Holding

The waters of an inter-State river constitute a national asset, and no single State can claim exclusive ownership; the principle of equitable apportionment, as reflected in international rules and national water policies, governs the allocation, and the Tribunal's approach was correct, but the allocation must be adjusted to account for 10 TMC of groundwater in Tamil Nadu and an additional 4.75 TMC for Karnataka's domestic and drinking needs, including the entire city of Bengaluru.

Summary

The Supreme Court adjudicated appeals against the Cauvery Water Disputes Tribunal's 2007 award allocating waters of the inter-State river Cauvery among Karnataka, Tamil Nadu, Kerala, and Puducherry. The Court upheld the Tribunal's adoption of the principle of equitable apportionment as recognized in international rules and national water policies. It affirmed the Tribunal's determination of irrigated areas and water allocations for irrigation, domestic/industrial purposes for Tamil Nadu, Kerala, and Puducherry, as well as reservations for environmental protection and inevitable escapages. However, the Court modified the award by accounting for 10 TMC of groundwater available in Tamil Nadu and increasing Karnataka's allocation by 4.75 TMC for drinking and domestic purposes, including the entire city of Bengaluru, resulting in a net increase of 14.75 TMC for Karnataka and a corresponding reduction for Tamil Nadu. The Court also held that the 1924 agreement expired in 1974, that the agreements were not void for unconscionability or paramountcy, and that Article 363 did not bar adjudication. The appeals were disposed of with Karnataka's appeal partly allowed, and the Central Government was directed to frame a scheme under Section 6A of the Inter-State Water Disputes Act within six weeks.

Issues considered

Whether the appeals by special leave under Article 136 are maintainable against the Tribunal's award?
Whether the agreements of 1892 and 1924 are valid and binding, and whether they expired after 50 years?
Whether the doctrine of paramountcy renders the agreements inoperative?
Whether Article 363 bars adjudication of disputes arising from these agreements?
Whether the agreements are unconscionable due to unequal bargaining power?
Whether the agreements continued after the States Reorganisation Act, 1956?
Whether the complaint by Tamil Nadu required adjudication on merits?
What principles of equitable apportionment should be applied?
Whether the Tribunal correctly determined irrigated areas and water allocations for irrigation?
Whether groundwater in Tamil Nadu should be accounted for in allocation?
Whether the allocation for domestic and industrial purposes for Karnataka, especially Bengaluru, was correct?
Whether the allocation for Kerala and Puducherry was correct?
Whether the reservation for environmental protection and inevitable escapages is justified?
Whether Section 6A of the Act mandates the Central Government to frame a scheme?
What should be the final allocation of Cauvery waters among the States?

Legislation cited

Constitution of Indias. Article 131, s. Article 136, s. Article 143, s. Article 262, s. Article 295, s. Article 363, s. Article 372
Indian Independence Act, 1947s. 7
Inter-State Water Disputes Act, 1956s. 11, s. 3, s. 5, s. 6, s. 6A
States Reorganisation Act, 1956s. 107, s. 108, s. 119, s. 87

Subjects

Inter-State Water DisputesCauvery RiverEquitable ApportionmentHelsinki RulesGroundwaterDomestic Water SupplyEnvironmental ProtectionArticle 136Article 363Inter-State Water Disputes Act, 1956Prescriptive RightsTrans-basin DiversionBengaluru Water Supply

Judgment

STATE OF KARNATAKA [2018]
BY 5ITS
S.C.R.
CHIEF
829SECRETARY v. STATE 829
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

THE STATE OF KARNATAKA BY ITS CHIEF SECRETARY A
v.
STATE OF TAMIL NADU BY ITS CHIEF SECRETARY & ORS.
(Civil Appeal No. 2453 of 2007)
FEBRUARY 16, 2018 B

[DIPAK MISRA, CJI, AMITAVA ROY AND
A.M. KHANWILKAR, JJ.]
Inter-State Water Disputes:
Water dispute raised by State of Tamil Nadu – Against State C
of Karnataka – Alleging that the executive action taken by State of
Karnataka in constructing Kabini, Hemavathi, Harangi, Swrnavathi
and other projects has affected the interest of the State of Tamil
Nadu in the waters of Cauvery, an inter-State river – Also alleged
that the executive action were in violation of agreements entered D
into between the erstwhile Madras Presidency and State of Mysore
in the years 1892 and 1924 – Central Government referred the
dispute to Cauvery Water Disputes Tribunal – Claims also raised
by State of Kerala to the waters of river Cauvery on account of the
areas transferred to it from the State of Madras after State
Reorganization Act, 1956 – Claim by Union Territory of Puducherry E
in the waters of Cauvery river since it was located within Cauvery
basin and seven branches of Cauvery did flow through the said
region – Tribunal held the agreements of 1892 and 1924 as valid
and determined the utilisable quantum of waters of the Cauvery to
be 740 thousand Million Cubic Feet (TMC) – The Tribunal allocated F
the waters of Cauvery, following the principle of equitable
apportionment – It allocated 419 TMC to State of Tamil Nadu, 270
TMC to State of Karnataka 30 TMC to State of Kerala and 7 TMC
to Union Territory of Puducherry – In addition, the Tribunal
reserved 10 TMC for environmental protection and 4 TMC for
inevitable escapages into the sea – Aggrieved by allocation of G
sharing of waters of Cauvery awarded by the Tribunal, appeals by
way of SLP were filed by the States of Tamil Nadu, Karnataka and
Kerala – Held: Waters of an inter-State river passing through
corridors of the riparian States constitute a national asset and no
single State can claim exclusive ownership of its water – Principle H
829
830 SUPREME COURT REPORTS [2018] 5 S.C.R.

A of equitable apportionment internationally recognized by the
Helsinki Rules, Compione Rules and Berlin Rules which have also
been incorporated in 1987 and 2002 National Water Policies, have
been regarded to be the guiding factors for resolving disputes qua
apportionment of waters of an inter-Sate river – The Tribunal was
correct in its approach – Tribunal correctly determined the irrigated
B
area of Tamil Nadu – Allocation of water to Tamil Nadu for domestic
and industrial purposes and allocation of water to Kerala and
Puducherry also requires no interference – Reservation of 10 TMC
for environment protection and 4 TMC for inevitable escapages
into sea also does not need any interference – However, the
C admission of facts and empirical data suggests that around 20 TMC
of water is available in Tamil Nadu which has not been taken into
account by the Tribunal – Therefore, keeping in view the risks
associated with over-extraction of groundwater, 10 TMC of the
available groundwater in Tamil Nadu to be taken into account for
final determination of State of Tamil Nadu – Tribunal has also
D
drastically reduced the share of Karnataka towards Domestic and
Industrial purpose – Therefore, 4.75 TMC is awarded to Karnataka
for this purpose – Thus, it would be appropriate to award to the
State of Karnataka an additional 14.75 TMC (10 TMC on account
of availability of groundwater in the State of Tamil Nadu and 4.75
E for domestic and drinking purposes) – Inter-State Water Disputes
Act, 1956 – ss. 3 and 5.
Inter-State Water Disputes:
Water Dispute – Between States of Tamil Nadu and
Karnataka – Pertaining to waters of Inter-State river Cauvery –
F Complainant State (State of Tamil Nadu) inter-alia alleged that the
executive action of State of Karnataka (affecting the interest of
State of Tamil Nadu) was in violation of the agreements entered
into, in the years 1892 and 1924 between the erstwhile State of
Mysore and Madras Presidency, in respect of distribution of waters
G of Cauvery river – State of Karnataka questioned the validity of
the agreements on the ground of applicability of doctrine of
paramountcy; and on the ground of unconscionability of the
agreements – On appeal, held: After coming into force of Indian
Independence Act, 1947, doctrine of paramountcy has no room for
application – The agreements had neither any political arrangement
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 831
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

nor touched any facet of sovereignty of India, but they covered A
areas of larger public interest – The agreements did not come to an
end either after coming into force of 1947 Act or after coming into
force of the Constitution – State of Mysore might not have bargaining
power in 1892 or 1924 but such power came alive after the 1947
Act or coming into force of the Constitution – State of Karnataka
B
did not choose to denounce the same – Even after coming into force
of States Reorganization Act, 1956, newly formed States did not
raise any dispute to controvert the agreements – Thus, the State of
Karnataka waived its right to question the legal tenability of the
agreements – Therefore, the agreements are neither inoperative nor
completely extinct – However, 1924 agreement was not intended to C
be of permanent character – It contemplated a fixed term of 50
years and its continuance after 50 years was dependent on certain
aspects – Therefore, the 1924 agreement expired after 50 years i.e.
in the year 1974 – Indian Independence Act, 1947 – s. 7 – States
Reorganization Act, 1956.
D
Inter-State Water Disputes:
Complaint by State of Tamil Nadu – Against State of
Karnataka – Regarding allocation of waters of inter-State river
Cauvery – Adjudicability of the complaint – Held: When States make
a request under Inter-State Water Disputes Act, 1956 for E
adjudication of disputes, interest of the inhabitants of the State is
involved – Both the States are governed by parens patria principle –
The matter deserved to be adjudicated on the bedrock of equal
status of the States and doctrine of equitability – Inter-State Water
Disputes Act, 1956.
F
Inter-State Water Disputes Act, 1956:
s.6A – Interpretation of – Held: Central Government does
not have discretion to frame scheme u/s. 6A – Framing of the Scheme
is exclusively meant for implementation of the award or as the same
gets modified by Supreme Court. G
Constitution of India:
Arts. 143, 262 and 363 – Inter-State water dispute – Between States
of Tamil Nadu and Karnataka – Non-maintainability of the disputes
on the basis of agreements entered between erstwhile State of Mysore
and Madras presidency – Held: Bar under s. 363 is not applicable H
832 SUPREME COURT REPORTS [2018] 5 S.C.R.

A in the present case as the issues in the present case have no
connection with the concept of sovereignty and integrity of India.
Constitution of India:
Art. 136 – Jurisdiction under – To entertain the appeal against
Cauvery Water Disputes Tribunal – In view of s. 6(2) of Inter-State
B Water Disputes Act, 1956 – Held: The legislative intendment of s.
6(2) is not to create any embargo on the jurisdiction of Supreme
Court – The fiction has been created for limited purpose of giving
binding effect to the award passed by the Tribunal – Section 6
cannot be interpreted in an absolute mechanical manner and the
C words “same force as an order of decision” cannot be treated as an
order or decree for the purpose of excluding jurisdiction of Supreme
Court – A provision should not be interpreted to give a different
colour which has a technical design rather than serving object of
the legislation – Hence, s. 6(2) does not bar jurisdiction conferred
on Supreme Court u/Art. 136 – Inter-State Water Disputes Act, 1956 –
D s.6(2) – Interpretation of Statutes.
Interpretation of Statutes:
Rules of interpretation – Purposive interpretation – A provision
should not be interpreted to given a different colour which has a
E technical design rather than serving object of the legislation.
Doctrines/Principles:
Doctrine of paramountcy – Applicability of – Discussed.
Principle of apportionment – Discussed.
F Partly allowing the appeal filed by State of Karnataka and
disposing of the appeals filed by the States of Tamil Nadu and
Kerala, the Court
HELD: 1. Doctrine of Paramountcy and its extinction on
coming into force of the Indian Independence Act, 1947:
G 1.1 It cannot be said that after coming into force of the
1947 Act and thereafter the Constitution of India, the agreements
of 1892 and 1924 became inoperative and totally extinct. [Para
84] [932-A]
1.2 After coming into force of the 1947 Act, the doctrine of
H paramountcy has no room for application, as the Government of
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 833
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

India became the full sovereign authority. The two agreements A
of 1892 and 1924 had neither any political arrangement nor
touched any facet of sovereignty of India. Per contra, the
agreements cover the areas of larger public interest which do
not have any political element and in this backdrop, the
agreements are neither inoperative nor completely extinct. [Para
B
404(i)] [1120-D]
H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia
Bahadur of Gwalior and others v. Union of India and
another (1971) 1 SCC 85 : [1971] 3 SCR 9 – relied on.
Dr. Babu Ram Saksena v. State [1950] SCR 573 : AIR C
1950 SC 155; Hemchand Devchand v. Azam Sakarlal
Chhotamlal (1905) 33 IA 1 : (1906) ILR 33 Cal 219;
State of Tamil Nadu v. State of Kerala and another
(2014) 12 SCC 696 : [2014] 12 SCR 875; Mullaperiyar
Environmental Protection Forum v. Union of India and
others (2006) 3 SCC 643 : [2006] 2 SCR 740; Virendra D
Singh and others v. State of U.P. [1955] 1 SCR 415 :
AIR 1954 SC 447 – referred to.
“Integration of Indian States” by Mr. V.P. Menon –
referred to.
E
2. Unconscionability of the Agreements of 1892 and 1924 :
On a keen scrutiny of the evidence on record, there is no
proof that the State of Mysore, at the relevant time, had denounced
the agreements. The agreements did not automatically come to
an end either after coming into force of the 1947 Act or after F
coming into force of the Constitution because of the “Standstill
Agreement” and further owing to the fact that there had been no
denouncement. The bargaining power may not have existed in
1892 or 1924 but definitely, the said power to bargain or to choose,
came alive after the 1947 Act and, undoubtedly, after the
Constitution came into being. However, the State of Karnataka G
chose not to do so. Therefore, the agreements should not be
declared as void because of unconscionability. [Para 119] [957-
D, E-G]
New Bihar Biri Leaves Co. and others v. State of Bihar
and others (1981) 1 SCC 537 : [1981] 2 SCR 417; H
834 SUPREME COURT REPORTS [2018] 5 S.C.R.

A Central Inland Water Transport Corporation Limited
and another v. Brojo Nath Ganguly & Another (1986)
3 SCC 156 : [1986] 2 SCR 278; O.P. Bhandari v.
ITDC (1986) 4 SCC 337 : [1986] 3 SCR 923; Delhi
Transport Corporation v. D.T.C. Mazdoor Congress and
others 1991 Supp. (1) SCC 600 : [1990] 1 Suppl. SCR
B
142; Balmer Lawrie & Company Limited and others v.
Partha Sarathi Sen Roy and others (2J) (2013) 8 SCC
345 : [2013] 4 SCR 1018; West Bengal State Electricity
Board and others v. Desh Bandhu Ghosh and others
AIR 1985 SC 722 : [1985] 2 SCR 1014 – referred to.
C Black’s Law Dictionary by Bryan Garner, Editor-Chief (10th
Edition, Thomson Reuters); Rivers in International
Law (1959) by F.J. Berber; L. Oppenheim International
Law (8th Edition); Chitty on Contracts (25th Edition, Vol.I)
– referred to.
D 3. Status of Agreements after coming into force of States
Reorganisation Act, 1956:
Nothing has been brought on record to show that any dispute
was raised after the Reorganisation Act, 1956 came into force,
by the newly formed States to controvert the agreements of 1892
E and 1924. As the facts clearly depict, it continued. The State of
Karnataka had waived its right to question the legal tenability of
the agreement. It remains a fact that both the agreements with
the Regulations remained in force despite coming into effect of
the Reorganisation Act, 1956. [Para 133] [968-F-H]
F M/s. Dalmia Dadri Cement Co. Ltd. v. Commissioner of
Income Tax AIR 1958 SC 816 : [1959] SCR 729; Amar
Chand Butail v. Union of India and others AIR 1964
SC 1658; Firm Bansidhar Premsukhdas v. State of
Rajasthan AIR 1967 SC 40 : [1966] Suppl. SCR 81;
G State of Punjab & Ors. v. Balbir Singh & Ors. (1976) 3
SCC 242 : [1976] 2 SCR 115; Ranjan Sinha v. Ajay
Kumar Vishwakarma 2017 (7) SCLAE 234; State of
M.P. v. Bhopal Sugar Industries Ltd. [1964] 6 SCR 846;
Sher Singh and others v. Financial Commissioner of
Planning, Punjab and others (1987) 2 SCC 439 : [1987]
H 2 SCR 691 – referred to.
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 835
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

4. Issue relating to expiry of the agreements: A
A scrutinized perusal of the 1924 Agreement reveals that
the said Agreement was never intended to be of permanent
character. On the contrary, it contemplated a fixed term of 50
years. Having perused the clause in entirety and considering the
words, namely, ‘reconsideration’, ‘mutually agreed upon’ and ‘be B
open to’, it is clear that certain clauses in the Agreement had a
restricted life span. Inasmuch as the relevant clauses which are
open to reconsideration are absolutely essential parts of the
contract and it is extremely difficult to place appropriate
construction on the contract without them. The clauses in the
contract do not indicate permanency but, on the contrary, indicate C
fixed term. The continuance of contract, was further a subjective
consideration and merely agreed upon and, therefore, to hold
that it continued solely because of the experience gathered would
not be appropriate and it would be contrary to the concept of
understanding the clauses in a contract to give effect to its D
continuance. The continuance after 50 years was dependent on
certain aspects and, therefore, the agreement expired after 50
years i.e. in the year, 1974. [Paras 404(v), 146 and 147] [1121-A;
975-H; 976-A-D]
In Re: Presidential Reference (Cauvery Water Disputes E
Tribunal) 1993 (Supp) (1) SCC 96 : [1991] 2 Suppl.
SCR 497 – referred to.
5. Infraction of Article 363 of the Constitution of India and
non- maintainability of the dispute on the basis of agreements of
1892 and 1924: F
The issues in the present case have no connection,
whatsoever, with the concepts of sovereignty and integrity of India
and, therefore, the bar under Article 363 of the Constitution of
India is not attracted. It is not correct to say that the two
agreements have to be looked into for the purpose of adjudication G
of the water dispute by the Tribunal because of Article 262 of the
Constitution. [Paras 404(ii) and 104] [948-C; 1120-E-F]
State of Tamil Nadu v. State of Kerala and another
(2014) 12 SCC 696 : [2014] 12 SCR 875 – followed.
H
836 SUPREME COURT REPORTS [2018] 5 S.C.R.

A H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia
Bahadur of Gwalior and others v. Union of India and
another (1971) 1 SCC 85 : [1971] 3 SCR 9 – relied on.
State of Seraikella v. Union of India and another [1951]
SCR 474 : AIR 1951 SC 253 – distinguished.
B State of Karnataka v. State of Tamil Nadu and others
(2017) 3 SCC 362 : [2016] 8 SCR 499; In Re:
Presidential Reference (Cauvery Water Disputes
Tribunal) 1993 (Supp) (1) SCC 96: [1991] 2 Suppl.
SCR 497; Maharaja Shree Umaid Mills Ltd. v. Union
C of India [1963] Supp. 2 SCR 515 : AIR 1963 SC 953 –
referred to.
6. Adjudicability of the Complaint:
6.1 It is not correct to say that the complaint deserves to
be dismissed in the absence of proven injury. The complaint does
D not contain the words “prejudicially affected’ but the antecedents
of the complaint, the view of the Central Government while
referring water dispute and the expression of opinion of this Court
in *Presidential Reference (Cauvery Water Disputes Tribunal) case.
In the backdrop of the language of the Inter-State Water Disputes
E Act, 1956 the expiration by the efflux of time and the role of this
Court, the Court is not inclined to entertain such a plea. The
matter (complaint) deserves to be adjudicated on merits. [Paras
149 and 150] [977-F; 978-B-C, D]
*In Re: Presidential Reference (Cauvery Water Disputes
F Tribunal) 1993 (Supp) (1) SCC 96: [1991] 2 Suppl.
SCR 497 – referred to.
6.2 On a perusal of the Helsinki Rules, 1966, it is clear
that the said Rules have not accepted the Harmon doctrine. It
has, on the contrary, laid emphasis on the need of equitable
utilization of such international rivers. It is noticeable from Articles
G
IV and V of the Helsinki Rules that they recognize equitable use
of water by each basin State, setting out the factors, not exhaustive
though, to be collectively taken into consideration for working
out the reasonable and equitable share of the riparian States. The
indicated factors, inter alia, include the geography of the basin,
H the hydrology of the basin, the climate, past utilization of waters,
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 837
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

economic and social needs of each basin State, population A
dependent on the waters of the basin in each basin State,
availability of other resources and the degree to which the needs
of a basin State may be satisfied without causing substantial injury
to a co-basin State. The emphasis clearly is that in determining
the reasonable and equitable share, all relevant factors are to be
B
considered together and a conclusion is to be reached on the
whole. [Para 161] [985-G-H; 986-A-B]
State of Wyoming v. State of Colorado 259 US 419
(1922); State of Nebraska v. State of Wyoming 325 US
589 (1945); Kansas v. Colorado 206 US 46 (1906);
Colorado v. Kansas 206 US 46 (1906); State of New C
Jersey v. State of New York 283 US 336 (1931); State
of Connecticut v. Commonwealth of Massachusetts 282
US 660 (1931); State of Colorado v. State of New
Mexico 459 US 176 (1982) – referred to.
6.3 The definition of ‘water disputes’ in s. 2(c) of the Inter- D
State Water Disputes Act, 1956 and the provisions contained in
Section 3 have to be given due significance. Section 3 protects
the right of inhabitants of a State. [Para 165] [987-E]
6.4 When the States make a request under the Inter-State
Water Disputes Act, 1956 for adjudication of the disputes, the E
interest of the inhabitants of the State is involved. Both the States
are governed by the parens patriae principle. The Tribunal in its
approach primarily referred to Helsinki Rules, 1966. The Tribunal
was correct in its approach. For determining reasonable and
equitable shares, relevant factors have to be considered together, F
in reaching a conclusion. Keeping in view the various intricacies
involved in the present case and the duty ordained upon this
Court by the Constitution of India, the matter deserved to be
adjudicated on the bedrock of equal status of the States and
doctrine of equitability. Resultantly, it cannot be said that the
complaint of the State of Tamil Nadu did not warrant any G
adjudication. [Paras 165 and 404(vi)] [987-E-F; 1121-B-D]
7. Principles of apportionment to be followed:
7.1 The waters of an inter-State river passing through the
corridors of the riparian States constitute national asset and
H
838 SUPREME COURT REPORTS [2018] 5 S.C.R.

A cannot be said to be located in any one State. Being in a state of
flow, no State can claim exclusive ownership of such waters or
assert a prescriptive right so as to deprive the other States of
their equitable share. It has been propounded therein that the
right to flowing water is well-settled to be a right incident to
property in the land and is a right publici juris of such character,
B
that while it is common and equal to all through whose land it
runs and no one can obstruct or divert it, yet as one of the beneficial
gifts of Nature, each beneficiary has a right to just and reasonable
use of it. [Para 363] [1092-A-C]
7.2 To conceive that equality rests on equal sharing of
C water within an arithmetical formula, would be fundamentally
violative of the established conception of equitable apportionment
because the said concept inheres a multiple factors. It is the
obligation of the Tribunal to address the same and the duty of
this Court is to adjudge within the permissible parameters of the
D justification of the said adjudication. The dissension has to be
addressed in the backdrop of equal Status of the States and the
doctrine of equitability. [Para 364] [1092-H; 1093-A-B]
7.3 The principles laid down in Helsinki Rules can be
regarded as functional dynamics while equitably distributing the
E water in an inter-State river disputes. The salient feature of all
these factors has to have inherent variability and inevitable
flexibility thereof having regard to the local conditions, for it is
difficult to ignore the undeniable and common emphasis necessary
to ensure beneficial use of the available resources for a basin
State and logically for its dependent populace warranted by the
F economic and social needs. While determining the said needs,
amongst others, past and existing utilization of the water have to
be borne in mind. To remain oblivious to the same would amount
to playing possum with the doctrine of equitable distribution in
praesenti. The noticeable quintessence of the determinants is
G the predication for a delicate balance in adjustments of the needs
based on realistic, reasonable, judicious and equitable canons so
much so that while satisfying the requirements of a basin State, a
co-basin State is not subjected to any substantial injury. Though
in terms of Articles VI and VII of Helsinki Rules, any other
category of users is not entitled to any inherent preference over
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 839
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

any other use or category of users, yet the precedence of an A
existing reasonable use of a basin State over a proposed future
use of a co-basin State has been recognized. Significantly, in terms
of Article VIII, 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
B
modified or terminated so as to accommodate a competing
incompatible use clearly signifying that an existing use is also
not absolute in terms and is subject to exigency based
adjustments. [Para 367] [1094-H; 1095-A-E]
7.4 Substantially on the same lines is the Campione
Consolidation of ILA Rules on International Water Resources C
1966-1999. The distinguishing attribute of these Rules is the
inclusion of water of an aquifer, i.e., underground water or “fossil
waters” intercepted by the boundary between the two or more
States as international ground-water so much so that it would
form an international basin or part thereof qua the relevant factors D
to determine reasonable equitable share. These Rules include
the criterion of interdependence of underground waters and other
waters, including any interconnections between aquifers and any
leaching into aquifers caused by activities in areas under the
jurisdiction of the basin states. [Para 368] [1095-E-G]
E
7.5 Another set of rules on international drainage basin is
called the Berlin Rules adopted by the International Law
Association in its Berlin Conference in the year 2004. On the
aspect of equitable utilization, Article 12 thereof provides that
basin States, would in their respective territories manage the
waters of an international drainage basin in an equitable and F
reasonable manner, having due regard for the obligation not to
cause significant harm to other basin States and in particular, the
basin States, would develop and use the waters of the basin in
order to attain optimal and sustainable use thereof. The interest
of the other basin States are to be kept in view. Article 13 of the G
Rules catalogues as well the relevant factors to determine the
equitable and reasonable use of a basin State. While reiterating
in essence the Rules as prescribed by the Helsinki Rules, the
additional aspect to be considered is minimization of
environmental harm. Article 14 of these Rules stipulates that in
H
840 SUPREME COURT REPORTS [2018] 5 S.C.R.

A determining an equitable and reasonable use, the States shall
first allocate waters to satisfy vital human needs and that no other
use or category of uses shall have an inherent preference over
any other use or category of uses. Article 17 postulates that every
individual has a right of access to sufficient, safe, acceptable,
physically accessible and affordable water to meet his vital human
B
needs and it is the obligation of the States to ensure the
implementation of right of access to water on a non-discriminatory
basis. [Paras 369 and 370] [1095-G-H; 1096-A-D]
7.6 The common thread decipherable from these Rules is
the universal acknowledgment of the principle of equitable
C utilization as an effective and workable tool for the management
of waters of an international drainage basin. [Para 371] [1096-D-
E]
7.7 The National Water Policy of 1987 sounded a threshold
caveat that water is a prime natural resource, a basic human need
D and a precious national asset. While emphasizing that this resource
is one of the most crucial elements in development planning, the
policy announced that it is a scarce and precious national asset to
be planned, developed and conserved on an integrated
environmentally sound basis, keeping in view the needs of the
E States concerned. It underlined that resource planning in the
case of water has to be done for a hydrological unit such as
drainage basin as a whole or for a sub-basin and that all individual
developmental projects and proposals should be formulated by
the States and considered within the framework of such an overall
plan for a basin or sub-basin so that the best possible combination
F of options can be made. As is manifest from the policy, it enjoined
that water should be made available to water deficient areas by
transfer from other areas including transfers from one river basin
to another based on national perspectives after taking into
account the requirements of the areas/basins. That apart, making
G provision for drinking water should be a primary consideration
which was also highlighted. As regards the ground-water
resources, it was marked that exploitation thereof should be so
regulated as not to exceed the recharging possibilities as also to
ensure social equity and to prevent ingress of sea water into sweet
water aquifers. In the realm of planning and operation of systems,
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 841
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

water allocation priorities were broadly outlined as (a) drinking A
water, (b) irrigation, (c) hydropower, (d) navigation and (e)
industrial and other uses. [Paras 372 and 373] [1096-F-H; 1097-
A-C]
7.8 The 1987 policy laid stress that in view of vital
importance of water for human and animal life, for maintaining B
ecological balance and for economic and developmental activities
of all kinds and considering its increasing scarcity, the planning
and management of this resource and its optimal, economical and
equitable use has become a matter of utmost urgency. It
emphasized that the success of the National Water Policy would
depend entirely on the development and maintenance of a national C
consensus and commitments to its underlying principles and
objectives. Significantly, the Policy, which is a national charter
for Planning and Development of Water Resources for its
disciplined and judicious utilization recognizes and accepts it to
be scarce and valuable bounty of nature to be developed, D
conserved and put to planned use on an environmentally sound
basis with due regard to the needs of the State concerned. The
Policy, thus, sustains the concept of basin State as contemplated
in the Helsinki Rules, Campione Rules and Berlin Rules. [Para
374] [1097-D-F]
E
7.9 The National Water Policy of 2002 which is a revised
and updated form of the earlier model, reiterates the emphasis
on the need for planning, development and management of the
water resources from the national stand point. Pertaining to water
allocation priorities, this Policy added to the list, in particular,
ecology and agro industries and non-agricultural industries, F
qualifying that the priorities as enumerated could be modified or
added if warranted by the specific considerations of the areas/
regions. The primacy of drinking water was reiterated. On the
aspect of ground water development, it was stated that a periodical
re-assessment of the ground water potential on the scientific basis G
should be made taking into consideration the quality of water
available and the economic viability of its extraction. Same caution
against over-exploitation of ground water was sounded. It was,
inter alia, mandated that adequate safe drinking water facility
should be provided to the entire population, both in urban and in
H
842 SUPREME COURT REPORTS [2018] 5 S.C.R.

A rural areas, and irrigation and multipurpose projects should
invariably include in it drinking water component wherever there
is no alternative source of drinking water. It was clarified that
drinking water needs of human beings and animals should be the
first charge on any available water. Qua irrigation, the Policy
stated that planning either in an individual project or in a basin as
B
a whole should take into account the irrigability of land, cost
effective irrigation options possible from all available sources of
water and appropriate irrigation techniques for optimising water
use efficiency. The aspect that the irrigation intensity should be
such as to extend the benefits of irrigation to a large number of
C farm families as much as possible, keeping in view the need to
maximize production, was also underlined. It was most importantly
provided that water sharing/distribution amongst the States should
be guided by national perspective with due regard to the
availability of water resources and the needs within the river
basin. The Policy, therefore, did not bar as such the sharing or
D
allocation of water in areas within the basin State. In conclusion,
the Policy recorded that its success would depend entirely on
evolving and maintaining national consensus and commitment to
its underlying principles and objectives. It also laid emphasis on
the needs of the community that requires to be taken into account
E for the development and management of water resources. [Para
376] [1098-A-G]
7.10 The national policies of the country therefore,
evidently supplement and consolidate the prescriptions of the
Helsinki Rules, Campione Rules and Berlin Rules in the matter
F of ascertainment of reasonable and equitable share of water in an
inter-state river. [Para 377] [1098-H]
7.11 The Helsinki Rules and the other Rules envisage a
basin State on the issue of equitable apportionment of an inter-
State river. Though the Rules predicate that in determining the
G share of one basin State, the other co-basin States would not be
subjected to substantial injury, yet the clear emphasis is to fulfill
the economic and social needs of the population of the State and
in the sphere of irrigation, its farmer community. Indubitably, the
principle of apportionment would apply uniformly to all river basins
in a State. The sharing of an inter-State river, as the professed
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 843
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

norms of distribution suggest, has to be with the spirit of A
harmonious disposition and equanimous dispensation. The norms
or the factors suggested can never be exhaustive and designed
only a balanced framework of pragmatic measures to ensure
beneficial use of water resources in an inter-State river on need-
based application thereof and reciprocal adjustments for common
B
good. In the regime of a welfare State wedded to the guarantees
enshrined in the National Charter, any yardstick for distribution
of any national asset like water would have to be essentially in
furtherance thereof. The criteria identified in the Rules and
supplemented by the national policies in letter and spirit, though
in quite detail, can only be construed as illustrative and cannot C
be perceived as a strait-jacket formula or put in a compartment
of mathematical exactitude to exclude any other consideration
or exigency to effect a desirable apportionment of water of an
inter-State river depending on the prevalent eventualities. Having
regard to the geographic, hydrographic, hydrological,
D
hydrogeological, climatic, ecological and other fluvial phenomena
attendant on time, the spectrum of priorities and the factors
associated therewith are bound to vary. [Para 377] [1099-A-E]
7.12 While no precise formula can be adopted, there has to
be a sincere and pragmatic endeavour to have a rational amalgam
of globally accepted norms and the local necessities founded on E
the doctrine of fairness and equity. The factors already
enumerated, may inter se demand precedence of one over the
other depending on the ground realities, the ultimate test being
to ensure that the allocations on the basis thereof in favour of
one basin State ought not to be substantially detrimental to the F
co-basin States. The order of precedence in the areas of necessity,
as set out in the National Policy, is not incompatible with the
acknowledged determinants for ascertaining the reasonable and
equitable share of an inter-State river. Nevertheless, the weightage
of one item of need would depend in a given situation on the
degree and priority thereof thereby necessitating grant of G
preference of one over the other in departure of the sequence
set out in the policy. This again is to underline the attribute of
variability in the approach of application of the otherwise identified
criteria, the ultimate goal being equitable apportionment of the
resources. This concept gains more significance where the H
844 SUPREME COURT REPORTS [2018] 5 S.C.R.

A resource is scarce and inadequate qua the demand thereof. It is
warrantable as the dispute involves the inhabitants of one State
with the inhabitants of another State. Such involvement by statutory
command engulfs the principle of obtaining situational adjustment
having due regard to priority. [Para 377] [1099-F-H; 1100-A-B]
B 7.13 The factors as set out in the Helsinki Rules and
endorsed as well as supplemented by the Campione Rules and
the Berlin Rules and further consolidated by our national policies
as above are efficient, rational, objective and pragmatic guidelines
to conduct any exercise for determining the reasonable and
equitable share of basin States in the water of an inter-state river
C like Cauvery as in the present case. With these guidelines at
disposal, the endeavour has to be essentially to ensure an
appropriate balance of the genuine competing demands and
interests of the basin States. The balancing has to be done in a
pragmatic and feasible manner so that it will be ultimately
D functional and meet the aspirations of the riparian States. In such
a working process, there has to be adjustment of the available
resources. That apart, the process indeed has to be informed
with egalitarian vision for achieving utilitarian ends keeping in
view the inclusive spirit and the pluralistic ethos. Thus viewed
and understood, periodical reviews to update the allocations
E merited by changes in the aforementioned natural and
environmental phenomena bearing on the resources for supply
and resultant reorientation of the inter se needs of the basin States,
would have to be unfailingly undertaken on time. [Paras 377 and
378] [1100-C-F]
F In Re: Presidential Reference (Cauvery Water Disputes
Tribunal) 1993 (Supp) (1) SCC 96 : [1991] 2 Suppl.
SCR 497 – referred to.
8. Determination of ‘irrigated areas” in Tamil Nadu and
Karnataka:
G
8.1 The Tribunal, after adopting the principle of equitable
apportionment, in the process of computing the reasonable and
equitable shares of the basin States as the first initiative,
determined the irrigated areas of the States and in doing so, noted
from the report of the Cauvery Fact Finding Committee submitted
H in the year 1972 that the utilization of waters of Tamil Nadu
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 845
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

including Karaikal region of the Union Territory of Puducherry, A
Mysore and Kerala had been 566.60 TMC, 176.82 TMC and 5
TMC respectively. In view of the fact that river Cauvery is deficit
in its water content compared to the demands of the riparian
States involved, restrictions and savings in the matter of use
thereof are not only necessary but also natural corollaries. In
B
that view of the matter, it is incumbent to identify the areas under
irrigation with the expansion thereof with time, together with the
crop pattern and the suitability thereof, having regard to the
extent of utilization of the deficient surface flow available. On
the basis of the reports of the various Committees and the
recorded data, the bearing of the 1924 Agreement in particular C
over the march of events cannot also be totally disregarded. [Para
380] [1101-C-E, G-H; 1102-A]
In Re: Presidential Reference (Cauvery Water Disputes
Tribunal) 1993 (Supp) (1) SCC 96: [1991] 2 Suppl.
SCR 497 – referred to. D
8.2 The Tribunal, after taking into account all the factors,
vis-a-vis Tamil Nadu, applied the restrictions to work out the
irrigated area to which it would be entitled to assert its share of
allocation, namely, no area for summer paddy; area of summer
paddy raised prior to 1924 to be replaced by semi-dry crop; annual E
intensity of irrigation to be restricted to 100%; cropping period
to be restricted within the irrigated season, i.e., 31st June to 31st
January and ambitious lift irrigation schemes to be discouraged.
It, thus, quantified such area for Tamil Nadu to be 24.71 lakh
acres against its claim of 29.26 lakh acres. As far as Karnataka is
concerned, the Tribunal noticed that in the pre 1924 Agreement F
era, irrigation in the then State of Mysore was primarily from
direct diversion channels from the rivers together with the system
of tank irrigation and that in the absence of any reservoir, the
waters of Cauvery and its tributaries like Kabini, Hemawathi,
Harangi and Suvaranwathi used to flow through the State but their
G
ultimate destination was the Delta State of the then State of Madras
as a result whereof, even as admitted by the State of Tamil Nadu,
Karnataka could develop only 3.14 lakh acres of land by 1924.
This inability of the State of Karnataka to develop its land for
irrigation in the background of its persistent cavil of being
deprived of its legitimate share and use of the water of Cauvery H
846 SUPREME COURT REPORTS [2018] 5 S.C.R.

A cannot be ignored. It is a recorded fact that though under the
1924 Agreement, Karnataka in terms of the relevant provisions
thereof ought to have developed 7.45 lakh acres by 1974, it could
achieve only 2.15 lakh acres. However, the Tribunal in all allowed
18.85 lakh acres of area to Karnataka being under irrigation prior
to 1974 against its claim of 20.98 lakh acres. In case of Karnataka
B
as well, the Tribunal excluded the development of second crop
in view of the scarcity of water in the basin with due regard to the
rainfall pattern and even suggested restrictions on the crop variety
and the duration thereof. On an overall consideration of the
relevant materials and having regard to the imperative of economy
C of consumption of water, the approach of the Tribunal cannot be
found fault with having regard to the existing situation. [Para 380]
[1102-A-G]
9. Allocation of water for “irrigation needs” in Tamil Nadu
and Karnataka:
D 9.1 The Tribunal, on the basis of the overall materials
before it, took note, amongst others, of the crop pattern, duration
of the crops, consumption of water thereby, soil conditions
conducive thereto, rainfall pattern, Delta and system efficiency
along with the drought conditions of Karnataka as projected by
E it, in conjunction with the testimony of the expert witnesses of
both the States of Tamil Nadu and Karnataka, and in the interest
of economical use of the water of the deficit basin, allocated 250.62
TMC to Karnataka for its irrigated area of 18.85 lakh acres and
390.85 TMC to Tamil Nadu for its irrigated area of 24.71 lakh
acres. Further, the Tribunal has considered the crop water
F requirement, namely, crop duration, ET crop, puddling
requirements, percolation losses, effective rainfall and system
efficiency. [Para 382] [1104-A-C]
9.2 Keeping in view the accepted principles, neither the
analysis undertaken by the Tribunal nor the findings relatable
G thereto can be regarded as implausible by any standard. Certain
parameters have been exhaustively examined by the Tribunal on
the basis of the materials brought on record with supporting
reasons and, therefore, the conclusion as regards assessment of
water for irrigation needs cannot be termed as untenable,
H warranting interference in the exercise of this Court’s jurisdiction
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 847
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under Article 136 of the Constitution of India. [Para 382] [1104- A
C-E]
9.3 The assessment by the Tribunal, encapsules the factual
and characteristically complex situation. Lands have already been
irrigated. It is an issue of sustenance at the ground reality level.
To reduce the allocation of water on this score would be B
inequitable. Therefore, in the obtaining fact situation, no
interference is warranted. That apart, having regard to the degree
of wiredrawn complexities involved, requiring in-depth expertise
to dislodge the otherwise well-reasoned findings of the Tribunal
founded on an exhaustive appreciation of the materials on record,
the determination made by it in this regard cannot be upset. [Para C
383] [1105-B-C]
10. Water allocation for the State of Kerala:
In respect of the claim of Kerala, it is a matter of record
that rainfall is evenly distributed over the months of May to D
November so much so that occasional support by artificial
irrigation is required in the instances of shortfall in rains and that
too during small periods. Against its demand of 99.8 TMC under
different heads, it had demanded 35 TMC for transbasin diversion
to generate hydro-electrical power. The Tribunal rejected the
State’s request for transbasin diversion for hydro-power projects E
which, in terms of the National Water Policy of 2002, was even
otherwise lower in preference to drinking water and irrigation.
The Tribunal in adjudging the State’s share did notice that it had
been unsuccessful in furthering its projects so much so that
pending the completion and utilization thereof, the unutilized F
water allocated to it subject to the mechanism set up by the
Cauvery Management Board/Regulatory Authority, would be
received by Tamil Nadu. The Tribunal examined the information
furnished by it in the common format and adjudged 29.76 TMC
which was rounded upto 30 TMC as its share after due regard to
its demand, amongst others, pertaining to different projects in G
Kabani, Bhavani, and Pambar basins having regard to their
individual features and corresponding crop water requirement.
This allocation included the share for domestic and industrial
water purposes as well with the population projection for 2011.
The findings of the Tribunal are not belied by the materials in H
848 SUPREME COURT REPORTS [2018] 5 S.C.R.

A support thereof and, therefore, the same is accepted by this Court.
[Para 384] [1105-E-H; 1106-A]
Tamil Nadu Cauvery Neerppasana Vilaiporulgal
Vivasayigal Nala Urimai Padhugappu Sangam v. Union
of India and others (1990) 3 SCC 440 : [1990] 3 SCR
B 83 – referred to.
11. Water allocation for the Union Territory of Puducherry:
With regard to the claim of Union Territory of Puducherry
for Karaikal region, it is a matter of record that because of its
close proximity to the sea, the ground water by its nature is
C unsuitable for drinking and irrigation purposes and, thus, the
Tribunal having regard to its irrigated area of 43000 acres allowed
its second crop in departure from the yardstick applied for
Karnataka and Tamil Nadu and granted 6.35 TMC by way of crop
water requirement. It also relieved the Union Territory of the
D application of 20% consumptive utility formula while assessing
its domestic and industrial water requirements. In the absence
of any convincing reason to determine otherwise, the adjudication
of the Tribunal on this count does not deserve any interference.
[Para 385] [1106-B-D]

E 12. Recognition of ground water as an additional source in
Tamil Nadu:
12.1 While exploring the possibility of ground water as an
additional source to be conjunctively used along with the surface
flow of river Cauvery, the factual matrix reveals, based on
F empirical data, that the contributions thereto are from surface
water through infiltration into the ground by way of natural
recharge, stream flow, lakes and reservoirs. The recharge of
ground water is principally from rainfall as well as artificial modes,
namely, application of water to irrigate crops, flooding of areas
caused by overflowing of streams to their sites and seepage from
G unlined canals, tanks and other sources. Ground water, as the
study by the Central Ground Water Board, Ministry of Water
Resources, Government of India attests, caters to more than 45%
of irrigation in the country. As against the stand of Tamil Nadu
that the ground water within its Delta areas is mainly by way of
recharge from the supplies of Mettur Dam which really is a
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 849
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

component of the surface flow of river Cauvery and further that A
the same is utilized by the farmers for raising of early nurseries
ahead of releases from Mettur and for irrigating belated crops
after stoppage of Mettur releases, exhaustive studies undertaken,
amongst others, by the Central Ground Water Board, Ministry
of Water Resources, Government of India, Irrigation Commission,
B
1972 and United Nations Development Programme evidenced
availability of replenishable ground water in Tamil Nadu. [Para
386] [1106-D-H; 1107-A]
12.2 The United Nations Development Programme in its
report, amongst others, mentioned that yearly quantity of ground
water that can be extracted by using centrifugal pumps in the C
Cauvery sub-basin, Vennar sub-basin and in the new Delta was
33.7 TMC, 5.4 TMC and 32.5 TMC respectively and in addition
56.5 TMC of ground water per year can also be made available in
the Cauvery sub-basin by lowering seasonally ground water level
to 10 meters depth below the regional ground water level. Other D
studies made by the team of the Central Ground Water Board
indicated ground water potential in the Delta area of Tamil Nadu
to the extent of 64 TMC. The report of Mr. W. Berber, Consultant,
World Bank on Ground Water Resources of Cauvery Delta
estimated the available ground water in Cauvery Delta at 51.56
TMC. Tamil Nadu, in its pleadings, admitted that the total ground E
water extraction during the year 1989 was approximately 28.4
TMC in the Cauvery sub-basin, 7.3 TMC in the Vennar sub-basin
and 11.3 TMC in the Grand Anicut Canal area (new Delta area)
totaling 47 TMC. Tamil Nadu, in its pleadings, also mentioned
that in the old Delta, there was a scope of conjunctive use of F
ground water to the extent of 30 TMC. [Para 386] [1107-A-D]
12.3 On the basis of these recorded and empirical inputs,
the Tribunal returned a finding that in a normal year when there
would be regular releases of water from Mettur, the bulk of
contribution to ground water in the Cauvery sub-basin would be G
from such releases, but in any case, the contribution from surface
irrigation and rainfall could by no means be overlooked. On
weighing the pros and cons and having regard to the severe
limitations in the mechanism for assessment of ground water
resource, the Tribunal made an extremely safe estimate of 20
H
850 SUPREME COURT REPORTS [2018] 5 S.C.R.

