future uses of other states.

Article 8 relates to "existing reasonable uses". Section 1 states: "An existing reasonable use may continue in operation unless the factors justifying its continuance are outweighed by other factors leading to the conclusion that it be modified or terminated so as to accommodate a competing incompatible use". Section 2 defines the entry & exit criterion of an existing use. Section 8 (3) prohibits a use that is incompatible with an already existing reasonable use at the time of becoming operational from being treated as an existing use.

Chapters 3, 4 & 5 (articles 9-25) relate to pollution, navigation & timber floating. These are not relevant to this study.

Chapter 6 (articles 26-37) outlines the procedures for preventing and/or settling disputes. This does not warrant a detailed discussion at this stage.

Convention on the Law of the Non-navigational Uses of International Watercourses

UNO adopted a document in 1997 titled "convention on the law of the non-navigational uses of international watercourses". This has not yet gone into effect as the prescribed minimum of member states are yet to ratify the law. It may be noted India has not yet ratified the convention. The document consists of 37 articles plus an additional 14 articles in the annexure. We will go into the relevant aspects to the extent necessary below.

Article 1 defines the scope of the convention. Navigation is specifically excluded from the convention's scope. Article 2 defines important terms including "watercourse". Articles 3 & 4 cover watercourse agreements.

Articles 5 & 6 are the most relevant for our study as these deal with "equitable and reasonable utilization and participation". Article 6 (1) provides a non-exhaustive list of some relevant factors (produced in full below):

(a)   Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character

(b)   The social and economic needs of the watercourse States concerned

(c)   The population dependent on the watercourse in each watercourse State

(d)   The effects of the use or uses of the watercourses in one watercourse State on other watercourse States

(e)   Existing and potential uses of the watercourse

(f)    Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect

(g)   The availability of alternatives, of comparable value, to a particular planned or existing use

Article 6 (2) enjoins states to consult each other to ascertain equitable utilization. Article 6 (3) states: "The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole".

Article 7 calls upon states to prevent significant harm to other states and, if harm does occur, mitigate and/or compensate the harm in consultation the injured states.

Articles 8 & 9 outline the responsibilities related to mutual cooperation and information exchange. Article 10 precludes (in the absence of agreement or custom) inherent priority of any use over others and prescribes the modalities of conflict resolution.

The rest of the convention relates to matters such as preventing and/or settling disputes. These do not merit a detailed discussion at present.

"All things in this creation exist within you, and all things in you exist in creation; there is no border between you and the closest things, and there is no distance between you and the farthest things, and all things, from the lowest to the loftiest, from the smallest to the greatest, are within you as equal things. In one atom are found all the elements of the earth; in one motion of the mind are found the motions of all the laws of existence; in one drop of water are found the secrets of all the endless oceans; in one aspect of you are found all the aspects of existence": Kahlil Gibran

Telangana river waters, irrigation & agriculture-10 (Criticism of indian water legislation)

Notes on this chapter

The previous chapters outlined the Indian trans-boundary legislation as well as overview & interpretation of the Indian water regime. The present chapter attempts to "complete" the discussion by looking at criticism from among the scholarly community.

By its very nature, this by no means can be exhaustive or even thorough. This should not deter us as the limited aim of this chapter is to offer a few critical insights into the Indian water regime.

This chapter for obvious reasons can only be subjective. However, the "subjectivity" does not adversely impact the findings of my study. To that extent, this chapter is peripheral to the main body of this study.

Unlike in other chapters, I present the views mostly on an "as is" basis. I limit my comments only to cases where I believe there is an urgent need to correct or supplement the scholar's opinion. This however does not mean I concur or differ with other views on which I am silent.

I realize this chapter may provide some "ammunition" for critics of this work. I leave it in deliberately in order to benefit from the resulting discussions.

RBA: a toothless wonder

Srinivas Chokkakula has published a work called "Disputes, (de)Politicization and Democracy: Interstate Water Disputes in India". This work is funded and made available by Centre for Economic and Social Studies (CESS). His study traverses the work several important scholars.