A TMC of ground water which, in its view, could be used by Tamil
Nadu conjunctively with surface water. In categorical terms, the
Tribunal clarified that this quantum was arrived at after excluding
the component of ground water recharge from river water bilateral
infiltration. [Para 386] [1107-E-F]
B 12.4 The assertion made on behalf of Karnataka that
ground water being a renewable resource, if not extracted
regularly, would reduce the absorption capacity of the underlying
aquifer resulting in rain water/surface water turning into wastage
as run-off and that the admission of Tamil Nadu in its pleadings of
availability of 30/47 TMC as ground water warranted reduction
C of at least 20 TMC, as estimated by the Tribunal, from the final
allocated share of Tamil Nadu with proportionate reduction in
the quantum of water to be provided by Karnataka at the inter-
state border, assumes significance. Having regard to the
overwhelming empirical data following multiple research studies
D by different authorities authenticating beyond doubt availability
of replenishable ground water in the Delta areas of Tamil Nadu,
20 TMC of ground water quantified by the Tribunal is an eminently
safe quantity to be accounted for in finally allocating/apportioning
the share of Cauvery water. Though over-extraction of ground
water in the absence of adequate replenishment and further in
E the areas proximate to the coastal zone is generally avoidable.
However, in the attendant facts and circumstances, in view of the
studied scrutiny of all pertinent facets of the issue by balancing
all factors, at least 10 TMC of ground water available in the
Delta areas of Tamil Nadu can be accounted for in finally
F determining the apportionment of the share of the otherwise
deficit Cauvery basin without touching the yield of 740 TMC.
[Para 386] [1107-H; 1108-A-D]
12.5 The national policies, do not, as such, debar the
conjunctive use of ground water, the only caveat being periodical
G assessment on a scientific basis thereof and to guard against
exploitation of the said resource so as not to exceed the
recharging possibilities. [Para 387] [1108-E-F]
12.6 The series of research studies made by different
authorities and the range of availability of ground water as
H indicated by the experimental data, not only demonstrate
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 851
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

availability of ground water in the Deltas in the State of Tamil A
Nadu but also that adjustment of 10 TMC thereof, as proposed,
would be safely permissible. Noticeably, the kind of experiment
and research that had been made in the realm of ground water
availability in the Deltas of Tamil Nadu has not been undertaken
in Karnataka and there is no reliable empirical data with regard
B
thereto vis-a-vis that State. [Para 387] [1108-F-G]
13. Water allocation for Domestic and Industrial purposes
in Tamil Nadu:
With regard to the computation and allotment of water for
domestic and industrial purposes in Tamil Nadu and Karnataka, C
the Court is in agreement with the formulae noted and applied by
the Tribunal in working out the per capita daily requirements of
the urban and rural population. There is also no reason to differ
from the postulation with regard to the percentage of actual
utilization qua various heads of uses, namely, irrigation, power,
domestic and municipal water supply, industrial use, etc., as D
referred to in the Report of the Cauvery Fact Finding Committee
which, indicate that whereas 20% of the quantity of water supplied
would be actually consumed in domestic use, only 2.5% would
be effectively utilized for industrial use within the basin and the
rest would return to the source, i.e., river or its tributaries or the E
reservoir, storage and canal, as the case may be. [Para 388] [1108-
G-H; 1109-A-C]
14. Water allocation for Domestic and Industrial purposes
of State of Karnataka:
14.1 In its statement of case, Karnataka had registered its F
claim for water for domestic and industrial uses as : Bangalore
water supply – 30 TMC; Urban water supply (other than
Bangalore) – 10 TMC; Rural water supply – 6 TMC; Industrial
uses – 4 TMC. This along with its claim for irrigation - 408 TMC
and for power projects (reservoir losses 6 TMC and Thermal G
Power Project - 1 TMC) – totals to 465 TMC. Karnataka,
therefore, registered a claim of 30 TMC only for the city of
Bengaluru. [Para 389] [1109-C, D-F]
14.2 The Tribunal, at the first instance, presumed that 50%
of drinking water requirement would be met from the ground
H
852 SUPREME COURT REPORTS [2018] 5 S.C.R.

A water sources as it is generally seen that wells and tube-wells in
urban and rural areas cater to substantial requirement of drinking
water. While noting that it had called for information in the
common format whereby the States had been required to project
their population for the year 2000 and 2025 for working out
drinking water requirement, the Tribunal, however, decided to
B
assess the drinking water requirement as in the year 2011. On
the basis of the information available, it held that only 1/3rd of the
Bengaluru city lay within the Cauvery basin. It, therefore, limited
its consideration of drinking water requirement of Bengaluru to
that area only which was located within the Cauvery basin. It
C noticed that Karnataka had stated that the existing and ongoing
drinking water schemes for the city were for 14.52 TMC in all as
in June 1990 and also that it had claimed 30 TMC for Bengaluru
city in its projection for 2025. The Tribunal, was disposed to work
out the water requirement for urban and rural population on the
basis of population projection of the basin for the year 2011 by
D
adopting the percentage decennial growth for the year 1981-1991
census, district-wise and the area of each district falling within
the Cauvery basin as furnished by Karnataka. The population
projection of Bengaluru city on the Census Report of 2011, as
furnished by Tamil Nadu, was taken note of as well. The Tribunal
E next quantified the water requirement of urban population to be
8.70 TMC and for rural population at 8.52 TMC. The Tribunal,
as a consequence, proceeded to quantify the total drinking water
requirement for urban and rural population to be 17.22 TMC
(8.70 TMC + 8.52 TMC). It next assumed that 50% of the
drinking water requirement would be met from ground water and
F
the remaining 50% from the surface water. Thus, segregating
8.75 TMC to be catered to by the surface water, it worked out
the consumptive use, i.e., 20% of the total for the human
population including live stock to be 1.75 TMC (20% of 8.75
TMC). [Para 389] [1109-F-H; 1110-A-E]
G 14.3 Apart from the fact that there is no basis whatsoever
for the Tribunal for having quantified the water requirement for
urban population to be 8.70 TMC as well as for rural population
to be 8.52 TMC, its assumption that 50% thereof would be met
from ground water only in view of its perception that wells and
H tube-wells in urban and rural areas cater to the substantial
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 853
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

requirement of drinking water, is unacceptable and cannot be A
sustained. That apart, in the context of Bengaluru city, especially
in view of the growth and rise of population in space and time,
the Tribunal’s approach of confining the entitlement of its
population in general to only 1/3rd of their requirement only in
view of the location of 1/3rd of its physical entity within the Cauvery
B
basin demands scrutiny. True it is, the concept of a basin and the
beneficial uses of the water thereof ought to be traced generally
to the sites and population thereof located in the basin,
nevertheless, the principles of apportionment and the conception
of reasonable and equitable share perceived for such uses
comprehend a basin State addressing the social and economic C
needs of its community as a whole. Territorial or geographical
demarcation for extension of beneficial uses of an inter-state river
basin cannot always be strictly construed. The perception of a
basin State inheres in it a degree of flexibility in approach in a
unique fact situation to justify a warrantable flexibility and
D
departure from such rigoristic approach. The requirements of its
dependent population as a whole for drinking and other domestic
purposes, therefore, cannot justifiably, in the prevailing
circumstances, be truncated to their prejudice only for
consideration of its physical location in the context of the river
basin. It will be inconceivable to have an artificial boundary and E
deny the population the primary need of drinking water. The
Court holds so in the special features of the case keeping in view
the global status the city has attained and further appreciating
the doctrine of equitable proportionality on the bedrock of
pressing human needs. [Para 390] [1110-E-H; 1111-A-B, D, E-F]
F
14.4 As per the national water policies, not only drinking
water has been placed at the top of the other requirements in the
order of priority, but it has also been predicated that adequate
drinking water facilitates should be provided to the entire
population, both in urban and rural areas and that drinking water
should be made a primary consideration. It was declared as well G
that drinking water needs of human beings and animals should
be the first charge on any available water. Article 14 of the Berlin
Rules also mandates that in determining an equitable and
reasonable use, the States shall first allocate water to satisfy vital
human needs. [Para 391] [1111-F-H] H
854 SUPREME COURT REPORTS [2018] 5 S.C.R.

A 14.5 The approach of the Tribunal cannot be approved in
the facts and circumstances. The allocation of water for drinking
and domestic purposes for the entire city of Bengaluru has to be
accounted for. Karnataka had claimed 14.52 TMC, i.e., 6.52 TMC
for existing water schemes for Bengaluru and 8.00 TMC for the
ongoing drinking water schemes for the city as in June, 1990. It
B
had demanded 30 TMC as drinking water requirement for the
city with the projection of 2025. Having regard to the percentage
of decennial growth, as has been adopted by the Tribunal, in 2011,
the demand of Karnataka for drinking water requirement for
Bengaluru city would be in the vicinity of 24 TMC. Even excluding
C the computation for urban population of the State to be 8.70 TMC
as arrived at by the Tribunal and that too without any basis and
accepting the water requirement of rural population to be 8.52
TMC though also without any basis, the total figure representing
drinking and domestic water requirement of the urban and rural
population would be 32.5 TMC rounded upto 33 TMC in
D
comparison to 46 TMC as claimed by Karnataka in its statement.
Having rejected the assumption that 50% of the drinking water
requirement would be met from ground water, this 33 TMC would,
be a safe and acceptable figure qua drinking and domestic water
requirement of the State of Karnataka for its urban and rural
E population. By applying the consumptive percentage of 20%, the
volume of water to be allocated to Karnataka on this count would
be 6.5 TMC in lieu of 1.75 awarded by the Tribunal, i.e., an
increase by 4.75 TMC. [Para 392] [1112-A-E]
14.6 Qua the view against transbasin diversion, not only in
F the context of Bengaluru city, a digression from the confines of
the concept of in-river basin would be justified, since the National
Water Policy of 1987, in categorical terms, enjoined that water
should be made available to water short areas by transfer from
other areas including transfers from one river basin to another.
This very conspicuously emphasizes on an inclusive
G comprehension and in a deserving case like Bengaluru city, it
would not be incompatible with the letter and spirit of the factors
that ought to inform the determination of reasonable and equitable
share of water in an inter-state river as well as of the national
policies formulated for planning and development of the precious
H natural resource involved. [Para 393] [1112-F-H]
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 855
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

15. Allocation of water towards environmental protection: A
On the aspect of allocation qua environmental protection,
the Tribunal, in order to secure the purity of environmental and
ecological regime in view of the injudicious use of available
resources by human beings compounded by population explosion
and distorted lifestyles and having regard to the spectre of river B
water pollution on account of industrial development and
deforestation leading to siltation of reservoirs, etc., assigned 10
TMC to be reserved from the common pool to meet the
environmental aspects. The endeavour and the initiative of the
Tribunal is appreciable, having regard to the sustenance of purity
of environment to which every individual is entitled and also C
simultaneously obliged to contribute to cultivate the feeling of
environmental morality. Therefore, the Court is not inclined to
interfere in any manner in the allocation of the quantum of 10
TMC towards environmental protection. [Paras 394 and 395]
[1113-A-D] D
16. Revised allocation amongst competing States:
16.1 With the evolution of the principle of equitable
apportionment which is really to ensure equal justice to the basin
States, the concept of prescriptive right or right to the natural
flow of any inter-state river has ceased to exist. Having regard E
to the historical facts which demonstrate the constraints suffered
by Karnataka resulting in its limited access and use of the surface
flow of Cauvery in spite of being the upper riparian State,
compared to Tamil Nadu, then Madras presidency, as well as
severally drought conditions in its 28 districts/taluks, the Court F
is inclined to award an additional quantity of water to it in the
measure of 14.75 TMC in all, i.e., 10 TMC (on account of
availability of ground water in Tamil Nadu) + 4.75 TMC (for
drinking and domestic purposes including such need for the whole
city of Bengaluru). On these considerations, Karnataka is more
deserving amongst the competing States to be entitled thereto. G
Out of this, 14.75 TMC would be deducted from the quantum
allocated by the Tribunal in favour of Tamil Nadu. Thus, the final
allocation of the shares in view of this determination would be as
under:-
H
856 SUPREME COURT REPORTS [2018] 5 S.C.R.

A Karnataka : 284.75 (270 + 14.75) TMC
Tamil Nadu : 404.25 (419 – 14.75) TMC
Kerala : 30 TMC
UT of Pondicherry : 7 TMC
Environmental Protection : 10 TMC
B
Inevitable escapagaes into sea : 4 TMC
Total : 740 TMC
[Para 396] [1113-E-H; 1114-A-B]
16.2 As a consequence of the aforesaid allocation, the State
C of Karnataka would now be required to make available at the
inter-State border with Tamil Nadu, i.e., at Billigundulu, 177.25
TMC of water for the basin. Apart from the modifications effected
hereinabove, no interference with the determination and findings
recorded by the Tribunal, in view of the scrutiny of the available
materials on record, is called for. [Para 397] [1114-C-D]
D
16.3 The Tribunal directed appointment of a Regulatory
Authority to properly monitor the working of monthly schedule
with the help of the concerned States and Central Water
Commission and further directed that the upper riparian State
shall not take any action so as to affect the scheduled deliveries
E of water to the lower riparian States. [Para 399] [1115-A-B]
16.4 In view of the reduction in the quantum of water, now
required to be released by Karnataka at the inter-State border
with Tamil Nadu, i.e., at Billigundulu, there would be, logically, a
proportionate decrease in the monthly releases as worked out
F by the Tribunal. However, the same pattern therefor, as modeled
by it would be maintained for the reduced releases. [Para 400]
[1116-B]
17. Interpretation of s. 6A of inter-State water disputes
Act, 1956:
G
17.1 The award of the Tribunal has to be treated as decree
of the Supreme Court. It is so stated in Section 6(2) of Inter-
State Water Disputes Act, 1956 to give teeth to the award passed
by the Tribunal so that none of the States can raise objection to
the same and be guided by the directions of the Tribunal. The
H purpose of framing the scheme is exclusively for implementation
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 857
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

of the award. The purpose of Section 6A is to act in the manner A
in which the award determines the allocation and decides the
dispute with regard to allocation or sharing of water. Therefore,
it is directed that a scheme shall be framed by the Central
Government within a span of six weeks from the date of the
present judgment, so that the authorities under the scheme can
B
see to it that the present decision which has modified the award
passed by the Tribunal is smoothly made functional and the rights
of the States as determined by this Court are appositely carried
out. It is categorically conveyed that the need-based monthly
release has to be respected. It is hereby made clear that no
extension shall be granted for framing of the scheme on any C
ground. [Para 403] [1119-F-H; 1120-A-B]
17.2 Union of India is not correct in contending that Section
6A of the 1956 Act by employing the word “may” has left room
for discretion to the Central Government for the purpose of
framing a scheme. The framing of the scheme is exclusively meant D
for implementation of the award or as the same gets modified by
this Court. Subject to the scheme to be formulated under Section
6A of the 1956 Act, in terms of the present adjudication, the
recommendations/directives of the Tribunal with regard to the
monthly releases and not inconsistent with anything decided
herein, are hereby endorsed for the present for a period of 15 E
(fifteen) years hence. [Para 404] [1123-C-E]
18. Maintainability of the Appeals by Special Leave:
18.1 The legislative intendment of Section 6(2) of Inter-
State Water Disputes Act, 1956, is not to create any kind of F
embargo on the jurisdiction of Supreme Court. The said provision
was inserted to give the binding effect to the award passed by
the Tribunal. The fiction has been created for that limited purpose.
Section 11 of the 1956 Act bars the jurisdiction of the courts and
that is in consonance with the language employed in Article 262
of the Constitution. The Founding Fathers had not conferred the G
power on this Court to entertain an original suit or complaint and
that is luminescent from the language employed in Article 131 of
the Constitution and from the series of pronouncements of this
Court. Section 6 cannot be interpreted in an absolute mechanical
manner and the words “same force as an order or decision” H
858 SUPREME COURT REPORTS [2018] 5 S.C.R.

A cannot be treated as an order or decree for the purpose of
excluding the jurisdiction of this Court. It cannot be a decree as
if this Court has adjudicated a matter and passed a decree. The
Parliament has intended that the same shall be executed or abided
as if it is a decree of this Court. A provision should not be
interpreted to give a different colour which has a technical design
B
rather than serving the object of the legislation. Therefore, Section
6(2) does not bar the jurisdiction conferred on this Court under
Article 136. [Para 18] [871-H; 872-A-E]
18.2 While adjudicating a matter of such a nature the Court
cannot be totally guided exclusively either by “broad” or
C extraordinary discretionary or “narrow” or restrictive approach
but it would be appropriate to have an intermediary approach as
the controversy covers a span of more than 100 years involving
change in boundaries, population growth and subsequent events.
Though the parameters of applicability of Article 136 can be broad
D to appreciate the materials and scrutinize the manner of
appreciation by the Court/Tribunal depending upon the lis raised.
In the present appeals preferred by special leave, it would be
appropriate for the Court to adopt an approach which is neither
broad nor narrow but an “intermediary one”, especially having
regard to the nature of the dispute that involves the inhabitants
E of three States and a Union Territory. [Para 382] [1104-F-H; 1105-A]
State of Tamil Nadu v. State of Karnataka and others
(1991) Suppl. 1 SCC 240 : [1991] 2 SCR 501 – relied on.
Atlas Cycle Industries Ltd. and others v. State of
F Haryana (1979) 2 SCC 196 : [1979] 1 SCR 1070;
Common Cause v. Union of India and others (2003) 8
SCC 250 : [2003] 4 Suppl. SCR 471; K.T. Plantation
Private Limited and another v. State of Karnataka
(2011) 9 SCC 1 : [2011] 13 SCR 636; Accountant
General, State of Madhya Pradesh v. S.K. Dubey and
G another (2012) 4 SCC 578 : [2012] 3 SCR 720; Hukum
Chand v. Union of India (1972) 2 SCC 601 : [1973] 1
SCR 896 – held inapplicable.
Union of India and another v. Tulsiram Patel (1985) 3
SCC 398 : [1985] 2 Suppl. SCR 131; Satyavir Singh
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 859
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

and others v. Union of India and others (1985) 4 SCC A
252 : [1985] 2 Suppl. SCR 791; A.K. Kaul and another
v. Union of India and another (1995) 4 SCC 73 : [1995]
3 SCR 469; Ganga Kumar Srivastava v. State of Bihar
(2005) 6 SCC 211; P.S.R. Sadhanantham v.
Arunachalam and another (1980) 3 SCC 141; Bengal
B
Chemicals & Pharmaceuticals Works Ltd., Calcutta v.
Their Workmen [1959] (Supp) 2 SCR 136; Jose Da
Costa & another v. Bascora Sadasiv Sinai Narcornim
and others. (1976) 2 SCC 917; Ram Piari v. Bhagwant
and others (1990) 3 SCC 364 : [1990] 1 SCR 813;
Phulchand Exports Ltd. v. O.O.O. Patriot (2011) 10 C
SCC 300 : [2011] 15 SCR 1129; Crompton Parkinson
(Works) Pvt. Ltd., Bombay v. Its Workmen and others
[1959] Suppl. (2) SCR 936; Vashit Narain Sharma v.
Dev Chandra and others [1955] 1 SCR 509; Ram
Bharosey Agarwal v. Har Swarup Maheshwari (1976)
D
3 SCC 435; Jamshed Hormusji Wadia v. Board of
Trustees, Port of Mumbai and another (2004) 3 SCC
214 : [2004] 1 SCR 483 – referred to.
Anisminic Ltd. v. Foreign Compensation [1969] 1 All
ER 208; The State of Washington Department of
Ecology v. Clarence E. and Peggy V. Grimes 121 Wash. E
2d. 459; In Re: Hague v. Nephi Irrigation Co. 16 Utah
421, 52 P. 765 (1898) : 41 LRA 311 – referred to.
Craies on Statute Law Interpretation – referred to.
Case Law Reference F
[2016] 8 SCR 499 referred to Para 2
[1991] 2 SCR 501 relied on Para 27
[1950] SCR 573 referred to Para 67
(1905) 33 IA 1: G
(1906) ILR 33 Cal 219 referred to Para 72
[1971] 3 SCR 9 relied on Paras 73, 104
[2014] 12 SCR 875 referred to Para 77
followed Para 99
H
860 SUPREME COURT REPORTS [2018] 5 S.C.R.

A [2006] 2 SCR 740 referred to Para 77
[1955] 1 SCR 415 referred to Para 81
[1951] SCR 474 distinguished Para 86
[1991] 2 Suppl. SCR 497 referred to Paras 94,134,150
B [1963] Suppl. 2 SCR 515 referred to Para 96
[1981] 2 SCR 417 referred to Para 105
[1986] 2 SCR 278 referred to Para 107
[1986] 3 SCR 923 referred to Para 107
C
[1990] 1 Suppl. SCR 142 referred to Para 107
[2013] 4 SCR 1018 referred to Para 107
[1985] 2 SCR 1014 referred to Para 116
[1959] SCR 729 referred to Para 122
D
AIR 1964 SC 1658 referred to Para 122
[1966] Suppl. SCR 81 referred to Para 122
[1976] 2 SCR 115 referred to Para 122
2017 (7) SCLAE 234 referred to Para 122
E
[1964] 6 SCR 846 referred to Para 122
[1987] 2 SCR 691 referred to Para 126
[1985] 2 Suppl. SCR 131 referred to Para 296

F [1985] 2 Suppl. SCR 791 referred to Para 296
[1995] 3 SCR 469 referred to Para 296
(2005) 6 SCC 211 referred to Para 296
(1980) 3 SCC 141 referred to Para 296
G [1959] Suppl. (2) SCR 136 referred to Para 296
(1976) 2 SCC 917 referred to Para 296
[1990] 1 SCR 813 referred to Para 296
[2011] 15 SCR 1129 referred to Para 296
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 861
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

[1959] Suppl. 2 SCR 936 referred to Para 296 A
[1955] 1 SCR 509 referred to Para 296
(1976) 3 SCC 435 referred to Para 296
[2004] 1 SCR 483 referred to Para 296
[1990] 3 SCR 83 referred to Para 350 B
[1979] 1 SCR 1070 held inapplicable Para 360
[2003] 4 Suppl. SCR 471 held inapplicable Para 360
[2011] 13 SCR 636 held inapplicable Para 360
C
[2012] 3 SCR 720 held inapplicable Para 360
[1973] 1 SCR 896 held inapplicable Para 360

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2453
of 2007
D
From the Judgment and Order dated 05.02.2007 of the Cauvery
Water Disputes Tribunal at New Delhi under Section 5(2) of the Inter-
State Water Disputes Act, 1956.
WITH
C. A. Nos. 2454 and 2456 of 2007. E
Ranjit Kumar, S.G., Madhusudan R. Naik, Adv. Gen., Fali S.
Nariman, S.S. Javali, Jaideep Gupta, Shekhar Naphade, A. S. Nambiar,
Rakesh Dwivedi, Subramonium Prasad, Sr. Advs., Mohan V. Katarki,
S. C. Sharma, Brijesh Kalappa, R.S. Ravi, V. N. Raghupathy, J. M.
Gangadhar, Ranvir Singh, Abdul Azeem Kalebudde, G. Prakash, Jishnu F
M. L., Mrs. Priyanka Prakash, Mrs. Beena Prakash, Vijay Shankar,
Kunal Chattarjee, Saurabh Gupta, G. Umapathy, C. Paramasivam, K.V.
Vijayakumar, B. Balaji, S. Wasim A. Qadri, Mrs. Madhavi Diwan, Ajay
Sharma, Ms. Snidha Mehra, Hemant Arya, Ms. Saudamini Sharma, Ms.
Kirti Dua, Ms. Somya Rathore, Sumit, D. S. Mahra, M. K. Maroria, R.
Nedumaran, V.G. Pragasam, S. Prabu Ramasubramanian, P. K. Manohar, G
Ms. Shantha Vasudevan, Manu Sundaram, Ramesh Babu M. R., Rajesh
Mahale, B. Balaji, A. S. Bhasme, Ms. Aparna Bhat, Ms. Supreeta
Sharanagouda, Advs. for the appearing parties.

H
862 SUPREME COURT REPORTS [2018] 5 S.C.R.

A The Judgment of the Court was delivered by
DIPAK MISRA, CJI
I N D E X*

S. No. Hea ding Page No.
B A. The proceedings in this Court in the 6
present Appeals
B. Maintainability of the Appeals by 18
Special Leave
C. Stand of all parties pertaining to 21
remand of the matter to the Tribunal
C after deliberation of the legal issues
D. Reference of the dispute to the 24
Tribunal
E. The initial proceedings before the 29
Tribunal
F. The issue of Ordinance by the State of 34
D Karnataka and the Presidential
Reference
G. The genesis of the controversy 50
H. Doctrine of Paramountcy a nd its 74
extinction on coming into force of the
Indian Independence Act, 1947
I. Infraction of Article 363 and non- 108
E maintainability of the dispute on the
basis of agreements
J. Unconscionability of the 1892 133
and 1924 agreements
K. Status of the agreements after coming 147
into force of the States Reorganization
F Act, 1956
L. Issue relating to expiry of the 164
agreements
M. Did the complaint not require any 179
adjudication?
N. The a pproach adopted by the Tribunal 183
G post 1974 and correctness of the same
O. The quintessence of pleadings before 197
the Tribunal
* Ed. note: The pages mentioned in the index above giving the scheme of the
judgment denotes the page number of the original judgment.

H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 863
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

P. The findings of the Tribunal on various 215 A
issues
P.1 Prescriptive rights and other 215
claims
P.2 Breach of agreements of 1892 217
No. and 1924 and consequences
thereof B
P.3 Peripheral issues qua claims of 219
Kerala an d Union Territory of
Pondicherry (presently n amed as
“Puducherry”)
P.4 Gross water available for 222
apportionment
C
P.4(i) Surface flow of water 222
P.4(ii) Identification of dependable 228
yield
P.4(iii) Additional source of water 231
P.5 The principles of apportionment 241
P.6 Determination of "irrigated 255 D
areas" in Tamil Nadu and
Karnataka
P.7 Assessment of water for 269
"irrigation needs" in Tamil Nadu
and Karnataka
8 P.8 Assessment of water for 297 E
"Domestic and Industrial
Purposes" in Tamil Nadu and
3 Karnataka
P.9 Assessment of water for 305
7 "Environment Protection and
Inevitable Escapages into Sea"
in Tamil Nadu and Karnataka F
4 P.10 Water allocation for the State of 308
Kerala an d Union Territory of
9 Pondicherry (presently n amed as
“Puducherry”)
3 P.11 Final water allocation amongst 325
competing States G
7 P.12 Monthly s chedule for delivery of 327
water at inter-State contact
points
Q. Mechanism (Cauvery Management Board) 335
for implementation of Tribunal's decisions
H
864 SUPREME COURT REPORTS [2018] 5 S.C.R.

A R. Final order of the Tribunal 337
S. Arguments adva nced on behalf of Sta te of 345
Ka rnataka as regards the allocation of
water on various heads
S.1 Submissions of Mr. Fali S. 345
Nariman
B S.2 Submissions of Mr. S.S. Javali 349
S.3 Conten tion raised by Mr. Mohan 351
V. Katarki
S.4 Propon ements of Mr. Sh yam 360
Divan
T. Arguments put forth by the State of Ta mil 368
C Nadu
T.1 Submissions of Mr. Sh ekhar 368
Naphade
T.2 Conten tions raised by Mr. 384
Rakesh Dwivedi
U. Arguments advanced on behalf of the State 387
D of Kerala
V. Submissions urged on behalf of Union 395
Territory of Puducherry
W. Arguments on behalf of Union of India 398
X. Our findings on issues of allocation 402
X.1 Prin ciples of apportionment to 402
E be followed
X.2 Determination of ‘irrigated 422
areas” in Tamil Nadu and
Karn ataka
X.3 Assessment of water for 426
“irrigation needs” in Tamil Nadu
F and Karnataka
X.4 Water allocation for the State of 431
Kerala
X.5 Water allocation for the Union 432
Territory of Puducherry
X.6 Recognition of grou nd water as 433
an additional source in Tamil
G Nadu
X.7 Water allocation for Domestic 438
and Industrial purp oses in Tamil
Nadu
X.8 Water allocation for Domestic 439
and In dustrial purposes of State
of K arnataka
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 865
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

X.9 Allocation of water towards 446 A
environmen tal protection
X.10 Revised water allocation 447
amongst competing States
Y. Interpretation of Section 6A of the 1956 Act 452
Z. The conclusions in seriatim 457 B
In this batch of Appeals, the assail is to the award dated 05.02.2007
passed by the Cauvery Water Disputes Tribunal (for brevity, “the
Tribunal”) constituted under Section 3 of the Inter-State Water Disputes
Act, 1956 (for brevity, “the 1956 Act”) by three States, namely, Karnataka,
Tamil Nadu and Kerala as each of them is aggrieved by the allocation C
and sharing of water of river Cauvery according to individual perception,
perspective and understanding. It is worthy to mention here that there
are two principal States, namely, State of Karnataka and State of Tamil
Nadu who as adversaries take the centre stage. The other two, State of
Kerala and Union Territory of Pondicherry (presently named as D
“Puducherry”) in their own way, attacked the award and also seriously
criticized the stand and stance of the main protagonists because of their
dominant, assertive and adamant attitude by which they not only feel
neglected and discriminated but have also been compelled to harbour
the idea that two of them have created impediment in their rightful due
concerning the release of water. E
A. The proceedings in this Court in the present Appeals
2. Before the hearing of the Appeals commenced, on being moved
by the State of Tamil Nadu, State of Karnataka and the Central
Government, certain orders came to be passed. It is necessary to
F
adumbrate the nature of orders passed by this Court, for without the
said narration, it will be an incomplete narrative. We may immediately
state that we shall devote some space to the genesis of the disputes as it
travels beyond 100 years and the learned counsel for the parties have
argued with vigour and energy in that regard. The said submissions
shall be noted and addressed in due course. Be it noted, at one stage, the G
issue of entertainability of the appeals by special leave was raised by the
Union of India and this Court had to deal with it and delivered a judgment
in State of Karnataka v. State of Tamil Nadu and others1. Certain
other orders also reflected the stand of the contesting States and where
1
(2017) 3 SCC 362 H
866 SUPREME COURT REPORTS [2018] 5 S.C.R.

A and how they were to be guided by the cherished principle of rule of law
by accepting the order of the Court and not take a deviant path.
3. Though the award was passed on 5th February, 2007, yet it was
published by requisite notification dated 19th February, 2013. On
10.05.2013, in I.A. No. 5/2013 in Civil Appeal No. 2456 of 2007, a two-
B Judge Bench, taking note of the notification dated 19th February, 2013
and also considering the fact that the said notification was under
consideration of the Central Government, passed an order constituting a
Supervisory Committee as a pro tem measure for implementation of the
final order of the Cauvery Water Disputes Tribunal dated February 5,
2007 which was notified vide notification dated February 19, 2013. The
C two-Judge Bench ordered that the said Supervisory Committee shall
consist of Secretary, Union Ministry of Water Resources as Chairman
and the Chief Secretaries of the respective States of Karnataka, Tamil
Nadu, Kerala and Union Territory of Puducherry as members.
4. The order clarified that the aforesaid pro tem arrangement was
D without prejudice to the pending civil appeals, namely, Civil Appeal Nos.
2453 of 2007, 2454 of 2007 and 2456 of 2007. Further, the order granted
liberty to the Central Government to apply for modification of the said
arrangement as and when necessary.
5. I.A. No. 10 of 2016 in Civil Appeal No. 2456 of 2007 was filed
E by the State of Tamil Nadu wherein Mr. Shekhar Naphade, learned
senior counsel who had appeared for the applicant, had contended that
the State of Karnataka had not been complying with the directions given
by the Tribunal in its final order and that the said order had been flagrantly
violated. Further, during the course of arguments, Mr. Naphade had
F pointed out that if the water was not released by the State of Karnataka,
the ‘samba’ crops would be absolutely damaged which would lead to an
unacceptable plight to be faced by the farmers of the State of Tamil
Nadu.
6. Per contra, Mr. Fali S. Nariman, learned senior counsel who
G had appeared for the State of Karnataka, had drawn the attention of the
Bench to paragraph ‘D’ of Clause IX of the final order of the Tribunal
which reads as under :-
“D. The Authority shall properly monitor the working of monthly
schedule with the help of the concerned States and Central Water
Commission for a period of five years and if any modification/
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 867
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

adjustment is needed in the schedule thereafter, it may be worked A
out in consultation with the party States, and help of Central
Water Commission for future adoption without changing the
annual allocation amongst the parties.”
Learned senior counsel for the State of Karnataka had submitted
that it is obligatory on the part of the State of Tamil Nadu to approach B
the Supervisory Committee that was constituted vide notification dated
22nd May, 2013. Mr. Nariman had also drawn the attention of the Bench
to paragraphs 2 and 3 of the notification which deal with the constitution
and the role of the Supervisory Committee.
For better appreciation, we think it condign to reproduce the said C
paragraphs. They read as under:-
“ Constitution of the Supervisory Committee:-
(1) There shall be a Committee under this scheme to be known
as the Supervisory Committee (hereinafter referred to as the
Committee). D
(2) The Committee referred to in sub-rule(1) shall consist of the
following, namely:-
(a) Secretary, the Ministry of Water Chairman
Resources, Government of India Ex officio E

(b) Chief Secretaries to the State, Members,
Governments of Karnataka, Ex officio
Tamil Nadu, Kerala and the
Union Territory of Puducherry F
or his duly nominated
representative

(c) Chairman, Central Water Members,
Commission Ex officio
G
(d) Chief Engineer, Central Water Member-
Commission S ecretary Secretary

3. Role of the Committee:- The role of the Committee shall be
to give effect to the implementation of the Order dated the 5th
February, 2007 of the Tribunal: H
868 SUPREME COURT REPORTS [2018] 5 S.C.R.

A Provided that in case of any doubt or difficulty, the Chairman,
Supervisory Committee and, if necessary, any of the parties may apply
to Hon’ble Supreme Court for appropriate directions with notice to the
other States and the Union Territory.”
During the course of proceedings of the said I.A. No.10 of 2016,
B Mr. Nariman, learned Senior Counsel handed over a note to the Bench
which contained certain suggestions, foremost of them being that the
State of Karnataka shall release 10000 cusecs per day (about 0.86 TMC)
from 7th September, 2016 to 12th September, 2016. Mr. Naphade, on the
other hand, submitted that instead of 10000 cusecs per day (about 0.86
TMC), there should be release of 20000 cusecs of water per day.
C
7. The Bench, after giving a patient hearing to the learned counsel
for both the parties, passed an order on 5th September, 2016 in the following
terms:-
“(a) The applicant, the State of Tamil Nadu, shall approach the
D Supervisory Committee within three days from today. Response,
if any, by the State of Karnataka be filed within three days
therefrom.
(b) The Supervisory Committee shall pass appropriate direction
in this regard within four days from the date of filing of the
E reference keeping in view the language employed in the final order
of the Tribunal. Be it clarified, the Supervisory Committee is bound
by the language used in the order passed by the Tribunal.
(c) Coming to the immediate arrangement, keeping in view the
gesture shown by the State of Karnataka and the plight that has
F been projected with agony by Mr. Naphade, we think it appropriate
to direct that 15 cusecs of water per day be released at Biligundulu
by the State of Karnataka for ten days.
(d) The State of Tamil Nadu is directed to release water
proportionately to the Union Territory of Puducherry.”
G 8. On 06.09.2016, the matter was taken up as there was a mistake
as the order dated 05.09.2016 incorrectly mentioned 10 cusecs and 20
cusecs in paragraph 1 and 15 cusecs in sub-paragraph (c) which required
to be read as 10000 cusecs, 20000 cusecs and 15000 cusecs respectively.
The corrections were carried out on that day.
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9. An application for modification of the order dated 05.09.2016, A
viz., I.A. No.12 of 2016 in I.A. No.10 of 2016 in Civil Appeal No.2456
of 2007 was mentioned on 11.09.2016 which was taken up on 12.09.2016
on the basis of an affidavit for urgent hearing.
10. Vide paragraph 3 of the said affidavit, the deponent had
submitted that modification of the interim order dated 5th September, B
2016 passed by this Court was necessary because of spontaneous
agitations in various parts of the State of Karnataka which had paralyzed
normal life and resulted in destruction of public and private properties
worth hundreds of crores of rupees. The deponent had further submitted
that modification was required having regard to the ground realities, needs
and requirements as stated in the application. C

11. The Court, after perusal of the said affidavit and the annexed
application for modification, noted that the application contained certain
averments which cannot be conceived of to be filed in a court of law
seeking modification of an earlier order. The Court categorically stated
that agitation in spontaneity or propelled by some motivation or galvanized D
by any kind of catalystic component can never form the foundation for
seeking modification of an order. The Court observed that its order was
bound to be complied with by all concerned and it is the obligation of the
executive to maintain law and order and to see that the Court’s order is
complied with in letter and spirit. The Court further observed that citizens E
cannot become law unto themselves; and when a court of law passes an
order, it is the sacred duty of the citizens to obey the same. The Court
also expressed anguish over the pleadings in the application and also the
affidavit filed for urgency and deplored the same.
12. Mr. Nariman, learned senior counsel appearing for the State F
of Karnataka, unequivocally accepted during the hearing that the
aforesaid affidavit was erroneously drafted. However, he contended
that the prayer in essence required reconsideration of the order. The
Court thereafter proceeded to deal with the proponements of Mr. Nariman
in respect of the reliefs sought for in the application. The application
mainly sought for the modification of order of this Court dated 05.09.2016 G
(as corrected on 06.09.2016) and an order to the effect to keep in abeyance
Clause (c) of the directions of this Court in its order dated 05.09.2016 as
corrected on 06.09.2016.
13. After giving due consideration to the exhaustive arguments
presented by the senior counsel for both the States, the Court was of the H
870 SUPREME COURT REPORTS [2018] 5 S.C.R.

A view that the prayer of abeyance did not deserve acceptance and,
accordingly, rejected the same. As far as the prayer for modification
was concerned, the Court modified the order dated 5th September, 2016
to the extent that the State of Karnataka shall release 12000 cusecs of
water per day and that the said direction shall remain in force till 20th
September, 2016. The Court also directed the Supervisory Committee
B
to arrive at a decision in conformity with the final order of the Tribunal
with respect to the situation of shortage of water and plight of farmers in
both the States.
14. On 20.9.2016, I.A. No.12 of 2016 in I.A. No.6 of 2016 in Civil
Appeal No.2456 of 2007 was taken up. After referring to its earlier
C orders, the Court considered the submissions advanced by the learned
counsel for the parties and took note of the directions of the Tribunal for
consideration of constituting the Cauvery Management Board. The Court,
thereafter, directed the Union of India to constitute the Cauvery
Management Board within four weeks and produce before the Court
D after four weeks the notification indicating that the said Board has been
constituted. As an interim measure, the Court directed the State of
Karnataka to release 6000 cusecs of water from 21st September, 2016
till 27th September, 2016.
15. On 27.09.2016, the Court sought the assistance of the learned
E Attorney General for India to apprise the Central Government to discuss
with both the States so that an interim solution could be arrived at. On
30.09.2016, the minutes of the proceedings were produced by learned
Attorney General for India and Mr. Nariman, learned senior counsel
appearing for the State of Karnataka, produced two letters and requested
the same to be taken on record and the said prayer was acceded to.
F Proceeding further, however, the Court modified the order dated 5 th
September, 2016. The two letters pertained to the communication
between Mr. Nariman and the State Government relating to compliance
of this Court’s order. It is not necessary to refer to the episode in detail.
It is worthy to state here that on 04.10.2016, the matter was taken up as
G it was mentioned by the learned Attorney General for India. The
mentioning related to modification of the earlier order. On that day, as
the order of this Court was complied with and that sage controversy
was put to rest. Mr. Nariman assisted the Court. We think it necessary
to state here that Mr. Nariman had courageously lived upto the highest
tradition of the Bar and we had recorded our uninhibited accession. Be
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it noted, after hearing learned counsel for the parties and Mr. Mukul A
Rohatgi, learned Attorney General for India, the Court constituted a High
Power Technical Team to arrive at an interim solution and directed the
State of Karnataka to release 2000 cusecs of water from 7.10.2016 till
18.10.2016.
16. On the next date of hearing, i.e., 18.10.2016, the report of the B
Committee was filed but it was noticed that the Committee had not
suggested anything with regard to the quantity of water. At this juncture,
the learned Attorney General for India submitted that the appeals are
not maintainable. The same stand was taken by Mr. A.S. Nambiar,
learned senior counsel appearing for the Union Territory of Puducherry.
On that day, the issue also arose for consideration of the nature of the C
interim order. Regarding the release of 2000 cusecs of water from
7.10.2016, it was submitted by Mr. Madhusudan R. Naik, learned
Advocate General of Karnataka assisting Mr. Nariman for the State of
Karnataka, that the order dated 18.10.2016 had been complied with.
After noticing the submissions with regard to the release of water by D
way of interim measure, it was decided to hear the matter on merits.
On that day, the earlier order passed by this Court was reiterated to the
effect that the executive of both the States shall see to it that peace and
harmony would be maintained in both the States and that the citizens do
not become law unto themselves. Further, it was ordered that it would
be the obligation of the executive to ensure that when the matter is E
heard and the interim order has been passed and that when the State of
Karnataka is complying with the order, mutuality of respect between
both the States and the citizens should be maintained. The order further
impressed upon the fact that maintenance of law and order and care for
public property is a sign of elevated democracy. F
17. We have paraphrased the interim orders as we are disposed
to think that they deserve to be reproduced as the same is necessary for
what we are going to say in the final judgment.
B. Maintainability of the Appeals by Special Leave
G
18. As stated earlier, the learned Attorney General for India raised
the issue with regard to the maintainability of the appeals. In the reported
judgment State of Karnataka (supra), the Court has held that when
judged by the principles of statutory interpretation to understand the
legislative intendment of Section 6(2), it is clear as crystal that the
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872 SUPREME COURT REPORTS [2018] 5 S.C.R.

A Parliament did not intend to create any kind of embargo on the jurisdiction
of this Court. The said provision was inserted to give the binding effect
to the award passed by the Tribunal. The Court opined that the fiction
has been created for that limited purpose. Section 11 of the 1956 Act
bars the jurisdiction of the courts and needless to say, that is in consonance
with the language employed in Article 262 of the Constitution. The
B
Founding Fathers had not conferred the power on this Court to entertain
an original suit or complaint and that is luminescent from the language
employed in Article 131 of the Constitution and from the series of
pronouncements of this Court. The Court further held that Section 6
cannot be interpreted in an absolute mechanical manner and the words
C “same force as an order or decision” cannot be treated as an order or
decree for the purpose of excluding the jurisdiction of this Court.
Elaborating the same, it was held that it cannot be a decree as if this
Court has adjudicated a matter and passed a decree. The Parliament
has intended that the same shall be executed or abided as if it is a decree
of this Court. The Court further ruled that a provision should not be
D
interpreted to give a different colour which has a technical design rather
than serving the object of the legislation. The exposition of the principles
of law relating to fiction, the intendment of the legislature and the ultimate
purpose and effect of the provision compelled the Court to repel the
submissions raised on behalf of the Union of India that Section 6(2) bars
E the jurisdiction conferred on this Court under Article 136. At that stage,
the Court clarified in the following words:-
“We would like to clarify one aspect. The learned Senior Counsel
appearing for the State of Karnataka as well as the State of Tamil
Nadu have commended us to various authorities which we have
F already referred to in the context of Article 136 of the Constitution,
but the purpose behind the said delineation is to show the broad
canvas of the aforesaid constitutional provision in the context of
maintainability of the civil appeals. How the final order passed by
the Tribunal would be adjudged within the parameters of the said
constitutional provision has to be debated when we finally address
G the controversy pertaining to the subject-matter of the civil
appeals.”
19. Referring to para 82 of the judgment, it is submitted by Mr.
Nariman, learned senior counsel for the State of Karnataka, that this
Court should exercise the wide powers bestowed in it under Article 136
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of the Constitution in a case of this nature and exercise its discretion. A
Similar was the submission of learned senior counsel appearing for the
other States. Be it clarified that each one is a contesting appellant as
also respondent.
20. Keeping in view the controversy at hand, we think it appropriate
to advert to the other legal issues and appreciate the factual score on the B
required parameters which will be unfolded in the course of our
deliberations. We do not presently intend to state it as wide or broad
approach or restricted or narrow approach. The said concept shall be
dwelled upon at the relevant stage.
C. Stand of all parties pertaining to remand of the matter to C
the Tribunal after deliberation of the legal issues
21. At the commencement of the hearing of the appeals, a serious
criticism was advanced on behalf of the State of Karnataka that after
the hearing before the Tribunal was closed, the State of Tamil Nadu
filed an affidavit which was marked as TN Ext. 1665 and when objections D
were raised, the Tribunal had assured that the said document would not
be relied upon but unfortunately the Tribunal had referred to the contents
of the affidavit and relied upon the same. Be it noted, the said affidavit
came into existence because of the suo motu order passed by the Tribunal
on 12.11.2002 which is as follows:-
E
“During the course of hearing of arguments it transpired that most
of the riparian States which are party to the proceedings cultivate
paddy and allow at least 2-3 inches of water to remain in fields
throughout till the crop matures. We are told that this is the
traditional practice which is being followed:
F
In many States in India paddy crops, after transplantation, are
watered from time to time and a particular level of water need
not remain in the fields throughout. It need not be pointed out that
traditional practice, which is being followed in Cauvery basin states
obviously will consume and require more water in the fields.
G
Since 1973, different recommendations have been made
requesting the riparian States before us to practice economy while
utilizing waters of river Cauvery.
Learned Additional Advocate General, appearing on behalf of the
State of Tamil Nadu stated that during last several years, steps
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874 SUPREME COURT REPORTS [2018] 5 S.C.R.

A have been taken to improve the water use efficiency. Similar stand
has been taken on behalf of the States of Karnataka, Kerala and
the Union Territory of Pondicherry.
It need not be impressed that it better scientific methods are
adopted in cultivation of paddy, the requirement of water is bound
B to be less.
All the party States and the Union Territory of Pondicherry shall
file their respective Affidavits within six weeks from today, as to
what steps have already been taken to reduce the requirement of
water for cultivation and what steps are likely to be taken in near
C future. In the Affidavit it should also be stated as to what minimum
delta is required for different crop varieties in their respective
States.”
22. It is assiduously urged that though the said affidavit has been
filed in reply to the affidavits filed by the State of Karnataka in pursuance
D of the suo motu order passed by the Tribunal, yet the affidavit of the
State of Tamil Nadu for the first time furnished its scientific crop water
requirement, that is, a detailed statement of computed crop water
requirement system fed by Mettur and other schemes in the basin and
the Tribunal, contrary to the principles of law of evidence and in violation
of the principal facet of natural justice, took the same on record and
E marked it as Ext. 1665. The Tribunal, as averred by the senior counsel
for the State of Karnataka, had clarified that the affidavit filed by Tamil
Nadu would not be relied upon in support of its case and that the case
would be considered on the facts and documents already brought on
record.
F 23. The said submission was equally seriously resisted by the State
of Tamil Nadu by stating that the said affidavit did not contain anything
new but was only a compilation of the materials already brought on
record. As the debate continued, it was suggested to the learned counsel
for the parties whether it would be advisable to remit the matter to the
G Tribunal on the said score. At this juncture, Mr. Nariman, learned senior
counsel appearing for the State of Karnataka, submitted that considering
more than 27 years had elapsed from the date of constituting the Tribunal
and also considering that all the State parties to the dispute were before
this Court and that each of them had challenged the Tribunal’s final
order, it would be appropriate for this Court to exercise its authority
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under Article 136 of the Constitution of India and decide the matter A
finally. He submitted that as per judicial pronouncements, the power of
this Court under Article 136 read with Article 142 being plenary, is
exercisable outside the purview of ordinary law in cases where the need
of justice demands interference as in the present case. The current
dispute is a unique one affecting the lives of millions of people and the
B
stakes involved are unparalleled. He submitted that remanding the matter
to the Tribunal for fresh consideration would be an exercise in futility
and a drain on the resources of all the parties concerned which must be
eschewed.
24. We may fruitfully state here that all the learned counsel, at
least on this issue, unanimously stated that the remand is no solution to C
such a dispute and this Court should decide the legal and factual issues
so that the controversy is put to rest. Thereafter, the hearing of the
appeals continued. Accordingly, we shall proceed to decide the various
legal issues which are of priority and upmost concern and thereafter
advert to the approach to be adopted in the obtaining factual matrix. D
D. Reference of the dispute to the Tribunal
25. The State of Tamil Nadu lodged a request before the
Government of India raising a water dispute and requesting for
adjudication of the same by a Tribunal constituted under Section 3 of the
1956 Act. In the said complaint dated 6th July, 1986, it was stated on E
behalf of the State of Tamil Nadu that a water dispute had arisen with
the Government of Karnataka by reason of the fact that the interests of
the State of Tamil Nadu and the inhabitants thereof in the waters of
Cauvery, which is an inter-State river, had been prejudicially affected.
The relevant part of the said communication reads as follows:- F
“(a) the executive action taken by the Karnatka State in
constructing Kabini, Hemavathi, Harangi, Swrnavathi and other
projects and expanding the aycut—
(i) Which executive action has resulted in materially diminishing
the supply of waters to Tamil Nadu. G
(ii) Which executive action has materially affected the prescriptive
rights of the ayacutdar already acquired and existing;
(iii)Which executive action is also in violation of the 1892 and
1924 agreements; and
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876 SUPREME COURT REPORTS [2018] 5 S.C.R.

A (b) the failure of the Karnataka Government to implement
distribution and control of the Cauvery waters.
The bilateral negotiations hitherto held between the States of
Karnataka and Tamil Nadu have totally failed.
Also all sincere attempts so far made by the Government of India
B to settle this long pending water dispute by negotiations since 1970
have totally failed.
Therefore, this request is made by the Government of Tamil
Nadu to the Government of India under Section 3 of the Inter-
State Water Disputes Act, 1956 to refer this water dispute to a
C Tribunal.”
26. The complaint referred to the matters connected with the
dispute and the efforts made for settling the disputes by negotiations.
The broad features pointed out are the “River Cauvery”, “Development
of Irrigation in the Cauvery Basin”, “The Inter-State Agreements of
D 1892 and 1924”, “Violation of the aforesaid two agreements by
Karnataka”, “Tamil Nadu’s concern”, “Tamil Nadu’s first call for
adjudication in September, 1969", “Tamil Nadu’s formal request for
adjudication in February, 1970", Tamil Nadu’s continued participation in
the discussion and negotiations”, “Filing of suit by Tamil Nadu in the
E Supreme Court”, “Prime Minister’s advice”, “The Cauvery Fact Finding
Committee (CFFC)”, “Consideration of the proposals put forth by the
Union Government”, “Last bilateral discussions with Karnataka held on
23rd November, 1985”, “Chief Ministers’ meeting held at Bangalore (now
known as Bengaluru) on 16 June, 1986" and the narration of the events.
Thereafter, there was a request for expeditious action for referring the
F dispute to the Tribunal. The said part reads as follows:-
“From 1974-75 onwards, the Government of Karnataka has been
impounding all the flows in their reservoirs. Only after their
reservoirs are filled up, the surplus flows are let down. The injury
inflicted on this State in the past decade due to the unilateral action
G of Karnataka and the suffering we had in running around for a
few TMC of water every time the crops reached the withering
stage has been briefly stated in note (Enclosure—XXVIII). It is
patent that the Government of Karnataka have badly violated the
inter-State agreements and caused irreparable harm to the age
old irrigation in this State. Year after year, the realisation at Mettur
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is falling fast and thousands of acres in our ayacut in the basin are A
forced to remain fallow. The bulk of the existing ayacut in Tamil
Nadu concentrated mainly in Thanjavur and Thiruchirappalli
districts is already gravely affected in that the cultivation operations
are getting long delayed, traditional double crop lands are getting
reduced to single crop lands and crops even in the single crop
B
lands are withering and failing for want of adequate wettings at
crucial times. We are convinced that the inordinate delay in solving
the dispute is taken advantage of by the Government of Karnataka
in extending their canal systems and their ayacut in the new
projects and every day of delay is adding to the injury caused to
our existing irrigation. C
The Government of Tamil Nadu are of the firm view that the
“water dispute with the Government of Karnataka has arisen by
reason of the fact that the interests of the State of Tamil Nadu
and the inhabitants thereof in the waters of Cauvery, which is an
inter-State liver have been affected prejudicially by — D
(a) the executive action taken by the Karnataka State in constructing
Kabini, Hemavathi, Harangi, Swarnavathi and other projects and
expanding the ayacuts:
(i) which executive action has resulted in materially diminishing
the supply of waters to Tamil Nadu; E

(ii) which executive action has materially affected the
prescriptive rights of the avacutdars already acquired and
‘existing; and
(iii) which executive action is also in violation of the 1892 and F
1924 Agreements; and
(b) the failure of the Karnataka Government, to implement the terms
of the 1892 and 1924 Agreements relating to the use, distribution
and control of the Cauvery waters.
The bilateral negotiations hitherto held between the States of G
Karnataka and Tamil Nadu have totally failed.
Also all sincere attempts so far made by the Government of India
to settle this long pending water dispute by negotiations since 1970
have, totally failed.
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878 SUPREME COURT REPORTS [2018] 5 S.C.R.

A I am therefore to request the Central Government to refer the
Cauvery Water Dispute to a Tribunal for adjudication under the
provisions of Section 4 of the inter-State Water Disputes Act,
1956 without any delay.”
27. On the basis of the aforesaid letter of request, the Central
B Government, by the notification dated June 2, 1990, constituted the
Tribunal and passed the following order of reference:-
“No. 21/1/90-WD
Government of India
(Bharat Sarkar)
C Ministry of Water Resources
(Jal Sansadhan Mantralaya)
New Delhi, June 2, 1990

Reference
D In the exercise of the powers conferred by sub-section (1) of
Section 5, of the Interstate Water Disputes Act, 1956 (33 of 1956),
the Central Government hereby refers to the Cauvery Water
Disputes Tribunal for adjudication, the water disputes regarding
the interstate river Cauvery and the river valley thereof, emerging
E from Letter No. 17527/K2/82-110 dated July 6, 1986 from the
Government of Tamil Nadu (copy enclosed).
By order and in the name
of the President of India
(M.A. Chitale)
F Secretary, (Water Resources)
Chairman,
The Cauvery Water Disputes Tribunal,
New Delhi”
E. The initial proceedings before the Tribunal

G 28. During the pendency of the reference, the Government of
Tamil Nadu filed CMP No.4 of 1990 praying that the State of Karnataka
be directed not to impound or utilize the water of Cauvery river beyond
the extent impounded or utilized by them as on May 31, 1972 as agreed
to by the Chief Ministers of the basin States and the Union of India for
irrigation and power. It was also prayed that an order be passed restraining
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the State of Karnataka from notifying any new projects, dams, reservoirs, A
canals, etc., and/or from proceeding further with the construction of
projects, dams, reservoirs, canals, etc., in the Cauvery basin. The Union
Territory of Puducherry filed CMP No. 5 of 1990 on 8.9.1990 seeking
an interim order directing the State of Karnataka and Kerala to release
the water already agreed to during the months of September to March.
B
An emergent petition was filed by the State of Tamil Nadu forming the
subject matter of CMP No.9 of 1990 to direct the State of Karnataka to
release at least 20 TMC of water as the first installment pending formal
orders in CMP No.4 of 1990. The said prayers were seriously opposed
by the State of Karnataka and the State of Kerala on merits as well as
on a preliminary objection that the Tribunal had no power or jurisdiction C
to entertain the said petitions and to grant any interim relief. The Tribunal
upheld the objections raised by the State of Karnataka and the State of
Kerala holding that the said applications were not maintainable in law
and, accordingly, dismissed the same. Aggrieved by the said orders,
special leave petition was filed for seeking leave to assail the said order.
D
This Court passed the judgment in State of Tamil Nadu v. State of
Karnataka and others2 wherein the majority view stated by N.M.
Kasliwal, J. is extracted below:-
“22. The above passage clearly goes to show that the State of
Tamil Nadu was claiming for an immediate relief as year after
year, the realisation at Mettur was falling fast and thousands of E
acres in their ayacut in the basin were forced to remain fallow. It
was specifically mentioned that the inordinate delay in solving the
dispute is taken advantage of by the Government of Karnataka in
extending their canal systems and their ayacut in the new projects
and every day of delay is adding to the injury caused to their F
existing irrigation. The Tribunal was thus clearly wrong in holding
that the Central Government had not made any reference for
granting any interim relief. We are not concerned, whether the
appellants are entitled or not, for any interim relief on merits, but
we are clearly of the view that the reliefs prayed by the appellants
in their C.M.P. Nos. 4, 5 and 9 of 1990 clearly come within the G
purview of the dispute referred by the Central Government under
Section 5 of the Act. The Tribunal has not held that it had no
incidental and ancillary powers for granting an interim relief, but it
2
1991 Supp (1) SCC 240
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A has refused to entertain the C.M.P. Nos. 4, 5 and 9 on the ground
that the reliefs prayed in these applications had not been referred
by the Central Government. In view of the above circumstances
we think it is not necessary for us to decide in this case, the larger
question whether a Tribunal constituted under the Interstate Water
Disputes Act has any power or not to grant any interim relief. In
B
the present case the appellants become entitled to succeed on the
basis of the finding recorded by us in their favour that the reliefs
prayed by them in their C.M.P. Nos. 4, 5 and 9 of 1990 are covered
in the reference made by the Central Government. It may also be
noted that at the fag end of the arguments it was submitted before
C us on behalf of the State of Karnataka that they were agreeable
to proceed with the CMPs on merits before the Tribunal on the
terms that all party States agreed that all questions arising out of
or connected with or relevant to the water dispute (set out in the
respective pleadings of the respective parties), including all
applications for interim directions/reliefs by party States be
D
determined by the Tribunal on merits. However, the above terms
were not agreeable to the State of Tamil Nadu as such we have
decided the appeals on merits.”
Sahai, J. opined thus:-
E “I agree with brother Kasliwal, J. that under the constitutional set
up it is one of the primary responsibilities of this Court to determine
jurisdiction power and limits of any tribunal or authority created
under a statute. But I have reservations on other issues including
the construction of the letter dated July 6, 1986. However, it is not
necessary for me to express any opinion on it since what started
F as an issue of profound constitutional and legal importance fizzled
out when the States of Karnataka and Kerala stated through their
counsel that they were agreeable for determination of the
applications for interim directions on merits.”
29. In view of the aforesaid directions, the Tribunal heard the said
G applications of Karnataka and Puducherry. Before the Tribunal,
objections were again raised on behalf of the State of Karnataka with
regard to the maintainability of the applications filed by the State of
Tamil Nadu and Union Territory of Puducherry for interim relief. The
Tribunal did not countenance that objection and expressed the view that
H the directions given by this Court were binding on it. The Tribunal
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proceeded to decide the applications on merits and, vide its order dated A
June 25, 1991, and on a detailed analysis of the materials available, it
directed the State of Karnataka, as an interim measure, to ensure that
205 TMC of water is available in Tamil Nadu’s Mettur Reservoir in a
year from June to May. The modalities for regulating the release of
water so fixed were also laid down with a further direction that 6 TMC
B
of water for Karaikal region of the Union Territory of Puducherry would
be delivered by the State of Tamil Nadu. The State of Karnataka was
restrained from increasing its area under irrigation by the waters of the
river of Cauvery beyond the existing 11.2 lakh acres. In issuing this
direction, the Tribunal was guided by the consideration that pending final
adjudication, the rights of the parties ought to be preserved and it was C
also ensured that by the unilateral action of one party, the other party
was not prejudiced from getting appropriate relief at the time of passing
of final orders. In quantifying the volume of 205 TMC of water to be
released by the State of Karnataka from its reservoirs for Tamil Nadu’s
Mettur reservoir, the Tribunal construed the average of the annual flow
D
of waters of the river Cauvery into the reservoir of Mettur Dam in Tamil
Nadu as the reasonable basis. For the said purpose, amongst other
aspects, it took note of the inflow of water into Mettur Dam for a period
of 10 years, i.e., 1980-81 to 1989-90 and worked out the figure by leaving
out of scrutiny the abnormally good years and bad years and, thus, arrived
at the figure of 205 TMC. While entertaining the grievance of State of E
Tamil Nadu to the effect that the releases ought to be made timely to
meet the need of cultivation of crops for which it set down the norms, it
noted that the State of Kerala had not applied for any interim order.
F. The issue of Ordinance by the State of Karnataka and
the Presidential Reference F
30. The State of Karnataka, however, on 25.07.1991, promulgated
an Ordinance captioned “The Karnataka Cauvery Basin Irrigation
Protection Ordinance, 1991” which, for all intents and purposes, sought
to negate the effect of the interim order dated 25.06.1991. The said
Ordinance reads as follows:- G
“An Ordinance to provide in the interest of the general public for
the protection and preservation of irrigation in irrigable areas of
the Cauvery basin in Karnataka dependent on the waters of the
Cauvery river and its tributaries.
H
882 SUPREME COURT REPORTS [2018] 5 S.C.R.

A Whereas the Karnataka Legislative Council is not in session and
the Governor of Karnataka is satisfied that circumstances exist
which render it necessary for him to take immediate action, for
the protection and preservation of irrigation in the irrigable areas
of the Cauvery basin in Karnataka dependent on the water of
Cauvery river and its tributaries.
B
Now, therefore, in exercise of the power conferred under clause
(1) of Article 213 of Constitution of India, I, Khurshed Alam Khan,
Governor of Karnataka, am pleased to promulgate the following
Ordinance, namely:
C 1. Short title, extent and commencement.— (1) This Ordinance
may be called the Karnataka Cauvery Basin Irrigation Protection
Ordinance, 1991.
(2) It extends to the whole of the State of Karnataka.
(3) It shall come into force at once.
D
2. Definition.— Unless the context otherwise requires:
(a) ‘Cauvery basin’ means the basin area of the Cauvery river
and its tributaries lying within the territory of the State of
Karnataka.
E (b) ‘Irrigable area’ means the areas specified in the Schedule.
(c) ‘Schedule’ means the Schedule annexed to this Ordinance.
(d) ‘Water year’ means the year commencing with the first of
June of a calendar year and ending with the thirty-first of May of
the next calendar year.
F
3. Protection of irrigation in irrigable area.— (1) It shall be
the duty of the State Government to protect, preserve and maintain
irrigation from the waters of the Cauvery river and its tributaries
in the irrigable area under the various projects specified in the
Schedule.
G
(2) For the purpose of giving effect to sub-section (1) the State
Government may abstract or cause to be abstracted, during every
water year, such quantity of water as it may deem requisite, from
the flows of the Cauvery river and its tributaries, in such manner
and during such intervals as the State Government or any officer,
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STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 883
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not below the rank of an Engineer-in-Chief designated by it, may A
deem fit and proper.
4. Overriding effect of the Ordinance.— The provisions of this
Ordinance, (and of any Rules and Orders made thereunder), shall
have effect notwithstanding anything contained in any order, report
or decision of any Court or Tribunal (whether made before or B
after the commencement of this Ordinance), save and except a
final decision under the provisions of sub-section (2) of Section 5
read with Section 6 of the Inter-State Water Disputes Act, 1956.
5. Power to remove difficulties.— If any difficulty arises in giving
effect to the provisions of this Ordinance, the State Government C
may, by order, as occasion requires, do anything (not inconsistent
with the provisions of this Ordinance) which appears to be
necessary for purpose of removing the difficulty.
6. Power to make rules.— (1) The State Government may, by
notification in the official Gazette make rules to carry out the D
purpose of this Ordinance.
(2) Every rule made under this Ordinance shall be laid as soon as
be after it is made, before each House of the State legislature
while it is in session for a total period of thirty days which may be
comprised in one session or in two or more sessions and if before E
the expiry of the said period, either House of the State legislature
makes any modification in any rule or order or directs that any
rule or order shall not have effect, and if the modification or direction
is agreed to by the other House, such rule or order shall thereafter
have effect only in such modified form or be no effect, as the
case may be.” F
31. The notification mentioned a schedule of area which refers to
irrigable areas in the Cauvery basin of Karnataka under various projects
including minor irrigation works. The State of Karnataka instituted a
suit under Article 131 against the State of Tamil Nadu and others seeking
a declaration that the order of the Tribunal granting interim relief was G
without jurisdiction. In the meantime, the Ordinance stood replaced by
the Act 27 of 1991 and the said Act reproduced the provisions of the
Ordinance in verbatim except that in Section 4 of the Act, the words
‘any court’ were omitted and Section 7 was added repealing the
Ordinance. After the Act was passed, the President under Article 143,
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884 SUPREME COURT REPORTS [2018] 5 S.C.R.

A on July 27, 1991, referred three questions for opinion of this Court. The
reference reads as follows:-
“WHEREAS, in exercise of the powers conferred by Section 4
of the Inter-State Water Disputes Act, 1956 (hereinafter referred
to as “the Act”), the Central Government constituted a Water
B Disputes Tribunal called “the Cauvery Water Disputes Tribunal”
(hereinafter called “the Tribunal”) by a notification dated June 2,
1990, a copy whereof is annexed hereto, for the adjudication of
the Water Dispute regarding the Inter-State River Cauvery;
WHEREAS on June 25, 1991, the Tribunal passed an interim
C order (hereinafter referred to as “the Order”), a copy whereof is
annexed hereto;
WHEREAS, differences have arisen with regard to certain
aspects of the Order;
WHEREAS, on July 25, 1991, the Governor of Karnataka
D promulgated the Karnataka Cauvery Basin Irrigation Protection
Ordinance, 1991 (hereinafter referred to as “the Ordinance”), a
copy whereof is annexed hereto;
WHEREAS, doubts have been expressed with regard to the
constitutional validity of the Ordinance and its provisions;
E WHEREAS, there is likelihood of the constitutional validity of
the provisions of the Ordinance, and any action taken thereunder,
being challenged in courts of law involving protracted and avoidable
litigation;
WHEREAS, the said differences and doubts have given rise
F to a public controversy which may lead to undesirable
consequences;
AND WHEREAS, in view of what is hereinbefore stated, it
appears to me that the following questions of law have arisen and
are of such nature and of such public importance that it is expedient
G to obtain the opinion of the Supreme Court of India thereon;
NOW, THEREFORE, in exercise of the powers conferred
upon me by clause (1) of Article 143 of the Constitution of India,
I, Ramaswamy Venkataraman, President of India, hereby refer
the following questions to the Supreme Court of India for
H consideration and report thereon, namely:
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 885
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

(1) Whether the Ordinance and the provisions thereof are in A
accordance with the provisions of the Constitution;
(2) (i) Whether the Order of the Tribunal constitutes a report and
a decision within the meaning of Section 5(2) of the Act; and
(ii) Whether the Order of the Tribunal is required to be published B
by the Central Government in order to make it effective;
(3) Whether a Water Disputes Tribunal constituted under the Act
is competent to grant any interim relief to the parties to the dispute.”
32. To deal with the reference, the Constitution Bench narrated
C
the factual background that had led to the reference. After analyzing
various aspects, the opinion was expounded in the following terms:-
“Question No.1: The Karnataka Cauvery Basin Irrigation
Protection Ordinance, 1991 passed by the Governor of Karnataka
on July 25, 1991 (now the Act) is beyond the legislative competence D
of the State and is, therefore, ultra vires the Constitution.
Question No. 2: (i) The order of the Tribunal dated June 25, 1991
constitutes report and decision within the meaning of Section 5(2)
of the Inter-State Water Disputes Act, 1956;
(ii) the said Order is, therefore, required to be published by the E
Central Government in the official Gazette under Section 6 of the
Act in order to make it effective.
Question No. 3: (i) A Water Disputes Tribunal constituted under
the Act is competent to grant any interim relief to the parties to
the dispute when a reference for such relief is made by the Central F
Government;
(ii) whether the Tribunal has power to grant interim relief when
no reference is made by the Central Government for such relief
is a question which does not arise in the facts and circumstances
under which the Reference is made. Hence we do not deem it G
necessary to answer the same.”
33. The aforesaid decision also noted a certain aspect which has
been highlighted by the State of Karnataka in the course of arguments
and we shall be dealing with it in extenso at a later stage. In paragraph
4 of the judgment, the Court stated:- H
886 SUPREME COURT REPORTS [2018] 5 S.C.R.

A “4. There were two agreements of 1892 and 1924 for sharing the
water of the river between the areas which are predominantly
today comprised in the States of Karnataka and Tamil Nadu, and
which were at the time of the agreements comprised in the then
Presidency of Madras on the one hand and the State of Mysore
on the other. The last agreement expired in 1974….”
B
Again in paragraph 11, the Court observed:-
“…… In the said letter, Tamil Nadu primarily made a grievance
against the construction of works in the Karnataka area and the
appropriation of water upstream so as to prejudice the interests
C downstream in the State of Tamil Nadu. It also sought the
implementation of the agreements of 1892 and 1924 which had
expired in 1974.”
34. The State of Karnataka, still undaunted by such reverses,
filed an application before the Tribunal to recall its order dated 25.06.1991
D citing several grounds justifying such review. The Tribunal, vide its order
dated 07.04.1992, however, declined to interfere with its earlier order
dated 25.06.1991 with the observation that in case, thereafter, there was
any change in circumstance or undue hardship in a particular year to
any party, it would be open to such party to approach it for appropriate
orders. The stage being thus set, following the submissions of the
E respective statements of cases, counters and rejoinders, the Tribunal
framed the following issues:-
“(1) Are both the Agreements of 1892 and 1924 or either of
them, invalid?

F (2) Are both the Agreements of 1892 and 1924 or either of them
invalid because of the alleged oppression or because the
same were between the “unequal Riparian States” as
claimed by the State of Karnataka?
(3) Are both the Agreements of 1892 and 1924 binding and
enforceable upon all the parties to the present reference
G
(dispute)?
(4) Are both the Agreements of 1892 and 1924, in so far as the
river Cauvery and its tributaries are concerned invalid, on
the ground that the then Chief Commissioner’s Province of
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Coorg, Podukottai State, Travancore State and the French A
settlement of Pondicherry and Karaikal, were not parties to
the said Agreement?
(5) Whether the circumstances, that, the Agreements of 1892
and 1924 were not executed also on behalf of the then Chief
Commissioner’s Province of Coorg, Podukottai State, B
Travancore State and the French settlement of Pondicherry
and Karaikal, made the said Agreements not binding and
unenforceable against parties to the present reference.
(6) Is the State of Karnataka estopped from challenging both
the Agreements of 1892 and 1924 or either of them, on the C
ground that it had said to have been acted upon?
(7) Is the State of Karnataka entitled to contend that in any
view of the matter the State of Tamil Nadu had waived the
rights claimed by it under the Agreements of 1892 and 1924?
(8) Has there been any breach of both the Agreements of 1892 D
and 1924 or either of them, by any of the States. If so, what
is the effect of any such breach upon the rights of the parties
to the present reference?
(9) Did both the Agreements of 1892 and 1924 or either of them
provide for a fair and equitable distribution of waters of the E
river Cauvery and its tributaries to the parties of these
Agreements?
(10) (i) Could there be prescriptive rights as claimed by the State
of Tamil Nadu/Union Territory of Pondicherry, in their
pleadings. F
(ii) If the answer to (i) is in affirmative, what was the nature
of such prescriptive rights, and
(iii) Whether the Agreements of 1892 and 1924 or either of
them, were in recognition of the prescriptive rights as claimed
by the State of Tamil Nadu? G

(11) Have both the Agreements of 1892 and 1924 or either of
them ceased to be operative and enforceable and binding
because of subsequent events including enactment of various
laws and happening of changed circumstances?
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888 SUPREME COURT REPORTS [2018] 5 S.C.R.

A (12) What would be the true and proper construction of both the
Agreements of 1892 and 1924, and their legal consequences?
(13) Were the Rules of Regulation in Annexure I to the Agreement
of 1924 arbitrary, unconscionable and excessive to the
requirements of the areas which then formed part of the
B Province of Madras?
(14) Whether the Rules and Regulation in Annexure I to the
Agreement of 1924, are arbitrary and inequitable on the
ground that the same were excessive to the requirements
of the areas which now form the part of the State of Tamil
C Nadu?
(15) Does the entire Agreement of 1924 stand terminated at the
expiry of 50 years from the date of its execution? Does not
the said agreement continue to subsist even after the expiry
of the period of 50 years, subject to the modifications to be
D made to it in accordance with clause 10(xi) of the same
Agreement? What is the true scope and effect of clause
10(xi) of the Agreement?
(16) If the answer to the first part of issue 15 is in the affirmative,
whether the 1892 Agreement ought to continue in force until
E a new Agreement is entered into or the respective rights of
the basin States are determined in accordance with law?
(17) What is the present relevance and also the effect of the
deliberations of the Cauvery Fact Finding Committee, and
of the Study Team conducted by Shri CC Patel, Additional
F Secretary to the Government of India, and also of reports,
measures and surveys conducted by other agencies?
(18) Upon a true and proper assessment made according to the
reliable and scientific method, what would be the
approximate available surface waters of the Cauvery basin
including the delta region?
G
(19) Whether the Agreement of 1892 was operative and
enforceable also in respect of those tributaries of the river
Cauvery which were not specifically mentioned in the
Schedule ‘A’ to the said Agreement?
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STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 889
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(20) What is the extent of additional/alternative means of water A
resources available in the Cauvery basin by appropriate
exploitation of ground water potentials and by trans-basin
diversion?
(21) What is the approximate volume of ground water in each
one of the States/Union Territory which are parties to the B
Reference and whether the said availability of ground water,
if any, should be relevant in making fair and equitable
distribution of the Cauvery river waters?
(22) What should be the basis on which the availability of waters
be determined for apportionment, namely, dependability or C
on percentage basis? If it is on percentage basis, what ought
to be the said percentage?
(23) Whether there is wastage of waters in appreciable volume
or quantity, either in the basin or in the delta areas of the
Cauvery river? If so, what is its effect, if any, on the fair D
and equitable distribution of waters of the river Cauvery?
(24) Whether directions need be issued to the parties for ensuring
that the cropping patterns are compatible with the rainfall
and the river flows and other relevant factors and whether
E
such directions, if any, would be feasible and germane for
making equitable and fair distribution of the waters of the
river Cauvery?
(25) What is the extent of the return flow of water used in irrigation
by the different parties and what would be its effect on the
apportionment of Cauvery waters among them? F

(26) What is the extent of drought prone/affected areas in the
Cauvery basin region in each of the party States, and what
is its effect, if any, in making equitable apportionment of
waters?
G
(27) Should trans-basin diversion of the water of rivers Kabini
and Bhavani be permitted for generation of power and for
irrigation and water supply by the State of Kerala? If so, to
what extent and subject to what conditions and with what
safeguards?
H
890 SUPREME COURT REPORTS [2018] 5 S.C.R.

A (28) Whether generation of power by trans-basin diversion of
water by the parties would be legal and justified, particularly,
if a part of such power would be utilised by the people of
the river basin itself?

(29) Are the States of Karnataka and Tamil Nadu resorting to
B trans-basin diversion of the waters of river Cauvery? If so,
whether those States can be permitted to object to the
proposed trans-basin diversion of the water by the State of
Kerala?
(30) Should any preference or priority be given to utilization of
C
water in a manner such that it can generate power as well
as meet the needs of irrigation and water supply within the
basin/outside the basin area?
(31) What is the extent of the contribution by the different States
to the total flow in the Cauvery river and what would be its
D relevance for equitable apportionment of waters to the party
States?
(32) Whether directions are required to be issued to ensure that
the waters of the Cauvery and its tributaries maybe
developed by each of the States, singly or jointly, to generate
E maximum hydroelectric power without detriment to irrigation
uses?
(33) Is the State of Karnataka entitled to compensation for the
loss suffered as averred in paragraphs 18.9 to 18.11 of the
Statement of Case of Karnataka and as per averments in
F paragraphs 34 to 41 of the Counter of Karnataka to the
Statement of Case of Tamil Nadu?
(34) Whether any order/direction should be issued upon any one
or more of the States for regulated release of the Cauvery
waters and whether in that event compensation is to be
G awarded in favour of the parties, prejudicially affected
thereby?

(35) To what extent should Kerala be permitted to utilise the
waters generated in Kerala when such utilisation in Kerala
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 891
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

would secure either more or equal benefit for the country A
and its people than by its utilisation in any of the other States?

(36) Whether the State of Kerala requires a part of Cauvery
water for generation of power, and, if so, to what extent?

(37) Whether shortage of food in any of the States would be a B
relevant factor to be taken into consideration in making the
apportionment of the Cauvery water?

(38) Whether the backwardness, under-developed and allegedly
neglected area of a particular State would be relevant
C
matters in making a fair and equitable distribution of the
water of the Cauvery river?

(39) Whether the construction works executed by the State of
Tamil Nadu in the Upper Bhavani, Vargarpallam West and
Vargarpallam East, have unreasonably deprived the rights D
of the State of Kerala in the natural flow of the waters of
the river Cauvery and, if so, to what effect?
(40) Whether the executive action taken by Karnataka in
constructing Kabini, Hemavathi, Harangi, Suvarnavathy and
other projects and expanding its ayacuts has prejudicially E
affected the interests of Tamil Nadu and Pondicherry,
materially diminished the supply of waters to Tamil Nadu
and Pondicherry and materially affected the prescriptive
rights claimed by Tamil Nadu and Pondicherry on behalf of
their ayacutdars?
F
(41) Whether the above said executive action taken by Karnataka
is in violation of 1892 and 1924 Agreements?
(42) Whether the State of Tamil Nadu is entitled to compensation
for the loss, damage and injury caused by the failure on the
part of Karnataka to implement the terms of 1924 Agreement G
after 1974?
(43) If the answer to the above issue No.42 is in the affirmative,
what is the amount of compensation to which Tamil Nadu is
entitled?
H
892 SUPREME COURT REPORTS [2018] 5 S.C.R.

A (44) What is the equitable share of the Union Territory of
Pondicherry in the waters of the inter-State river Cauvery?

(45) Is the understanding reached between the then Governor of
French Settlement in India Pondicherry and the then
Governor of Madras on 6thSeptember, 1926 to maintain
B adequate supply of water to the French Territory still
subsisting and as such enforceable against the State of Tamil
Nadu?

(46) Whether the projects executed by the States of Karnataka
C and Tamil Nadu have unreasonably impaired the free flow
of water of the river Cauvery into the Union Territory of
Pondicherry?

(47) On what basis should the available waters be determined?

D (48) How and on what basis should the equitable apportionment
be made?

(49) What directions, if any, should be given for the equitable
apportionment and for the beneficial use of the waters of
the river Cauvery and its tributaries?
E
(50) What directions, if any, are required to be given regarding
the sharing of distress and surplus among the concerned
parties to the reference in the event of the waters of the
Cauvery falling short of the allocated quantum or being
surplus to the same?”
F
35. Subsequent thereto, evidence was recorded. However, prior
to the arguments, the issues, for the purpose of convenience, were
regrouped finally as hereunder:-
“Sl.No. Subject Issue No.
G
1. Agreements of 1892 and 1924
a) Arbitrary and inequitable 9, 13 & 14
b) Prescriptive rights and other claims 10 & 40
c) Construction and review
of agreements 12, 15 & 16
H
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d) Breach of agreements and A
Consequences 8, 33, 40 to 43
e) Constitutional and legal 1 to 7,11 & 19
validity and enforceability

2. Availability of water –
B
surface flows, additional/ 18, 20 to 22, 25,
alternative resources 27, 29, 31 & 47

3. Equitable apportionment and 26, 31, 34,37,
related subjects: 38, 47 to 50
i) Cropping pattern C
ii) Trans-basin diversion
iii) Relevant date of apportionment
iv) Relevance of projects completed
or otherwise.”
36. Reverting to the sequence of events, the Central Government D
finally, to give effect to the interim order dated 25.06.1991 passed by the
Tribunal, by notification dated 11.08.1998, framed a scheme titled “The
Cauvery Water (Implementation of the Interim Order of 1991 and all
subsequent Related Orders of the Tribunal) Scheme, 1998 which, amongst
others, provided for the constitution of the Cauvery River Authority,
delineated its role, powers and functions. E
37. The Cauvery River Authority (Conduct of Business) Rules,
1998 were also framed and given effect to from 14.07.2000 in order to
regulate the conduct of business of the Cauvery River Authority as
provided in Clause 3(2) of the Cauvery Water (Implementation of the
Interim Order of 1991 and all subsequent Related Orders of the Tribunal). F
G. The genesis of the controversy
38. Having stated the issues framed before the Tribunal, we would
have proceeded to deal with the primary legal issues. However, it is
requisite to state the genesis of the reference to the Tribunal. Having
G
narrated the facts to this extent, we think it appropriate to go to the
narration of events which have been graphically exposited before us. It
goes back to the year 1799. We do not intend to refer to the unnecessary
facets except those which had been expounded to espouse the legal
aspect. The first agreement between the Madras Presidency and the
State of Mysore was entered into in the year 1892. Prior to entering into H
894 SUPREME COURT REPORTS [2018] 5 S.C.R.

A the said agreement, there was correspondence between the British
Resident in Mysore and the Government of Madras. It is worthy to note
here that after the defeat of Tipu Sultan by the British, the Wadiyars,
Rulers of the State of Mysore, were decored with the crown under
Subsidiary Alliance Treaty in 1799. The State of Mysore undertook
certain works in its territory pertaining to restoration of river which was
B
protested by the Collector of Tanjore in the Madras Presidency. The
correspondence continued which is not necessary to be referred to. In
the year 1881, the Viceroy and the Governor General of India, by an
Instrument of Transfer 1881, restored the administration of the Princely
State of Mysore to another scion of the Wadiyar family by signing the
C “Sanad” described as “Instrument of Transfer”. Be it stated here, the
State of Karnataka asserts that it was not a treaty but a “Sanad” as is
reflected from the communication made by the British Foreign Secretary
in his dispatch of 1874. The relevant part reads as follows:-
“He is in reality the recipient of favours - the person who benefits
D by the avowedly liberal policy of Government - and it seems to
me to be in every way more becoming that the Government should
attach its own conditions to its gift, and that these should be set
forth in a Sanad or patent to be granted by Government to the
Maharaja.”
E 39. As contended by the State of Karnataka, the “Instrument of
Transfer” of 1881 placed the Maharaja in possession of the territories of
Mysore and in the administration thereof, and declared that he would be
entitled to hold possession thereof and administer them only so long as
he fulfilled the conditions prescribed in the Instrument of Transfer.
Emphasis has been laid on paragraphs 22 and 23 of the said instrument.
F After the year 1881, the British Government of Madras Presidency raised
objections as regards the fact that there was continued implementation
of the schemes for restoration of tanks in Mysore by stating that the
Presidency of Madras had a right to uninterrupted natural flow in the
river. On 13th June, 1889, the British Resident in Mysore thought it
G appropriate to remind the Dewan of Mysore that the British Resident
could not accept the Dewan’s stand and that Mysore had the right to
utilize to the fullest extent the natural water forces flowing through its
territory. The relevant part of the letter reads thus:-
“In the first place international law is not applicable to a feudatory
H State like Mysore in its dealings with the paramount power. Even
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 895
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if it were so, international law would not give Mysore the right A
claimed. Its position with reference to Madras territory is something
similar to that of Switzerland ... The principle which should be
taken as your guide in this important question is that no scheme
for stopping the flow of water from Mysore into Madras territory
will be permitted if it can be shown to be detrimental to the interests
B
of the latter.”
40. On 20.11.1889, the British Government of Madras Presidency
issued the following order:-
“The Mysore Government cannot claim to improve its irrigation
works by impounding or diverting the supply of streams which C
feed works in British territory and to the water of which the British
Government has acquired a prescriptive right.”
41. As the factual matrix would unroll, on 10.05.1890, a conference
was held at Ooty where the Princely State of Mysore put forward its
claim for the restoration of irrigation works which had been inaugurated D
during the British Government Administration in Mysore (1831-1881),
but the claim was rejected by the then British Resident who formally
expressed the opinion that the assertion of unlimited rights of Mysore
was extreme and untenable. The minutes, among other things, recorded
thus:-
E
“... After some argument the Diwan stated his position as follows:
...Madras rights extend only to the supply which has been actually
turned to account for irrigation...”
“Mr. Stokes said that ...He refused to admit that the Madras rights
to the flow in the rivers was limited to the amount actually turned F
to account for irrigation, and contended that Madras is entitled by
prescription to the whole flow allowed to pass the frontier, at
which point Mysore loses all right or interest in it...”
42. As the time passed, the Government of India, on 21st August,
1891, clarified in a publication in the Official Gazette of India No. 1700/
G
E the relationship between the Government of India as represented by
the Queen Empress of India on the one hand and the “native States” in
India on the other. It read as follows:-
“The principles of International Law have no bearing upon the
relations between the Government of India as representing the
H
896 SUPREME COURT REPORTS [2018] 5 S.C.R.

A Queen Empress on the one hand, and the native States under the
suzerainty of her Majesty on the other. The paramount supremacy
of the former, presupposes and implies the subordination of the
latter.”
[emphasis is supplied]
B 43. On 21.01.1892, the order was passed by the British
Government of Madras directing that the consent of Madras Government
should be obtained before the new reservoir is constructed within the
Mysore State and in the event of disagreement between the two
Governments, the matter has to be settled by arbitration.
C 44. In view of the above, the agreement was entered into between
the Madras Government and State of Mysore on 18.02.1892. Clause 1
defines New Irrigation Reservoirs. Clause 3 defines Repair of Irrigation
Reservoirs. Clause 4 states that any increase of capacity other than
what falls under “Repair of Irrigation Reservoirs” as defined shall be
regarded as a “New Irrigation Reservoir”. Clauses 2, 3 and 5 are
D
reproduced below:-
“II. The Mysore Government, shall not, without the previous
consent of the Madras Government, or before a decision under
rule 4 below, build (a) any “New Irrigation Reservoirs” across
any part of the fifteen main rivers named in the appended Schedule
E
A; or across any stream named in Schedule B below the point
specified in Column 5 of the said Schedule B, or in any drainage
area specified in the said Schedule B, or (b) any “new anaicut”
across the streams of Schedule A, Nos. 4 to 9 and 14 and 15, or
across any of the streams of Schedule B, or across the following
F streams of Schedule A, lower than the points specified hereunder:
Across 1. Tungabhadra – lower than the road crossing at Honhalli,
Across 10. Cauvery – lower than the Ramaswami anaicut, and
Across 13. Kabani – lower than the Rampur anaicut.

G III. When the Mysore Government desires to construct any “New
Irrigation Reservoir” or any new anaicut the previous consent of
the Madras Government under the last preceding rule, then full
information regarding the proposed work shall be forwarded to
the Madras Government and the consent of that Government shall
be obtained previous to the actual commencement of work. The
H Madras Government shall be bound not to refuse such consent
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 897
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

except for the protection of prescriptive right already acquired A
and actually existing, the existence, extent and nature of such
right and the mode of exercising it being in every case determined
in accordance with the law on the subject of prescriptive right to
use of water and in accordance with what is fair and reasonable
under all the circumstances of each individual case.
B
V. The consent of the Madras Government is given to new
irrigation reservoirs specified in the appended Schedule C, with
the exception of the Srinivasasagara new reservoir across the
Pennar, the Ramasamudram new reservoir across the Chitravati
and the Venkatesasagara new reservoir across Papaghni. Should,
owing to the omission of the Mysore Government to make or C
maintain these works in a reasonable adequate standard of safety,
irrigation works in Madras, themselves in a condition of reasonably
adequate safety, be damaged, the Mysore government shall pay
to the Madras government reasonable compensation for such
damage. D
As regards the three new reservoirs excepted above the
admissibility of any compensation from Mysore to Madras on
account of loss accruing to Madras irrigation works from
diminution of supply of water caused by the construction of the
said works, will be referred to the Government of India whose E
decision will be accepted as final and should such compensation
decided to be admissible, the decision of the Government of India
as to the amount thereof will be accepted, after submission to
them of the claims of Madras which would be preferred in full
detail within a period of five years after the completion of said
works.” F

45. As stated in Clause 2, there are two Schedules, namely,
Schedule A and Schedule B which do not require any reference. We
may note here that on 18.02.1924, another agreement was entered. The
prefatory note to the said agreement contains reference to the 1892
agreement, Clause 2 refers to Clause 3 of the 1892 agreement and certain G
disputes that had arisen between the two States and the reference to
arbitration and the award in the year 1914, rectification of the award by
the Government of India and the decision in appeal with the Secretary
of State for India who had reopened the question. It is necessary to
state what had been mentioned in the said reopening of the question:- H
898 SUPREME COURT REPORTS [2018] 5 S.C.R.