Chokkakula cites (page 8) RBA as "the only instance where Center has used powers accrued under Entry 56" and explains the boards setup under this law are only advisory bodies.

Chokkakula refers to section 22 of RBA providing for arbitration of disputes over river board advice. He argues this section is redundant as "States are bound by the agreements they enter into through mutual consent, but not by any directive by the Boards". He calls for a comprehensive review of the boards setup till date. He concludes "In the absence of alternative institutional mechanisms to manage interstate rivers, conception of the River Boards as advisory is puzzling".

Stressing that RBA & ISDA are independent pieces, Chokkakula points out that river boards cannot be setup under RBA to implement tribunal decisions.

General criticism of the trans-boundary dispute resolution process

Alan Richards & Nirvikar Singh have published a paper titled "Inter State Water Disputes in India: Institutions and Policies". This work is partly funded and made available by the University of California, Santa Cruz.

Richards & Singh describe (page 2) "plethora of actors and the complexity of the institutional environment" as the key factors behind the apparently inadequate mechanisms for settling inter-state water disputes. They identify the actors as "state governments (which in turn must be decomposed into professional politicians, political parties, and interest groups), the national parliament, central ministries, the courts, and ad hoc water tribunals". The authors stress (page 3): Indeed, there is growing consensus that existing institutions are increasingly fail to generate outcomes which contribute to economic growth and national welfare".

Center vs. states

Richards & Singh assert (page 5) "state governments dominate the allocation of river waters". They cite examples to state "an unambiguous institutional mechanism for settling inter-state water disputes does not exist". They also allege (page 18) the center has on occasion prolonged negotiations "by failing to speedily appoint a tribunal, even when asked".

The authors explain (pages 24-25) "extreme delays have been a very costly feature of the process of resolving inter-state water disputes in India". They cite three contributory factors: central delay in constituting tribunals, long tribunal turn-around time & delays in notification/implementation of the decision.

The authors opine (page 28) Sarkaria Commission's recommendation for amending ISDA to confer the status of a Supreme Court decree on the tribunal decision is not necessary. They note: "tribunals seem to have this force in theory: the problem is of penalties to be imposed for noncompliance". They therefore propose institutionalized enforcement mechanisms.

Chokkakula writes (pages 7-8) that the inclusion of water in the state list has given states a predominant role in water management. He cites Iyer that the center let the states take larger responsibility by not exercising its powers. He argues the phrasing of entry 56, especially the reference to public interest, extends the central scope to all situations where a state's action affects any other state. He contends this includes cases where the river is not trans-boundary.

While the second assertion is untested, most authorities accept that the rights of states are limited to waters within their territories. It is pertinent to note the supreme court held the "The Karnataka Cauvery Basin Irrigation Protection Ordinance 1991" unconstitutional on the ground it was "extra-territorial" (CWDT volume IV; pages 23-24).

Chokkakula raises (page 11) several interesting questions about the non-compliance by states: "Why a particular Act cannot be operationalized in its letter and spirit? Why should Supreme Court intervene to enforce the awards? Does Supreme Court's intervention not undermine tribunals? Why non-compliance is not treated as contempt of court? Can Supreme Court charge non-compliant States with contempt of court?" He mentions Fali Nariman's suggestion of repealing the ISDA and bring interstate water disputes under the jurisdiction of the Supreme Court.

Lahiri argues for a greater role to the central government: "I have, as a solution to this problem and to show the way ahead, advocated the cause for greater Central control. Water is a national resource and a national asset of India as a whole. It is not the property of one state to the exclusion of others. Water has to be distributed amongst the inhabitants of the States and Union Territories which form this great Union known as India. If we are to progress and forge ahead, only greater Central control over waters of inter-state rivers and works associated with them will ensure that water is distributed on the basis of need and not on the basis of ostensible ownership as if it were private property".