A “6. Whereas thereupon the Mysore Government and the Madras
Government with a view to an amicable settlement of the dispute
entered into negotiations with each other; and
7. Whereas as the result of such negotiations, certain Rules of
Regulation of the Krishnarajasagara reservoir were framed and
B agreed to by the Chief Engineers of the Mysore and Madras
Governments on the 26th day of July of the year 1921, such Rules
of Regulation forming Annexure I to this agreement; and
8. Whereas, thereafter, the technical officers of the two
Governments have met in conference and examined the question
C of extension of irrigation in their respective territories with a view
to reaching an amicable arrangement; and
9. Whereas as the result of such examination and conference by
the technical officers of the two Governments, certain points with
respect to such extension were agreed to respectively by the Chief
D Engineer for Irrigation, Madras, and the Special Officer,
Krishnarajasagara Works, at Bangalore, on the 14 th day of
September 1923, such points forming Annexure III to this
agreement.”
46. In the said backdrop, the Mysore Government and the Madras
E Government entered into the 1924 agreement. We think it appropriate to
reproduce the entire part of the said agreement as that is the fulcrum of
the stand of the State of Tamil Nadu:-
“(i) The Mysore Government shall be entitled .to construct arid
the Madras Government do hereby assent under clause III of the
F 1892 agreement to the Mysore Government constructing a dam
and a reservoir across and on the river Cauvery at Kannambadi,
now known a6 the Krishnarajasagara, such dam and reservoir to
be of a storage capacity of not higher than 112 feet above the sill
of the under-sluices now in existence corresponding to 124 feet
above bed of the river before construction of the dam, and to be
G of the effective capacity of 44,827 million cubic feet, measured
from the 6ill of the irrigation sluices constructed at 60 feet level
above the bed of the river up to the maximum height of 124 feet
above the bed of the river; the level of the bed of the river before
the construction of the reservoir being taken as 12 feet below the
sill level of the existing under-sluices; and such dam and reservoir
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 899
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

to be in all respects as described in schedule forming Annexure II A
to this agreement.
(ii) The Mysore Government on their part hereby agree to regulate
the discharge through and from the said reservoir strictly in
accordance with the Rules of Regulation set forth in the Annexure I,
which Rules of Regulation shall be and form part of this agreement. B
(iii) The Mysore Government hereby agree to furnish to the Madras
Government within two years from the date of the present
agreement di-mensioned plans of anicuts and sluices or open heads
at the off-takes of all existing irrigation channels having their source
in the rivers Cauvery, Lakshmanathirtha and Hemavathi, showing C
thereon in a distinctive colour all alterations that have been made
subsequent to the year 1910, and further to furnish maps similarly
showing the location of the areas irrigated by the said channels
prior to or in the year 1910.
(iv) The Mysore Government on their part shall be at liberty to D
carry out future extensions of irrigation in Mysore under the
Cauvery and its tributaries to an extent now fixed at 110,000 acres.
This extent of new irrigation of 110,000 acres shall be in addition
to and irrespective of the extent of irrigation permissible under
the Rules of Regulation forming Annexure I to this agreement,
viz, 1,26,000 acres plus the extension permissible under each of E
the existing channels to the extent of one-third of the area actually
irrigated under such channel in or prior to 1910.
(v) The Madras Government on their part agree to limit the new
area of irrigation under their Cauvery Metur project to 301,000
acres, and the capacity of the new reservoir at Metur, above the F
lowest irrigation sluice to ninety-three thousand five hundred million
cubic feet.
Provided that, should scouring sluices but constructed in the dam
at a lower level than the irrigation sluice, the dates on which such
scouring sluices are opened shall be communicated to the Mysore G
Government.
(vi) The Mysore Government and the Madras Government agree,
with reference to the provisions of clauses (iv) and (v) preceding,
that each Gov-ernment shall arrange to supply the other as soon
after the close of each official or calendar year, as may be H
900 SUPREME COURT REPORTS [2018] 5 S.C.R.

A convenient, with returns of the areas newly brought under
irrigation, and with the average monthly discharges at the main canal
heads, as soon after the close of each month as may be convenient.
(vii) The Mysore Government on their part agree that extensions
of irrigation in Mysore as specified in clause (iv) above shall be
B carried out only by means of reservoirs constructed on the Cauvery
and its tributaries mentioned in Schedule A of the 1892 agreement.
Such reservoirs may be of an effective capacity of 45,000 million
cubic feet, in the aggregate and the impounding therein shall be so
regulated as not to make any material diminution in supplies
connoted by the gauges accepted in the Rules of Regulation for
C the Krishnarajasagra forming Annexure I to this agreement, it
being understood that the rules for working such reservoirs shall
be so framed as to reduce to within 5 percent any loss during any
impounding period, by the adoption of suitable proportion factors,
impounding formula or such other means as may be settled at the
D time.
(viii) The Mysore Government further agree that full particulars
and details of such reservoir schemes, and of the impounding
therein, shall be furnished to the Madras Government to enable
them to satisfy themselves that the conditions in clause (vii) above
E will be fulfilled. Should there arise any difference of opinion
between the Madras and Mysore Governments as to whether the
said conditions are fulfilled in regard to any such scheme or
schemes, both the Madras and Mysore Governments agree that
such difference shall be settled in the manner provided in clause
(xv) below.
F
(ix) The Mysore Government and the Madras Government agree
that the reserve storage for power generation purposes now
provided in the Kriahnaraja sagra may be utilized by the Mysore
Government according to their convenience from any other
reservoir hereafter to be constructed, and the storage thus released
G from the Krishnarajasagra may be utilized for new irrigation within
the extent of 110,000 acres provided for in clause(iv) above.
(x) Should the Mysore government so decide to release the reserve
storage for power generation purposes from the Krishnarajasagra,
the working tables for the new reservoir from which the power
H water will then be utilized shall be framed “after taking into
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 901
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

consideration the conditions specified in clause (vii) above and A
the altered conditions of irrigation under the Krishnarajasagara.
(xi) The Mysore Government and the Madras Government further
agree that the limitations and arrangements embodied in clauses
(iv) to (viii) supra shall at the expiry of fifty years from the date of
the execution of these presents, be open to reconsideration in the B
light of the experience gained and of an examination of the
possibilities of the further extension of irrigation within the territories
of the respective Governments and to such modifications and
additions as may be mutually agreed upon as the result of such
reconsideration.
C
(xii) The Madras Government and the Mysore Government further
agree that the limits of extension of irrigation specified in clauses
(iv) and (v) above shall not preclude extensions of irrigation
effected solely by improvement of duty, without any increase of
the quantity of water used.
D
(xiii) Nothing herein agreed to or contained shall be deemed to
qualify or limit in any manner the operation of the 1892 agreement
in regard to matters other than those to which this agreement
relates or to affect the rights of the Mysore Government to
construct new irrigation works on the tributaries o the Cauvery in
Mysore not included in Schedule A of the 1892 agreement E

(xiv) The Madras Government shall be at liberty to construct new
irrigation works on the tributaries of the Cauvery in Madras and,
should the Madras Government construct; on the Bhavani,
Amaravati or Noyil rivers in Madras, any new storage reservoir,
the Mysore Government shall be at liberty to construct, as an F
offset, a storage reservoir in addition to those referred to in
clause (vii) of this agreement on one of the tributaries of the
Cauvery in Mysore, of a capacity not exceeding 60 per cent of
the new reservoir in Madras.
Provided that the impounding in such reservoirs shall not diminish G
or affect in any way the supplies to which the Madras Government
and the Mysore Government respectively are entitled under this
agreement, or the division of surplus water which, it is anticipated,
will be available for division on the termination of this agreement
as provided in clause (xi).
H
902 SUPREME COURT REPORTS [2018] 5 S.C.R.

A (xv) The Madras Government and the Mysore Government hereby
agree that, if at any time there should arise any dispute between
the Madras Government and the Mysore Government touching
the interpretation or op-eration or carrying out of this agreement,
such dispute shall be referred for settlement to arbitration, or if
the parties so agree shall be submitted to the Government of India.”
B
47. As is noticeable, Clause 10(ii) provided that the Mysore
Government had agreed to regulate the discharge through and from the
concerned reservoir strictly in accordance with the Rules of Regulation
set forth in Annexure I, which Rules of Regulation shall be and form
part of that agreement. The relevant part of Annexure I is reproduced
C below:-
“7. The minimum flow of the Cauvery that must be ensured at the
upper anicut before any impounding is made in the
Krishnarajasagara, as connoted by the readings of the Cauvery
dam north gauge, shall be as follows:-
D
Month Readings of the
Cauvery Dam
North gauge.
June .. Six and a half feet.

E July and August .. Seven and a half feet
September .. Seven feet.
October .. Six and a half feet.
November .. Six feet.
F December .. Three and a half feet.
January .. Three feet.
8. The discharges connoted by the gauge readings set forth in
rule 7 shall, in the case of regulation during the irrigation season
(vide rule 9) of 1921, be deducted from the average discharge
G curve derived from the joint gaugings of the Cauvery at the
Cauvery dam made in the four years ending 1920. The said
discharges shall be revised, if necessary, after completion of the
joint gaugings of 1921 and shall be used for the purpose of
regulation for the five years ending 1926. The said discharges
H shall be finally revised and adopted for all subsequent regulation,
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 903
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

at the conclusion of the joint gauging of the year 1926, on the A
basis of the joint gaugings of the ten years ending 1926.
9. The south-west monsoon shall, for the purpose of these rules
be considered to extend from the 1st June to the 30th September,
both days inclusive, and the north-east monsoon from the1st
October to the 31st January, both days inclusive. The irrigation B
season shall be taken to extend from the 1st June to the 31st
January, both days inclusive. All dates in this rule shall have
reference to the Upper Anicut.”
48. Annexure III of the agreement pertains to the extent of irrigation
of Mysore and Madras. The relevant part is as follows:- C
“2.The extent of future extension of irrigation in Mysore under
the Cauvery and its tributaries mentioned in Schedule A of the
1892 agreement shall be fixed at 110,000 acres, and Madras shall
have their Cauvery-Mettur project as revised in 1921 with their
new area of irrigation fixed at 301,000 acres, …” D
49. It is worthy to note here that another agreement was entered
into between both the governments in the year 1929 to clarify Rules 7
and 8 of the Rules of Regulation pertaining to the Krishna Raja Sagara
reservoir which is as follows:-
“AGREEMENT E
WHEREAS on the 18th February 1924 an agreement between
the Governments of Mysore and Madras was signed and whereas
by clause 10(2) of the said agreement the Mysore Government
agreed to regulate the discharge through and from the
Krishnarajasagara reservoir strictly in accordance with the Rules F
of Regulation being Annexure I to the said agreement;
and
WHEREAS disputes had arisen between the two Governments
in regard to the interpretation, operation and carrying out of rules
7 and 8 of the said Rules and Regulation; G
And
WHEREAS both the Governments have submitted the matters in
dispute to the Arbitration of the Honourable Mr. Justice Page
with Messrs. Howley and Forbes as assessors.
H
904 SUPREME COURT REPORTS [2018] 5 S.C.R.

A Now the two Governments have agreed in lieu of an award in
that behalf to adopt finally for all Regulation subsequent to 1st July
1929, the following discharges for the respective months in place
of the averages referred to in clause 8 of Annexure I:-
June for 61/2 feet gauge .. 29,800 cusecs.
B July and August for 71/2 ft. gauge .. 40,100 “
September for 7 feet gauge .. 35,000 “
October for 6 1/2 feet gauge .. 29,800 “
November for 6 feet gauge .. 25,033 “
C
December for 31/2 feet gauge .. 8,913 “
January for 3 feet gauge .. 6,170 “
and in rule 10, defining the impounding formula, C will denote the
said above mentioned discharges.
D THIS agreement is without prejudice to the other questions
outstanding between the parties in regard to the clauses of the
agreement other than clauses 7 and 8 of the Rules of Regulation.
17th June 1929.
(Signed) R. RANGA RAO) (Signed) A.G. LEACH,
E
Officiating Chief Secretary Secretary to the Government
to the Govt. of Mysore Public Works and Labor
Department, Madras.”
50. In 1934, a new reservoir at Mettur which was constructed by
Madras became operational pursuant to Clause 10(v) of the agreement
F of 1924 and the Madras Government had agreed to limit “the new areas
of irrigation under their Cauvery Mettur project (Project Report of 1921)
to 301,000 acres” and the capacity of “the new reservoir at Mettur” to
93.5 TMC. In the said order, the State of Madras started planning of
Nhawan reservoir under Clause 10 (xiv) of the agreement of 1924 and,
G as a result, Mysore became entitled to construct a reservoir of 60% of
the capacity planned by Madras and, accordingly, Mysore proposed Kabini
Reservoir as an offset reservoir under Clause 10(xiv) of the said
agreement. In this regard, the finding of the Tribunal is as follows:-
“Regarding Kabini project, the objection of Madras was that the
proposal of Mysore for transfer of half of power storage from
H
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OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

Krishnarajasagar to Kabini was not permissible although according A
to the State of Karnataka it was permissible under Clasue 10(ix)
of the agreement. Apart from objection regarding the transfer of
power storage with regard to Kabini other objections had also
been raised. From the notes of discussion between the then
engineers of the two States on 11th and 12th March, 1940 (Tamil
B
Nadu Vo,VII/Exh.445 page 148) it appears that the two Chief
Engineers of Madras and Mysroe Governments finally agreed on
the impounding in reservoir to be built on Kabini during the critical
months from June to January, applying the Rule 10 of Rules of
Regulation of KRS (Annexure I to the Agreement). The notes of
discussions and agreements between the two Chief Engineers C
were duly signed by them, and no further action was taken by the
State of Madras. Any agreement between the two chief engineers
was subject to the approval of the State of Madras and the
Government of Mysore. Then by letter dated 21st May. 1945 the
Secretary to Maharaja of Mysore made a request to the Resident
D
in Mysore to obtain the concurrence of the Madras Government.
There was no reply from Madras Government although the
contents of the aforesaid letter had been communicated to the
Government of Madras. No explanation was furnished as to why
when the Chief Engineers of two States had fixed and settled the
impounding formula in terms of the agreement of 1924. for the E
reservoir on Kabini. the State of Madras was not communicating
its approval. Because of that the project on Kabini as planned by
Mysore in 1933 under clause 10(iv) of the agreement remained
unimplemented.”
51. In the year 1935, the British Parliament enacted the F
Government of India Act, 1935 (for short, “the 1935 Act”). In the year
1947, the Indian Independence Act, 1947 (for brevity, “the 1947 Act”)
came into force. The Maharaja of Mysore had executed an agreement
“Instrument of Accession” initially only on two subjects, namely, defence
and external affairs and communications which was accepted by the
Governor General of India on 16.08.1947. Thereafter, a White Paper G
was released on Indian States and “Standstill Agreement” was entered
into between the Dominion of India and the Maharaja of Mysore. A
supplementary “Instrument of Accession” was executed on 01.06.1949
for all matters enumerated in List I and List II of the Seventh Schedule
of the 1935 Act which was contained in the said supplementary H
906 SUPREME COURT REPORTS [2018] 5 S.C.R.

A agreement. After coming into force of the Constitution of India, the
1947 Act stood repealed by reason of the provisions contained in Article
395 of the Constitution of India and the erstwhile province of Madras
under the 1935 Act became a Part A State of Madras with effect from
26.01.1950. On 01.11.1956, the new State of Mysore was formed by
the States Reorganisation Act, 1956 (for short, ‘the Reorganisation Act”).
B
52. In August 1972, the State of Tamil Nadu filed a suit OS No. 1
of 1971 against the State of Mysore which was permitted to be withdrawn
with liberty to file a fresh suit if necessary. On 29.05.1972, the Chief
Ministers of Mysore, Tamil Nadu and Kerala discussed with the Union
Minister for Irrigation and Deputy Minister. The relevant part of the
C discussion reads as follows:-
“Note on discussions regarding Cauvery held at New Delhi on
29th May, 1972”
“Discussions were held on 29th May, 1972 at New Delhi between
D the Chief Ministers of Mysore, Tamil Nadu and Kerala. Union
Minister for Irrigation and Power and Deputy Ministers were
present. The Chief Ministers were assisted by Ministers of
respective States, those present were as follows:
I. Tamil Nadu:
E 1. Thiru M. Karunanidhi, Chief Minister
2. Thiru S. Madhavan, Minister for Law
3. Thiru SJ. Sadiq Pasha, Minister for Public Works
II.Mysore:
F 1. Shri D. Devaraj Urs, Chief Minister
2. Shri M.N. Nanja Gouda, Minister for State for Major Irrigation
III. Kerala:
1. Shri C. Achutha Menon, Chief Minister
G
2. Shri T.K. Divakaran, Minister for Public Works
Union Minister for Irrigation and Power stated that river problems
are best settled through negotiations and this was the course the
Central Government was adopting for the last few years in settling
the differ rences on the use® of waters of Cauvery. Earlier, it
H
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OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

was aimed to arrive at an interim agreement to be valid till 1974. A
when the earlier agreement of 1924 would have come up for
review after 50 years, as provided in the agreement. Now, as
1974 is near, this attempt has been given up in favour of finding an
overall approach to solve the problem amicably amongst the
several States. (Emphasis supplied) The discussions amongst the
B
Chief Ministers revealed general consensus on the three following
points as in para 2:
2.1 A serious attempt should be made to resolve by negotiations
the Cauvery dispute between eh States as eariy as possible.
2.2. The Centre may appoint a Fact Finding Committee C
consisting of Engineers, retired Judges and if necessary,
Agricultural Experts to collect all the connected data pertaining
to Cauvery waters, its utilization and irrigation practices as
well as projects both existing, under construction and proposed
in the Cauvery basin. The Committee will examine adequacy
of the present supplies or excessive use of water for irrigation D
purposes. The Committee is only to collect the data and not
make any recommendations. The Committee may be asked to
submit its report in three months time.
2.3 Making use of the data, discussions will be held between
the Chief Ministers of the three States to arrive at an agreed E
allocation of waters for the respective States.
3. Union Government will assist in arriving at such a settlement
in six months, and in the meanwhile, no State will take any
steps to make the solution of the problem difficult either by
impounding or by utilizing water of Cauvery beyond what it is F
at present.”
53. Pursuant to the above, the Cauvery Fact Finding Committee
(CFFC) was set up by the Government of India. The terms of the
reference to the CFFC were as follows:-
G
“(i) To collect all the connected data pertaining to Cauvery waters;
its utilization at different points of time: irrigation practices; as
well as projects both existing, under construction, and proposed in
the Cauvery basin.
(ii) To examine adequacy of the present supplies or excessive use
of water for irrigation purposes. H
908 SUPREME COURT REPORTS [2018] 5 S.C.R.

A (iii) To collect data relevant to the use of water in different States
like the physical and other features; cultivated areas; existing and
proposed uses for domestic and industrial water supply; hydro-
electric power generation, navigation, salinity control and other
non-irrigational purposes.
B (iv) Any other connected matters.”
54. The CFFC submitted a report on 15.12.1972. The relevant
part of the report is reproduced below:-
“As desired in the above resolution, we hereby submit our report.

C The data was received from Kerala on 21st September, 1972 from
Mysore on 19th October, 1972 and Tamil Nadu on 24th October,
1972. Both Mysore and Tamil Nadu supplemented their data during
their discussions with the Committee at New Delhi from 7th to
14th November, 1972. Some clarifications and elucidations had
been asked for from the States during the discussions and again
D during the visit of the Committee to Mysore and Tamil Nadu from
6th to 8th December, 1972. The replies from the State Governments
have not yet been received. The data supplied by the three States
runs into 20 volumes. In addition, they have left with the Committee
project reports for their study which also run into 36 volumes. As
E this voluminous data requires very careful examination and scrutiny,
the Committee “had asked for further extension of one month
from 15th December, 1972 to 15th January, 1973. But the same
has not been agreed to.
In view of the above, the Committee had no alternative but to
F submit its report on 15th December, 1972, though it has not been
possible to do full justice to this important work.
In accordance with the note on discussions regarding Cauvery
held at New Delhi on 29th May, 1972, between the Union Minister
for Irrigation and Power and the Chief Ministers of Kerala, Mysore
and Tamil Nadu {a copy of which had been supplied to the
G
Committee) “the Committee is only to collect the data and not
make any recommendations”. As such, the Committee has
refrained from making any recommendations.”
55. On 14.08.1973, an additional report was submitted. In October,
1973, the States of Mysore, Tamil Nadu and Kerala desired the
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 909
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

Government of India to make a study on the scope of economy in the A
use of water and in pursuance of the same, the C.C. Patel Committee
was constituted. The Committee made various recommendations and
an estimate of irrigation water requirement in each State. On 12.08.1976,
a Committee with Mr. E.C. Saldhana, Member, Central Water
Commission, as Chairman was set up by the Central Government with
B
the following terms of reference:-
“(i) To assess the requirement of water of the existing areas under
irrigation as well as new areas which are proposed to be brought
under irrigation taking into consideration the availability of water
from the rainfall within the respective command areas:
C
(ii) To assess the availability of water for use in a normal year
taking into consideration integrated operation of the reservoirs
and the demand pattern of releases:
(iii) To recommend regulation of supplies in normal or good years
for protecting the existing ayacuts as well as for the new areas, D
taking into consideration the savings to be effected progressively
in Tamil Nadu including Karaikal region of Pondicherry and
Karnataka.”
56. In March 1977, a draft report was submitted to the Government
of India. As is manifest, discussions, deliberations and negotiations went E
on between the two States and eventually, as stated earlier, on 06.07.1986,
the State of Tamil Nadu lodged a complaint under the 1956 Act with the
Government of India raising water dispute thereby requesting for
adjudication of the water dispute by a tribunal.
57. We have already noted that the State of Karnataka had brought F
out an ordinance and how the Court has dealt with the same.
58. Having noted the aforesaid and observing what the Constitution
Bench had stated, we may proceed to deal with the contentions
canvassed on behalf of both the States with regard to the validity of the
agreements.
G
H. Doctrine of Paramountcy and its extinction on coming into
force of the Indian Independence Act, 1947
59. Mr. Nariman, learned senior counsel, has attacked both the
agreements on two counts, namely, (i) the Maharaja of Mysore was not
in a position to enter into an agreement on equal terms with the Madras H
910 SUPREME COURT REPORTS [2018] 5 S.C.R.

A Government as the communications would show, and further, (ii) the
manner in which the agreements were reached, the status conferred by
the British Government and the Maharaja, the orders passed by the
British Government from time to time and eventually, the order of the
Secretary of State for India who upheld the appeal of the British
Government of Madras against the Griffin Award clearly show the
B
subservience of the Maharaja of Mysore to the paramount power of the
British Crown. He has drawn our attention to a passage of the Griffin
Award which is as under:-
“The Secretary of State holds that the Government of Madras
were within their rights in appealing to him, firstly because the
C procedure prescribed in rule IV of the agreement of1892 was
varied in the Arbitration Proceedings and, secondly, because, while
the Agreement of1892 was and is valid as between the
Governments of Madras and Mysore, this does not relieve him
(i.e. the Secretary of State) of his genera! responsibility for
D intervening in any matter in which it seems to him that the public
interest is threatened with injury, even if the possible injury would
be consequent on action taken under an award given, or purporting
to be given, under rule IV”.
60. Relying on the same, it is propounded by Mr. Nariman that a
E binding arbitration award between the Indian State and a Province in
British Government was not regarded as binding by the Secretary of
State and he could refuse to recognize it and from the said, the Doctrine
of Paramountcy is manifest and that alone should be treated as sufficient
to treat the agreements as absolutely unfair, arbitrary and unreasonable.
Learned senior counsel would contend that when in such a situation the
F agreement had been entered into, the same cannot be regarded as valid
in law after India got independence and should be declared as null and
void under the Constitution of India that came into force on 26 th January,
1950. It is urged by him that having regard to the regime of paramountcy
and taking note of the fact that the Crown had the paramount power and
G exercised the same in favour of the Madras Government ignoring
whatever objection could be raised then by the Dewan of Maharaja of
Mysore, the agreement cannot be constituted as valid and acceptable in
law. The argument on the factual score by Mr. Nariman has been seriously
contested by Mr. Rakesh Dwivedi, learned senior counsel appearing for
the State of Tamil Nadu, urging that the agreements were arrived at
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 911
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

after several correspondences and proper consideration. He has also A
drawn our attention to the letter dated 12.02.1924 from the Dewan of
Mysore to the Secretary of the Maharaja. The said letter reads thus:-
“I have discussed the whole matter this morning with my
colleagues and they entirely approve of my recommendations. I
feel relieved and proud that after four years of strenuous fight. I B
am able to put up for His Highness approval a settlement which is
eminently satisfactory and favourable to Mysore and its future
generations.
PS. - Sir Visvesvaraya has gone away to Bhadravathi, so, I cannot
speak to him. I have already discussed all the main points with C
him a week ago and he was fully satisfied that we got all we
could and had a very satisfactory settlement.”
61. Referring to the language employed in the said letter, it is
submitted by Mr. Nariman that the same does not really indicate anything
that can be considered as consent or acceptance but instead reflects D
some kind of resignation. He has emphasized on the words “that we got
all we could” to highlight that it is reflective of compulsive surrender
having no choice and accepting whatsoever has been given in the absence
of any option. He would further submit that the agreement of 1924 only
permitted the State of Mysore to undertake irrigation in the Princely
State on certain terms. It was because of the unilateral imposition by E
the paramount power.
62. In this context, it is also necessary to refer to what Mr. Dwivedi,
learned senior counsel, has drawn our attention to from the letter of the
Dewan of Mysore to the Maharaja of Mysore. The said part reads as
follows:- F
“I am sending tonight with this letter a complete comprehensive
agreement embracing all the points of dispute, bringing forward
every clause as agreed to up to date during the past 4years of
discussion and signed by the technical officers of the two
Governments. It will be seen that we have given a concession to G
Madras in regard to the Bhavani Project and have got, in return, a
quid pro quo that we shall be entitled to have an additional reservoir.
The other points are already settled. The whole case has caused
me, during the past few days, considerable anxiety and I honestly
now think that with the concession now obtained and with the
H
912 SUPREME COURT REPORTS [2018] 5 S.C.R.

A finality in regard to the krishnarajasagara, taken together with the
possibility of an additional development of 110,000 acres during
the next 50 years, Mysore interests are fully safeguarded even
though Mysore now agrees to the Metur project slightly enlarged.
We have made a very still fight over this question, and as Madras
have climbed their other contentions and are prepared to sign the
B
agreement as now submitted, we may, with good grace, yield on
this one point so far as only the additional 1,500 m.c. ft. extra
storage is concerned, which is negligible and conclude the dispute
once for all.
I have discussed the whole matter this morning with my
C colleagues and they entirely approve of my recommendations. I
feel relieved and proud that after four years of strenuous fight, I
am able to put up for His Highness approval a settlement which is
eminently satisfactory and favourable to Mysore and its future
generations.”
D 63. Elaborating the stand of paramountcy, this Court has been
apprised of certain factual aspects. In 1929, certain disputes arose
between the two Governments pertaining to the interpretation, operation
and carrying out of Rules 7 and 8 of the Rules of Regulation of 1921
(Annexure to the Agreement of 1924) and under Clause 10(ii), the matters
E in dispute were referred to arbitration of Mr. Justice Page of the Calcutta
High Court and during the arbitration, both the Governments agreed to
adopt the same as final as regards the discharges at the upper Anicut
and certain further aspects. In 1934, a new reservoir at Mettur which
was constructed by Madras became operational pursuant to clause 10(v)
of the Agreement of 1924 and the Madras Government agreed to limit
F the new areas of irrigation under the Cauvery-Mettur project to 301,000
acres and the capacity of the new reservoir at Mettur to 93.5 TMC. It
is the stand of the State of Karnataka that when the Mettur Dam became
operational with effect from 1934, the natural flow for upper Anicut
which was at a considerable distance below Mettur could not be
G maintained at the stipulated six and a half to seven and a half ft. equal to
29800 cusecs to 40100 cusecs since the water of the upstream flowed
into Mettur reservoir. Despite the same, as urged by Mr. Nariman, clause
10(ii) of the Agreement of 1924 required strict observance of Rule 7 of
the Rules of Regulation and was not altered and it was so because of
the paramount power exercised by the authority and it did not desire the
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 913
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

anomaly to be corrected. Various other aspects have been stressed upon A
to highlight that the State of Mysore had no authority to bargain and it
was compelled to succumb to the paramount exercise of power. We are
at present not referring to the specific reservoirs as that shall be dealt
with at a later stage.
64. The legal validity of the agreement of the year 1924 was B
challenged before the Tribunal and it has addressed whether the
agreement has become constitutionally invalid. Adverting to the same,
the Tribunal has opined that when the 1924 Agreement was entered
into, the Government of India Act, 1919 was in force. Section 30 of the
said Act enabled the Governor General in Council to make any contract
for the purpose of that Act. The Government of India Act, 1919 was C
repealed by the Government of India Act, 1935.
65. On behalf of the State of Tamil Nadu, reliance was placed on
Section 177 of the Government of India Act, 1935 to sustain the contention
that the 1924 Agreement continued to be in force and when British
paramountcy lapsed on 15th August, 1947, the agreement did not lapse D
automatically due to the proviso to Section 7(1) of the Indian
Independence Act, 1947. It is further put forth that the agreement
continued to be in force in the absence of denouncement of those
agreements by either party or by superseding them by any fresh
agreement. That apart, the State of Mysore which was a Princely State E
at the time of its accession to the Dominion of India executed both the
“Instruments of Accession” and the “Standstill Agreement” under which
the agreement continued between the State of Madras and the then
State of Mysore. After the Constitution came into force, the liabilities
and obligations arising out of the said agreements under Articles 294-B
and 295(2) devolved on the two States and after the reorganization of F
the States in November, 1956, the terms of the agreement made earlier
are to be treated as binding on the successor State or States under Section
87(1) of the Reorganisation Act. The contention of the State of Karnataka
before the Tribunal was that the Agreement of 1924 is not covered by
Section 177 of the Government of India Act, 1935 and as such, it lapsed G
after coming into force of the said Act.
66. The Tribunal referred to Section 177(1), noted the submissions
of the learned counsel for the parties and held thus:-
“7. On a plain reading of Section 177(1) of the Government of
India Act 1935 aforesaid it is apparent that it conceived contract H
914 SUPREME COURT REPORTS [2018] 5 S.C.R.

A to be made by or on behalf of the Secretary of State in Council.
On the facts furnished on behalf of the State of Karnataka itself
it appears that the Agreement which had been initially signed by
the Dewan of Mysore and Secretary to the Government of 88
Madras on 18th February 1924 was also signed by the Maharaja
of Mysore as well as the Governor of Madras. It was also
B
approved by the Secretary of State and that approval was
communicated by telegram dated 18th June 1924. Thereafter, the
Government of India approved and confirmed the said agreement
on 11th July 1924 which is apparent from the note made on the
photo copy of the agreement by the Political Secretary. In this
C background, it shall be deemed that the said agreement had been
executed on behalf of the Secretary of State in Council. Merely
because in the agreement it had not been mentioned that it was
being executed on behalf of the Secretary of State in Council,
shall not make the agreement invalid. It is well known that in such
matters a presumption has to be raised that official acts have
D
been performed by complying with the requirement of the law.
According to us after lapse of about 80 years from the date of the
execution of the agreement it shall be a futile attempt to examine
the legal validity of the execution of the agreement of the year
1924 which had been acted upon by the then State of Madras and
E the Government of Mysore in respect of sharing of the water of
Cauvery and its tributaries including in respect of construction of
reservoirs over Cauvery and its tributaries by two States. Pursuant
to that agreement KRS was constructed and became functional
in the year 1931 within Mysore and Mettur was constructed by
Madras which became functional in the year 1934. The reservoirs
F
on tributaries within the States of Mysore/Karnataka and Madras/
Tamil Nadu have also been constructed and they are functioning.
No dispute was raised at any stage on behalf of the Mysore or
Karnataka till 89 the expiry of the period of 50 years in 1974, in
respect of any defect in the execution of the agreement of the
G year 1924 or that it was not binding on Mysore/Karnataka.”
67. The submission was structured on the basis of the 1947 Act
and the judgment rendered in Dr. Babu Ram Saksena v. State3. The
Tribunal analyzed the said decision and the views of Patanjali Sastri, J.
who delivered his opinion on behalf of M.H. Kania, CJ and himself and
H 3
1950 SCR 573 : AIR 1950 SC 155
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 915
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

the opinion rendered by B.K. Mukherjee, J. Be it noted, Fazal Ali, J. A
agreed with both Sastri, J and Mukherjee, J. and opined that the appeal
deserved to be dismissed. Mahajan, J. concurred with Mukherjee, J.
After noting the facts, the Tribunal observed thus:-
“16. It appears that three remaining Hon’ble Judges Fazl Ali, J,
Mahajan,J, and Das,J, agreed with the opinion aforesaid expressed B
by Hon’ble Justice Mukherjea. The majority of the Judges in the
aforesaid Supreme Court case dismissed the appeal taking special
facts and circumstances of that particular case, i.e. the merger of
the Tonk State along with several other States and giving rise to
the United State of Rajasthan. In the process of merger Tonk had
lost its identity and had relinquished its life. As such a treaty C
previously concluded had lapsed.”
68. After so stating, the Tribunal distinguished the said decision as
the factual matrix is different. It has been held by the Tribunal that the
State of Mysore was a ruling State and after accession, it became a
Group B State under the Constitution of India and at no stage, there has D
been any merger of the said State with any other State by which the
Ruling State of Mysore stood extinguished or relinquished as in the case
of State of Tonk which was the subject matter of controversy in Dr.
Babu Ram Saksena (supra). Thereafter, the Tribunal has held:-
“According to us the aforesaid judgment of the Supreme Court is E
of no help to the State of Karnataka. No other decision or provision
was brought to our notice in support of the contention that the
Agreement of the year 1924 ceased to exist after the Indian
Independence Act 1947 came into force. The result will be that it
shall be deemed that the said Agreement of 1924 survived and F
continued even after the coming into force of the Indian
Independence Act 1947 and the Constitution of India.”
69. Mr. Nariman, learned senior counsel, has assiduously and
astutely canvassed about the doctrine of paramountcy. For the said
purpose, he has drawn our attention to Section 7 of the 1947 Act. The G
said provision reads as follows:-
“7. (1) As from the appointed day(a) His Majesty’s Government
in the United Kingdom have no responsibility as respects the
government of any of the territories which, immediately before
that day, were included in British India;
H
916 SUPREME COURT REPORTS [2018] 5 S.C.R.

A (b) the suzerainty of His Majesty over the Indian States lapses,
and with it, all treaties and agreements in force at the date of the
passing of this Act between His Majesty and the rulers of Indian
States, all functions exercisable by His Majesty at that date with
respect to Indian States, all obligations of His Majesty existing at
that date towards Indian States or the rulers thereof, and all powers,
B
rights, authority or jurisdiction exercisable by His Majesty at that
date in or in relation to Indian States by treaty, grant, usage,
sufferance or otherwise; and
(c) there lapse also any treaties or agreements in force at the
date of the passing of this Act between His Majesty and any
C persons having authority in the tribal areas, any obligations of His
Majesty existing at that date to any such persons or with respect
to the tribal areas, and all powers, rights, authority or jurisdiction
exercisable at that date by His Majesty in or in relation to the
tribal areas by treaty, grant, usage, sufferance or otherwise:
D Provided that, notwithstanding anything in paragraph (b) or
paragraph (c) of this subsection, effect shall, as nearly as may be,
continue to be given to the provisions of any such agreement as is
therein referred to which relate to customs, transit and
communications, -posts and telegraphs, or other like matters, until
E the provisions in question are denounced by the Ruler of the Indian
State or person having authority in the tribal areas on the one
hand, or by the Dominion or Province or other part thereof
concerned on the other hand, or are superseded by subsequent
agreements.

F (2) The assent of the Parliament of the United Kingdom is hereby
given to the omission from the Royal Style and Titles of the words
“ Indiae Imperator “ and the words “ Emperor of India “ and to
the issue by His Majesty for that purpose of His Royal Proclamation
under the Great Seal of the Realm.”

G 70. According to Mr. Nariman, after coming into force of the said
provision, the agreements lapsed and the finding of the Tribunal that
they continued because of the “Standstill Agreement” or the constitutional
provisions as enshrined under Article 295(2) is absolutely erroneous. In
this context, we may refer to the “Standstill Agreement” which is a part
of the White Paper on Indian State issued by the Government of India,
H Ministry of States. In part 4 of the said White Paper, accession of the
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 917
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States to the Dominion of India is mentioned and it refers to the lapse of A
paramountcy. Paragraph 82 deals with “Standstill Agreement”. It reads
as follows:-
“Standstill Agreements, the acceptance of which was made by
the Government of India conditional on accession by the States
concerned were also entered into between the Dominion B
Government and the acceding States. The Standstill Agreements
(Appendix IX), provided for the continuance for the time being
of all subsisting agreements and administrative arrangements in
matters of common concern between the States and the
Dominion of India or any part thereof.”
C
71. It is submitted by Mr. Nariman that the “Standstill Agreement”
dated 09.08.1947 which was actually executed by the Maharaja of
Mysore stipulated that nothing in the said agreement could include the
exercise of any paramountcy function and, therefore, the “Standstill
Agreement” will not cover the State of Mysore. Learned senior counsel
would contend that with the coming into force of the Constitution of D
India on 26.01.1950, the 1947 Act passed by the Parliament stood repealed
by reason of the provision of Article 395 of the Constitution and Mysore
became a Part B State under the Constitution and the erstwhile province
of Madras became a Part A State. According to him, even if the “Standstill
Agreement” executed between the Maharaja of Mysore and the E
Dominion of India was operative and existing, it came to an end. According
to him, the 1947 Act did not survive beyond the final accession of the
State of Mysore to the Union of India and “Standstill Agreement” entered
into by the Government of India with various Indian States including the
provincial State of Mysore were purely temporary arrangements designed
to maintain status quo in respect of administrative matters. He has F
seriously criticized the finding of the Tribunal and contended that the
Tribunal has failed to take proper note of the decision in Dr. Babu Ram
Saksena (supra). He has commended us to certain passages to bolster
the argument:-
“The Attorney-General appearing for the Government advanced G
three lines of argument in answer to that contention. In the first
place, the standstill agreement entered into with the various Indian
States were purely temporary arrangements designed to maintain
the status quo ante in respect of certain administrative matters
of common concern pending the accession of those States to the H
918 SUPREME COURT REPORTS [2018] 5 S.C.R.

A Dominion of India, and they were superseded by the Instruments
of Accession executed by the Rulers of those States. Tonk having
acceded to the Dominion on the 16th August, 1947, the standstill
agreement relied on by the appellant must be taken to have lapsed
as from that date. …..
B As we are clearly of opinion that the appellant’s contention must
fail on this last ground, we consider it unnecessary to pronounce
on the other points raised by the Attorney General especially as
the issues involved are not purely legal but partake also of a
political character, and we have not had the views of the
Governments concerned on those points.”
C
72. We have already referred to the decision in Dr. Babu Ram
Saksena (supra) and how the Tribunal has dealt with the same. The
emphasis of Mr. Nariman is on the words “partake also of a political
character”. Stress is laid that when an agreement partakes a political
character, the doctrine of paramountcy clause melts into insignificance
D by virtue of Section 7 of the 1947 Act. In this regard, he has placed
reliance on Hemchand Devchand v. Azam Sakarlal Chhotamlal4.
The effort of the learned senior counsel is to draw a distinction between
categories of political cases and those which fall in the other categories.
The relied upon passages from the said judgment read as follows:-
E “The real question is whether in cases like those now before
their Lordships the action of the tribunals in Kathiawar, and of
the Governor in Council on appeal from those tribunals, is properly
to be regarded as judicial or as political. And at this point a
distinction arises between the two cases under appeal; because
F the first of them has been disposed of as a civil, the second as a
political, case.
xxxxx
The further appeal to the Secretary of State in Council is a fact
of clearer import. In Lord Salisbury’s Despatch of the March
G 23, 1876, the practice of such appeals is dealt with as a thing at
that date already fully established, and it continues to the present
day in civil as well as in political cases. This system of appeal to
the Secretary of State affords strong evidence that the intention
of Government is and always has been that the jurisdiction
4
(1905) 33 IA 1 : (1906) ILR 33 Cal 219
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 919
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

exercised in connection with Kathiawar should be political and A
not judicial in its character.”
And again:-
“Such cases can only be justly disposed of on principle of equity
in the fullest sense of the term, and not in the circumscribed
sense, which is familiar to the practice of the High Courts; and B
sometimes consideration must be given to the political expediency
which underlies the relation in which the Government stands to
the protected States.’’
73. Placing reliance on the said passages, it is urged by him that
when the Secretary of State was dealing with such a case, the said case C
was regarded as “political” and not “judicial” in character as was later
authoritatively stated in the letter of the Viceroy of India – that is, Lord
Reading’s letter dated 27.03.1926 to the Nizam of Hyderabad – which
set out the doctrine of paramountcy in classical terms. Elaborating further,
it was contended by him that the appeal preferred by the Government of D
Madras against the Griffin Award which was in favour of the Maharaja
of Mysore was allowed and the Maharaja of Mysore was described as
the head of a “Vassal State”, and hence, he was not in a position to
negotiate or bargain with the paramount power on equal terms and was
compelled to go for amicable settlement on compulsion. In this regard,
inspiration has been drawn from the decision in H. H. Maharajadhiraja E
Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and others v.
Union of India and another5. Shah, J., speaking for the majority,
observed:-
“100. In the era before 1947 the term “State” applied to a political
community occupying a territory in India of defined boundaries F
and subject to a single Ruler who enjoyed or exercised, as
belonging to him, any of the functions and attributes of internal
sovereignty duly recognised by the British Crown. There were
in India more than 560 States: forty out of those States had treaty
relations with the Paramount Power: a larger number of States G
had some form of engagements or Sanads, and the remaining
enjoyed in one or the other form recognition of their status by
the British Crown. The treaties, engagements and Sanads covered
a wide field, and the rights and obligations of the States arising
5
(1971) 1 SCC 85 H
920 SUPREME COURT REPORTS [2018] 5 S.C.R.

A out of those agreements varied from State to State. The rights
that the British Crown as the Paramount Power exercised in
relation to the States covered authority in matters external as
well as internal. The States had no international personality, the
Paramount Power had exclusive authority to make peace or war,
or to negotiate or communicate with foreign States. The
B
Paramount Power had the right of intervention in internal affairs
which could be exercised for the benefit of the head of the State,
of India as a whole, or for giving effect to international
commitments.”
74. Further, the Court referred to the Cabinet Mission which
C announced its Plan on May 16, 1946 for the entry of the States into the
proposed Union of India and simultaneously declared that the
paramountcy of the British Crown could neither be retained nor
transferred to the new Government. The Court also took note of the
Indian (Provisional Constitution) Order, 1947 which extensively amended
D Sections 5 and 6 of the Government of India Act, 1935. The Court dwelt
upon the inheritance of the paramountcy power of the British Crown
and, in that context, held:-
“131. We are unable to agree with the Attorney-General that the
“old unidentified concept of paramountcy of the British Crown”
E was inherited by the Union, by reason of the instruments of
accession and merger agreements and that “recognition of
Rulership was a ‘gift of the President’, and not a matter of legal
right, existing as it did in the area of paramountcy and remaining
with the Government of India”. The British Crown did not acquire
paramountcy rights by any express grant, cession or transfer, it
F exercised paramountcy because it was the dominant power.
Paramountcy had no legal origin, and no fixed concept: its
dimensions depended upon what in a given situation the
representatives of the British Crown thought expedient.
Paramountcy meant those powers which the British authorities
G by the might of arms, and in disregard of the sovereignty and
authority of the States chose to exercise. But that paramountcy
lapsed with the Indian Independence Act, 1947: even its shadows
disappeared with the integration of the States with the Indian
Union. After the withdrawal of the British power and extinction
of paramountcy of the British power the Dominion Government
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 921
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

of India did not and could not exercise any paramountcy over A
the States. In clause 3 of the Standstill Agreement it was expressly
recited that.... Nothing in the agreement includes the exercise of
any paramountcy functions”. The relations between the States
and the Dominion Government were strictly governed by the
instruments executed from time to time. Subject to the power
B
conferred in respect of certain matters of common interest to
legislate and exercise executive authority the Princes had
sovereignty within their territories. With the advent of the
Constitution the States ceased to exist, and the Princes and Chiefs
who were recognized as Rulers were left with no sovereign
authority in them. It is difficult to conceive of the government C
of a democratic Republic exercising against its citizens
“paramountcy” claimed to be inherited from an imperial power.
The power and authority which the Union may exercise against
its citizens and even aliens spring from and are strictly
circumscribed by the Constitution.
D
132. The fundamentals on which paramountcy rested i.e. the
compulsion of geography and the essentials for ensuring security
and special responsibility of the Government of India to protect
all territories in India survived the enactment of the Indian
Independence Act, for between August 15, 1947 and the date of
integration of the various States, the Government of India was E
the only fully sovereign authority. But paramountcy with its brazen-
faced autocracy no longer survived the enactment of the
Constitution. Under our Constitution an action not authorised by
law against the citizens of the Union cannot be supported under
the shelter of paramountcy. The functions of the President of F
India stem from the Constitution — not from a “concept of the
British Crown” identified or unidentified. What the Constitution
does not authorise, the President cannot grant. Rulership is
therefore not a privilege which the President may in the exercise
of his discretion bestow or withhold.”
G
75. Relying upon the said authority, it is canvassed by Mr. Nariman
that the agreements of 1892 and 1924 were relatable to paramountcy
functions and, therefore, the “Standstill Agreement” of Mysore could
not be held to have continued the said two agreements since they are
relatable to paramountcy and, in fact, after the lapse of suzerainty of the
H
922 SUPREME COURT REPORTS [2018] 5 S.C.R.