Colonial & imperial structures

Chokkakula explains (page 27) the alternate approach of Radha D'Souza at some length. He explains "She argues that reproducing colonial and imperial structural relations are at the root of the problem of interstate water disputes in India".

D'Souza's structural conditions are explained: "The first is a condition created by continuation and internalization of colonial power relations (legal, institutional and administrative)- as illustrated by incorporation of agreements from colonial period, which remained sources of conflict. The second is a condition likened to contemporary reproduction of imperial order ".

Basin as a unit

Richards & Singh write (page 6): "while river basins seem the natural unit for dealing with issues of water sharing, investment and management, they have been the focus of conflict rather than cooperation in the Indian case".

Chokkakula explains (page 27) Radha D'Souza's perspective is rather different. She is credited with the argument that the construction of large dams in post-independence India is an "imperial project". She posits: "Promoted by international institutions like the UN and the World Bank, river basin development as a development project was embraced by postcolonial nations like India".

“Criticism may not be agreeable, but it is necessary. It fulfills the same function as pain in the human body. It calls attention to an unhealthy state of things”: Winston Churchill

Telangana river waters, irrigation & agriculture-9 (Interpretation of Indian water legislation)

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)

Telangana river waters, irrigation & agriculture-8 (Indian water regime-an overview)

General

The previous chapter focused on the Indian trans-boundary legislation. We will now turn our attention to the overview, interpretation & criticism of the legislative regime. The present chapter will cover a broad overview of ISDA and the role of prior agreements in the legal landscape.

The language of the applicable legislation provides several pieces of interesting information.

The definition of "water disputes" in section 2 (c) of ISDA refers to three types of disputes. Trans-boundary water sharing is not explicitly included as a "water dispute": it is only covered through sections 2 (c) (i). More over, other types of disputes are specifically included. This leads to the inference that ISDA's primary role is the adjudication of water disputes including but not limited to water sharing. The very title of the act reinforces this inference.

ISDA title change through 2002 amendment may be interpreted to clarify the exclusion of lakes and ground water (excluding sub-surface streams) from the scope of the legislation. Lahiri notes "It became the Inter-State River Water Disputes Act, 1956 only after the 2002 Amendment on and from August 6, 2002".

Section 3 of ISDA empowers state governments to raise water disputes. This (together with the title itself) can be inferred to bar individuals and other non-state players such informally defined "regions". Only a state government can pray for remedy if aggrieved.

Section 3 (and indeed ISDA itself) relates only to inter-state disputes. This is evident from both the language and the title. Taken together it is not possible for any one other than a state government (e.g. a regional council) to escalate a water dispute against another district, region or state. Distribution of water within a state (i.e. entry 17 rights) is clearly out of bounds.

I emphasize some of the above assertions are based on the sum total of my understanding after going through hundreds of pages of case law, tribunal reports & scholarly works. I realize I am not backing up some of these "on the spot" but this is to avoid increasing the pages of this work.

Commission, tribunal & courts

A commission appointed under section 130 of the 1935 act is limited to an advisory role. The Governor-General had wide discretionary power as confirmed in section 131 (9). He has the authority to take decisions or modify decisions he has already taken. The arbitrariness in his role as well as possible conflict with "his Majesty in Council" appear to be the main reasons why KWDT suspected "political considerations". The situation did not appear to have improved much from the pre-1935 period when the Griffin arbitration award was overturned by executive action.

Another distinction relates to the composition and appointment. Section 131 (1) of the 1935 act permits a commission to include individuals "having special knowledge and experience in irrigation, engineering, administration, finance or law", as decided by the Governor-General. The Indus Commission consisted of two members apart from the Chairman Justice BN Rau: both were engineers.

On the other hand, ISDA section 4 (2) limits the membership to serving (at the time of nomination) judges selected by the Chief Justice of India. Section 4 (3) relates to the appointment of assessors.

Unlike a commission setup under the 1935 act, a tribunal constituted under ISDA is empowered to pronounce a decision. This decision is binding on all the parties to the dispute as well as the central government. Tribunal decisions may not be questioned in a court of law. In practice this may not have worked out smoothly due to several reasons. Nevertheless a tribunal is a powerful adjudication institution.

Tribunals vs. courts

How do tribunals compare with courts? While a tribunal decision may not be challenged in any court, this relates only to the decision itself. This is not helpful in determining a tribunal's hierarchy insofar as stare decisis is concerned.

KWDT (volume IV, page 11) provides some clues:

"But a Tribunal constituted under a special statute has no common law or inherent power, see Kamaraja Nadar v. Kunju Thevar (1959) S.C.R. 583, 596 (Election Tribunal). However, if authorized by the statute by which it was constituted, it may review its decision, see Sree Meenakshi Mills Ltd. v. Their Workmen (1958) S.C.R. 878, 888 (Labor Appellate Tribunal under the Industrial Disputes Act, 1947); Mulla's Code of Civil Procedure 13th Edition, page 1669; and may correct an accidental omission, see Tulsipur Sugar Company Ltd v. State of U.P. (1970) 1 S.C.R. 35, 37, 41-45 (Labor Court under U.P. Industrial Disputes Act, 1947).

This Tribunal is set up under the Inter-State Water Disputes Act, 1956. Its powers are circumscribed by the provisions of that Act. It has no inherent powers. It has some trappings of a Court. Section 9 of the Act gives the Tribunal some powers of a Civil Court and also enables it to regulate its practice and procedure. But the powers under section 151, 152 or under section 114 or Order 47 Rule 1 of the Code of Civil Procedure have not been conferred on it. Section 5(1) of the Act provides for reference of a water dispute and any matter appearing to be connected with or relevant to the water dispute to the Tribunal for adjudication. Section 5 (2) directs the Tribunal to investigate the matters referred to it and forward to the Central Government a report setting out the facts as found by it and giving its decision on the matters referred to it.

At pages 512 to 513 of Vol. II of the Report we have pointed out that a Tribunal appointed under the Inter-State Water Disputes Act, 1956 is not a permanent body and it cannot retain jurisdiction to modify its decision, apart from its statutory power to do so upon a reference made to it under section 5 (3) of the Act within three months of the decision".

The above may be considered in view of the following:

·         Tribunals frequently cite both case law (Indian & international) as well as other tribunal reports

·         The converse does not appear to be true. The Indian case law I referred frequently cited the appropriate tribunal but this was only for understanding the reason behind a decision

·         I have not come across a single instance where an Indian court cited a different tribunal's report

Not withstanding the jurisdictional bar, it is therefore safe to conclude a tribunal's report has little if any precedential value outside of water dispute adjudication. Even this may be limited by context e.g. CWDT's approach on basin transfers may not be relevant to different situations.

Prior agreements

KWDT (volume I, page 101) reading sections 2 (c) (ii) and 3 (c) of ISDA together determined: "if there is an agreement between the States relating to the use, distribution or control of the waters, that agreement should be implemented". GWDT (page 109) also cites this. KWDT also cites the Indus Commission's views "The agreement determines their respective rights and obligations and furnishes the agreed "law" on the subject".

On a similar note, Lahiri states the Indus Commission held "where there was an agreement, the agreement itself determine the limits and any transgression of this agreement would make the transgression actionable".

It may be noted that section 3 (c) refers to any agreement "relating to the use, distribution or control of such waters". While water sharing agreements are included, this may also include other agreements relating to the use/distribution/control of waters. There is also no restriction on the modalities of sharing. Agreements signed for Godavari water sharing adopted several methods including specific projects, sub-basins or part thereof, TMC shares as well as combinations of these.