A British Crown under the 1947 Act, both the agreements are bound to be
treated to have been lapsed. In this context, he has drawn inspiration
from certain passages of the book “Integration of Indian States” by Mr.
V.P. Menon who has commented on the provisions of Section 7 of the
1947 Act. The comments of the learned author in this regard are as
follows:-
B
“The next question was whether, even if paramountcy lapsed,
all agreements of a commercial, economic or financial character
between the States on die one hand and the British Government,
the Secretary of State, and the Governor-General on the other,
would cease to be legally effective. I pointed out that there were
C several important agreements which had been entered into for
the common benefit of the States and British India where
paramountcy did not enter, such as the agreement of 1920 with
Bahawaipur and Bikaner regarding the Sutlej Valley canals
project, and the Government of India agreement on salt with
D Jaipur and Jodhpur. The mutual rights and obligations- of parties
under such agreements could not be regarded as lapsing on the
withdrawal of paramountcy. On the commencement of the
Government of India Act of 1935, the Crown’s rights and
obligations had become for all practical and constitutional
purposes the rights and obligations of the Central Government
E and were secured as such by the provisions of the Act. The
financial commitments of the Central Government under
agreements of this type were considerable. I therefore took the
view that it would be best that these agreements should continue
to be binding both on the States and on the successor
F Governments.
Sir Conrad Corfield. on behalf of the Political Department
contested my point of view. He referred to a meeting between
himself and Lord Pethick-Lawrence at which it had been agreed
that the abolition of the Crown Representative would
G automatically cause paramountcy to become void, together with
any subsisting agreements between the Crown and the States.
Sir Conrad did not agree with the view that paramountcy did not
enter into the Sutiej Valley Canals Agreement of 1920 and the
Jaipur and Jodhpur Salt Agreements. The first of these had been
entered into on behalf of Bahawaipur by a Council of Regency
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 923
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

controlled by the paramount power while the ruler was a minor. A
The Jaipur and Jodhpur Salt Agreements wee typical of those
which States had been required to conclude with the paramount
power during the latter half of the nineteenth century in the
interests of the central revenues. The Political Adviser was
unable to entertain the view that the agreements should be
B
continued after the lapse of paramountcy.
Lord Mountbatten did not take sides in this conflict of opinion.
He merely forwarded both my view as well as that of the Political
Department to the India Office.
It was about this time that the Secretary of State intimated that C
the Indian Independence Bill should include a specific denunciation
of the treaties with the Indian States. Normally speaking, treaties
were terminated by ‘acts of State’, but there was no reason
why, on an occasion of this importance and in the peculiar
circumstances, this should not be done by an Act of Parliament
which would emphasize the legal position whereby paramountcy D
did not pass to the new Indian Dominions. This was considered
by the Viceroy’s advisers; they deprecated any such formal
denunciation of treaties.
Meanwhile the Secretary of State’s opinion in regard to the
continuance of existing agreements was received. He stated that E
His Majesty’s Government fully appreciated the importance
attached by the Reforms Commissioner to the avoidance if
possible of complete severance of relations with the States and
the necessity for negotiations between parties over the whole
field. But he considered that the views of the Political F
Department must prevail, as they were in line with His
Majesty’s Government’s policy as stated in the Cabinet
Mission memorandum. It was impossible to distinguish
between agreements freely negotiated and those imposed.
In any case, all had been made under the authority of the
Crown and not of the executive Governments - central or G
provincial - of British India....”
[Emphasis supplied]
76. He has also drawn strength from the other Water Disputes
Tribunals, namely, Narmada, Krishna and Godavari. His principal
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924 SUPREME COURT REPORTS [2018] 5 S.C.R.

A emphasis is on the fact that the agreements entered into between the
two States were for political considerations as the State of Mysore was
a princely State under the British suzerainty and the State of Madras
was a province of British India and the disputes were never settled by
application of international law but through authoritative decision of the
British Crown. In essence, the submission is that after coming into force
B
of the 1947 Act, the agreements became extinct by operation of law.
77. In this regard, we may usefully refer to the authority in State
of Tamil Nadu v. State of Kerala and another6 which was dealing
with the water level of Mullaperiyar Dam after it was solved by this
Court on 27.02.2006 in Mullaperiyar Environmental Protection Forum
C v. Union of India and others7. The controversy had arisen because the
Kerala State legislature had enacted the law immediately thereafter fixing
and limiting full reservoir level to 136 ft. The Constitution Bench referred
to the Periyar Lake Lease Agreement dated 29.10.1886 which allowed
the masonry dam to come up across Periyar reservoir. The agreement
D stipulated many aspects. In 1979, the Government of Kerala had entered
into a correspondence with the Tamil Nadu Government to take
immediate steps to strengthen the dam keeping in view the safety of the
Mullaperiyar Dam. Simultaneously, the Kerala Government also
requested the Central Government to depute a team from the Central
Water Commission (CWC) to inspect the Dam and suggest strengthening
E measures. In pursuance of the request from the Kerala Government,
the CWC held meeting and three level measures, (i) emergency, (ii)
medium, and (iii) long term were suggested to strengthen the Dam. In
the meantime, it was recommended that the water level in the reservoir
be kept at 136 ft. In the second meeting held on 29.04.1980, it was
F opined that after the completion of emergency and medium-term
strengthening measures, the water level in the reservoir can be restored
up to 145 ft. In the year 1998, the State of Tamil Nadu had a grievance
that despite the measures being suggested by CWC, no consensus could
be reached between the State Governments, that is, Tamil Nadu and
Kerala, to raise the water level in the Mullaperiyar Reservoir beyond
G 136 ft. Various writ petitions were filed in both the High Courts and,
eventually, the matters stood transferred to this Court and some directions
were issued in Mullaperiyar Environmental Protection Forum (supra).
The Expert Committee, after discussion, opined that the water level in
6
(2014) 12 SCC 696
H 7
(2006) 3 SCC 643
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 925
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

the Mullaperiyar Reservoir could be raised to 142 ft as that would not A
endanger the safety of the main Dam, including spillway, Baby Dam and
earthen bund. The Constitution Bench referred to the first litigation before
this Court, the Kerala Irrigation and Water Conservation Act, 2003, the
Kerala Irrigation and Water Conservation (Amendment) Act, 2006, the
second litigation before this Court, grounds of challenge to the 2006
B
(Amendment) Act and the defence put forth by the State of Kerala.
Certain issues were framed by the Court out of which four questions
being relevant for the present purpose are reproduced below:-
“4. (b) Whether the pleas relating to validity and binding nature
of the deed dated 29-10-1886, the nature of Periyar River,
structural safety of the Mullaperiyar Dam, etc. raised by the C
first defendant in its defence, are finally decided by the judgment
of this Court dated 27-2-2006 in Mullaperiyar Environmental
Protection Forum v. Union of India and consequently first
defendant is barred from raising or reagitating those issues and
pleas in this suit, by the principle of res judicata and constructive D
res judicata?
5. Whether the suit based on a legal right claimed under the
lease deed executed between the Government of the Maharaja
of Travancore and the Secretary of State for India on 29-10-
1886, is barred by the proviso to Article 131 of the Constitution E
of India?
6. Whether the first defendant is estopped from raising the plea
that the deed dated 29-10-1886 has lapsed, in view of subsequent
conduct of the first defendant and execution of the supplemental
agreements dated 29-5-1970 ratifying the various provisions of F
the original deed dated 29-10-1886?
7. Whether the lease deed executed between the Government
of the Maharaja of Travancore and Secretary of State for India
on 29-10-1886 is valid, binding on first defendant and enforceable
by plaintiff against the first defendant?” G
78. Be it noted, initially, the matter was heard by a three-Judge
Bench and later on, it was referred to the Constitution Bench as some of
the issues framed in the suit involved decision on certain substantial
questions of law concerning interpretation of the Constitution. Dealing
with the issues on the 1886 lease agreement, the Court posed the
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926 SUPREME COURT REPORTS [2018] 5 S.C.R.

A question – whether it is an existing contract under the 1935 Act.
Reference was made to Section 177 of the 1935 Act and interpreting
the same, the Court held:-
“41. Section 177 of the 1935 Act, omitting the unnecessary part
reads,
B “177. (1) … any contract made before the commencement of
Part III of this Act by, or on behalf of, the Secretary of State-
in-Council shall, as from that date—
(a) if it was made for the purposes which will after the
commencement of Part III of this Act be purposes of the
C Government of a Province, have effect as if it had been made
on behalf of that Province….”
By virtue of this provision, the existing contracts of the Secretary
of State-in-Council would have the effect as if they had been
made on behalf of the Province. When we see the 1886 Lease
D Agreement in the light of Section 177 of the 1935 Act, there
remains no doubt at all that lease that was executed by the
Secretary of State-in-Council for the Presidency of Madras
(Madras Province) had the effect as if it had been made on
behalf of the Presidency of Madras or for that matter Madras
E Province. To put it differently, by legal fiction created under
Section 177(1)(a), the Presidency of Madras (Madras Province)
became lessee under the 1886 Lease Agreement. We have,
therefore, no hesitation in accepting the submission of Mr Vinod
Bobde, learned Senior Counsel for Tamil Nadu that by virtue of
Section 177 of the 1935 Act, as from the commencement of the
F 1935 Act, the Government of the Province of Madras is deemed
to be substituted as the lessee in the 1886 Lease Agreement.”
79. Thereafter, the Court addressed the issue of the effect and
impact of the events between 18.07.1947 and 26.01.1950 which relate
to the 1947 Act and the Constitution of India. The Court referred to the
G “Standstill Agreement” which was entered into between the State of
Travancore and the Dominion of India, the omission of Section 177 of
the 1935 Act and the merger of two States – Travancore and Cochin.
Analysing further, the Court referred to Section 7 of the 1947 Act and
observed thus:-
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 927
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

“45. As noted above, the 1947 Act came into effect from 15-8- A
1947. Section 7 deals with the consequences of the setting up of
the new dominions. Clause (b) of sub-section (1) of Section 7
declares that suzerainty of His Majesty over the Indian States
lapses. On lapsing of suzerainty, it provides for lapsing of all
treaties and agreements in force between His Majesty and the
B
Rulers of Indian States from that date. The proviso appended to
sub-section (1), however, continues such agreements unless the
provisions in such agreement are denounced by the Ruler of the
Indian State or are superseded by a subsequent agreement.

C
46. It is the contention of Mr Harish N. Salve that firstly, 1886
Lease Agreement lapsed by virtue of main provision of Section
7(1)(b) of the 1947 Act as it comprehends all treaties and
agreements and secondly, the Maharaja of Travancore denounced
all agreements including the 1886 Lease Agreement.
D

47. It is true that Section 7(1)(b) of the 1947 Act uses the
expression “all treaties and agreements” but, in our opinion, the
word “all” is not intended to cover the agreements which are not
political in nature. This is clear from the purpose of Section 7 as E
it deals with lapsing of suzerainty of His Majesty over the Indian
States and the consequence of lapsing of suzerainty. Obviously,
the provision was not intended to cover the agreements and
treaties other than political. We, accordingly, hold that Section
7(1)(b) concerns only with political treaties and agreements.”
F
And again:-
“53. It is argued by Mr Harish N. Salve that the Standstill
Agreement, which is between parties different from those who
had executed the 1886 Lease Agreement, is a fresh agreement
which brought into force, for the time being, contractual obligations
G
between the Maharaja of Travancore and the Dominion of India.
As the parties were different and the 1947 Act provided for the
lapse of the British suzerainty over the Princely States, the
question of continuance of the 1886 Lease Agreement does not
arise. In any case, the learned Senior Counsel for Kerala argues
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928 SUPREME COURT REPORTS [2018] 5 S.C.R.

A that the Standstill Agreement could not survive after the deletion
of Section 177 of the 1935 Act. We find no merit in these
arguments. The Standstill Agreement is not a fresh agreement
between the Dominion of India and the State of Travancore as
suggested by Mr Harish N. Salve. The Standstill Agreement
was intended for the benefit of the parties who were parties to
B
the agreements and arrangements, which were matters of
common concern existing between the Crown and the State of
Travancore. In the background of Instrument of Accession, it
became necessary to have some arrangement so that the existing
agreements and arrangements between the Crown and the Indian
C States continued. We do not think that the Standstill Agreement
is political in nature as contended on behalf of Kerala.
54. The argument that the Standstill Agreement could not survive
after the deletion of Section 177 with effect from 15-8-1947 by
virtue of India (Provisional Constitution) Order, 1947 is also
D without substance. Section 177 was deleted because it could no
longer work and because the Dominion of India was to come
into being with provinces as part of the Dominion and there was
to be no Secretary of State-in-Council. We are in agreement
with Mr Vinod Bobde, learned Senior Counsel for Tamil Nadu
that deletion of Section 177 was prospective and it did not affect
E the deeming that had already taken place in 1935. The Standstill
Agreement, in our view, cannot be said to have been wiped out
by the deletion of Section 177.
xxxxx

F 56. The argument that there is no successor of Crown is irrelevant
because by virtue of Section 177, the Government of Province
of Madras had already become lessee in the 1886 Lease
Agreement by deeming in 1935 itself. The Standstill Agreement
continued the 1886 Lease Agreement between the Province of
Madras and the State of Travancore. The 1886 Lease Agreement
G did not lapse under the main provision of Section 7(1)(b) of the
1947 Act. There was no unequivocal and unambiguous
denouncement of the 1886 Lease Agreement by the Ruler of
Travancore under proviso to Section 7(1)(b). The Province of
Madras was beneficiary of the Standstill Agreement. Surely, deletion
H of Section 177 has not affected the rights of Province of Madras.”
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 929
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

80. sThe Court analysed the opinions of the learned Judges A
expressed in Dr. Babu Ram Saksena (supra) and eventually held thus:-
“61.5. A careful consideration of the judgment by Mukherjea, J.
in Ram Babu Saksena would show that His Lordship’s opinion
has no application to a non-political agreement such as the 1886
Lease Agreement. The observation of Mukherjea, J., “When as B
a result of amalgamation or merger, a State loses its full
independent power of action over the subject-matter of a treaty
previously concluded, the treaty must necessarily lapse. …” is
in the context of an extradition treaty which is purely political in
nature. In our view, Ram Babu Saksena is clearly distinguishable
and does not help Kerala in its argument that the 1886 Lease C
Agreement lapsed on merger of the two States, Travancore and
Cochin, into the United State of Travancore and Cochin.”
81. The Constitution Bench also addressed the issue whether the
1886 lease agreement was an Act of State and opined that the 1886
lease agreement is not political in nature. It distinguished the Constitution D
Bench decision in Virendra Singh and others v. State of U.P.8 and
ruled that the said decision is distinguishable and that the 1886 lease
agreement is an ordinary agreement and not political in nature. It is
worthy to note that the Constitution Bench addressed the scope of Article
363 and Article 131, scanned both the Articles and held:- E
“73. Article 131 of the Constitution deals with the original
jurisdiction of this Court. Subject to the provisions of the
Constitution, this Court has original jurisdiction in any dispute,
inter alia, between the Government of India and any State or
States on one side and one or more other States on the other if F
and insofar as the dispute involves any question (whether of law
or fact) on which the existence of legal right depends. However,
by the proviso appended thereto, the jurisdiction of this Court is
barred if the dispute to which a State specified in Part B of the
First Schedule is a party if the dispute arises out of any provision
of a treaty, agreement, covenant, engagement, sanad or other G
similar instrument was entered into or executed before the
commencement of the Constitution and has or has been continued
in operation after such commencement.
8
(1955) 1 SCR 415 : AIR 1954 SC 447
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930 SUPREME COURT REPORTS [2018] 5 S.C.R.

A 74. There is similarity of provision in Article 363 and proviso to
Article 131. The original jurisdiction conferred on this Court by
the main provision contained in Article 131 is excepted by virtue
of the proviso in the matters of political settlements. By making
provisions such as Article 363 and proviso to Article 131, the
political settlements have been taken out of the purview of judicial
B
pronouncements. Proviso appended to Article 131 renders a
dispute arising out of any treaty, agreement, covenant,
engagement, sanad or similar instrument which is political in nature
executed before the commencement of the Constitution and
which has or has been continued in operation, non-justiciable
C and jurisdiction of this Court is barred. The jurisdiction of this
Court is not taken away in respect of the dispute arising out of
an ordinary agreement. The instruments referred to and described
in the proviso are only those which are political in nature. Non-
political instruments are not covered by the proviso.
D 75. The 1886 Lease Agreement does provide for resolution of
disputes between the parties to the agreement by way of
arbitration: it contains an arbitration clause. The submission of
Kerala that enforcement of any award under the arbitration clause
would be political in nature is misplaced. The assumption of Kerala
that the 1886 Lease Agreement was not justiciable and
E enforceable in court of law prior to the Constitution as no court
in Travancore would obviously entertain a claim against Maharaja
and no court outside the State of Travancore have jurisdiction
over the Maharaja of Travancore is not relevant at all and devoid
of any merit.
F 76. We are in complete agreement with the view taken by this
Court in Mullaperiyar Environmental Protection Forum that
the 1886 Lease Agreement would not come within the purview
of Article 363 and jurisdiction of this Court is not barred. As a
necessary corollary, the dispute arising out of the 1886 Lease
G Agreement is not barred under Article 131 proviso as well.
Moreover, the principal challenge laid in the suit pertains to the
constitutional validity of the 2006 (Amendment) Act for which
Article 363 or for that matter under Article 131 proviso does not
come into operation at all.”

H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 931
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

82. Commenting on the aforesaid decision, it is contended by Mr. A
Nariman that in Madhav Rao Scindia (supra), the majority had clearly
expressed the view that paramountcy no longer survived after the coming
into force of the Constitution of India. In the said decision, it has been
clearly spelt out that it is difficult to conceive of the Government of a
democratic Republic exercising against its citizens “paramountcy claim
B
to be inherited, imperial power”. According to Mr. Nariman, when
everything has come to an end, the concept of restriction to ‘political
nature’, as has been held in State of Tamil Nadu v. State of Kerala
(supra), sounds a discordant note.
83. Mr. Dwivedi, learned senior counsel, per contra, would submit
that the decision in State of Tamil Nadu (supra) does not run counter to C
the principle stated in Madhav Rao Scindia. According to him, Madhav
Rao Scindia exclusively dealt with a political situation. To bolster the
said aspect, he has drawn our attention to the “Standstill Agreement”
which does not apply to any paramountcy function. He has also laid
stress on the passage that discusses about quid pro quo for agreeing to D
surrender the power and authority by the rulers and that is why it was
enacted in the Constitution that the Princes who had signed the covenant
of the nature specified should be recognized as rulers. In essence, the
submission is that if the authority in Madhav Rao Scindia’s case is
appositely read and understood, it dealt with the abolition of Privy Purses
by the President of India and how the action was erroneous and how the E
Court treated it to be of political nature.
84. It is absolutely manifest that the ruling in Madhav Rao Scindia
(supra) states that after coming into force of the 1947 Act, the
paramountcy lapsed and after the integration of the States with the Indian
Union, the shadow of paramountcy faded and the Government of India F
became the full sovereign authority. After the Constitution came into
force, the exercise of power by the State over its citizens stood
circumscribed by the Constitution. In the said case, the doctrine of
paramountcy has no play. The two agreements, on a studied scrutiny,
do not indicate any aspect that can be called political or touching any G
facet of the sovereignty of India. The agreements covered the areas of
larger public interest like construction of dams and irrigation of land
existing within the two States, namely, the State of Mysore and the State
of Madras and had nothing to do with political arrangement. Therefore,
we are not inclined to accept the submission of Mr. Nariman that after
H
932 SUPREME COURT REPORTS [2018] 5 S.C.R.

A coming into force of the 1947 Act and thereafter the Constitution of
India, the agreements of 1892 and 1924 became inoperative and totally
extinct.
I. Infraction of Article 363 and non-maintainability of the dispute
on the basis of agreements
B 85. The next plank of submission pertains to the constitutional
infraction of Article 363. Article 363 reads as follows:-
“Article 363. Bar to interference by courts in disputes
arising out of certain treaties, agreements, etc.–
(1) Notwithstanding anything in this Constitution but subject to
C the provisions of Article 143, neither the Supreme Court nor any
other court shall have jurisdiction in any dispute arising out of
any provision of a treaty, agreement, covenant, engagement, sanad
or other similar instrument which was entered into or executed
before the commencement of this Constitution by any Ruler of
D an Indian State and to which the Government was a party and
which has or has been continued in operation after such
commencement, or in any dispute in respect of any right accruing
under or any liability or obligation arising out of any of the
provisions of this Constitution relating to any such treaty,
agreement, covenant, engagement, sanad or other similar
E instrument
(2) In this article
(a) Indian State means any territory recognised before the
commencement of this Constitution by His Majesty or the
F Government of the Dominion of India as being such a State;
and
(b) Ruler includes the Prince, Chief or other person recognised
before such commencement by His Majesty or the Government
of the Dominion of India as the Ruler of any Indian State.”
G 86. Pressing into service the aforesaid Article, it is contended by
Mr. Nariman that the said Article commences with a non-obstante clause
but subject to the provisions of Article 143 and that would exclude anything
contained in Article 262(1) and, therefore, the bar under Article 363(1)
must prevail. He has criticized the finding of the Tribunal which has
placed reliance on the judgment of this Court in the Privy Purse case
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 933
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

placing reliance on the view of Hegde, J. which is not the majority view A
because the majority spoke through Shah,J. It is urged by him that the
finding of the Tribunal that Article 363 cannot bar the investigation of
any complaint including a complaint regarding the agreement which has
been executed by the then Ruler of a Princely State like Mysore which
became an Indian State within the Dominion of India, a State under the
B
First Schedule after coming into force of the Constitution is untenable.
That apart, the Tribunal has opined that once the dispute is referred to
the Tribunal which has exclusive jurisdiction under the Constitution to
examine the dispute in respect of use, distribution or control of waters of
any inter-state river or river valley, the said jurisdiction cannot be
controlled or curtailed by Article 363 and in case of agreement relating C
to sharing of water of inter-State river, the Tribunal has to examine the
claims of the different riparian States in the background of such
agreement and, therefore, the enquiry is not barred under Article 363 of
the Constitution. Attacking the said findings, it is canvassed by Mr.
Nariman that the Tribunal has failed to appreciate the fact that Articles
D
262 and 263 operate in entirely different fields, for Article 262 is only an
exception how a particular matter relating to inter-State river water
disputes between States of India have to be decided because it is not
decided by the exclusive remedy provided in Article 131 of the Constitution
but by an alternative mode now prescribed by the Parliament by law
under Article 261(2), that is, the 1956 Act. It is further put forth by him E
that the agreements of the present nature come within the purview of
Article 363 and to substantiate the said argument, he has placed reliance
on State of Seraikella v. Union of India and another9.
87. It is submitted by Mr. Dwivedi, learned senior counsel for the
State of Tamil Nadu, that the bar of jurisdiction of this Court under Article F
363 of the Constitution relates only to certain clauses of agreements,
treaties, covenants, engagements, “Sanad”, etc. The expression “other
similar instruments’ clearly indicates that it is not as if all kinds of
agreements and treaties would come within the purview of the said
provision. Article 363 covers only such political agreements executed
between the Rulers of Indian States and the Government of the Dominion G
of India between 1947 and 1950. From the intrinsic language of Article
363 read with the proviso to Article 131, it is clear that the bar of jurisdiction
of the Court applies only to disputes arising out of political agreements.
9
951 SCR 474 : AIR 1951 SC 253
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934 SUPREME COURT REPORTS [2018] 5 S.C.R.

A 88. He has referred to the debates of the Constituent Assembly
especially the observations made by Dr. B.R. Ambedkar as the Chairman
of the Drafting Committee while moving the draft Constitution for
consideration by the Constituent Assembly. The said observations are
extracted hereunder:-
B “On the 15th August 1947 we had 600 Indian States in existence.
Today by the integration of the Indian States with Indian
Provinces or merger among themselves or by the Centre having
taken them as centrally administered areas, there have remained
some 20 or 30 States as viable States. This is a very rapid process
and progress. I appeal to those States that remain to fall in line
C with the Indian Provinces and to become full units of the Indian
Union on the same terms as the Indian Provinces. They will
thereby give the Indian Union the strength it needs. They will
save themselves the bother of starting their own Constituent
Assemblies and drafting their own separate constitution, and they
D will lose nothing that is of value to them. I feel hopeful that my
appeal will not go in vain and that before the Constitution is passed,
we will be able to wipe off the differences between the Provinces
and the Indian States.”
(B. Shiva Rao (Ed.), The Framing of India’s Constitution –
E Select Documents, Volume IV, at p.434)
89. The learned senior counsel would submit that the purpose of
Article 363 was to protect the Government of India from purely political
agreements which had been entered into between the Rulers of the
Indian States and the Dominion of India or its predecessor Governments
F so as to prevent any obstruction to the smooth accession of the Indian
States to the Dominion of India.
90. To appreciate the submissions advanced before this Court,
we are required to analyse what has been said by this Court in State of
Seraikella. In the said case, a suit was filed under the Original
G Jurisdiction of the Federal Court as it was functioning before the
Constitution of India came into force. The State of Seraikella was a
State in Orissa and on 16th August, 1947, the plaintiff-State acceded to
the Dominion of India by virtue of the Instrument of Accession executed
by its Ruler and accepted by the Governor General under Section 6 of
the Government of India Act, 1935. After coming into force of the
H Indian Independence Act, 1947, the Dominion of India was set up under
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 935
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

the Government of India Act, 1935 as adopted which provided that the A
Indian State may accede to the Dominion of India by an Instrument of
Accession. It was expressly provided that by executing the said
instrument, the Ruler should not be deemed to have committed to the
acceptance of any future Constitution of India or to fetter his discretion
to enter into arrangements with the Government of India under any such
B
future Constitution. Various other postulates which were part of the
instrument have been taken note of by the Constitution Bench. It is
worthy to note that apart from the initial instrument, no supplement
instrument was executed by the Ruler and no amendment of the 1947
Act was accepted by him. A “Standstill Agreement” was also executed
by the Ruler under which it was agreed that matters of common concern C
as specified in the Schedule to the agreement would continue between
the Dominion of India and the said State until new agreements were
made in that behalf. The controversy arose in the suit as the plaintiff-
State claimed to have merged in the province of Bihar. It was contended
by the plaintiff that the Government of Orissa wrongfully and illegally
D
purported to administer the plaintiff-State by virtue of the Notification of
23.12.1947 under the Indian Independence Act, 1947. It was claimed
that the Act was ultra vires and had no binding effect on the plaintiff-
State. It was also contended that the agreement dated 15.12.1947 was
void for want of consideration and was inoperative. It was further
canvassed that on 18th May, 1948, without the consent and approval of E
the plaintiff-State or its Ruler, the Province of Bihar absolutely illegally
took over the administration of the State and passed the Seraikella and
Kharsawan States Order, 1948. It was also asserted that the Dominion
of India had no authority to go beyond the Instrument of Accession and
further had no authority to delegate powers to the Province of Bihar to
F
administer the plaintiff-State. The Constitution Bench, noting various
facts and commenting on coming into effect of the Constitution of India
and the jurisdiction conferred on the Court under Article 131, proceeded
to analyse the scope and ambit of Article 363 of the Constitution. Dwelling
upon the same, Kania, C. J. opined that the all-embracing opening words
of Article 363 in terms override all provisions of the Constitution, but are G
made subject only to the provisions of Article 143 which enables the
President to consult the Supreme Court on matters referred to and,
therefore, clearly override the operation of Article 374(2) also. The
jurisdiction of the Supreme Court having been stated in Articles 131 to
136, Article 363 provides that notwithstanding anything contained in those
H
936 SUPREME COURT REPORTS [2018] 5 S.C.R.

A articles and other articles of the Constitution, neither the Supreme Court
nor any other court will have jurisdiction in any dispute arising out of any
provision of a treaty, agreement, covenant, engagement, “Sanad” or other
similar instrument which was entered into or executed before the
commencement of this Constitution and which had or had been continued
in operation after such commencement. If, therefore, the dispute arises
B
in respect of a document of that description and if such document had
been executed before the Constitution by a Ruler and which was or had
continued in operation after such commencement, this Court has no
jurisdiction to determine such issue. The learned Chief Justice repelled
the argument that the Article is prospective and not retrospective and,
C hence, it only covers the cases which are filed in the Supreme Court
after the Constitution came into force and did not affect suits filed in the
Federal Court before the Constitution of India came into operation.
Thereafter, he adverted to the assertions made in the plaint and stated
that the only question which remained for decision was whether on the
structure of the plaint, the dispute raised in the suit arose out of the
D
provision of a treaty, agreement, covenant, engagement, “Sanad” or
any other similar instrument. Eventually, Kania, C.J. held:-
“I have already noticed above that the dispute in respect of the
agreement of the 15th December, 1947, is immaterial for the
present discussion. If the plaintiff repudiates that agreement he
E is seeking to enforce his rights after ignoring the same. If the
plaintiff (as noticed in four of the suits) relies on this agreement,
it becomes a part of the Instrument of Accession under Section
6(5) of the Government of India Act, 1935, and the dispute will
still have to be considered having regard to the terms of the two
F documents viz. the original Instrument of Accession and the
supplementary Instrument. The question thus resolves itself into
an analysis of the plaint and to find out what the plaintiff seeks to
get by his suit. Apart from the fact that in prayers (f) and (g) of
his plaint he seeks to enforce his rights under the Agreement of
the 15th December, 1947, it appears clear that the whole ambit
G of the suit is to enforce his Instrument of Accession. The plaintiff
contends firstly that it had signed the Instrument of Accession
through its Ruler. The State next complains that, acting beyond
the powers given over under the Instrument of Accession, the
Dominion of India and the State of Bihar are trespassing
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 937
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

wrongfully on its legislative and executive functions, that the A
Dominion of India and the State of Bihar are making laws which
they have no power to make having regard to the Instrument of
Accession, and are wrongfully interfering with the administration
of the State beyond the rights given to them under the Instrument
of Accession. The whole plaint is nothing else except the claim
B
to enforce the plaintiff’s right under the Instrument of Accession.
The dispute therefore in my opinion clearly is in respect of this
Instrument of Accession and is covered by Article 363(1) of the
Constitution of India. The question of the validity of the different
enactments and orders is also based on the rights claimed under
the Instrument of Accession so far as the plaintiff is concerned. C
On the side of the defendants, the position is that they admit the
Instrument of Accession and they do not claim that they are
exercising the disputed rights under that Instrument. Their
contention is that the Agreement of the 15th of December, 1947,
was validly signed and is binding and enforceable against the
D
plaintiff. The defendants contend that their action in passing the
disputed legislation and orders and the action in taking over the
administration are all based on that Agreement of 15th December,
1947. If the plaintiff contends that that Agreement is not binding
on it, it cannot enforce its rights under the original jurisdiction of
the Court. If the plaintiff has a grievance and a right to a relief E
which the defendants contend it has not, the forum to seek redress
is not the Supreme Court exercising its original jurisdiction on
the transfer of the suit from the Federal Court. According to the
defendants, the situation in those circumstances will be of a
Sovereign Independent State trespassing on the territories,
F
powers and privileges of another neighbouring independent State.
To redress a grievance arising out of such action on the part of
the defendants, the Supreme Court is not the forum to give relief.
The issue is answered in the negative, costs in the cause.”
91. Bose, J., in his separate opinion, addressed the Issue No.1
which was to the following effect:- G

“1. Whether having regard to the subject-matter of the suit and
the provisions contained in Article 363(1) of the Constitution of
India, this Hon’ble Court has jurisdiction to entertain the suit?”
Answering the said issue, he opined:- H
938 SUPREME COURT REPORTS [2018] 5 S.C.R.

A “Even so, it is next contended, Article 363, which enacts a general
rule of non-interference by courts in certain classes of disputes,
cannot control the operation of Article 374(2), which is a special
provision providing that suits, appeals and proceedings pending
in the Federal Court at the commencement of the Constitution
shall stand removed to the Supreme Court and that the Supreme
B
Court shall have jurisdiction to hear and determine the same.
There would be considerable force in this argument but for the
opening words of Article 363(1), namely, “notwithstanding
anything in this Constitution.” These words clearly indicate that
the bar to the exercise of jurisdiction enacted in Article 363
C controls the operation of Article 374(2)and excludes the rule of
construction invoked by the plaintiffs.”
92. The aforesaid decision has to be appositely understood and
appreciated. Mr. Nariman would submit that any controversy relating to
any agreement is not entertainable by this Court. According to him, a
D complaint for raising a dispute under Article 262 of the Constitution can
be independent without the base or foundation of the 1892 and 1924
agreements but to structure the stand on the fulcrum of the agreements
would run counter to Article 363 of the Constitution as has been held by
the Constitution Bench in State of Seraikella (supra). It is also proponed
by him that the later decision in State of Tamil Nadu v. State of Kerala
E (supra) has not taken note of the earlier decision and introduced the
element of political agreement and categorized agreements into distinct
ones, namely, political agreement and ordinary agreement. The argument
deserves keen scrutiny. We have extensively discussed the facts in State
of Seraikella (supra) and the view expressed therein. As is perceptible
F to us, the Constitution Bench, in actuality, was dealing with a political
issue as there is constant reference to the “Instrument of Accession”
and the claim was to enforce the instrument and further to declare the
legislative and executive action of the Dominion of India and the State
of Bihar as illegal. The stand of the respondent, namely, Dominion of
India, was that it was acting as per the Instrument of Accession. The
G rival stands and the analysis made thereon clearly reflect the political
nature of the controversy.
93. Sastri, J., in his concurring opinion, stated:-
“22. … The controversies regarding these matters are but
contentions whereby the parties seek to establish, on the one
H hand, that the Instrument of Accession still governs their mutual
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OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

rights and obligations and, on the other, that that Instrument stands A
superseded and is no longer in force. Issues have no doubt been
framed in regard to these matters but they cannot, in my opinion,
be considered to be disputes for the purposes of Article 131 or
Article 363(1). These articles deal with the jurisdiction of Courts
and they envisage disputed claims to substantive legal rights.
B
The claims in these suits are undoubtedly based on the respective
Instruments of Accession and they are repudiated because those
Instruments of Accession are said to have been superseded by
reason of the alleged agreement of December, 1947. These claims
are disputes to which Article 363(1) clearly applies. The other
so-called disputes are only incidental and ancillary controversies C
raised with a view to support or overthrow the claims and cannot,
in my opinion, affect the operation of the bar under that Article
any more than, for instance, Issue 5 relating to the necessity for
notice to the defendants under Section 80 of the Civil Procedure
Code.
D
23. Nevertheless, it is contended, the article has no application
here and it cannot operate retrospectively and applies only to
disputes arising after the commencement of the Constitution. I
am unable to accept this restricted interpretation of Article 363(1).
While the Article undoubtedly postulates the continued operation
of the treaties, agreements, etc., entered into or executed before E
the commencement of the Constitution and giving rise to the
disputes, it does not require, as a condition of its application, that
such Disputes should arise after the commencement of the
Constitution. I see no reason for importing a restriction which a
plain grammatical construction of the language employed does F
not warrant. It is not correct to say that the wider construction
would make the operation of the article retrospective, for the
bar to interference by the court operates only after the
Constitution came into force irrespective of the disputes
concerned having arisen before or after the commencement of
the Constitution. It was said that the article should not be construed G
so as to bar the trial of pending suits or proceedings. But this is
not a case of a pending action in a court which continues to
function. The Federal Court, in which the suits were pending,
and which had exclusive jurisdiction to deal with them, was
abolished and a new court, the Supreme Court of India, was
H
940 SUPREME COURT REPORTS [2018] 5 S.C.R.

A created with original jurisdiction strictly limited to disputes relating
to legal rights between States recognised as such under the
Constitution. But as the States specified in Part B of the First
Schedule had a semi-sovereign status before the Constitution,
agreements with them were in the nature of international treaties
and covenants, and disputes arising out of them would not lie in
B
municipal courts. That principle is given effect to, so far as the
Supreme Court’s original jurisdiction is concerned, by the proviso
to Article 131 which defines such jurisdiction and, in regard to all
courts and in respect of all proceedings, by Article 363(1). The
reason for applying that principle is greater, not less, in regard to
C such disputes arising before the Constitution when these States,
then known as Indian States, enjoyed a higher degree of political
freedom. Furthermore, the construction contended for by the
plaintiffs as applied to Article 131 would mean that the Court
would, notwithstanding the proviso, have jurisdiction in respect
of such disputes, provided they arose before the commencement
D
of the Constitution. If that had been intended, one would expect
that such jurisdiction would have been conferred by positive
enactment, instead of being left to be derived by implication from
a proviso intended to delimit the jurisdiction conferred by that
article. It seems to me, therefore, that the proviso to Article 131
E must be construed as applicable to disputes of the kind mentioned
arising both before and after the commencement of the
Constitution. If so, Article 363(1) must receive the same
construction, the language employed being essentially the same.”
94. Relying on the aforesaid opinion of Sastri. J., it is submitted by
F Mr. Nariman that each of the agreements of 1892 and 1924 executed by
the Ruler of a semi-sovereign state has to be regarded as an international
treaty, covenant or agreement as in any case even under common law
which continues under the provisions of Article 372 and thus, the municipal
courts or authorities would not have jurisdiction to adjudicate upon them,
for Article 363 clearly stipulates that municipal courts do not interfere in
G such agreements where one of the parties has a semi-sovereign status.
In essence, the contention is that the agreements are not liable to be
adjudicated in a court of law or tribunal as has been held by the Constitution
Bench in In Re: Presidential Reference (Cauvery Water Disputes
Tribunal)10 to the effect that the entire “judicial power of the State”
H 10
1993 (Supp) (1) SCC 96
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under Article 131 relating to adjudication of water disputes stood A
transferred under the law enacted under Article 262(1), that is, the 1956
Act and the finding recorded by the Tribunal is not a court and, therefore,
Article 363(1) would not apply to it is incorrect. According to him, the
agreements are not to be looked into for any purpose.
95. To appreciate the submission, we may refer to the analysis B
put forth by the Tribunal in this regard. The Tribunal adverted to the
decision in Madhav Rao Scindia (supra) and came to hold thus:-
“21. The same is the position here. The Inter-State Water
Disputes Act, 1956 has not been enacted under Entry 56 of the
Union List of Seventh Schedule of the Constitution. It has been C
enacted under power vested in the Parliament by Article 262 of
the Constitution. In view of Article 262 Parliament may by law
provide for adjudication of any dispute or complaint with respect
to the use, distribution or control of the waters of, or in, any
inter- State river or river valley. Article 262(2) has a non-obstante
clause saying that notwithstanding anything in the Constitution, D
Parliament may by law provide that neither the Supreme Court
nor any other court shall exercise jurisdiction in respect of any
such dispute or complaint as is referred in clause (1). It has
already been pointed out above that in exercise of this power in
the Inter-State Water Disputes Act, 1956, Section 11 excludes E
the jurisdiction of all courts including the Supreme Court, if in
Article 363(1) there is a non- obstante clause giving an over-
riding effect, then even in Article 262(2) there is a non-obstante
clause which read with Section 11 of the Inter-State Water
Disputes Act shall exclude the jurisdiction of Supreme Court or
any other court in respect of a dispute relating to use, distribution F
and control of waters of inter-State river or river valley. It cannot
be disputed that Article 262 is a special provision providing for
adjudication of any dispute in respect of use, distribution or control
of waters of an inter-State river or river valley. As such on the
well-known rule of construction generalia specialibus non G
derogant, a special provision excludes the general provision;
Article 363 cannot bar the investigation in respect of any complaint
including a complaint regarding the non-compliance of terms of
an agreement which had been executed by the then ruler of a
princely State like Mysore which became an Indian State within
H
942 SUPREME COURT REPORTS [2018] 5 S.C.R.

A the Dominion of India and later after coming into force of the
Constitution, a State under First Schedule of the Constitution.”
96. The Tribunal, thereafter, placed reliance on Maharaja Shree
Umaid Mills Ltd. v. Union of India11; State of Seraikella (supra)
and H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia
B Bahadur (supra) and the 1956 Act and opined:-
“In this background, it is very difficult to hold that Article 363 of
the Constitution shall govern or control the inquiry and
investigation by the Tribunal in respect of a water dispute relating
to interpretation of the terms of any agreement or failure of any
C State to implement the terms of such agreement relating to the
use, distribution or control of such waters.”
97. Having noted the same, we may look at what has been stated
by this Court in the context of Article 363 of the Constitution. In Madhav
Rao Scindia case, Hidayatullah, C.J., while dealing with the interpretation
D of Article 363, observed:-
“66. I begin with Article 363. That article was quoted in extenso
earlier. The learned Attorney-General used the historical events
as background for his contention that Article 363 must be
construed as giving an exclusive right of determination to the
E President on the subject of recognition and withdrawal of
recognition. He submitted that just as an act of State cannot be
questioned in a Municipal Court so also the withdrawal of
recognition cannot be called in question. He cited a large number
of authorities in support of his case that an act of State is not
subject to the scrutiny of the Courts.
F
67. The question here is not one of an act of State. Nor can any
assurance be drawn from the doctrine of act of State. What we
have to do is to construe the article. It bars jurisdiction of Court.
It has no bearing upon the rights of the Rulers as such. It neither
increases nor reduces those rights by an iota. I shall presently
G attempt to find out its meaning. Before I do so I must say that it
is a well-known rule of interpretation of provisions barring the
jurisdiction of civil courts that they must be strictly construed for
the exclusion of the jurisdiction of a civil court, and least of all
the Supreme Court, is not to be lightly inferred. The gist of the
11
H (1963) Supp. (2) SCR 515 : AIR 1963 SC 953
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OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

present dispute is whether the article bars the relief to the A
petitioners although as held by me, the order of the President is
ultra vires.
68. The article commences with the opening words
“notwithstanding anything in this Constitution”. These exclusionary
words are no doubt potent enough to exclude every consideration B
arising from the other provisions of the Constitution including the
Chapter on Fundamental Rights, but for that reason alone we
must determine the scope of the article strictly. The article goes
on to say that jurisdiction of all Courts including the Supreme
Court is barred except that the President may consult the
Supreme Court. Having said this the articles goes on to specify C
the matters on which the jurisdiction is barred. This it does in
two parts. The first part is: “In any dispute arising out of any
provision of a treaty etc., which was entered into or executed
before the commencement of this Constitution by any Ruler of
an Indian State to which the Government of the Dominion of D
India was a party and which has or has been continued in
operation after such commencement”. This shows that a dispute
relating to the enforcement, interpretation or breach of any treaty
etc., is barred from the Courts’ jurisdiction. The words ‘arising
out of the provisions of a treaty etc.,’ limit the words. Thus if a
treaty, covenant, etc., is characterised as forged by any party, E
that would not be a dispute ‘arising out of any provision of a
treaty, covenant, etc.’ That dispute would be whether there is a
genuine treaty or not. This illustration is given by me to show
that the exclusion is not all-embracing. The dispute to be barred
must arise from a provision of the treaty, etc.” F
98. Shah, J., while speaking for the majority, interpreting Article
363, ruled:-
“133. Jurisdiction of the Courts in matters specified is excluded
not because the Union of India is successor to the paramountcy
of the British Crown, nor because the rights and obligations G
accepted and recognized by the Constitution may still be regarded
as flowing from acts of State: it is only excluded in respect of
specific matters by the express provision in Article 363 of the
Constitution. Jurisdiction of the Courts even in those matters is
not barred “at the threshold” as contended by the Attorney- H
944 SUPREME COURT REPORTS [2018] 5 S.C.R.

A General. The President cannot lay down the extent of this Court’s
jurisdiction. He is not made by the Constitution the arbiter of the
extent of his authority, nor of the validity of his acts. Action of
President is liable to be tested for its validity before the Courts
unless their jurisdiction is by express enactment or clear
implication barred. To accede to the claim that the jurisdiction of
B
the Court is barred in respect of whatever the executive asserts
is valid, is plainly to subvert the Rule of law. It is therefore within
the province of the Court alone to determine what the dispute
brought before it is and to determine whether the jurisdiction of
the Court is, because it falls within one of the two limbs of Article
C 363, excluded qua that dispute. The first limb of Article 363
operates to defeat the jurisdiction of the Courts only when a
claim to relief founded on the covenants is disputed: the second
limb of Article 363 operates when there is a dispute with respect
to rights or obligations accruing or arising out of a provision of
the Constitution relating to a covenant.
D
134. In dealing with the dimensions of exclusion of the exercise
of judicial power under Article 363, it is necessary to bear in
mind certain broad considerations. The proper forum under our
Constitution for determining a legal dispute is the Court which is
by training and experience, assisted by properly qualified
E advocates, fitted to perform that task. A provision which purports
to exclude the jurisdiction of the Courts in certain matters and to
deprive the aggrieved party of the normal remedy will be strictly
construed, for it is a principle not to be whittled down that an
aggrieved party will not, unless the jurisdiction of the Courts is
F by clear enactment or necessary implication barred, be denied
his right to seek recourse to the Courts for determination of his
rights. The Court will interpret a statute as far as possible,
agreeably to justice and reason and that in case of two or more
interpretations, one which is more reasonable and just will be
adopted, for there is always a presumption against the law maker
G intending injustice and unreason. The Court will avoid imputing
to the Legislature an intention to enact a provision which flouts
notions of justice and norms of fairplay, unless a contrary intention
is manifest from words plain and unambiguous. The provision in
a statute will not be construed to defeat its manifest purpose and
H general values which animate its structure. In an avowedly
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democratic polity, statutory provisions ensuring the security of A
fundamental human rights including the right to property must,
unless the mandate to precise and unqualified, be construed
liberally so as to uphold the right. These rules apply to the
interpretation of constitutional and statutory provisions alike.”
And again:- B
“141. … Article 363 prescribes a limited exclusion of the
jurisdiction of Courts, but that exclusion does not operate upon
the claim for a Privy Purse, relying upon Article 291. The question
as to the jurisdiction of the Courts to entertain a claim for payment
of Privy Purse did not fall to be determined in Nawab Usman C
Ali Khan case. The only question raised was whether the Privy
Purse was not capable of attachment in execution of the decree
of a civil court, because of the specific exemption of political
pensions under Section 60(1)(g) of the Code of Civil Procedure.
In Kunvar Shri Vir Rajendra Singh case the Court did not
express any opinion that Article 366(22) was a provision relating D
to a covenant within the meaning of Article 363. In that case the
petitioner who was not recognised as a Ruler by the President
abandoned at the hearing of his petition his claim to the Privy
Purse payable to the Ruler of Dholpur, and pressed his claim by
succession under the Hindu Law to the Private property of the E
former Ruler. The Court was not called upon to decide and did
not decide that Article 366(22) was a provision relating to a
covenant within the meaning of Article 363. It is difficult to regard
a word or a clause occurring in a judgment of this Court, divorced
from its context, as containing a full exposition of the law on a
question when the question did not fall to be answered in that F
judgment.
142. In the view we have expressed, the argument raised by Mr
Palkhivala that even if clause (22) of Article 366 is a provision
relating to the covenants, the jurisdiction of this Court under Article
32 to grant relief against an invalid exercise of power withdrawing G
recognition of the Rulers is not barred, needs no consideration.
99. Presently, we may refer to the analysis of Article 363 as has
been made by the Constitution Bench in State of Tamil Nadu v. State
of Kerala (supra). In the said case, the learned Chief Justice, speaking
for the Court, opined that a plain reading of Article 363 leaves no manner H
946 SUPREME COURT REPORTS [2018] 5 S.C.R.