In an agreement signed on July 12, 1974 Madhya Pradesh (MP), Gujarat, Maharashtra & Rajasthan agreed on several aspects relating to the dispute then being adjudicated by Narmada Water Disputes Tribunal (NWDT). Apart from agreeing the water quantity available at 75% dependability as 28 MAF (million acre-feet), the parties agreed to set aside 0.25 MAF & 0.50 MAF respectively for Maharashtra & Rajasthan. NWDT accordingly allocated this water to the two states in clause III of the decision.

GWDT also refused to interfere with valid agreements between states. The central government in its clarification 5 requested the tribunal to provide for a review as water available may become scarce with the passage of time. The tribunal refused the request stating "The decision of the Tribunal is based on the Agreements between the parties and there is no stipulation in the Agreements for the review of the decision. As such, we do not find it necessary to amend the Final Order in this respect".

Interpreting agreements

Andhra Pradesh v. Maharashtra & Ors, 2013 (Babhali barrage case) provides an interesting case study on how agreements are to be drafted. The case centered to a great extent around clause II (i) of the agreement dated October 6, 1975, between the two states. This agreement was included in the award as Annexure II vide clause V (A) (b). The relevant text is shown below for ready reference.

"II. (i) From the waters in the area of the Godavari basin below Paithan dam site on the Godavari and below Siddheswar dam site on the Purna and below Nizamsagar dam site on the Manjira and up to Pochampad dam site on the Godavari, Maharashtra can utilize waters not exceeding 60 TMC for new Projects including any additional use over and above the present sanctioned or cleared utilization, as the case may be".

AP argued inter alia the phrase "up to Pochampad dam site" includes the entire storage area of the dam. Maharashtra argued the phrase had to be interpreted literally i.e. "up to the concrete structure of the dam" as this meaning was used in other clauses of the agreement. Any other interpretation, it argued "would result into absurdity and make other clauses unworkable".

Maharashtra also contended that there was no limitation in its rights in its territory: "If the intention of Andhra Pradesh was that Maharashtra should not utilize the waters of Pochampad reservoir in its territory, such limitation would have been provided expressly".

Justice Rajendra Mal Lodha agreed with Maharashtra holding: "We are in agreement with Mr. TR Andhyarujina that if the intention of Andhra Pradesh was that Maharashtra should not utilize the waters of Pochampad reservoir in its territory, such limitation would have been provided expressly. When an agreement is entered into between two or more states, they have assistance of competent legal and technical minds available with them. The states do not have lack of drafting ability. Such agreement is drafted by trained minds. An agreement such as inter-state water sharing agreement would not leave its interpretation to chance. In our view, in the absence of any express limitation, except quantity, on the use of water by Maharashtra within its territory in Clause II i), the interpretation put by Andhra Pradesh to this Clause cannot be accepted".

Justice Lodha rejected AP's interpretation of the phrase "dam site" and upheld Maharashtra's contention. "The contention of Mr. K. Parasaran, learned senior counsel for Andhra Pradesh that up to Pochampad dam site in Clause II (i) and Clause II (ii) means up to the spread area of Pochampad dam and not the concrete structure of the dam does not appeal to us. The common meaning of the word “dam” is the structure across the stream, including the abutment on the sides".

The learned judge agreed with Maharashtra that an expression must carry the same meaning at all places where it is used, unless expressly provided otherwise. He wrote: "If the meaning of Pochampad dam site is given meaning as spread area of Pochampad dam, Clause V does not make sense and leads to absurdity. Clause V becomes workable only when Pochampad dam site is understood to mean concrete structure of the dam".

While agreeing with AP that "generally there cannot be lake/pondage of a project of one state within the lake/pondage of the project of another state", the court held this was not the focus of the case in the absence of engineering and hydrographic testimony. As the arguments on either side were centered on the interpretation of II (ii), this alone was considered for the judgment. The learned judge held "Like any other agreement, the terms of inter-state agreement ordinarily must be found out from the actual words employed therein".

"All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void": section 10 (excerpt) of the Indian Contracts Act, 1872