A of doubt that if the dispute arises in respect of a document of that
description and if such document had been executed before the
commencement of the Constitution, the interference by courts is barred.
The documents referred to in Article 363 are those which are political in
nature. Any dispute regarding such documents is non-justiciable. The
object behind Article 363 is to bind the Indian Rulers with treaties,
B
agreements, covenants, engagements, “Sanads” or other similar
instruments entered into or executed before the commencement of the
Constitution and to prevent the Indian Rulers from resiling from such
agreements as the integrity of India was to be maintained at all costs
and could not be affected by raising certain disputes. Thereafter, the
C larger Bench referred to the ‘White Paper’ on Indian States prepared
by the Government of India in 1948 which brings out the historical
perspective which necessitated the adoption of the provisions in Article 363.
100. The Court reproduced a passage from the ‘White Paper’
which reads as under:-
D “Article 363 has therefore been embodied in the Constitution
which excludes specifically the Agreements of Merger and the
Covenants from the jurisdiction of courts except in cases which
may be referred to the Supreme Court by the President”.
101. After so stating, the Court referred to Article 131 that deals
E with the original jurisdiction of this Court and proceeded to state:-
“74. There is similarity of provision in Article 363 and proviso to
Article 131. The original jurisdiction conferred on this Court by
the main provision contained in Article 131 is excepted by virtue
of the proviso in the matters of political settlements. By making
F provisions such as Article 363 and proviso to Article 131, the
political settlements have been taken out of the purview of judicial
pronouncements. Proviso appended to Article 131 renders a
dispute arising out of any treaty, agreement, covenant,
engagement, sanad or similar instrument which is political in nature
G executed before the commencement of the Constitution and
which has or has been continued in operation, non-justiciable
and jurisdiction of this Court is barred. The jurisdiction of this
Court is not taken away in respect of the dispute arising out of
an ordinary agreement. The instruments referred to and described
in the proviso are only those which are political in nature. Non-
H political instruments are not covered by the proviso.”
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102. Be it noted, the larger Bench has referred to the decision in A
Virendra Singh (supra) and opined thus:-
“70.2. The exposition of above legal position by the Constitution
Bench hardly admits of any doubt. Obviously, the accession of
an Indian State to the Dominion of India and acceptance of it by
the Dominion are acts of State and jurisdiction of the courts to B
go into its competency or settle any dispute arising out of them
are clearly barred under Article 363 and the proviso to Article
131. As we have already held—and that is what has been held
in the 2006 judgment as well—that the 1886 Lease Agreement
is an ordinary agreement and that it is not political in nature, the
embargo of Article 363 and the proviso to Article 131 have no C
application.”
And again:-
“76. We are in complete agreement with the view taken by this
Court in Mullaperiyar Environmental Protection Forum that D
the 1886 Lease Agreement would not come within the purview
of Article 363 and jurisdiction of this Court is not barred. As a
necessary corollary, the dispute arising out of the 1886 Lease
Agreement is not barred under Article 131 proviso as well.
Moreover, the principal challenge laid in the suit pertains to the
constitutional validity of the 2006 (Amendment) Act for which E
Article 363 or for that matter under Article 131 proviso does not
come into operation at all.”
103. On a perusal of the aforesaid, it seems to us that there is no
discord or lack of concord with the view expressed in State of Seraikella
(supra). We are persuaded to think so as the Constitution Bench in the F
earlier case was dealing with a different kind of instrument which was
indubitably of political character entered prior to coming into force of
the Constitution.
104. In the case of Madhav Rao Scindia (supra), the sphere of
adjudication was absolutely different. In the case at hand, the agreements G
in question relate to the sphere of water sharing, irrigation, etc. and have
nothing to do, even remotely, with the concept of sovereignty and integrity
of India and, therefore, it will be erroneous to hold that the bar under
Article 363 of the Constitution would apply. It is so as both the agreements
between the States do not refer to any political element and cannot be
H
948 SUPREME COURT REPORTS [2018] 5 S.C.R.

A termed as political in character. The view expressed in State of Seraikella
(supra), as already stated hereinbefore, related to an aspect of integrity
or sovereignty of India and that is why, the bar operated. The bar under
Article 363 was not allowed to stand in Madhav Rao Scindia (supra)
as it was dealing with a constitutional claim of the Rulers relating to
Privy Purse and the same did not have any political characteristics. In
B
any case, the position has been absolutely made clear by the Constitution
Bench in State of Tamil Nadu (popularly known as Mullaperiyar dam
case). Therefore, it can be stated, without desiring to give rise to any
controversy and without fear of any contradiction, that the bar under
Article 363 is not applicable. The submission astutely advanced on behalf
C of the State of Karnataka that the two agreements should not be looked
into at all for the purpose of adjudication of the water dispute by the
Tribunal because of Article 262 of the Constitution is unacceptable.
J. Unconscionability of the 1892 and 1924 agreements
105. It is submitted by Mr. Nariman, learned senior counsel, that
D both the 1892 and 1924 agreements are hit by the doctrine of
unconscionability as the Princely State of Mysore and the State of Madras
were on two different platforms. The State of Mysore was a vassal
State and had really no authority to speak on various aspects of the
agreement. In fact, it had no power to bargain and it is reflectible when
E the Secretary of State was able to set aside the binding award passed by
the learned Arbitrator. The agreements, contends Mr. Nariman, suffer
from unconscionable bargain. Learned senior counsel is critical that the
Tribunal has not adverted to the principle of unconscionability at all and
erroneously relied on the decision in New Bihar Biri Leaves Co. and
others v. State of Bihar and others12 and arrived at the conclusion that
F the agreement having been acted upon by both the parties in 1974, there
was an estoppel. He has referred to Section 16 of the Indian Contract
Act and the commentary by Pollock and Mulla in the book (1st Edition,
1905). The commentary commended reads as follows:-
“ “Unconscionable bargains” - Illustration (c) contemplates the
G case of a person already indebted to a money-lender contracting
a fresh loan with him on terms on the face of them
unconscionable. In such a case a presumption is raised that the
borrower’s consent was not free. The presumption is rebuttable,
but the burden of proof is on the party who has sought to make
H 12
(1981) 1 SCC 537
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an exorbitant profit of the other’s distress. The question is not of A
fraud, but of the unconscientious use of superior power.”
[Emphasis Supplied]
106. He has also referred to the 8th Edition by M.C. Setalvad in
1957 wherein it has been commented:-
B
“........ Relief in case of unconscionable bargains is an old head
of English equity. It was formerly associated in a special manner
with sales of reversionary interests, which the Court was eager
to restrain; and for some time it was the doctrine of the Court
that a sale of any reversionary interest, if proved to have been
made for only a little under the value, must be set aside without C
further inquiry. This rule was at last found so inconvenient that it
was abolished by statute. But the general principles of equity in
dealing with what are called “catching bargains” remain, and
the third clause of the section now before us is apparently intended
to embody them.” D
[Underlining is ours]
107. Apart from relying on the said provision and the
commentaries, he has also drawn inspiration from the authorities in
Central Inland Water Transport Corporation Limited and another
v. Brojo Nath Ganguly & Another.13; O.P. Bhandari v. ITDC14; Delhi E
Transport Corporation v. D.T.C. Mazdoor Congress and others15;
and Balmer Lawrie & Company Limited and others v. Partha Sarathi
Sen Roy and others (2J)16. He has also drawn our attention to the
Black’s Law Dictionary by Bryan Garner, Editor-Chief (10th Edition,
Thomson Reuters) wherein unconscionability has been defined thus:- F
“Unconscionability. 1. Extreme unfairness.
Unconscionability is normally assessed by an objective standard:
(1) one party’s lack of meaningful choice, and (2) contractual
terms that unreasonably favor the other party. 2. The principle
that a court may refuse to enforce a contract that is unfair or G
oppressive because of procedural abuses during contract
formation or because of overreaching contractual terms, esp.
13
(1986) 3 SCC 156
14
(1986) 4 SCC 337
15
1991 Supp. (1) SCC 600
16
(2013) 8 SCC 345 H
950 SUPREME COURT REPORTS [2018] 5 S.C.R.

A terms that are unreasonably favorable to one party while
precluding meaningful choice for the other party.”
108. A passage from John Westlake International Law: Part-I.
Peace, Cambridge University Press, 1910 has been commended to us.
The said passage reads thus:-
B “On the internal side, that is the relation of the native states to
the British power, the Government of India published the following
notification in its official Gazette, No. 1700 E, 21 August 1891:
“The principles of international law have no bearing upon the
relations between the Government of India as representing
C the queen-empress on the one hand, and the native states under
the suzerainty of Her Majesty on the other. The paramount
supremacy of the former presupposes and implies the
subordination of the latter.”
And again :-
D
“Thus India is a world of itself. Not only is the action of all
foreign states excluded from every part of it, but those parts
which are not included in the dominions of the king-emperor are
subject to a suzerainty, paramountcy or supremacy possessed
by him, to which nothing parallel exists in the relations of states
E of international law”.
109. Inspiration has also been drawn from the book Rivers in
International Law (1959) by F.J. Berber, which states:-
“The Cauvery dispute between Mysore and Madras, settled in
1925, was a dispute between two territories of which one was a
F
province of British India and the other was a dependent princely
state under British suzerainty. The dispute was not settled by the
application of international law but through an authoritative
decision of the sovereign power, or the British Crown. under its
general responsibility to interfere in every matter in which
G according to its estimation the public interest was threatened
with injury. That means that it was a typical case of the application
of norms of municipal law. We can therefore extract nothing
from it for our inquiry. Only one aspect in the dispute is significant
for international law, namely, the endeavour to protect the rights
of Karikal, at that time still a French possession. After
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STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 951
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representations by the French Ambassador in London the Indian A
Government in its Note of May 1, 1924, was able to state that
the existing water rights of Karikal would be safeguarded. This
recognition of the water rights of a neighbouring colony is in
harmony with Anglo- French practice in connection with water
rights in their African colonies.”
B
110. We have also been referred to a passage from L. Oppenheim
International Law (8th Edition) which is extracted below:-
“91. The fact that the relation between the suzerain and the
vassal always depends upon the special case, excludes the
possibility of laying down a general rule as to the international C
position of vassal States. The vassal State has no relations with
other States since the suzerain absorbs these relations entirety;
yet the vassal remains nevertheless a half- sovereign State on
account of its internal independence. This was the position of
the Indian vassal States of Great Britain, which had no
international relations whatever either between themselves or D
with foreign States. Yet instances can be given which demonstrate
that” vassal States can have some subordinate international
position.”
111. Laying emphasis on the aforesaid passages, it is argued by
Mr. Nariman that the agreements are ex facie unconscionable and smack E
of absolute unfairness and unreasonableness because the parties were
not at arm’s length and they never did possess equal bargaining power.
In Central Inland Water Transport Corporation Limited (supra), the
two-Judge Bench referred to Sections 16, 23 and 24 of the Contract Act
and quoted some relevant passages from Chitty on Contracts (25th Edition, F
Vol.I). We think it appropriate to extract the said passages:-
“These ideas have to a large extent lost their appeal today.
‘Freedom of contract’, it has been said, ‘is a reasonable social
ideal only to the extent that equality of bargaining power between
contracting parties can be assumed, and no injury is done to the G
economic interests of the community at large’. Freedom of
contract is of little value when one party has no alternative
between accepting a set of terms proposed by the other or doing
without the goods or services offered. Many contracts entered
into by public utility undertakings and others take the form of a
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952 SUPREME COURT REPORTS [2018] 5 S.C.R.

A set of terms fixed in advance by one party and not open to
discussion by the other. These are called ‘contracts d’adhesion’
by French lawyers. Traders frequently contract, not on
individually negotiated terms, but on those contained in a standard
form of contract settled by a trade association. And the terms of
an employee’s contract of employment may be determined by
B
agreement between his trade union and his employer, or by a
statutory scheme of employment. Such transactions are
nevertheless contracts notwithstanding that freedom of contract
is to a great extent lacking.
Where freedom of contract is absent, the disadvantages to
C consumers or members of the public have to some extent been
offset by administrative procedures for consultation, and by
legislation. Many statutes introduce terms into contracts which
the parties are forbidden to exclude, or declare that certain
provisions in a contract shall be void. And the courts have
D developed a number of devices for refusing to implement
exemption clauses imposed by the economically stronger party
on the weaker, although they have not recognised in themselves
any general power (except by statute) to declare broadly that an
exemption clause will not be enforced unless it is reasonable.
Again, more recently, certain of the judges appear to have
E recognised the possibility of relief from contractual obligations
on the ground of ‘inequality of bargaining power’.”
112. Thereafter, the learned Judges referred to the meaning of
Adhesion Contract and reproduced a passage from Reinstatement of
the Law—Second as adopted and promulgated by the American Law
F Institute, Volume II:-
“208. Unconscionable Contract or Term
If a contract or term thereof is unconscionable at the time the
contract is made a court may refuse to enforce the contract, or
G may enforce the remainder of the contract without the
unconscionable term, or may so limit the application of any
unconscionable term as to avoid any unconscionable result.”
In the Comments given under that section, it is stated at page 107:
“Like the obligation of good faith and fair dealing (§ 205), the
H policy against unconscionable contracts or terms applies to
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 953
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

a wide variety of types of conduct. The determination that a A
contract or term is or is not unconscionable is made in the light
of its setting, purpose and effect. Relevant factors include
weaknesses in the contracting process like those involved in more
specific rules as to contractual capacity, fraud and other
invalidating causes; the policy also overlaps with rules which
B
render particular bargains or terms unenforceable on grounds of
public policy. Policing against unconscionable contracts or
terms has sometimes been accomplished by adverse
construction of language, by manipulation of the rules of offer
and acceptance or by determinations that the clause is
contrary to public policy or to the dominant purpose of the C
contract. Uniform Commercial Code § 2-302 Comment 1 .... A
bargain is not unconscionable merely because the parties to it
are unequal in bargaining position, nor even because the inequality
results in an allocation of risks to the weaker party. But gross
inequality of bargaining power, together with terms
D
unreasonably favourable to the stronger party, may confirm
indications that the transaction involved elements of deception
or compulsion, or may show that the weaker party had no
meaningful choice, no real alternative, or did not in fact assent or
appear to assent to the unfair terms.”
113. After referring to many authors and decisions, the Court came E
to hold:-
“As seen above, apart from judicial decisions, the United States
and the United Kingdom have statutorily recognised, at least in
certain areas of the law of contracts, that there can be
unreasonableness (or lack of fairness, if one prefers that phrase) F
in a contract or a clause in a contract where there is inequality
of bargaining power between the parties although arising out of
circumstances not within their control or as a result of situations
not of their creation. Other legal systems also permit judicial
review of a contractual transaction entered into in similar G
circumstances. For example, Section 138(2) of the German Civil
Code provides that a transaction is void “when a person” exploits
“the distressed situation, inexperience, lack of judgmental ability,
or grave weakness of will of another to obtain the grant or promise
of pecuniary advantages ... which are obviously disproportionate
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954 SUPREME COURT REPORTS [2018] 5 S.C.R.

A to the performance given in return”. The position according to
the French law is very much the same.”
114. After so stating, the Court posed the question as to whether
our Court should advance with time and, thereafter, referred to Article
14 of the Constitution and ruled:-
B “It will apply where the inequality is the result of circumstances,
whether of the creation of the parties or not. It will apply to
situations in which the weaker party is in a position in which he
can obtain goods or services or means of livelihood only upon
the terms imposed by the stronger party or go without them. It
C will also apply where a man has no choice, or rather no
meaningful choice, but to give his assent to a contract or to sign
on the dotted line in a prescribed or standard form or to accept a
set of rules as part of the contract, however unfair, unreasonable
and unconscionable a clause in that contract or form or rules
may be. This principle, however, will not apply where the
D bargaining power of the contracting parties is equal or almost
equal. This principle may not apply where both parties are
businessmen and the contract is a commercial transaction. In
today’s complex world of giant corporations with their vast
infrastructural organizations and with the State through its
E instrumentalities and agencies entering into almost every branch
of industry and commerce, there can be myriad situations which
result in unfair and unreasonable bargains between parties
possessing wholly disproportionate and unequal bargaining power.
These cases can neither be enumerated nor fully illustrated. The
court must judge each case on its own facts and circumstances.”
F
And again:-
“The types of contracts to which the principle formulated by us
above applies are not contracts which are tainted with illegality
but are contracts which contain terms which are so unfair and
G unreasonable that they shock the conscience of the court. They
are opposed to public policy and require to be adjudged void.”
115. We must note with profit that in the said case, the Court did
not accept the stand of the appellant-Corporation that it was an ordinary
contract entered by the employer with the employee but treated it as a
contract with higher bargaining power by the Corporation with the
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 955
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

workmen and that the conditions incorporated in the contract were wholly A
unconscionable and against the public interest, for it had the tendency to
create a sense of insecurity in the minds of those to whom it applies and
further it was against public good.
116. In Delhi Transport Corporation (supra), B.C. Ray, J. placed
reliance on O. P. Bhandari (supra) which had followed the observations B
made in Central Inland Water Transport Corporation Limited (supra),
and West Bengal State Electricity Board and others v. Desh Bandhu
Ghosh and others17 and came to the conclusion that it was impossible
to hold Regulation 9(b) of the Delhi Road Transport Authority (Conditions
of Appointment and Service) Regulations, 1952 as constitutional. Sawant,
J. opined that the arbitrary rules are called Henry-VIII and the self C
asserting reliance on the theory of high authority was unacceptable.
The said decision has been pressed into service to highlight that the
majority in the Constitution bench has accepted the principle laid down
in Central Inland Water Transport Corporation Limited (supra) which
pertains to the bargaining power and how a contract of employment D
becomes unconscionable.
117. The aforesaid submission of Mr. Nariman has been
vehemently opposed by Mr. Dwivedi and Mr. Naphade, learned senior
counsel appearing for the State of Tamil Nadu, on two counts, namely,
that the “Standstill Agreement” executed by the State of Mysore allowed E
the said agreement to continue and further, the agreement was not
denounced as required under the proviso to Section 7(1)(c) of the 1947
Act. Though we have referred to the “Standstill Agreement” and quoted
a portion of it, yet at this juncture, it is pertinent to reproduce the said
agreement along with the Schedule in entirety:-
F
“Agreement between the State of Mysore and the Dominion of
India.
WHEREAS it is to the benefit and advantage of the dominion
of India as well as of the Indian States that existing agreements
and administrative arrangements in the matters of common
concern, should continue for the time being, between the G
Dominion of India or any part thereof and the India States:-
Now, therefore, it is agreed between the Mysore State and
the Dominion of India that:-
17
AIR 1985 SC 722
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956 SUPREME COURT REPORTS [2018] 5 S.C.R.

A 1. (1) Until new agreements in this behalf are made, all
agreements and administrative arrangements as to matters of
common concern now existing between the Crown and any Indian
State shall, in so far as may be appropriate, continue as between
the Dominion of India or, as the case may be, the part thereof,
and the State.
B
(2) In particular, and without derogation from the generality of
sub-clause (1) of this clause the matters referred to above shall
include the matters specified in the Schedule to this Agreement.
2. Any dispute arising out of this Agreement, or out of the
agreements or arrangements hereby continued, shall unless any
C provision is made therein for arbitration by an authority other
than the Governor General or Governor, be settled by arbitration
according, as far as may be, to the procedure of the Indian
Arbitration Act, 1899.
3. Nothing in this agreement includes the exercise of any
D paramountcy functions.
SCHEDULE
1. Air Communications
2. Arms and equipment
3. Control of commodities
E 4. Currency and coinage
5. Customs
6. Indian States Forces
7. External Affairs.
8. Extradition
9. Import and Export Control.
F 10. Irrigation and Electric Power
11. Motor Vehicles
12. National Highways
13. Opium
14. Posts, Telegraphs and Telephones
G 15. Railways
16. Salt
17. Central Excises, relief from double income-tax and other
arrangements relating to taxation.
18. Wireless.”
[Underlining is by us]
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 957
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

118. At this stage, we may also reproduce the proviso to Section A
7(1)(c) of the 1947 Act. It is as follows:-
“Provided that, notwithstanding anything in paragraph (b) or
paragraph (c) of this subsection, effect shall, as nearly as may
be, continue to be given to the provisions of any such agreement
as is therein referred to which relate to customs, transit and B
communications, -posts and telegraphs, or other like matters, until
the provisions in question are denounced by the Ruler of the
Indian State or person having authority in the tribal areas on the
one hand, or by the Dominion or Province or other part thereof
concerned on the other hand, or are superseded by subsequent
agreements.” C

[Emphasis Supplied]
119. On a keen scrutiny of the evidence on record, there is no
proof that the State of Mysore, at the relevant time, had denounced the
agreement. We have already discussed the doctrine of paramountcy D
and how the same is not applicable to these categories of agreements.
Mr. Nariman, learned senior counsel, would submit that automatic
extinction of agreement because of evaporation of the doctrine of
paramountcy is one thing and applicability of the said principle to treat
the agreement as unconscionable is quite a distinct aspect. As held
earlier, the agreements did not automatically come to an end either after E
coming into force of the 1947 Act or after coming into force of the
Constitution because of the “Standstill Agreement” and further owing to
the fact that there had been no denouncement. The bargaining power
may not have existed in 1892 or 1924 but definitely, the said power to
bargain or to choose came alive after the 1947 Act and, undoubtedly, F
after the Constitution came into being. However, the State of Karnataka
chose not to do so. If we allow ourselves to say so, it chose not to rise
like a phoenix but, on the contrary, it maintained sphinx like silence at the
relevant time. Therefore, we are not persuaded to accept the submission
that the agreements should be declared as void because of
unconscionability. G
K. Status of the agreements after coming into force of the States
Reorganization Act, 1956
120. Challenging the subsistence and continuance of the
agreements, the next limb of submission of Mr. Nariman is that after the
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958 SUPREME COURT REPORTS [2018] 5 S.C.R.

A coming into force of the States Reorganization Act, 1956, (for short “the
Reorganization Act’), the agreements became extinct for the newly
formed State of Mysore was not bound by the 1924 agreement since the
Part B State of Mysore had not entered into any agreement with the
State of Madras. It is contended by him that the Part B State of Mysore
was not the new State of Mysore and on a careful reading of the various
B
provisions of the Reorganisation Act, it is abundantly clear that only the
rights, responsibilities, liabilities and obligations to be borne by the new
State of Mysore find mention but the same has no reference to the
rights and obligations under the 1924 agreement. Elaborating further,
learned senior counsel would contend that the rights and obligations under
C the 1924 agreement may have devolved upon the Part B State of Mysore
but that would not be considered as an agreement made in exercise of
the executive power by the said Part B State of Mysore.
121. Mr. Nariman has referred to Section 7 of the Reorganisation
Act to highlight that by reason of the provisions contained under Section
D 7 of the said Act, the new State of Mysore cannot be treated as the
successor State in respect of the obligations of the Ruler of the Indian
State of Mysore under the Agreements of 1892 and 1924. To appreciate
the said submission in proper perspective, we think it appropriate to
reproduce the provisions. It reads as follows:-
E “Section 7. Formation of a new Mysore State.%(1) As from
the appointed day, there shall be formed a new State to be known
as the State of Mysore comprising the following territories,
namely:%
(a) the territories of the existing State of Mysore;
F (b) Belgaum district except Chandgad taluka and Bijapur,
Dharwar and Kanara districts, in the existing State of Bombay;
(c) Gulbarga district except Kodangal and Tandur taluks, Raichur
district except Alampur and Gadwal taluks, and Bidar district
except Ahmadpur, Nilanga and Udgir taluks and the portions
G specified in clause (d) of sub- section (1) of section 3, in the
existing State of Hyderabad;
(d) South Kanara district except Kasaragod taluk and Amindivi
Islands, and Kollegal taluk of Coimbatore district, in the State of
Madras; and
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 959
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

(e) the territories of the existing State of Coorg; A
and thereupon the said territories shall cease to form part of the
said existing States of Mysore, Bombay, Hyderabad, Madras
and Coorg, respectively.
(2) The territory comprised in the existing State of Coorg shall
form a separate district to be known as Coorg district, and the B
said Kollegal taluk shall be included in, and become part of,
Mysore district, in the new State of Mysore.”
122. Learned senior counsel has emphasized on the amalgamation
of various areas from various States and exclusion of some areas and,
on that foundation, a structured argument has been advanced that the C
successor State cannot be held liable. Per contra, Mr. Dwivedi, learned
senior counsel, would contend that the present case is not one where the
territory of a Sovereign State got acceded to another Sovereign State.
It is a case for merger where a situation obtained that the State of Mysore
had accepted the 1924 Agreement and it constitutionally remained in D
continuance a Part B State under Article 295(2) of the Constitution.
Formation of new States and alteration of areas, boundaries or names of
the existing States under the parliamentary legislation did not alter the
rights and liabilities and continued to remain in force and binding upon
the successor State so long as they are not modified, changed or
repudiated. He has drawn a distinction between a statutory acceptance E
and the recognition by the new State which can be explicit or implied.
For the said purpose, he has pressed into service the decisions in M/s.
Dalmia Dadri Cement Co. Ltd. v. Commissioner of Income Tax18,
Amar Chand Butail v. Union of India and others 19; and Firm
Bansidhar Premsukhdas v. State of Rajasthan20. Distinguishing the F
aforesaid issue, it is urged by him that the case at hand is not one where
the Sovereign State has been acceded to or been annexed by another
Sovereign State and, therefore, the principles in State of Punjab & Ors.
v. Balbir Singh & Ors. 21 , Ranjan Sinha v. Ajay Kumar
Vishwakarma22, State of M.P. v. Bhopal Sugar Industries Ltd.23 are
applicable. G
18
AIR 1958 SC 816
19
AIR 1964 SC 1658
20
AIR 1967 SC 40
21
(1976) 3 SCC 242
22
2017 (7) SCLAE 234
23
1964 (6) SCR 846 H
960 SUPREME COURT REPORTS [2018] 5 S.C.R.

A 123. In Balbir Singh (supra), the erstwhile State of Punjab was
reorganized by the Punjab Reorganisation Act, 1966 and on the appointed
date, i.e., November 1, 1966, the former State of Punjab ceased to exist.
The successor States of Punjab, Haryana and Union Territory of
Chandigarh and the transferred territory came into being. The
controversy related to the service conditions of the respondents. The
B
Court referred to the dictionary clause and Section 88 of the 1966 Act
and came to hold thus:-
“Law is defined in clause (g) of Section 2 of the Act to say:
“‘law’ includes any enactment, ordinance, regulation, order,
C bye-law, rule, scheme, notification or other instrument having,
immediately before the appointed day, the force of law in the
whole or in any part of the existing State of Punjab;”.
We agree with the High Court that the impugned orders in question
were not law within the meaning of Section 2(g) and hence were,
D in terms, not saved by Section 88. We think the High Court is
right when it says:
“Section 88 appears to have been introduced as a matter of
abundant caution. In my opinion, mere splitting up of the territories
of Punjab into four successor States would not ipso facto result
E in the abrogation or repeal of the laws which were immediately
in force before the appointed day in those territories. There is
nothing in the 1966 Act, not even in Section 88, which expressly
or by necessary intendment repeals the laws which were in force
immediately before the appointed day in the territories of the
former Punjab. Those laws derived their force de hors the 1966
F Act. The first part of Section 88 is merely clarificatory of any
doubts which might arise as a result of the reorganisation of
Punjab, while the latter part of this section is merely an adaptative
provision, to the effect, that the territorial references in any such
law to the State of Punjab shall continue to mean the territories
G within that State immediately before the appointed day. Thus,
read as a whole Section 88 merely dispels doubts as to the
continuity of the laws which were in force before the appointed
day in the former State of Punjab, until the competent legislature
or authority of the successor States effects any change in those
laws”.”
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And again:- A
“In our judgment when there is no change of sovereignty and it
is merely an adjustment of territories by the reorganization of a
particular State, the administrative orders made by the
Government of the erstwhile State continue to be in force and
effective and binding on the successor States until and unless B
they are modified, changed or repudiated by the Governments
of the successor States. No other view is possible to be taken.
The other view will merely bring about chaos in the administration
of the new States. We find no principle in support of the stand
that administrative orders made by the Government of the
erstwhile State automatically lapsed and were rendered C
ineffective on the coming into existence of the new successor
States.”
124. In Ranjan Sinha (supra), the controversy revolved around
the applicability of laws framed by the undivided State of Bihar with the
newly bifurcated State that have come into existence by virtue of the D
Bihar Reorganisation Act, 2000 (for short, “the 2000 Act”). The
controversy also related to the service conditions. The issue arose before
the High Court of Jharkhand as to which law was in force and eventually,
on scrutiny of the Act, the High Court came to hold that:-
“6. A division bench of the High Court of Jharkhand on elaborate E
consideration of applicable provisions of the Act and BROA came
to the conclusion that Education Regulations, applicable to the
erstwhile Bihar, are law for the new State of Jharkhand in terms
of Sections 84 and 85 of the BROA and therefore unless a person
is qualified as per Education Regulations, cannot get himself F
registered. It was observed as under-
‘What is contended on behalf of the Petitioners is that
the Pharmacy Act was extended to the State of Bihar had
notified and adopted the Education Regulations issued
under Section 10 of the Act which was in Part II of the Act, G
that both the Act and the Education Regulations hence constitute
law for the purpose of the State of Jharkhand carved out of
the modification of either the Education Regulations or
the Pharmacy Act by the competent Legislature, namely, the
Parliament, that no such attempt was also made by the State
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962 SUPREME COURT REPORTS [2018] 5 S.C.R.

A of Legislature and in the Jharkhand and unless a person was
qualified in terms of the Education Regulations, he could not
get his name entered in the Register. We find considerable
force in this submission. It is true that the Jharkhand was carved
out with effect from 15.11.2000. By virtue of Section 84 of the
Bihar Reorganization Act, the Pharmacy Act and the Education
B
Regulations applied. In the absence of any modification,
alternation or repeal of either the Act or the Education
Regulations by the competent Legislature, it could not be
postulated that the law had ceased to be in force merely on the
formation of the State of Jharkhand. Section 84 of the Bihar
C Reorganization Act, in our view, is clear. Moreover, it is not
possible for the Court to contemplate a law less State as it
were. If the argument of the Respondents were to be accepted,
the position would be that there was no law relating to Pharmacy
or regarding qualifications for getting recognition as a
Pharmacist in the State of Jharkhand and it is yet to be made.
D
In other words, until the same is made there will be a vacuum.
Such an argument, unless compelled, can not be acceptable.
The territories now forming the State of Jharkhand originally
formed part of the State of Bihar, were governed by the Act
and the Education regulations promulgated and adopted in terms
E of Section 85 of the Bihar Reorganization Act. This scheme of
the Reorganization Act is consistent with the general principle
that a law once made applicable to a territory will continue to
apply to that territory unless its application is abrogated or
dispensed with by the competent Legislature or authority or its
replacement by any other law enacted in that behalf. Therefore,
F
it is clear that Education Regulations promulgated under Section
10 and adopted in terms of Section 11 of the Act to the territory
in question, continues to apply. There is also the stand adopted
by the Indian pharmacy Council in its additional counter
affidavit. We find the said stand sustainable in law’.”
G 125. Before this Court, it was contended that every State has to
have a First Register of the pharmacists on its own as mandated in
Sections 30 and 31 of the Act which is an express provision and if the
interpretation given by the Court is accepted, the said provision will
become redundant. Adverting to the provisions of the Act and the earlier
H Regulations, a two-Judge Bench held:-
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 963
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“25. The Article 3 of the Constitution inter alia, empowers the A
Parliament by law to form a new State by separation of territory
from any State or by uniting two or more States. Article 4 is to
the effect that the law made by the Parliament with reference
to Article 3 may contain supplemental, consequential and
incidental provisions. When a new State is formed by law made
B
by Parliament, whether the laws made by the existing State out
of which a new State is formed continue to apply to the territories
included in the new State? When the existing State territory is
reorganized by the Parliament there is no change in Sovereignty.
It is only adjustment of territories by transferring some territories
in the existing State to a newly formed State. Therefore, all the C
laws which were applicable to the territories of the re-organized
State would continue to apply to the territories transferred to the
new State until the latter either adapts or, subject to its competency
amends or repeals the existing and applicable laws.”
126. Be it noted, the Court placed reliance on Balbir Singh D
(supra) and Sher Singh and others v. Financial Commissioner of
Planning, Punjab and others24 and proceeded to rule:-
“35. When a State as forming part of Indian nation is re-organized,
in law in so far as application of laws is concerned, the following
three things would happen namely; (i) the existing State (Parent E
State) which made various laws, would continue to exist; (ii) the
new State so formed by transferring some territories will be
deemed to be the territories of the parent State for the purpose
of applicability of the laws; and (iii) those laws made by parent
State shall continue to apply to new State until they are modified
or amended by a competent legislature in relation to new State F
and the ‘law’ as defined in the definition Clause would be the
law which was in force in the existing State which would be
enforceable in the newly formed State.
36. At the cost of repetition, we may mention that under Article
3 of the Constitution the Parliament can alter, amend, amalgamate, G
form new States, diminish or increase area of a State. The
principle of ‘clean slate’ as applicable in international law is not
applicable when reorganization takes place under Article 3 of
the Constitution. 17 The reorganized States do not usually start
24
(1987) 2 SCC 439 H
964 SUPREME COURT REPORTS [2018] 5 S.C.R.

A as tabula rasa, rather they are successors of a pre-existing
erstwhile States. Under the BROA, the Jharkhand was carved
out of the Bihar and the two separate states came into existence
on 15.11.2000. If the laws in force were to lapse on the day the
division was effected, a chaotic situation would have emerged
inasmuch as the newly created State would be rendered a State
B
without laws. To avoid such situation, provisions like Sections 84
and 85 of BROA have been enacted to maintain continuity, and
at the same time authorizing the States to make such
modifications and adaptations as are considered necessary by
mere issuance of orders within two years, and thereafter by
C legislation.
37. As defined earlier ‘law’ includes ‘other instruments having
the force of law’. In view of use of the word ‘includes’, the
definition of ‘law’ under Section 2(f) shall be interpreted
exhaustively. In view of the above discussion, we hold that the
D First Register prepared by the Bihar has the force of law Supra,
at 13 under Section 2(f) of the BROA.”
127. In the present case, the two provisions, namely, Sections
107 and 119 of the Reorganization Act of 1956 unequivocally spell out
the continuance of the assets and liabilities. That apart, the new State of
E Mysore after 1956 recognised and enforced the agreement and, in any
case, did not repudiate it. And in all possibilities, the State could not
have done it as it related to inter-State waters and the Parliament in the
Reorganisation Act did not make any law in that regard.
128. It may be noted here that the Tribunal has referred to Section
F 2(m) defining “Principal Successors State”, Section 2(o) defining
“successor State” and Section 5 to conclude that the State of Kerala
had become the principal successor State to the erstwhile State of
Travancore-Cochin excluding the territories transferred to the State of
Madras and also a successor State in respect of the territories which
were transferred from Madras and, therefore, the agreements would be
G binding on it, as the Cauvery basin including the portion of rivers Kabini
and Bhawani were in the Malabar District, which had been transferred
to it. It also referred to Section 87 of the Reorganisation Act, whereunder
any contract made by an existing State before the appointed day in the
exercise of its executive power was deemed to have been made in the
H exercise of such power of the successor State or States or the principal
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 965
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

successor State, as the case may be. With reference thereto, the Tribunal A
analyzed that the Agreements of 1892 and 1924 entered into by Madras
with the then State of Mysore were, therefore, deemed to have been
entered into on behalf of the areas which were within the territories of
the State of Madras including the District of Malabar and, consequently,
the rights and liabilities which had accrued to Madras as an existing
B
State with regard thereto would be the rights and liabilities of the successor
State, i.e., the State of Kerala. The Tribunal also concluded that the
State of Kerala would be deemed to be bound by the terms and conditions
of the two Agreements so far as the sharing of the waters of river
Cauvery was concerned.
129. The finding of the Tribunal is seriously assailed on behalf of C
the State of Karnataka on the ground that in a State where different
boundaries came into existence, the agreements could not be allowed to
remain in continuance. Sections 2(e), 2(j), 2(m) and 2(o), which are
relevant in the present context, read thus:-
“Section 2(e) “corresponding State” means, in relation to the D
new State of Bombay, Madhya Pradesh, Mysore, Punjab or
Rajasthan, the existing State with the same name, and in relation
to the new State of Kerala, the existing State of Travancore-
Cochin;
(j) “notified order” means an order published in the Official E
Gazette;
(m) “principal successor State” means—
(i) in relation to the existing State of Bombay, Madhya Pradesh,
Madras or Rajasthan, the State with the same name; and F
(ii) in relation to the existing States of Hyderabad, Madhya Bharat
and Travancore Cochin, the States of Andhra Pradesh, Madhya
Pradesh and Kerala, respectively;
(o) “successor State”, in relation to an existing State, means any
State to which the whole or any part of the territories of that G
existing State is transferred by the provisions of Part II, and
includes in relation to the existing State of Madras, also that
State as territorially altered by the said provisions and the Union;”
130. Section 108 which has been relied upon by Mr. Dwivedi,
learned senior counsel for the State of Tami Nadu, is as follows:- H
966 SUPREME COURT REPORTS [2018] 5 S.C.R.

A “Section 108. Continuance of agreements and
arrangements relating to certain irrigation, power or multi-
purpose projects.%(1) Any agreement or arrangement entered
into between the Central Government and one or more existing
States or between two or more existing States relating to
B (a) the administration, maintenance and operation of any
project executed before the appointed day, or
(b) the distribution of benefits, such as, the right to receive
and utilise water or electric power, to be derived as a result of
the execution of such project,
C which was subsisting immediately before the appointed day shall
continue in force, subject to such adaptations and modifications,
if any (being of a character not affecting the general operation
of the agreement or arrangement) as may be agreed upon
between the Central Government and the successor State
D concerned or between the successor States concerned, as the
case may be, by the Ist day of November, 1957, or, if no
agreement is reached by the said date, as may be made therein
by order of the Central Government.
(2) Where a project concerning one or more of the existing States
E affected by the provisions of Part II has been taken in hand, but
not completed, or has been accepted by the Government of India
for inclusion in the Second Five Year Plan before the appointed
day, neither the scope of the project nor the provisions relating to
its administration, maintenance or operation or to the distribution
of benefits to be derived from it shall be varied,
F
(a) in the case where a single successor State is concerned
with the project after the appointed day, except with the previous
approval of the Central Government, and
(b) in the case where two or more successor States are
concerned with the project after that day, except by agreement
G
between those successor States, or if no agreement is reached,
except in such manner as the Central Government may by
order direct,
and the Central Government may from time to time give such
directions as may appear to it to be necessary for the due
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 967
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

completion of the project and for its administration, maintenance A
and operation thereafter.
(3) In this section, the expression” project” means a project for
the promotion of irrigation, water supply or drainage or for the
development of electric power or for the regulation or
development of any inter- State river or river valley.” B
Section 119 of the Reorganisation Act, 1956 reads as under:-
“Section 119. Territorial extent of laws.¯The provisions of
Part II shall not be deemed to have effected any change in the
territories to which any law in force immediately before the
appointed day extends or applies, and territorial references in C
any such law to an existing State shall, until otherwise provided
by a competent Legislature or other competent authority, be
construed as meaning the territories within that State immediately
before the appointed day.”
131. Impressing thereon, it is submitted by Mr. Dwivedi that the D
aforesaid provisions by operation of law made the 1924 Agreement
recognisable and implementable. According to him, the rights and
liabilities under the 1924 Agreement are constitutionally continued with
and vest in Mysore as Part B State under Article 295(2) of the Constitution.
Article 295 reads as under:- E
“Article 295. Succession to property, assets, rights,
liabilities and obligations in other cases
(1) As from the commencement of this Constitution
(a) all property and assets which immediately before such
F
commencement were vested in any Indian State corresponding
to a State specified in Part B of the First Schedule shall vest in
the Union, if the purposes for which such property and assets
were held immediately before such commencement will
thereafter be purposes of the Union relating to any of the
matters enumerated in the Union List, and G
(b) all rights, liabilities and obligations of the Government of
any Indian State corresponding to a State specified in Part B
of the First Schedule, whether arising out of any contract or
otherwise, shall be the rights, liabilities and obligations of the
H
968 SUPREME COURT REPORTS [2018] 5 S.C.R.

A Government of India, if the purposes for which such rights
were acquired or liabilities or obligations were incurred before
such commencement will thereafter be purposes of the
Government of commencement will thereafter be purposes of
the Government of India relating to any of the matters
enumerated in the Union List,
B
subject to any agreement entered into in that behalf by the
Government of India with the Government of that State
(2) Subject as aforesaid, the Government of each State specified
in Part B of the First Schedule shall, as from the commencement
C of this Constitution, be the successor of the Government of the
corresponding Indian State as regards all property and assets
and all rights, liabilities and obligations, whether arising out of
any contract or otherwise, other than those referred to in clause (1).”
132. Emphasis has been laid on Article 295(2). According to Mr.
D Dwivedi, under the Reorganisation Act, the existing rights and liabilities
and the existing laws continue to be enforced and continue to be binding
upon the successor State so long as they are not modified, changed or
repudiated by the successor State. It is his further submission that in the
case of Mysore, the territories of Part B Mysore and Coorg alone are in
the Cauvery Basin and the laws operating in part B Mysore qua sharing
E of Cauvery waters secured for Mysore under the 1924 Agreement would
continue. If the interest of Coorg was to be secured after the formation
of new Mysore State, the provisions of Sections 107 and 119 covered
the same. He has propounded that neither the Union Government nor
the State of Mysore acted otherwise and the agreement continued to
F remain in force.
133. We may clearly state here that nothing has been brought on
record to show that any dispute was raised after the Reorganisation Act
by the newly formed States to controvert the agreement. As the facts
clearly depict, it continued. Mr. Dwivedi, in this regard, would contend
G that the State of Karnataka had waived its right to question the legal
tenability of the agreement and keeping in view the concept of waiver,
the Tribunal has also adverted to the same and accepted. We do not
think that this aspect needs to be reverted to, for it remains a fact that
both the agreements with the Regulations remained in force despite
coming into effect of the Reorganisation Act, 1956.
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 969
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

L. Issue relating to expiry of the agreements A
134. It is submitted by Mr. Nariman, learned senior counsel, that
the 1924 Agreement was not an agreement requiring a positive or
affirmative act by either of the states to go ahead with revocation but,
on the contrary, to arrive at a common consensus for its continuance
and if the clauses of the Agreement are studiedly scrutinized or B
appreciated as an instrument as a whole, its life span is 50 years and the
same could not have continued, by any stretch of imagination, after the
expiry of the stipulated period. He would argue that the Constitution
Bench in the Presidential Reference has twice stated that both the
agreements have expired and no application for review or modification
was filed by the State of Tamil Nadu and rightly so, as anyone connected C
with the agreement was well aware that the agreements stood expired.
The said submission of Mr. Nariman is seriously resisted by Mr. Naphade
and Mr. Dwivedi, learned senior counsel, on the foundation of the
Presidential Reference answered in In Re: Presidential Reference
(Cauvery Water Disputes Tribunal) (supra). It is further urged that D
the issue did not arise as regards the expiry of the agreements and the
Court has not addressed to it and, therefore, it cannot be regarded or
treated as a decision on the said issue. Learned senior counsel would
contend that merely because the expression has been used that the
agreements had expired, that should not be given the status of the ratio
of the judgment. E

135. The second plank of the argument of Mr. Nariman in this
regard is that even assuming that the decision of the Constitution Bench
is not treated as binding for the purpose of expiration of the term of the
Agreement, the clauses in the Agreement explicitly show that the 1924
Agreement comes to an end after the expiry of 50 years. For the said F
purpose, emphasis is laid on the language employed in Clause 10(xi) of
the Agreement. We have already reproduced the agreement and,
therefore, at this stage, it is apt to reflect on how the Tribunal has
understood the Agreement. On a reading of the award, it is noticeable
that the Tribunal has analyzed in detail the various clauses of the said G
Agreement with the mutual rights and obligations as specified therein
and focused, in particular, on clause 10 (xi) which contemplated a process
of reconsideration on the expiry of 50 years from the date of its execution.
136. The Tribunal, in the context of the rival contentions on the
subsistence or otherwise of the Agreement on the expiry of 50 years H
970 SUPREME COURT REPORTS [2018] 5 S.C.R.

A from its execution, minutely noted that undisputedly there had been no
re-consideration by the two States on the question of modification or
addition in respect of the different terms and conditions as mentioned
therein, after the said period. It referred as well to the plea of the State
of Tamil Nadu that as per clause 10(xi), the reconsideration, if any, was
limited only to the stipulations in clauses 10(iv) to 10(viii) and not qua
B
clause 10(ii) which enjoined the Mysore Government to regulate the
discharge to and from the Krishna Raja Sagara reservoir strictly in
accordance with the Rules of Regulation set for in Annexure I thereto.
The Tribunal, however, on a scrutiny of the relevant clauses and on a
juxtaposition thereof, negated the said plea and held that clause 10(ii)
C was inter-linked with clauses 10(iv) to clause 10(viii) and could not be
dissociated from each other. In arriving at this determination, the Tribunal
noted the areas of irrigation permitted to be undertaken by the two
Governments with the liberty to extend the same subject to the ceiling as
mentioned and laid emphasis on the enjoinments contained in clause
10(vii) in particular and held that if after 50 years in terms of clause
D
10(xi), the limitation and arrangements specified in clause 10(iv) to clause
10(viii) were to be considered, then the limitations prescribed by the
rules of regulation for Krishna Raja Sagara reservoir forming Annexure
1 of the Agreement and alluded to in clause 10(vii) could not be excluded
from the purview of such reconsideration. The Tribunal thought that
E this is more so as in terms of clause 10(vii), the Mysore Government had
agreed that extension of irrigation in its territories as specified in clause
(iv) would be carried out only by means of reservoirs constructed on
the River Cauvery and in its tributaries mentioned in Schedule A of the
1892 Agreement; such reservoirs were to be of an effective capacity of
45,000 million cubic ft. in aggregate; impounding therein was to be so
F
regulated as not to make any material diminution in supply recorded by
the gauge accepted in the Rules of Regulation for the Krishna Raja
Sagara reservoir forming Annexure I to the Agreement and the rules for
working such reservoirs were to be so framed as to reduce any loss
during the impounding period within 5%, by adoption of suitable proportion
G factors, impounding formula or such other means as was to be settled.
The Tribunal referred to the notes of arguments produced on behalf of
the State of Tamil Nadu before it which indicated that the average inflow
into Mettur for 38 years from 1934 - 1935 was 377.1 TMC serviced by
three sources with the following break ups:
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 971
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

“(i) From KRS, as per Rules of Regulation of KRS Annexure 1 A
of 1924 Agreement - 159.780 TMC
(ii) From Kabini - 112.615 TMC
(iii) Contribution for intermediate catchment below KRS and
below Hullahalli Anicut in Kabini including 25 TMC from
catchment area above Mettur in Tamil Nadu B
- 104.746 TMC
Total – 377.141 TMC”
137. It observed that if reconsideration was to be limited only to
the arrangement as set out in clauses 10(iv) to (viii), then the logical C
consequence would be that in the event of any modification, it would not
be possible for the State of Karnataka to comply with the requirement
of clause 10(ii) read with Rules 7 and 10 of the Rules of Regulation only
on the basis of discharge from Krishna Raja Sagara reservoir. The
Tribunal, thus, held that whenever a dispute was raised, it was to be
examined in the light of the conditions prescribed not only in clauses 10 D
(iv) to 10 (viii) but also in the light of the obligation and mandate provided on
the part of the State of Mysore/Karnataka to follow the Rules of Regulation
for Krishna Raja Sagara reservoir as contained in clause 10(ii).
138. On the plea that the 1924 Agreement, in the absence of
reconsideration, as envisaged in clause 10(xi), had expired, an eventuality E
noticed by this Court in In Re: Presidential Reference (Cauvery Water
Disputes Tribunal) (supra) wherein the validity of the Karnataka Cauvery
Basin Irrigation Protection Ordinance 1991 had been laid for scrutiny in
a reference under Article 143 of the Constitution, the Tribunal apart
from observing that the question of subsistence or otherwise of the F
Agreement was not an issue before this Court in the said reference, also
marked that in the complaint before it under adjudication, the principal
grievance of the State of Tamil Nadu was contravention and violation
of the terms thereof which, according to it, remained in force even after
the expiry of 50 years from the execution thereof. It also referred, the
initiatives and endeavours of the two States in this regard with the G
intervention of the Union Minister for Irrigation and Power and the
participation of the Chief Ministers of Tamil Nadu, Mysore and Kerala
along with others for an amicable resolution of the lingering differences
which, inter alia, contemplated a fact finding Committee of Engineers,
agricultural experts, retired Judges, etc. to collect data pertaining to
H
972 SUPREME COURT REPORTS [2018] 5 S.C.R.

A Cauvery waters, its utilization and irrigation practices and to examine
the adequacy of the supplies or excessive use of water for irrigation
purposes to be placed for further discussions to arrive at an agreed
allocation of waters for the respective States. The Tribunal underlined
that nowhere in the discussions, it had been the stand on behalf of the
State of Mysore that after 50 years of the execution of the Agreement,
B
it would expire and as such there would be no question of reviewing the
terms thereof.
139. The plea of the State of Mysore that the proviso to clause
10(xiv) per se spelt the automatic termination of the whole of the
Agreement after the expiry of 50 years, was negatived in view of the
C interplay of clauses 10 (xiv) and (xi).
140. The Tribunal, as we find, has accepted the plea and stand of
the State of Tamil Nadu that the 1924 Agreement did not expire in 1974.
141. It is necessary to reflect on the finding of the Tribunal on this
D score. The Tribunal noticed the rival orientations of the two States with
regard to the status of the Agreement on the expiry of 50 years from the
date of its execution. It recorded the stand of the State of Karnataka
that the agreement expired after the expiry of the period of 50 years
from the date of its execution so much so that none of the clauses therein
were enforceable in respect of discharges to be made from Krishna
E Raja Sagara and other reservoirs of the tributaries of Cauvery which
were under construction in Karnataka. It took note of the contrary plea
of Tamil Nadu that the agreement was permanent in nature and that all
the terms therein were binding on Mysore, that is on the State of
Karnataka in respect of the operation of Krishna Raja Sagara and other
F reservoirs constructed on the tributaries of river Cauvery. The Tribunal
recorded the plea of the State of Karnataka that not only the Agreement
of 1924 expired in the year 1974 but also the terms of the Agreement
dated 1892 as well as of 1924 were arbitrary in nature and inequitable
between the State of Madras which was then a Presidency State and as
such part of the British Territory and the State of Mysore which was
G then under the Ruler. Tracing the history of the two agreements and
that of 1924 in particular, the Tribunal was of the view that the latter
agreement was entered into only after the terms thereof had been fully
examined by the two States with special attention to the aspect as to
whether the new irrigation reservoir was likely to diminish the flow of
H river Cauvery to the territory of Madras State in any manner. In the
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 973
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context of the cavil of the State of Karnataka that the then State of A
Mysore had to enter into both the agreements under some compulsions
and that the stringent stipulations contained therein, amongst others,
defining the limits under which no irrigation works were to be constructed
by Mysore without the previous consent of Madras and that the rigorous
restrictions in respect of impounding of water of Krishna Raja Sagara
B
as well as other reservoirs to be constructed on the tributaries of river
Cauvery with the rider of maintaining a minimum flow of Cauvery at the
Upper Anicut so as to maintain a height of water level ranging between
3 ft. to 7 ½ ft. during January to June did spell great hardship, the Tribunal
delved into the time phase chapter pertaining to the Treaty of 1799 entered
into between the then East India Company and the Maharaja of Mysore C
whereupon the possession of the Mysore State was handed over to the
then Maharaja. It marked, inter alia, the undertaking of the then
Maharaja of Mysore that he would abstain from any interference in the
affairs of any state in alliance with the English Company Bahadur and
would not enter into any communication or correspondence with any
D
foreign State without the previous knowledge or sanction of any English
Company Bahadur. The Tribunal noted as well the similar restrictions in
the Instrument of Transfer of 1881, apart from preserving in the Governor
General in Council, several powers including the one to resume possession
of the said territories and to assume direct administration thereof.
142. While noticing the plea of Karnataka that after the Treaty of E
1799, with the advent of East India Company as well, the administration
of Mysore had been taken away by it, and the possession of the State
was eventually handed over to the then Maharaja on 25.03.1881, and
that thus the British Crown was apparently exercising its paramount
power over the ruling State of Mysore for which, as a feudatory State, it F
was really under a compulsion to subject itself to the constraints prescribed
under the Agreement, the Tribunal observed that International
Agreements as well as Inter-state Agreements cannot be examined at a
later stage on the touchstone of whether the terms were just and proper,
keeping the interest of both the Nations or the States at the time of
execution thereof. While acknowledging that sometimes, compulsions G
existing at the time of execution of the Agreements may be factors for
adopting the spirit of give and take on the part of one Nation or the
State, it concluded qua the Agreements of 1892 and 1924 that those
could not be challenged as being done after a lapse of more than 100
years so far as the Agreement of the year 1892 is concerned and 80 H
974 SUPREME COURT REPORTS [2018] 5 S.C.R.

A years qua the Agreement of 1924 by the State of Karnataka being the
successor of the interest of the State of Mysore. The Tribunal recorded
that this was more so as the State of Mysore/Karnataka had complied
with the terms of the Agreements scrupulously and religiously up to
1974 and the dispute surfaced only after the expiry of the period of 50
years as contemplated in Clause 10(xi) of the Agreement of 1924. It
B
remarked as well that on the basis of the Agreement of 1924, the State
of Mysore/Karnataka not only constructed the Krishna Raja Sagara
Project but also other reservoirs on the tributaries of Cauvery within its
territories for a total capacity of 45,000 million cubic ft. (45 TMC) and
thereby derived the benefit of construction of those reservoirs on the
C river Cauvery and its tributaries and, thus, it cannot be allowed to repudiate
the agreements on the principle of “qui approbat non reprobat” (one
who approbates cannot reprobate). The Tribunal construed that though
an agreement can be challenged in terms of Section 19A of the Indian
Contract Act, yet the party concerned had to satisfy the Court at the
appropriate stage that its consent was obtained by coercion, fraud,
D
misrepresentation or undue influence and that noticeably, during the period
of more than 50 years since 18.02.1924, after which according to the
State of Karnataka, the said Agreement had come to an end, it did never
allege before any court of law that the said Agreement was either voidable
or that it was not bound by it for any of the infirmities as envisaged in
E Sections 19 and 19A of the Indian Contract Act. It recalled in
reinforcement of this view the backdrop of the Agreement which evinced
that the competent authorities on behalf of both the States, after proper
application of mind and discussion, had endorsed and executed both these
documents and, thus, these could not be ignored and discarded being not
void in the eye of law.
F
143. The aforesaid finding of the Tribunal is seriously found fault
with by Mr. Nariman on the ground that the Tribunal should have
proceeded on the basis of the language employed in the instrument.
Regard being had to the said submission, we think it appropriate to
reproduce Clause 10(xi), though it has already been extracted
G hereinbefore:-
“10 (xi) The Mysore Government and the Madras Government
further agree that the limitations and arrangements embodied in
clauses (iv) to (viii) supra shall at the expiry of fifty years from
the date of the execution of these presents, be open to
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 975
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reconsideration in the light of the experience gained and of an A
examination of the possibilities of the further extension of
irrigation within the territories of the respective Governments
and to such modifications and additions as may be mutually agreed
upon as the result of such reconsideration.”
[Underlining is ours] B
144. The said clause requires studied scrutiny. It stipulates that
both the States agreed that the limitations and arrangements embodied
in Clauses (iv) to (viii) shall, at the expiry of 50 years from the date of
execution, be open to reconsideration in the light of the experience gained
and upon examination of the possibilities of further extension of irrigation C
within the territories of the respective States be subject to such
modification and additions as may be mutually agreed upon as the result
of such reconsideration. The submission of Mr. Nariman and Mr. Katarki
appearing for the State of Karnataka is that the postulates in the clause
have to be read as a whole and not in a truncated sense. According to
them, the stipulations in Clauses (iv) to (viii) would be open for D
reconsideration taking into stock certain facts and circumstances and
only thereafter, the modification and additions can be mutually agreed
to. Emphasis is laid on the word ‘reconsideration’. It is also argued by
them that the stipulation in Clause (xi) cannot be restricted to Clauses
(iv) to (viii) as those clauses constitute the spine of the Agreement. It is E
their argument that the other clauses in the Agreement are so
interdependent with the mentioned clauses that the others cannot be
excluded or eschewed. The intention of the parties is quite clear that the
experience has to be seen in 50 years and thereafter, the whole thing is
to be called for reconsideration and reconsideration cannot be unilateral
or, for that matter, automatic. F

145. Controverting the same, it is urged by Mr. Naphade and Mr.
Dwivedi, learned senior counsel for the State of Tamil Nadu, that the
clause applies in part essentially what has been mentioned therein and
cannot cover the whole agreement. They emphasized on the words that
the life of the Agreement is not limited to 50 years but only meant for G
reconsideration for the purpose of reexamination and that does not put
an end to the Agreement.
146. Having perused the clause in entirety and considering the
words, namely, ‘reconsideration’, mutually agreed upon’ and ‘be open
to’, it is clear that certain clauses in the Agreement had a restricted life span. H
976 SUPREME COURT REPORTS [2018] 5 S.C.R.

A 147. We are inclined to think so inasmuch as the relevant clauses
which are open to reconsideration are absolutely essential parts of the
contract and it is extremely difficult to place appropriate construction on
the contract without them. The clauses in the contract do not indicate
permanency but, on the contrary, indicate fixed term and that is how we
intend to construe the same. The continuance of contract, as we find,
B
was further a subjective consideration and merely agreed upon and,
therefore, to hold that it continued solely because of the experience
gathered would not be appropriate and it would be contrary to the concept
of understanding the clauses in a contract to give effect to its continuance.
The continuance after 50 years was dependent on certain aspects and,
C therefore, we have no hesitation in holding that the agreement expired
after 50 years. The submission on behalf of the State of Tamil Nadu is
that the obligations of the contract continued but, in this context, it is
worth noting that the parties to the agreement had entered into
correspondence with the Central Government agitating their grievances
and they met at the various levels to discuss and to arrive at an acceptable
D
arrangement. That not having been accepted, the complaint was lodged.
Taking into consideration the entire conspectus of facts and
circumstances, we hold that the agreement expired after 50 years in the
year 1974.
M. Did the complaint not require any adjudication?
E
148. It is submitted by Mr. Nariman that the manner in which the
complaint had been lodged and a request had been made for referring
the dispute that had arisen between the States of Karnataka and Tamil
Nadu was not statutorily entertainable. According to him, the foundation
of the complaint is the 1892 and 1924 Agreements and once they are
F treated to have expired, in the absence of any other aspect being stated
in the complaint, it does not call for an adjudication by the Tribunal despite
the matter having been referred to the Tribunal for adjudication. To
bolster the said stand, he has relied upon the language employed in Section
3 of the 1956 Act. Section 3 of the 1956 Act reads as follows:-
G “3. Complaints by State Governments as to water disputes.—If
it appears to the Government of any State that a water dispute
with the Government of another State has arisen or is likely to
arise by reason of the fact that the interests of the State, or of
any of the inhabitants thereof, in the waters of an inter-State
river or river valley have been, or are likely to be, affected
H prejudicially by—
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 977
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

(a) any executive action or legislation taken or passed, or proposed A
to be taken or passed, by the other State; or
(b) the failure of the other State or any authority therein to
exercise any of their powers with respect to the use, distribution
or control of such waters; or
(c) the failure of the other State to implement the terms of any B
agreement relating to the use, distribution or control of such
waters,
the State Government may, in such form and manner as may be
prescribed, request the Central Government to refer the water
dispute to a Tribunal for adjudication.” C

149. Relying on the said provision, it is urged by Mr. Nariman that
there is no assertion with regard to either the State of Tamil Nadu or its
inhabitants being prejudicially affected in any other manner except the
agreement and, then, the conditions precedent as postulated in clauses
(a), (b) and (c) of Section 3 are not met with. He has referred to issues D
8, 10, 40 and 43 by the Tribunal on prejudicial affectation and stated that
the Tribunal has not recorded any finding that the State of Tamil Nadu
has been prejudicially affected within the sphere of Section 3. On the
contrary, it has held that the issue regarding prescriptive right of Madras
has become academic and the injury caused to each State at one stage E
or the other by the conduct of the other State has become a matter of
history and it is not easy to assess any injury in an irrigation dispute.
Learned senior counsel would further submit that the State of Tamil
Nadu did not plead for a claim to any right which is conferred on it by
the two agreements either in its complaint or on the statement of case
before the Tribunal. The complaint deserves to be dismissed in the F
absence of proven injury. Mr. Naphade and Mr. Dwivedi, learned senior
counsel being assisted by Mr. G. Umapathy, learned counsel, in their
turn, would contend with vehemence that such a contention at this stage
is absolutely specious and should not engage the attention of this Court
even for a moment. They would submit that the series of meetings and G
the correspondence that had commenced in the beginning of the 70s of
the last century would speak eloquently about the inhabitants being
prejudicially affected and further the various issues raised clearly exposit
the grievances of the inhabitants of the State of Tamil Nadu. Additionally,
it is contended by them that even if a finding is returned that the agreements
have expired, rights had been created under the agreements and till they H
978 SUPREME COURT REPORTS [2018] 5 S.C.R.

A remain in force and also thereafter till the date of reference and more so
when such a plea was not raised when reference was made to this
Court under Article 143 of the Constitution, the said plea should be
negatived.
150. The aforesaid submission advanced by the State of Karnataka
B should not detain us for long. On a perusal of the complaint, it does not
contain the words “prejudicially affected’ but the antecedents of the
complaint, the view of the Central Government while referring water
dispute and the expression of opinion of this Court In Re: Presidential
Reference (Cauvery Water Disputes Tribunal) (supra). In the backdrop
of the language of the 1956 Act, the expiration by the efflux of time and
C the role of this Court, we are not inclined to entertain such a plea. We
must say without any hesitation that it may, in the first blush, have the
potentiality to invite the intellectual interaction but the same fails to gain
significance when one perceives the controversy from a broader
perspective and the various orders passed from time to time by the
D Tribunal and by this Court. Therefore, the matter deserves to be
adjudicated on merits.
N. The approach adopted by the Tribunal post 1974 and
correctness of the same
151. On a perusal of the award, it appears that the Tribunal, after
E coming to hold that the 1974 agreement is valid which we have not
accepted, noted the submissions of the State of Karnataka, Tamil Nadu
and Kerala and Union Territory of Puducherry. The State of Karnataka,
on 10.07.2002, has made the following submissions before the Tribunal
which is to the following effect:-
F “60. The State of Karnataka in its Note KAR 3, page 10, filed
on 10.07.2002, has taken the stand that “any future determination
post-1974 would have to be made on the following basis:-
(a) how much water is needed to irrigate the areas to which
Tamil Nadu and Karnataka are entitled, under the Agreement;
G and
(b) how should the surplus be divided and distributed for the
planned areas of Karnataka and for the areas cultivated by Tamil
Nadu (outside the Agreement of 1924). It is respectfully submitted
that all areas contemplated to be irrigated under the Agreement
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 979
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

of 1924 are concerned – whether by Tamil Nadu or by Karnataka, A
they have first to be taken into account as committed uses or
existing uses. The remaining areas should be considered on the
principles of equitable apportionment that are well settled and on
the evidence led before this Hon’ble Tribunal.”
152. The Tribunal, which had taken the view that the Agreements B
of 1892 and 1924 are valid and enforceable, alternatively suggested the
apportionment of Cauvery waters on the following basis:-
“(i) Protection of irrigated areas as existing prior to 1924 both in
Karnataka as well as Tamil Nadu.
(ii) The development of irrigation as contemplated in the 1924 C
agreement but actually developed before 1974.
(iii) All other development to be considered as per different
priorities suggested by them, indicated later on in the report.”
153. After so noting, the Tribunal opined that before the D
requirement of water is examined, the two States have to determine the
areas which have been adopted by the two States. The areas where the
States of Karnataka, Tamil Nadu and Kerala and Union Territory of
Puducherry have to be served by the Cauvery System for irrigation are
required to be considered. The principles for consideration were
formulated by the Tribunal which are as follows:- E
“(i) Areas which were developed before the agreement of the
year 1924
(ii) Areas which have been contemplated for development in
terms of the agreement of the year 1924.
F
(iii) Areas which have been developed outside the agreement
from 1924 upto 2.6.1990, the date of the constitution of the
Tribunal. (i.e. from 1924 to 1990)
(iv) Areas which may be allowed to be irrigated on the principle
of equitable apportionment.” G
154. On a perusal of the aforesaid, it is noticed that the Tribunal
has taken the cut-off date as 02.06.1990, the date on which the reference/
complaint was made. In the course of the hearing, learned counsel for
all the parties accepted that they do not have any kind of quarrel over
the determination by the said date. H
980 SUPREME COURT REPORTS [2018] 5 S.C.R.

A 155. Having stated thus, we have to analyze the approach adopted
by the Tribunal on the basis of the same. Prior to that it is necessary to
reflect on what the Court has said in the Presidential Reference. At this
stage, we must note with profit that the Court had noted that the 1924
Agreement had expired. After the Court held that the agreement had
expired and further that the legislation passed by the State of Karnataka
B
was ultra vires, it proceeded to state thus:-
“71. It will be pertinent at this stage also to note the true legal
position about the inter-State river water and the rights of the
riparian States to the same. In State of Kansas v. State of
Colorado the Supreme Court of the United States has in this
C connection observed as follows:
“One cardinal rule, underlying all the relations of the States
to each other, is that of equality of right. Each State stands on
the same level with all the rest. It can impose its own legislation
on no one of the others, and is bound to yield its own views to
D none … the action of one State reaches, through the agency of
natural laws, into the territory of another State, the question of
the extent and the limitations of the rights of the two States
becomes a matter of justiciable dispute between them and this
Court is called upon to settle that dispute in such a way as will
recognise the equal rights of both and at the same time establish
E
justice between them.
The dispute is of a justiciable nature to be adjudicated by
the Tribunal and is not a matter for legislative jurisdiction of one
State ….
‘The right to flowing water is now well settled to be a right
F incident to property in the land; it is a right publici juris, of such
character that, whilst it is common and equal to all through whose
land it runs, and no one can obstruct or divert it, yet, as one of
the beneficial gifts of Providence, each proprietor has a right to
a just and reasonable use of it, as it passes through his land, and
G so long as it is not wholly obstructed or diverted, or no larger
appropriation of the water running through it is made than a just
and reasonable use, it cannot be said to be wrongful or injurious
to a proprietor lower down ….’
The right to the use of flowing water is publici juris, and
H common to all the riparian proprietors; it is not an absolute and
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 981
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exclusive right to all the water flowing past their land, so that A
any obstruction would give a cause of action; but it is a right to
the flow and enjoyment of the water, subject to a similar right in
all the proprietors, to the reasonable enjoyment of the same gift
of Providence. It is, therefore, only for an abstraction and
deprivation of this common benefit, or for an unreasonable and
B
unauthorised use of it that an action will lie.”
72. 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. They are in a state of flow and no State
can claim exclusive ownership of such waters so as to deprive
the other States of their equitable share. Hence in respect of C
such waters, no state can effectively legislate for the use of
such waters since its legislative power does not extend beyond
its territories. It is further an acknowledged principle of distribution
and allocation of waters between the riparian States that the
same has to be done on the basis of the equitable share of each D
State. What the equitable share will be will depend upon the
facts of each case. It is against the background of these principles
and the provisions of law we have already discussed that we
have to examine the respective contentions of the parties.”
156. Though the aforesaid paragraphs were said in the context of E
the legislative power, yet it meaningfully stated the legal position about
the Inter-State River Water and rights of the riparian States in the same
and further that the distribution and allocation of waters between the
riparian States has to be done on the basis of equitable share of each
State which will depend upon how the quantum of equitable share is
determined as per the facts of the case. F

157. The Tribunal referred to the decisions in State of Wyoming
v. State of Colorado25, State of Nebraska v. State of Wyoming26, the
report of the Krishna Water Disputes Tribunal, Chapter XII, page 98
under the heading of “Protection of Existing Uses”, the report of
Narmada Water Disputes Tribunal, the Report of Godavari Water G
Disputes Tribunal, the Report of the Ravi and Beas Waters Tribunal and
noted thus:-

25
259 US 419 (1922)
26
325 US 589 (1945) H
982 SUPREME COURT REPORTS [2018] 5 S.C.R.

A “16. There are three different views in respect of the claims by
different riparian States regarding sharing of the water of an
inter-State river or a river passing from one nation to another:
(i) The first view proceeds on what is called the doctrine of
absolute territorial sovereignty commonly referred to as ‘Harmon
B doctrine’. According to this doctrine every State is sovereign
and has right to do whatever it likes with the waters within its
territorial jurisdiction irrespective of injury that it might cause to
the neighbouring State by such appropriation and diversion. (ii)
The second view is based on the stand that lower riparian State
is entitled to water in its natural flow without any diminution or
C interference or alteration in its character.
During the last century both views had been propounded – the
first one by the upper riparian State and the second by the lower
riparian State. If it is examined by an example, a State which is
at the head of the river from which the river initially passes then
D such State can utilize and divert the water from the said river
making the lower riparian State starve, leading to the break-
down of the economy of such lower riparian State. Similarly, if
the second view is pushed to its logical end, then the upper riparian
State although may be in dire need of the water of such inter-
E State river for agriculture and other use shall be a mute spectator
of the 14 water of such inter-State river flowing from its territory
to the lower riparian State.
(iv) The third view is based on the principle of “equitable
apportionment”, that is to say that every riparian State is entitled
F to a fair share of the water of an inter-State river according to
its need. Such a river has been provided by nature for common
benefit of the community as a whole through whose territories it
flows, even though those territories may be divided by political
frontiers.”

G 158. Thereafter, the Tribunal referred to the decisions in Kansas
v. Colorado27, Colorado v. Kansas28, State of New Jersey v. State of
New York 29 , State of Connecticut v. Commonwealth of

27
206 US 46 (1906)
28
320 US 383 (1943)
29
283 US 336 (1931)
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 983
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

Massachusetts30, State of Colorado v. State of New Mexico31 and A
came to hold as follows:-
“24. It may be pointed out that in the Colorado v New Mexico
459 US 176 (1982) known as Colorado I as well as in Colorado
v New Mexico 467 US at 310 (1984) known as Colorado II
there are explicit indications, to consider future developments in B
equitably apportioning a fully appropriated river. But it has been
pointed out in those opinions that any future developments must
not be inherently speculative in nature and assessment is required
to be made on the benefits and harms of a future use.
25. It also appears that recent treaty between Canada and the C
United States with regard to the Columbia basin has discredited
Harmon doctrine. Also in other international disputes in respect
of sharing of waters of rivers flowing from the territory of one
nation to another, treaties have been entered which show that
different nations have adjusted their differences. The Indus
Treaty 1960, between India and Pakistan is an example. D

26. In Halsbury’s Laws of England, Fourth Edition, Volume 49(2)
in paragraph 121 it has been said:
“121. Rights and duties as to quantity of water. The right of a
riparian owner to the flow of water is subject to certain E
qualifications with respect to the quantity of water which he is
entitled to receive. The right is subject to the similar rights of
other riparian owners on the same stream to the reasonable
enjoyment of it, and each riparian owner has a right of action in
respect of any unreasonable use of the water by another riparian
owner. A riparian owner must not use and apply the water so as F
to cause any material injury or annoyance to his neighbours
opposite, above or below him, who have equal rights to the use
of the water and an equal duty towards him.”
159. At this juncture, it is worth noting the submissions advanced
by Mr. Katarki, learned senior counsel appearing for the State of G
Karnataka and Mr. Naphade, learned senior counsel appearing for the
State of Tamil Nadu. It is submitted by Mr. Katarki that the equitable
share of water to be allocated to the party States had to be based on
30
282 US 660 (1931)
31
459 US 176 (1982) H
984 SUPREME COURT REPORTS [2018] 5 S.C.R.

A needs rather than on the flow of the river. No State had any right to the
natural flow of an inter-state river and several factors had to be considered
while assessing the needs like basin factors, drought area and population.
He emphasized on the basic aspects, namely, Natural Flow Theory and
Helsinki Rules, 1966 and placed reliance on the decision in New Jersey
(supra) and other authorities. Mr. Naphade, per contra, would contend
B
that the contention that there has to be an equal apportionment of water
between the two States is untenable. According to him, the parameter
of equality has to be understood from a different perspective in a
controversy giving rise to water dispute. He relied upon the observation
made by the Narmada and Krishna Water Disputes Tribunals that the
C principle of equality did not imply that there must be an equal division of
water between the States but instead meant that the States must have
equal consideration and equal economic opportunity. Such equality would
not necessarily result in the same quantity of water being provided to the
parties.
D 160. The Tribunal has referred to the Helsinki Rules of 1966 that
has rejected the Harmon Doctrine and laid stress on the need of equitable
utilization of international rivers. The said Rules relate to the use of
waters of international rivers. Articles V, VI and VIII read as follows:-
“Article V
E (1) What is a reasonable and equitable share within the mean-ing
of Article IV is to be determined in the light of all the relevant
factors in each particular case.
(2) Relevant factors which are to be considered include, but are
not limited to:
F (a) the geography of the basin, including in particular the extent
of the drainage area in the territory of each basin State ;
(b) the hydrology of the basin, including in particular the
contribution of water by each basin State;
(c) the climate affecting the basin
G (d) the past utilization of the waters of the basin, including in
particular existing utilization;
(e) the economic and social needs of each basin State ;
(f) the population dependent on the waters of the basin in each
basin State;
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 985
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

(g) the comparative costs of alternative means of satisfying file A
economic and social needs of each basin State;
(h) the availability of other resource!;
(i) the avoidance of unnecessary waste in the utilization of waters
of the basin ;
(j) the practicability of compensation to one or more of the co- B
basin States as a means of adjusting conflicts among uses; and
(k) the degree to which the needs of a basin State may be satisfied,
without causing substantial injury to a co-basin State;
(3) The weight to be given to each factor is to be determined by
its importance in comparison with that of other relevant factors. C
In determining what is a reasonable and equitable share, all
relevant factors are to be considered together and a conclusion
reached on the basis of the whole.
Article VI: A use or category of uses is not entitled to any inherent
preference over any other use or category of uses. D
Article VIII: 1. 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.
E
2. (a) A use that is in fact operational is deemed to have been an
existing use from the time of the initiation of construction directly
related to the useor, where such construction is not required, the
undertaking of comparable acts of actual implementation
(b) Such a use continues to be an existing use until such time as
it is discontinued with the intention that it be abandonded. F
3. A use will not be deemed an existing use if at the time of
becoming operational it is incompatible with an already existing
reasonable use.”
161. On a perusal of the said Rules, it is clear as crystal that the
said Rules have not accepted the Harmon doctrine. It has, on the contrary, G
laid emphasis on the need of equitable utilization of such international
rivers. It is noticeable from Articles IV and V of the said Rules that they
recognize equitable use of water by each basin State, setting out the
factors, not exhaustive though, to be collectively taken into consideration
for working out the reasonable and equitable share of the riparian states. H
986 SUPREME COURT REPORTS [2018] 5 S.C.R.

A The indicated factors, inter alia, include the geography of the basin, the
hydrology of the basin, the climate, past utilization of waters, economic
and social needs of each basin State, population dependent on the waters
of the basin in each basin State, availability of other resources and the
degree to which the needs of a basin State may be satisfied without
causing substantial injury to a co-basin State. The emphasis clearly is
B
that in determining the reasonable and equitable share, all relevant factors
are to be considered together and a conclusion is to be reached on the
whole.
162. In this regard, it is submitted by Mr. Nariman that the
allocation of water could be done equitably and in accordance with justice
C by restoring equal rights to the party states. He submitted that Karnataka
and Tamil Nadu were co-equal States and that justice had to be done to
both while allocating water, a fact which the Tribunal had failed to
recognize. The Tribunal intertwined a decision based on a void agreement
with the doctrine of equitable apportionment contrary to the law laid
D down in In Re: Presidential Reference (supra). He submitted that the
various applicable factors set out in the Helsinki Rules, 1966 were more
or less evenly balanced between the two States. Further, based on the
maxim that equality was equity, the balance water available after
subtracting the share of the smaller States, i.e., Kerala and Puducherry
and after accounting for wastage ought to be divided equally between
E Karnataka and Tamil Nadu.
163. In this context, we may refer to the dictionary clause of the
1956 Act. Section 2(c) defines ‘water dispute’. It reads as under:-
“2(c) “water dispute” means any dispute or difference between
F two or more State Governments with respect to —
(i) the use, distribution or control of the waters of, or in, any
inter-State river or river valley; or
(ii) the interpretation of the terms of any agreement relating to
the use, distribution or control of such waters or the
G implementation of such agreement; or
(iii) the levy of any water rate in contravention of the prohibition
contained in section 7.”
164. Section 3 deals with complaint by the State Government as
to water disputes. The said provision is extracted below:-
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 987
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

“3. Complaints by State Governments as to water disputes.—If A
it appears to the Government of any State that a water dispute
with the Government of another State has arisen or is likely to
arise by reason of the fact that the interests of the State, or of
any of the inhabitants thereof, in the waters of an inter-State
river or river valley have been, or are likely to be, affected
B
prejudicially by—
(a) any executive action or legislation taken or passed, or proposed
to be taken or passed, by the other State; or
(b) the failure of the other State or any authority therein to
exercise any of their powers with respect to the use, distribution C
or control of such waters; or
(c) the failure of the other State to implement the terms of any
agreement relating to the use, distribution or control of such
waters,
the State Government may, in such form and manner as may be D
prescribed, request the Central Government to refer the water
dispute to a Tribunal for adjudication.”
165. The definition of ‘water disputes’ and the provisions contained
in Section 3 have to be given due significance. Section 3 protects the
right of inhabitants of a State. When the States make a request under E
the 1956 Act for adjudication of the disputes, the interest of the inhabitants
of the State is involved. That is why, submits Mr. Nariman, both the
States are governed by the parens patriae principle. Keeping in view
the principles of law stated, we are disposed to think that the controversy
is to be adjudged on the bedrock of equal status of the States and the F
doctrine of equitability.
O. The quintessence of pleadings before the Tribunal
166. Having stated thus, we think it seemly to refer to the findings
on material aspects that pertain to the pleadings as regards the allocation
of quantity of water and the foundation to sustain such claims. In that G
arena, we shall first advert to the outline of the pleadings.
167. The plea of the State of Karnataka was that till the end of
the 19th century, utilization of the waters of the Cauvery in the States of
Coorg and Mysore was primarily from channels drawn from the river
bed and from tanks in small quantities not exceeding 73 TMC in H
988 SUPREME COURT REPORTS [2018] 5 S.C.R.

A aggregate. There was no facility of storage and, thus, the agricultural
operations were dependent on rainfall. It alleged that the efforts made
by the State of Mysore to utilize the waters of this river for the purposes
of irrigation were continually frustrated by the protests of the British
Government of Madras and though the State of Mysore was the upper
riparian State and contributed the highest flow to the river, yet it was not
B
permitted to exercise its powers to utilize the waters for irrigation due to
the remonstrances of the lower riparian province of Madras. It pleaded
that eventually, after a series of correspondence in the last part of the
19th century and early part of the 20th century and on the culmination of
the arbitration proceedings on the issue, a scheme for storage of the
C water of Cauvery was formulated in 1931 after the construction of the
Krishna Raja Sagara Dam (also referred to as “KRS”) for the storage
of 44.8 TMC of water. It stated that by 1934, Madras too had completed
the work of Mettur Dam for storage of 93.5 TMC of water of Cauvery
thereby enabling cultivation of over 1,21,457 hec. (3,00,000 acres) of
new area. It mentioned that after the reorganization of the States and
D
formation of the State of Karnataka covering the areas of the new State
of Mysore and others, the drainage area of Cauvery basin in Karnataka
rose to 42.2%. Apart from referring to the principal tributaries of Cauvery
in Karnataka like Harangi, Hemavathi, Kabini, it was underlined that the
Cauvery river valley did receive varying degrees of rainfall. In elaboration,
E it was stated that while the western and central parts of the basin received
rainfall in South-West monsoon commencing from the last week of May
and ending in September, the eastern part was largely attended by the
North-East monsoon starting in September and ending in December. It
averred that the rainfall pattern per se evinced that large cultivable areas
of the State suffered from inadequate rainfall. Though the hilly regions
F
forming part of the Western Ghat in Karnataka received very heavy
rainfall, yet other parts of the Districts of Mysore, Mandya, Hassan,
Tumkur, Bengaluru and Kollar encountered severe and successive
droughts.
168. According to Karnataka, in sharp contrast, the eastern part
G of the basin in Tamil Nadu received heavy rainfall in North-East monsoon
beginning from the end of September and ending in December and further
the central part of the basin in Tamil Nadu received both South-West
monsoon and North-East monsoon. Referring to the report of the
Irrigation Commission, it maintained that though Karnataka had very
H large areas of cultivable and cultivated lands in the Cauvery basin, yet it
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 989
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

has the largest extent of drought prone areas in the basin as well and A
that there was an imperative need to extend relief to these areas by
providing proper irrigation facilities. It emphasized as well that due to
uncertain ground water resources resulting from reduced recharge,
general deep water table and low storage in the aquifer, the State has to
depend on surface water allocation in the Cauvery basin. Elaborating its
B
crop pattern, it was canvassed that Ragi, Jowar, Sessamum, Groundnut,
Redgram and short duration pulses were the common Kharif crops under
rain fed conditions. In some areas where there were pockets of retentive
soils or were visited by late rains, some Rabi crops like Jowar, Bengalgram
and cotton are also cultivated. It emphasized that to ensure crops during
the entire period from June to February, i.e., the irrigation season, water C
from Cauvery was an indispensable necessity, more particularly in view
of the precarious drought conditions suffered by the State.
169. Referring to the backdrop of the dispute and the reference
for the adjudication thereof before the Tribunal, the State of Tamil Nadu
reiterated its demurral that the State of Karnataka did construct four D
reservoirs over Kabini, Hemavathi, Harangi and Suvarnavathi tributaries
of Cauvery and set up other projects for storing water of the river much
beyond the limits stipulated in the agreement of the year 1924 which
decisively resulted in material diminution of the supply of waters of
Cauvery to its territories. According to it, such indulgences adversely
affected the Ayacutdars in Tamil Nadu who had been dependent on the E
water of river Cauvery for centuries. While reiterating that the
Agreements of 1892 and 1924 did factually recognize and protect the
prescriptive rights of Tamil Nadu, a lower riparian State, over the water
of Cauvery and that these agreements were the yields of deliberations
over the disputes between the erstwhile Governments of Madras and F
Mysore, whose successors- in-interest are the present States of Tamil
Nadu and Karnataka, it was averred that though the State of Karnataka
was at liberty to use the water of Cauvery, yet it could not do so to the
prejudice of the interest of the people of Tamil Nadu. It underlined that
the apportionment of the water of an inter-State river has to be adjudged
on the principle of equitable apportionment as well as by the common G
law of prescriptive rights. According to Tamil Nadu, wherever there is
an agreement between the parties regarding the use, development and
control of waters of an inter-State river and the river valley thereof, the
stipulations in the agreement would govern the claim of the parties. It
alleged that the construction of Kabini, Hemavathi, Harangi and H
990 SUPREME COURT REPORTS [2018] 5 S.C.R.

A Suvarnavathi projects by Karnataka was without the consent of Tamil
Nadu and thus in violation of the Agreement of 1924 and by taking
advantage of the fact that Tamil Nadu was a lower riparian state. It
dilated that Karnataka proceeded with the construction of Kabini
reservoir from 1958 and completed the same in 1975 and the irrigation
from the said reservoir commenced from 1975/1976 onwards. Tamil
B
Nadu contended that because of the construction of these reservoirs,
the inflows into Mettur reservoir were substantially and materially
diminished to its immense prejudice. Apart from reiterating that the
construction of these projects was without the consent of Tamil Nadu
and also the clearance required therefor, it asserted that as per the settled
C principles, the upper riparian state did not have an absolute right to
impound or utilize the water of an interstate river to the detriment of the
lower riparian States. It strongly put forth that the pre-existing right of
the lower riparian State has to be preserved more particularly when
river Cauvery is the only major river in Tamil Nadu which had been
contributing nearly 50% of the State’s surface water use. Referring to
D
the two monsoons experienced by the State, Tamil Nadu elaborated that
the upper part of the Cauvery basin, which is above Mettur, is influenced
by South-West monsoon and the lower part by the North-East monsoon
and that the flow of river during the South-West monsoon is to a great
extent dependent on the run off from the hilly catchment above the
E Sivasamudram falls. It was stated that while the South-West monsoon is
more intensive, unfailing and dependable and spread over a long period,
the North-East monsoon, which visits the State after the South-West
monsoon, is erratic and undependable so much so that the coastal areas
and the Delta occasionally receive heavy intense rains of very short
duration, most of which can neither be conserved nor utilized in the
F
Delta. According to the State, during the South-West monsoon, most of
the catchment lying below the Mettur reservoir is not benefitted, except
a small portion of the high ranges of Bhawani and Amaravathi tributaries,
as the catchment lies on the rain shadow areas of the Western Ghats. It
was reiterated that due to the unique geographical and hydrological
G characteristics of the Cauvery basin, Tamil Nadu is not in a position to
avail the benefit of the South-West monsoon fully and has to suffer the
damage wrecked by the North-East monsoon. To emphasize that it had
to depend on the flows of river Cauvery since June onwards during the
South-West monsoon and on local rainfall during the North-East monsoon,
it explained that after the commissioning of the Mettur reservoir in 1934,
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 991
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it had been possible to impound the excess flows and dispatch regulated A
discharges to meet the needs of the river channels enroute the Delta
and that contingent on the availability of supplies, a number of regulatory
controls have been devised to regulate the same. Referring to its crop
pattern, Tamil Nadu disclosed that in the Delta, a short duration crop
called “Kuruvai” is raised between the months of June and September
B
followed by a medium crop named “Thaladi” between October and
February. It also mentioned about a long term crop named “Samba”
raised between July and January in single crop lands which are large in
extent. Tamil Nadu underlined that rice was the dominant crop in the
Delta especially in the Thanjavur district and that the whole State largely
depended on this district for rice which was the staple food of the people. C
It asserted that the alluvial soil of the Delta was ideal for growing rice
subject to the availability of water and only in isolated pockets, sugarcane,
banana and other crops are grown.
170. Kerala averred that the river Cauvery originates in the eastern
slopes of the Western Ghats and has its huge catchment spread over the D
States of Kerala, Karnataka and Tamil Nadu and that three tributaries
of the river, namely, Kabini, Bhavani and Pamber, have portions of their
catchments in the State of Kerala. It was further asserted that its total
contribution in the flow is to the extent of 20% but it lags behind others
in utilization of waters of the Cauvery. As a reason therefor, it cited the
fact that before the reorganization of the States in the year 1956, neither E
Travancore nor Travancore-Cochin State was recognized as an interested
party in the dispute of sharing of the water of Cauvery, but after the
reorganization, determined efforts were made for improvement of the
Basin and diversion of the water in Cauvery Basin for utilization by the
State. It, however, underlined that the efforts of the State stood frustrated F
because of the objection of the other riparian states and though several
claims had been brought up and were otherwise found to be technically
feasible and economically viable, yet those could not be executed because
of the adamant attitude of the other lower riparian states. It highlighted
that the State of Kerala, for all these factors, had to be dependent on the
single crop of paddy though there is much scope for raising second or G
even third crop with the availability of irrigation facilities from the water
available in the Cauvery Basin. It emphasized that its ground water
potential was negligible but because of the special topographical feature
of the Cauvery Basin in the State of Kerala, diversion of water from the
Cauvery Basin did promise the scope of development of cheap hydro H
992 SUPREME COURT REPORTS [2018] 5 S.C.R.

A electric power in addition to meeting the need for consumption of water
for irrigation purposes. It stated that while it was stifled from taking up
any scheme in the Basin, Tamil Nadu proceeded with the construction in
utilizing water for extending irrigation and for that purpose, the
Government of India cleared projects like Mettur Canal Project, Kattalai
High Level Canal and Pullambadi Canal Schemes. The State of
B
Karnataka also embarked upon new irrigation projects for utilizing
Cauvery water even without the clearance of the Government of India
in order to underscore the discrimination meted out to the State of Kerala
in the matter of proportionate utilization of the waters in the Cauvery
Basin to which it was entitled.
C 171. The Union Territory of Puducherry pleaded that its Karaikal
region is situated on the South Coromandel Coast and that the three
sides thereof are bound by Thanjavur District of Tamil Nadu and on the
East lay the Bay of Bengal. It disclosed that the total area of Karaikal
region is 14,920/- hectares out of which 10,990 hectares is under
D cultivation. While stating that the sub-soil water in the region is unsuitable
for cultivation, it mentioned that the water supplied to Karaikal region
from river Cauvery flows from the branches of the river below Grand
Anicut where the river Cauvery divides and sub-divides itself and serves
both the irrigation and training channels in the Karaikal area. The water
requirement for the Karaikal region for the three crops, namely, Samba
E (single crop), Kuruvai (Kharif) (Double crop) and Thaladi (Rabi) (Double
crop) was mentioned to be 9240 Mc.ft, i.e., 9.24 TMC for 17220 ha. of
irrigation. It claimed that the interest of its territory was taken note of
when the Agreements of 1892 and 1924 were entered into between the
then Government of Madras and Government of Mysore in connection
F with the construction of Krishna Raja Sagara Dam and that at the time
of construction of Mettur Dam, the French Administration, then in-charge,
passed on its claim to the then Government of Madras for regulation of
supply of Cauvery Water to Karaikal region. It, however, alleged that
after 1972, there has been a shortfall in the actual release of water
ranging from 2 TMC to 6 TMC.
G
172. After recording the evidence to which we shall refer to
hereinafter under different headings, to reiterate, the issues for the
purpose of convenience were regrouped finally which we have already
reproduced hereinbefore.

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173. The Tribunal in seriatim dealt with the regrouped issues and, A
accordingly, proceeded to examine the validity or otherwise of the
Agreements of 1892 and 1924. It set out the background and the
circumstances under which the agreements were entered into. We need
not advert to the same in detail as we have referred and dealt with while
dealing with the issues pertaining to the status of the Agreements.
B
However, it is necessary to state that after a spate of correspondence
and series of discussions, an agreement between the Mysore Government
and Madras Government was entered into in 1892 in the form of rules
captioned as “Rules defining the limits within which no new irrigation
works are to be constructed by the Mysore State without previous
reference to the Madras Government”. The Tribunal set down the C
relevant clauses of the Rules and the extracts therefrom having a
formidable bearing on the issue under scrutiny are quoted hereinbelow:-
“The Mysore Government shall not, without the previous consent
of the Madras Government, or before a decision under rule IV
below, build (a) any “New Irrigation Reservoirs” across any part D
of the fifteen main rivers named in the appended Schedule A, or
across any stream named in Schedule B below the point specified
in column (5) of the said Schedule B, or in any drainage area
specified in the said Schedule B, or (b) any “New anicut” across
the streams of Schedule A, Nos. 4 to 9 and 14 and 15, or across
any of the streams of Schedule B, or across the following streams E
of Schedule A, lower than the points specified hereunder:
Across 1. Tungabhadra – lower than the road crossing at Honhalli,
Across 10 Cauvery – lower than the Ramaswami Anicut and,
Across 13 Kabani – lower than the Rampur anicut. F
III. When the Mysore Government desires to construct any
“New Irrigation Reservoir” or any new anicut requiring the
previous consent of the Madras Government under the last
preceding rule, then full information regarding the proposed work
shall be forwarded to the Madras Government and the consent G
of that Government shall be obtained previous to the actual
commencement of work. The Madras Government shall be
bound not to refuse such consent except for the protection of
prescriptive right already acquired and actually existing, the
H
994 SUPREME COURT REPORTS [2018] 5 S.C.R.

A existence, extent and nature of such right and the mode of
exercising it being in every case determined in accordance with
the law on the subject of prescriptive right to use of water and in
accordance with what is fair and reasonable under all the
circumstances of each individual case.”
B 174. Schedule A that was annexed to the Rules provided the details
of the rivers and their tributaries passing through the territory of
Government of Mysore including Cauvery and its tributaries Hemavathi,
Laxmanthirtha, Kabini, Honhole (or Suvarnavathi) and Yagachi (tributary
of Hemavathi) upto Belur Bridge. It was clarified that at that point of
time, there was no mention of the tributary Harangi in the Schedule as it
C was outside the territory of Mysore and was located in Coorg State.
175. In the above premise, the Tribunal noted that in terms of the
Agreement of 1892, the Mysore Government was required to obtain the
previous consent from the Madras Government in respect of any
construction proposed to be made including any new irrigation reservoir
D across the 15 main rivers named in Schedule A to the agreement or
across any stream named in Schedule B below the point specified therein.
It was stipulated as well that before any such project was executed, full
information with regard to the same was required to be furnished to the
State of Madras for the purpose of consent. In its turn, the Madras
E Government was not to refuse such consent except on the failure of the
Mysore Government to furnish full information regarding the proposed
work to the Madras Government and if the grant of any such consent by
the Madras Government would deprive its inhabitants of their protection
of prescriptive rights already acquired and existent in accordance with
law on the use of an inter-state river.
F
176. The Tribunal thereafter took note of the events subsequent
thereto which, with time, gave rise to a fresh dispute between the two
States following the formulation of proposals by them for construction
of reservoirs on the river Cauvery. The dissension, as the Tribunal has
noted, gave rise to disputes, the Griffin Award and eventually coming
G into force of the 1924 Agreement. The Tribunal generally traversed the
agreement as a whole with particular reference to clause 10(i), (ii), (iii),
(iv), (v), (vi), (vii), (xi), (xiv) and (xv) dealing with the construction and
operation of the Krishna Raja Sagara reservoir; obligation of the Mysore
Government to regulate the discharge through and from the said reservoir
H strictly in accordance with the rules of regulation set forth in Annexure
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 995
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

(I) to the Agreement; future extensions of irrigation in Mysore and Madras A
as well as future constructions of reservoirs on Cauvery and its tributaries
mentioned in Schedule A of the 1892 Agreement; the mode and manner
of operation of the reservoirs so as not to make any material diminution
in supplies connoted by the gauges accepted in the rules of regulations
for the Krishna Raja Sagara reservoir; reconsideration of the limitations
B
and arrangements embodied in Clauses (iv) to (viii) on the expiry of 50
years from the date of the execution of the agreement for the purpose
of modifications and additions, as may be mutually agreed upon; liberty
of the Mysore Government to construct, as an offset, a storage reservoir
on one of the Tributaries of the Cauvery in Mysore of a capacity not
exceeding 60% of the new reservoirs in Madras, should the Madras C
Government construct irrigation works in Bhawani, Amravathi or Noyyal
rivers as new storage reservoirs and the provision for reference to
arbitration of any dispute between the two Governments touching upon
the interpretation or operation or carrying out of the agreement.
177. The Tribunal also set out the extract of Rule 7 of the rules of D
regulation of the Krishna Raja Sagara prescribing the minimum flow of
Cauvery that was to be ensured at the Upper Anicut before any
impounding was made in the Krishna Raja Sagara reservoir. Be it stated,
we have already reproduced the same earlier.
178. The Tribunal next scanned the Agreements of 1892 and 1924 E
and to discern the clarificatory Agreement dated 17.06.1929 noted that
the fixed level or discharge was to be maintained on the basis of (a) the
waters released from Krishna Raja Sagara reservoir, (b) from Kabini,
Suvarnavathy, Shimsha and Arkavathi Tributaries which join Cauvery
within the State of Mysore/Karnataka below Krishna Raja Sagara
reservoir and (c) Four Tributaries of Cauvery in Madras/Tamil Nadu; (i) F
Chinnar, (ii) Noyyal, (iii) Bhavani and (iv) Amaravathi.
179. The Tribunal further observed that the Agreement only
contemplated and provided for future extension of irrigation in new areas
on the terms and conditions mentioned therein and concluded that after
the execution of the said Agreement, there was no nexus or link between G
the discharge of water of river Cauvery to the State of Madras and the
areas over which any prescriptive right had already been acquired or
was actually existing and the formula was worked out by taking the total
area which was under irrigation by the Cauvery system before the
execution of the said Agreement. H
996 SUPREME COURT REPORTS [2018] 5 S.C.R.

A 180. It analyzed in detail the various clauses of the said Agreement
with the mutual rights and obligations as specified therein and in that
context, it opined that whenever a dispute was raised, it was to be
examined in the light of the conditions prescribed not only in clauses 10
(iv) to 10 (viii) but also in the light of the obligation and mandate provided
on the part of State of Mysore/Karnataka to follow the rules of regulation
B
for Krishna Raja Sagara reservoir as contained in clause 10(ii).
181. It adverted to the observations of this Court that though the
water from inter-state river pass through the territories of riparian States,
yet such waters cannot be located in any one State, being in a state of
flow, and, thus, no State can claim exclusive ownership of such water so
C as to deprive the other States of their equitable share. Keeping in view
of the judgment of this Court, the Tribunal negatived the contention of
the State of Tamil Nadu that the allocation and apportionment of the
waters of river Cauvery should be made strictly in accordance with
Agreements dated 1892 and 1924 but parted with the observation that
D the terms thereof would, however, have to be kept in view, while
considering the developments made in the different State vis-a-vis the
share of each riparian State.
P. The findings of the Tribunal on various issues
P.1 Prescriptive rights and other claims
E
182. Vis-a-vis the prescriptive rights and other claims projected
by the States, the Tribunal reiterated that the Agreement of 1924 along
with the rules of regulation of Krishna Raja Sagara reservoir, as appended
thereto, did not indicate anything to that effect and neither any reference
had been made to the areas over which any prescriptive right had been
F acquired prior thereto or existing nor any provision had been made with
regard thereto. It differentiated in this respect the Agreement of 1892
which laid stress in respect of prescriptive rights already acquired and
then existing from the Agreement of 1924 which did not contain a
reference to any existing prescriptive right of the State of Madras or its
G cultivators in respect of the water to be released to it. The Tribunal
perceived that the Government of Mysore and the State of Madras while
entering into the Agreement of 1924 seemed to have recognized the
total areas under irrigation of the Cauvery System within the State of
Mysore as well as the State of Madras irrespective of any prescriptive
right having been acquired by the State of Madras on any part or whole
H of the areas under irrigation and it rather provided for future extension
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 997
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of irrigation in new areas on the terms and conditions as set out. Referring A
to a letter dated 06.07.1915 addressed by the then Dewan of Mysore to
the Resident of Mysore which carried, according to the Tribunal, an
admission on behalf of the State of Mysore to the effect that at that
point of time, the area irrigated under the Cauvery System in Madras
was 12,25,500/- acres, it upheld the claim of State of Tamil Nadu that
B
prior to the execution of the Agreement of 1924, its area of irrigation
was 13,26,233 acres. The Tribunal, thus, concluded that in the overall
background, it would be futile to examine as to what was the total area
in the then State of Madras over which prescriptive rights had been
acquired or were in existence for the purpose of allocating the quantity
of water to the State of Tamil Nadu and that for all intents and purposes, C
the issue regarding prescriptive right of Madras had been rendered
academic.
P.2 Breach of agreements of 1892 and 1924 and consequences
thereof
183. Dealing with the highly contentious issue of breach of the D
agreements and the consequences thereof, the Tribunal outlined the
summary of the rival orientations. While the State of Karnataka urged
that all its projects with regard to which grievances had been made by
the State of Tamil Nadu had been contemplated under the Agreement of
1924 and that no separate consent therefor was required from the State E
of Tamil Nadu and that in view of clauses 10(iv) and 10(vii), the Mysore
Government was at liberty to carry out future extension of irrigation
within its territories under the Cauvery and its tributaries to the extent as
permissible thereunder and in the manner as prescribed, the remonstrance
of the State of Tamil Nadu was that the Mysore Government did not
furnish the full particulars and details of the reservoir schemes and of F
the impounding of water thereby, as required thereunder in clause 10(viii).
It contended as well that the Rules of Regulation in respect of such
reservoirs had to be settled first before the construction was to start as
the apprehension of the then State of Madras was that impounding in
such reservoirs was bound to affect the flow at Upper Anicut as stipulated G
in clauses 7 and 10 of the rules of regulation of Krishna Raja Sagara
reservoir.
184. To address these areas of dissension, in essence, the Tribunal
primarily referred to the official exchanges/correspondence between
the two States after the execution of the Agreement on various aspects H
998 SUPREME COURT REPORTS [2018] 5 S.C.R.

A bearing thereon, during which both the States did initiate and pursue
their projects, levelling at the same time, against each other, the imputation
of deviations from the Agreement. The Tribunal noted as well that after
1974, when according to the State of Karnataka, the Agreement of 1924
came to an end, it started impounding waters in different reservoirs
constructed over the tributaries of Cauvery within its territories without
B
following any Rules or any of the terms of the Agreement of 1924 and
that the areas which were to be put under irrigation from such reservoirs
and other diversion of works, like Anicuts increased every year. Referring
to the charts laid before it, the Tribunal also marked that the impounding
of water in different reservoirs on Hemavathi, Kabini, Suvarnavathy
C and Harangi tributaries in the State of Karnataka increased, which
precisely was one of the inducing factors for the dispute to be referred
to the Tribunal for adjudication. The Tribunal, on an overall view of the
intervening developments, concluded that the issue as to who was at
fault and responsible for such alleged breaches or violations had been
rendered academic with time and was of no practical relevance. It,
D
however, set down that Mysore had observed the rules of regulation of
Krishna Raja Sagara reservoir till the expiry of the period of 50 years
from the date of the execution of the Agreement of 1924, but thereafter
had started asserting its territorial rights over the water flowing from
Cauvery within its boundaries. Noting, amongst others, that even the
E State of Tamil Nadu had increased its acreage under the Cauvery irrigation
system over the years from 16 lakhs to 28 lakhs, the Tribunal was of the
view that the violations or the injuries caused by the States allegedly to
each other was really a matter of history and defied any manageable
parameter for assessment thereof after the lapse of considerable period
of time.
F
P.3 Peripheral issues qua claims of Kerala and Union Territory of
Pondicherry (presently named as “Puducherry”)
185. The Tribunal, at this juncture, before embarking upon the
scrutiny of the factors to ascertain the aggregate yield of water available
G for the purpose of apportionment amongst the riparian States, addressed
a few peripheral issues pertaining to the claims of Kerala and the Union
Territory of Puducherry. Qua Kerala, it recorded that its claim of share
of waters of the river Cauvery had been made primarily because of the
areas transferred to it from the State of Madras. The Malabar District
which before the reorganization of the States, was an integral part of the
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 999
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

State of Madras, it was noticed, not only included a part of the Cauvery A
Basin but also a part of two important tributaries, namely, Kabini and
Bhawani, apart from another tributary, namely, Pambar which was within
the erstwhile State of Travancore Cochin, territories whereof also were
integrated with the new State of Kerala on such reorganization. The
erstwhile State of Travancore Cochin was not a party to the Agreement
B
of 1924, but after its formation in the year 1956, the State of Kerala
started claiming apportionment of the waters contending that the said
Agreement was not binding on it and ought to be ignored to determine its
share. The Tribunal exhaustively referred to the series of communications
projecting the grievances and demands of the State of Kerala, the
demurral in substance being that the co-riparian States, Mysore and C
Madras, were prosecuting their projects in total disregard of its share of
water in the Kabini, Bhawani and Pambar tributaries. In the discussions
held, it asserted that there was no valid or legal agreement which did
bind it with regard to the allocation of waters in Cauvery and its tributaries
as it was never a party thereto. It claimed that the three tributaries,
D
namely, Kabini, Bhawani and Amaravathi, which had become part of
Kerala State, did contribute about 220 TMC against the total flow of 680
TMC in the entire Cauvery basin and that there had been practically no
utilization of this water by it. It registered its claim for irrigation and
power generation at 86 TMC.
186. The claim of Union Territory of Puducherry on the basis of E
its total area of cultivation to be 43,000 acres was taken cognizance of.
This was based on the fact that the Karaikal region of the Union Territory
of Puducherry was located within the Cauvery basin and that seven
branches of Cauvery did flow through the said region. The Tribunal
parted with the observation that the Union of Territory of Puducherry F
was, thus, interested only in the allotment of its share of water in the
Cauvery basin being at the tail end among the riparian States. It felt it
apt to direct that 6 TMC out of the total volume to be released to Mettur
Dam would have to be made available for utilization by Puducherry for
its irrigation in the Karaikal region.
G
P.4 Gross water available for apportionment
P.4(i) Surface flow of water:
187. Having thus laid the factual preface comprehending the
relevant facets of the discord, the Tribunal next turned to determine the
H
1000 SUPREME COURT REPORTS [2018] 5 S.C.R.

A surface flow of Cauvery river to ascertain the volume of water
dependably available for eventual allocation amongst the claimants-
States. For the said purpose, it initiated the scrutiny from the yield of the
river. It noticed that the yield or the total available quantum of water in a
river system was dependant on rainfall pattern, catchment area
characteristics including soil and vegetal cover and various climatic
B
parameters affecting evaporation and evapo- transpiration in the basin.
It also took note of the fact that the annual yield of a given basin varies
from year to year depending upon the occurrence of rainfall and its
intensity and distribution in time and space. It observed that in the
assessment of total yield, the withdrawals of water, if any, for different
C uses had a bearing and that the total annual flow including upstream
withdrawals at the terminal site out of the yield of a river system was
required to be noted. It recorded that due to variability of the annual
yield of a river from year to year, depending upon the rainfall distribution,
consequent run off and withdrawals, etc., such data is collected for a
number of years to assess the reliable yield. At this stage, passing reference
D
was also made to the doctrine put forward by the Attorney General
Harmon of the United States that Riparian States have exclusive or
sovereign rights over the water flowing through their territories and the
anomaly in this doctrine in the implementation thereof, especially in cases
where the water of the river concerned was not sufficient for all the
E States through which it passed. This was so, as on the upper riparian
State claiming its exclusive right to utilize the waters on the basis of the
aforesaid doctrine, the right of use of water of such inter-state river by
the lower riparian State would stand jeopardised. The other extreme
assertion of the lower riparian States that they were entitled to water of
such inter-State or international rivers in their natural flow without any
F
interference and alteration in their character did have the potential of
creating disharmony and anomaly. To strike a balance for resolving such
conflicting claims of the upper and lower riparian States, the principle of
equitable apportionment as propounded by the Supreme Court of United
States in Kansas v. Colorado (supra) was taken note of. The Tribunal
G while accepting this principle however posed a question to itself, as to what
would be the equitable apportionment, more particularly where the water
available was not enough to cater to the needs of different riparian States.
188. The Tribunal noted in this context that the total amount of
water available in river Cauvery through surface flows and alternative
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STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1001
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sources was much less than what the different States claimed and A
required for their irrigation, electricity, drinking water and to run different
projects. It recounted again the formation of the Cauvery Fact Finding
Committee in the year 1972 and its report which, on the issue, after
having regard to the particulars and data of the total yield forwarded by
the States involved, cross-checked it spanning over a period between
B
1933-34 to 1970-71 and also on the basis of its investigation and further
taking into consideration the gauge and discharge readings at different
places in different States, worked out the dependable yield at 50%, 75%
and 90% to be 740 TMC, 670 TMC and 623 TMC respectively. In
arriving at these figures, the Committee noted the utilization of Cauvery
water in the years 1901, 1928, 1956 and 1971 by different States. The C
Committee also reflected over the different projects in different States,
land use, cultivated areas and agricultural practices, geology and minerals
as well as the climate, rainfall and water resources vis-a-vis the
competing States. Gauge and discharge observations at the recorded
sites in Tamil Nadu and Mysore in particular were noted too. In view of
D
the long term record available for the main Cauvery at Krishna Raja
Sagara, Mettur and Grand Anicut/Lower Anicut, the Committee estimated
the yield at 50%, 75% and 90% dependabilities. The Committee, thus
assigned sufficient weightage to the existence of Krishna Raja Sagara
and Mettur reservoirs and, accordingly, relied upon the data from 1933-
34 when both these reservoirs were in position. The yield at the terminal E
point of the basin, namely, Lower Coleroon Anicut, was, thus, assessed
by the Committee at 740 TMC at 50% dependability, 670 TMC at 75%
dependability and 623 TMC at 90% dependability. The Tribunal observed
that the report of the Committee had been considered by the Chief
Ministers of the States whereupon they concurred with the finding of
F
the total yield within the Cauvery basin.
189. In the same year, i.e., 1973, the Chief Ministers of the three
riparian States and the Minister for Irrigation of Government of India in
a meeting did also agree that it was necessary for all the concerned
States to effect economy in the use of water so as to make it possible to
meet the legitimate needs of other projects which were feasible in the G
Cauvery basin. Having said that, in the end, Mr. C.C. Patel, Additional
Secretary in the Ministry of Irrigation and Power was asked to carry out
detailed studies on the scope for economy in the use of Cauvery waters.
Accordingly, Mr. Patel, on the completion of his studies, suggested some
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1002 SUPREME COURT REPORTS [2018] 5 S.C.R.

A concrete proposals in his report qua the States. The Tribunal recorded
that the State of Tamil Nadu did not dispute at any stage the assessment
made by the Cauvery Fact Finding Committee in respect of the river
flow and total yield of river Cauvery to be at 740 TMC at 50%
dependability, 670 TMC at 75% dependability and 623 TMC at 90%
dependability and had also accepted about the utilization by the three
B
riparian States, Tamil Nadu, Karnataka and Kerala, as found by the
Committee in its additional report to be 566.60, 176.82 and 5.00 TMC
respectively.
190. The Tribunal, however, at the hearing of the arguments,
required the States of Karnataka and Tamil Nadu to furnish the flow
C series for 38 years, i.e., from 1934-35 to 1971-72 and from the data so
furnished, it transpired that according to the State of Karnataka, the
average yield for the period 1900-01 to 1971-72 was 792.3 TMC which,
at 50% dependability, figured 752 TMC. Tamil Nadu noticeably, on the
basis of flow series from the year 1934-35 upto 1971-72, claimed the
D total yield at 50% dependability to be 740 TMC. The Tribunal, on a
comparison of the flow series for the two States for the same period,
i.e., 1934-35 to 1971-72, quantified the dependable yield at 50% at 734
TMC qua Karnataka and 740 TMC for Tamil Nadu. Responding to the
plea of Karnataka that the Tribunal should take into consideration the
flow series for the period after 1972, it noted that none of the party-
E States had filed annual flow series for the period subsequent to 1972 for
important nodal points, namely, Krishna Raja Sagara, Mettur and Lower
Coleroon Anicut and that in the absence of such information, it was not
possible to come to the conclusion that there has been a material change
in the total yield within the basin. It remarked as well that after 1974,
F none of the States appeared to be interested in disclosing the correct
information in respect of withdrawals because of which the details
furnished in respect of flows and withdrawals by the party-States in the
common format after 1972 were disputed by both the States. The Tribunal
took note of the fact that Kerala, since the initial stage, had supported
the finding of the Cauvery Fact Finding Committee that 740 TMC of
G water was available in the Cauvery system in an average year. The
stand of the Union Territory of Puducherry was similar. In view of such
preponderant and convincing empirical inputs, the Tribunal accepted the
total yield of the Cauvery basin at 50% dependability to be 740 TMC
and at 75% dependability as 670 TMC.
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STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1003
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

P.4(ii) Identification of dependable yield: A
191. The Tribunal next turned to identify which of the two
dependable yields, i.e., 50% or 75% was to be adopted for the purpose
of eventual apportionment. In this context, it premised that the variability
of annual yield from year to year warranted ascertainment of the
sustainable utilizable flow which could be accepted for final allocation B
for which dependability of the available flow (yield) was of formidable
significance. In this regard, it noticed that the utilizable quantities of water
from surface run off had been assessed by different authorities including
the Irrigation Commission, 1972 and the National Commission on
Agriculture, 1976 based on physiographic conditions, hydro-
meteorological parameters and socio-political environment, legal and C
constitutional constraints and available technology of development. The
dependability factor, the Tribunal observed, did indicate the degree of
assured supply available on the basis of which a project/scheme for any
particular use had been designed. It also recorded that from the information
furnished by the States of Karnataka and Kerala in the common format, D
it transpired that most of the projects had been designed on 50%
dependability. The Tribunal felt advised as well by the observations of
the Supreme Court of United States in State of Wyoming v. State of
Colorado (supra) that the lowest natural flow of the years is not the test
and the reasonable view is that a fairly constant and dependable flow
materially in excess of the lowest may generally be obtained by means E
of reservoirs adopted to conserve and equalize the natural flow. The
Tribunal mentioned that from the yield series furnished by the States of
Tamil Nadu and Karnataka during the period of 38 years from 1934-35
to 1971-72, the lowest recorded yield was during the period 1952-53 at
523 TMC according to Tamil Nadu and 516 TMC according to Karnataka. F
It noted that in the Cauvery basin, the fluctuation of the flows was not as
high as in the Krishna or Narmada basin, such fluctuation between the
lowest yield and the dependable yield being within 30% in comparison to
56% and 70% in case of Krishna or Narmada. The Tribunal took note of
the storage capacities of various reservoirs built by the States of Tamil
Nadu and Karnataka before and after 1972 in the Cauvery basin. It also G
took into account the projects proposed by the State of Kerala having
live storage of more than 1 TMC each totaling 19 TMC of live storage
capacity in the basin. The fact that in addition, about 12 TMC of storage
capacity was available from other small reservoirs with capacity of less
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1004 SUPREME COURT REPORTS [2018] 5 S.C.R.

A than 1 TMC was taken cognizance of. The Tribunal, thus, concluded
that the total storage capacity in the Cauvery basin was 330 TMC (gross)
and 310 TMC (live). It was of the view that about 42% of 740 TMC
(i.e., 50% dependable yield) could be stored in all the storage reservoirs
in the Cauvery basin which was a very significant aspect for consideration
in the development and utilization of water resources of a river basin. It
B
concluded that in view of the facets examined on the basis of the materials
available, adoption of 50% dependable flow for apportionment amongst
the party-States, bearing in mind the reinforcement in the two monsoon
seasons and the availability of ample storage facilities, would be fair and
the system could be further strengthened by integrated operation of the
C important reservoirs.
P.4(iii) Additional source of water:
192. The Tribunal, in its quest for an additional/alternative source
of water, dwelt upon sub-surface water or groundwater which is a portion
of the earth’s hydrological cycle. It started with the premise that the
D groundwater originates for all practical purposes as surface water which
infiltrates into the ground from natural re-charge of precipitation, stream
flow, lakes and reservoirs. It noted the recorded fact that recharge of
the groundwater takes place from natural resources like rainfall and
artificial modes, i.e., application of water to irrigate crops, flooding of
E areas caused by over-flowing of streams to their sides and seepage
from unlined canals, tanks and other sources of re-charge in any
particular area. It took cognizance of the empirical data prepared by the
Central Ground Water Board, Ministry of Water Resources, Government
of India, that groundwater caters to more than 45% of the total irrigation
in the country. On this issue, whereas the State of Karnataka contended
F that while making apportionment of the waters available within the
Cauvery basin, groundwater available within the delta areas should also
be taken into consideration, per contra, Tamil Nadu asserted to the
contrary. According to it, so far as the delta was concerned, the
groundwater was mainly derived from re-charge by the supplies from
G Mettur, i.e., it is the water of river Cauvery and its tributaries which by
process of re-charge becomes groundwater within the delta area in the
State of Tamil Nadu and the same is utilized by the farmers for raising of
early nurseries ahead of releases from Mettur and for irrigating belated
crop after stoppage of Mettur releases. It, thus, asserted that as the
groundwater in the delta area is replenished by the releases from Mettur,
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STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1005
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

it cannot be considered to be an independent source of irrigation or an A
alternative means of irrigation. The Tribunal, in order to address this
issue, traversed the studies undertaken, amongst others, by the Central
Ground Water Board, Ministry of Water Resources, Government of India
which, to reiterate, attested that groundwater is an important source of
irrigation and caters to more than 45% of the total irrigation in the country
B
and that the contribution of groundwater irrigation to achieve self-
sufficiency in food grains production in the past three decades had been
phenomenal. It mentioned in its report that although the groundwater is
an annually replenishable resource, yet its availability is non-uniform in
space and time and though for planning its development, a precise
estimation of groundwater resource and irrigation potential is a necessary C
pre-requisite, yet such an exercise is rather difficult as techniques are
currently not available for direct measurement. The report further
enumerated the items of supply to and disposal from groundwater
reservoirs. The Tribunal noted that for irrigation, there are three sources
of water supply, namely, rainfall, surface flow of any river which can be
D
taken to different areas through canal system and groundwater which
can be taken out through open wells or tube-wells. Reverting to the
Cauvery basin, the Tribunal marked that it was an admitted position that
the variability in time and quantity of rainfall from the South-West monsoon
and the North-East monsoon in some years do create problems thereby
affecting the surface flow of river Cauvery and its tributaries which in E
its own turn affect the storage in different reservoirs like Krishna Raja
Sagara, Mettur, etc. The Tribunal underlined that it is in this background
that availability of groundwater assumed importance. It also referred to
the disclosures in research undertaken in the field that the availability of
groundwater for use was limited to the annual re-charge which could be
F
withdrawn and again replenished by natural rainfall/artificial modes of
re-charge so much so that the annual withdrawals of groundwater in
any region need to be in equilibrium with the annual replenishment of
groundwater in that region. It indicated on the basis of the materials
available that over-withdrawals made from an aquifer (i.e., water bearing
rock formation) at rates in excess of the net re-charge are described as G
“mining” of groundwater as it lowers the groundwater level permanently
to the extent these over-withdrawals are made thereby leading to serious
problems. It noted that if such practice of over-withdrawals would
continue resulting in decline of groundwater table, the pumping of water
would become more and more expensive from the greater depth thus
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1006 SUPREME COURT REPORTS [2018] 5 S.C.R.

A compounding the situation. The Tribunal, adverting to the Central Ground
Water Board Publication “Ground Water Resources of India -1995”
observed that whereas in Karnataka, dug-wells, dug-cum-bore wells
and bore wells were the main groundwater structures feasible, the ground
water development for irrigation had commenced recently in the State.
As regards the State of Tamil Nadu, it was observed that groundwater
B
development in most of the parts of the State was high resulting in
lowering of water level in many areas. The caveat in the report that in
the coastal areas of Tamil Nadu, a cautious approach has to be adopted
for groundwater development due to salinity hazards, was noted. The
fact that the research study and experiments indicated towards the
C encouraging conjunctive use of groundwater with the available surface
waters was taken note of by the Tribunal as well. This was clearly
suggestive of the comprehension that groundwater could be used to
supplement surface water supplies in order to reduce peak demands for
irrigation and other uses or to meet the deficit in the years of low rainfall.
Reports, inter alia, of the Irrigation Commission, 1972 disclosing the role
D
played by groundwater in mitigation of the requirements of the party-
States, namely, Karnataka (35%), Kerala (21%), Tamil Nadu (47.2.%)
and Union Territory of Puducherry (61%) were noticed by the Tribunal.
The Tribunal also took note of the fact that the development of
groundwater had taken place mostly in the private sector where the
E owners have many a time over-exploited the available groundwater
resources resulting in gradual lowering of the water level with the hazard
of intrusion of sea water in the coastal areas thereby polluting the quality
of groundwater in the vicinity of the coastline and, thus, rendering the
groundwater in the affected area not only unfit for human consumption
but also for use in agriculture. The Tribunal marked the limit of
F
groundwater development proportionate to the annual replenishable
groundwater resources as prescribed by the National Water Policy. The
aspect that though underground water resources of a State had been
acknowledged to be a relevant factor by the Krishna Water Disputes
Tribunal, Narmada Water Disputes Tribunal as well as Godavari Water
G Disputes Tribunal for equitable apportionment of the waters of an inter-
State river system, yet they declined to investigate the question regarding
availability of groundwater and quantity thereof on the ground that
groundwater flow cannot be accurately estimated from the technical
point of view and, thus not fully cognizable from the legal point of view,
was underlined.
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STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1007
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

193. The Tribunal referred to the investigation undertaken by a A
team of experts under the United Nations Development Programme
with its report stating that the total yearly quantity of replenishable
groundwater that can be extracted from the shallow aquifer in the delta
through high yielding medium-depth tube-wells equipped with turbine
pumps is 129 TMC. It elaborated that the yearly quantity of groundwater
B
that can be extracted by using centrifugal pumps in the Cauvery sub-
basin, Vennar sub-basin and in the new delta was 33.7 TMC, 5.4 TMC
and 32.5 TMC respectively. Additionally, a quantity of 56.5 TMC of
groundwater per year can also be made available in the Cauvery sub-
basin by lowering seasonally groundwater level to 10 meters depth below
the regional groundwater level and substituting high yielding medium- C
depth tube-wells equipped with turbines for the low yield filter points
with centrifugal pumps. This finding, however, was criticized by Tamil
Nadu as impracticable and unworkable, more particularly in view of the
high cost involved in purchasing the equipments suggested and in lowering
the depth upto 10 meters by different cultivators in the Delta. The State
D
of Karnataka, however, supported the recommendation of the UNDP
with the observation that if the same would have been implemented
timely, the aquifers in the Delta would have been re-charged by North-
East monsoon rainfall which could be utilized during the period from
June to October next year.
194. The Tribunal took note of the study conducted by a team of E
the Central Ground Water Board of the utilization of groundwater with
special reference to the Delta area in Tamil Nadu which indicated that
the groundwater potential available from the Delta was to the extent of
64 TMC which included 5 TMC from deep acquifer (upto 100 meters
deep). The Tribunal also took note of the report by Mr. W. Barber, F
Consultant, World Bank on the Groundwater Resources of the Cauvery
Delta which not only indicated the Gross Ground Water Abstractions
from Cauvery Delta from 1971 to 1983 but also estimated the available
groundwater to be 51.56 TMC. The Tribunal, on the basis of the reports
submitted by the UNDP, Central Ground Water Board and Mr. Barber
of World Bank, observed that the same, to a great extent, supported the G
stand of Tamil Nadu that the re-charge of groundwater in the Delta area
was mainly due to releases from Mettur reservoir. It, however, marked
the admission of the State in its pleadings that the total groundwater
extraction during the year 1989 was approximately 28.4 TMC in the
Cauvery sub-basin, 7.3 TMC in the Vennar sub-basin and 11.3 TMC in H
1008 SUPREME COURT REPORTS [2018] 5 S.C.R.

A the Grand Anicut Canal area (new Delta area) totaling 47 TMC. The
statement of Tamil Nadu in its pleadings that in the old Delta there was
scope for conjunctive use of groundwater to the extent of 30 TMC was
recorded. Tamil Nadu, however, belatedly questioned the findings of the
UNDP to be not fully representative of the area surveyed and in view of
better parameters for revaluation of the aquifers, as suggested by the
B
Ground Water Resource Estimation Committee. But the Tribunal in
absence of any evidence adduced by Tamil Nadu to this effect, preferred
not to discard the reports of the UNDP. The issue was tested by the
Tribunal in the context of the variety of crops grown and the rainfall
received through the South-West monsoon and North-East monsoon. It
C concluded from the reports of the Irrigation Commission as well as of
the Cauvery Fact Finding Committee that the North-East monsoon was
irregular and subject to frequent failures often accompanied with cyclonic
formations in the Bay of Bengal resulting in high floods as well as large
surface runoff with many a times even causing damage to the standing
paddy crop. On a scrutiny of the report of the UNDP and the Central
D
Ground Water Board, the Tribunal concluded that as per the former,
39.2 TMC of the groundwater was available in the old Delta, whereas
as per the latter, the stock was limited to 30 TMC. The Tribunal noted
that this was in comparison to 28.79 TMC as estimated by Mr. Barber.
It noted as well that qua the new Delta, UNDP had estimated at 32.6
E TMC and Mr. Barber had estimated at 22.77 TMC. In the background
of such exhaustive studies by various agencies, the Tribunal observed
that in a normal year when there would be regular releases of water
from Mettur, the bulk of contribution to the groundwater in the Cauvery
sub-basin would be from such releases, but in any case, the contribution
from surface irrigation and rainfall could not be overlooked. All these
F
notwithstanding, the Tribunal, considering the severe limitation in the
assessment of groundwater resource, made a safe estimate of 20 TMC
which could be used by Tamil Nadu conjunctively with surface water.
The Tribunal clarified that this quantum was arrived at after excluding
the component of groundwater re-charge from river water by lateral
G infiltration.
P.5 The principles of apportionment
195. The principles of apportionment of the waters of Cauvery,
the gravamen of the dispute, next engaged the attention of the Tribunal.
The fact that such principles for distribution of inter-state or international
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STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1009
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

rivers like the principles of natural justice had been evolved and developed A
by the Courts from time to time over centuries, while adjudicating water
disputes between different States or Nations were noted as the starting
premise. The Tribunal acknowledged that such disputes were directly
linked with the development in different spheres and demands for water
from such inter-state or international rivers could be traced to the rise in
B
population. It reminisced to record that most of the ancient cities and
civilizations had grown on the banks of such rivers because of the fertile
land and easy communication but during the middle of the 19th century
the industrial revolution and allied development, which brought prosperity
to mankind, also bred conflict and dispute in respect of sharing of waters
of such inter-State and international rivers. The perennial dissension C
between the upper riparian States claiming an absolute right on the flow
of water passing through their territories and the lower riparian States
claiming on the principle of right of easement was taken note of.
196. The Tribunal ruminated that the resultant dispute and
disharmony called for a balanced approach keeping in mind the interest D
of all the riparian states, the inherent question to be answered being
which State should get what proportion of water out of the total yield of
the river concerned. Noticing that the demands of different States when
much higher than the total available water in the basin in question posed
formidable challenges, the Tribunal recalled that the dispute about sharing
of water of deficit river like Cauvery was more than one and a half E
century old as attested by the recorded facts. It took into account the
assertion of the State of Tamil Nadu based on prescriptive right over the
flows of river Cauvery as well as its right of prior appropriation being a
lower riparian State. In endorsement of this plea, the State had relied on
the relevant observations with regard to the doctrine of appropriation F
made in the report of the Indus Commission of the year 1942 to the
effect that “priority of appropriation gives superiority of right”. The
Commission had remarked that the common law rule of riparian rights
was completely destructive of equitable apportionment for under that
rule, the upper owner could hardly take any share, far less than his fair
share of water of the river for the purposes of irrigation. In comparison, G
the doctrine of appropriation was consistent with equitable apportionment
provided that the prior appropriator was not allowed to exceed reasonable
requirements. The fact that this doctrine was dictated by considerations
of public interest was noticed as well. The view of the U.S. Supreme
Court in State of Wyoming v. State of Colorado (supra) to the effect H
1010 SUPREME COURT REPORTS [2018] 5 S.C.R.

A that the cardinal rule of the doctrine that priority of appropriation gives
superiority of right was underlined. The Tribunal construed that the priority
of appropriation was a concept different from past utilization of waters
of the basin by one State or the other. It noted as well the reservation of
the Supreme Court of United States in State of Nebraska v. State of
Wyoming (supra) that for an allocation between the appropriating States
B
to be just and equitable, strict adherence to the priority rule might not be
possible though it may pose as the guiding principle. The Tribunal recorded
that past utilization or existing utilization had also been recognized as a
relevant factor in a proceeding for apportionment of waters of an inter-
state or international river and conceptually was a part of the evolution
C and development of river basin linked with the history thereof. It mentioned
as well that though past utilization and existing utilization was a relevant
factor in the matter of apportionment, yet there could be prevalent
circumstances in other riparian States outweighing the prevailing practice
so much so that in such an eventuality, such practice or use would be
required to be restricted or modified in a reasonable manner.
D
197. The Tribunal also took note of the observations of the Krishna
Water Disputes Tribunal in its report under the heading “Protection of
Existing Uses” to the effect that in fixing the equitable share of the
States, the claims of such existing uses should be allowed before claims
for future uses are taken up for consideration. It was, however, reiterated
E that priority of appropriation, though the guiding rule, was not conclusive
in equitable allocation. It recalled the observations of the U.S. Supreme
Court in State of Nebraska v. State of Wyoming (supra) where junior
uses of Colorado were allowed to prevail over the senior uses of
Nebraska having regard to Colorado’s counter-veiling equities and
F established economy based on existing uses of water. The Krishna Water
Disputes Tribunal’s remark that equitable apportionment can take into
account only such requirements for prospective uses as are reasonable,
having regard to the available supply and the needs of the other States,
was referred to.
G 198. The Tribunal also adverted to the discussion recorded by the
Narmada Water Disputes Tribunal in its report where it dwelt upon the
“Relevant Factors in the Balancing Process”, where, amongst others,
various determinants like extent of dependence of the riverine dwellers
on the river flow, the size of the river’s watershed or drainage area and
the possibility of maintaining a sustained flow through the controlled use
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STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1011
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

of flood waters, seasonal variations in diversions, availability of storage A
facilities or ability to construct them, availability of other resources, etc.
had been enumerated. The Tribunal noticed the remark in the report that
the doctrine of equitable apportionment cannot be put in the narrow
strait-jacket of a fixed formula and that in determining the just and
reasonable share of the interested States, regard must be had to these
B
factors and beyond so that the allocation will be made according to their
relative economic and social needs. In this regard, the volume of the
stream, the water uses already been made by the State concerned, the
respective areas of land yet to be watered, the physical and climatic
characteristics of the States, the relative productivity of land in the States,
the State-wise drainage, the population dependent on the water supply C
and degree of their dependence, extent of evaporation in each State and
the avoidance of unnecessary waste in the utilization of water were also
factors to be applied.
199. The Tribunal also referred to the reports of the Godavari
Water Disputes Tribunal and Ravi and Bias Water Tribunal to underline D
the primacy of the recognition of equal rights of the contending States to
establish justice between them over the claim of absolute proprietary
rights in river waters. The reports explained that equal right, however,
did not mean an equal division of water but implied an equitable
apportionment of the benefits of the river, each unit getting a fair share.
200. With the third view gaining increased recognition and E
application in the resolution of water disputes involving the issue of
allocation and distribution of waters of an inter-state river, the Tribunal
in reiteration noted the observations of the U.S. Supreme Court in Kansas
v. Colorado (supra) that the right of flowing water is well-settled to be
a right incident to property in the land and it is a right publici juris and F
is of such character that whilst it is common and equal to all through
whose land it runs and that no one can obstruct or divert it, yet it is one
of the beneficial gifts of providence so that each proprietor has a right to
a just and reasonable use of it as it passes through his land as long as it
is not wholly obstructed or diverted or no larger appropriation of the
water running through it is made than a just and reasonable use. The G
Tribunal further held that it cannot be said to be wrongful or injurious to
a proprietor lower down if there is jus case. The theme was further
elaborated in Colorado v. Kansas (supra) with the elaboration that the
lower State is not entitled to have the stream flow as it would in nature
regardless of the need or use and if then the upper State is devoting the H
1012 SUPREME COURT REPORTS [2018] 5 S.C.R.

A water to a beneficial use, the question would be, in the light of existing
conditions in both the States, whether and to what extent her action,
injures the lower State and her citizens by depriving them of a like or an
actually valuable, beneficial use. The observation of the U.S. Supreme
Court in State of New Jersey (supra) that a river is more than an amenity
being a treasure and that the competing riparian states have real and
B
substantial interests in it requiring best reconciliation thereof was
highlighted. It noted the exposition of the U.S. Supreme Court in State
of Connecticut (supra) that “equality of right” applied to settle disputes
with regard to allocation of water would not connote equal division of
waters of an inter-State stream but would mean that the principles of
C right and equality should be invoked having regard to the “equal level or
plane” on which all the States stand, in point of power and right under
the Constitutional system.
201. The determination of the U.S. Supreme Court in State of Colorado
v. State of New Mexico (supra) that the rule of priority should not be
D strictly applied where it would work more hardship on the junior user
than it would bestow benefits on the senior user, was recorded. The
opinion of Chief Justice Burger in the said decision to the effect that
each State through which the river passes has a right to the benefit of
water, but it is for the Court, as a matter of discretion, to measure their
relative rights and obligations and to apportion the available water
E equitably, was taken note of in particular. The following passage from
the Halsbury’s Laws of England, 4th Edition, Vol. 49(2), paragraph 121
was extracted to underscore the parity in the rights of co-riparian
claimants to a reasonable enjoyment and use of the water:-
“121. Rights and duties as to quality of water. The right of a
F Riparian owner to the flow of water is subject to certain
qualifications with respect to the quantity of water which he is
entitled to receive. The right is subject to the similar rights of
other Riparian owners on the same stream to the reasonable
enjoyment of it, and each Riparian owner has a right of action in
respect of any unreasonable use of the water by another Riparian
G
owner...
A Riparian owner must not use and apply the water so as to
cause any material injury or annoyance to his neighbours opposite,
above or below him, who have equal rights to the use of the
water and an equal duty towards him.”
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STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1013
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

202. The Tribunal next marked the advent of the Helsinki Rules A
of 1966 which rejected the Harmon doctrine and laid emphasis on the
need of equitable utilization of such international rivers. The said Rules
recognize equitable use of water by each basin State setting out the
factors, not exhaustive though, to be collectively taken into consideration
for working out the reasonable and equitable share of the riparian states.
B
The indicated factors, inter alia, include the geography of the basin, the
hydrology of the basin, the climate, past utilization of waters, economic
and social needs of each basin State, population dependent on the waters
of the basin in each basin State, availability of other resources and the
degree to which the needs of a basin State may be satisfied without
causing substantial injury to a co-basin State. The emphasis clearly is C
that in determining the reasonable and equitable share, all relevant factors
are to be considered together and a conclusion is to be reached on the
whole.
203. The Tribunal, in this regard, recalled that this Court in the
Presidential Reference in which the “Karnataka Cauvery Basin D
Irrigation Protection Ordinance, 1991” fell for scrutiny had reiterated
the same law and principles to govern the equitable allocation of water
of an inter-state river between the different riparian States. Paragraph
72 of the decision rendered by this Court in the said proceedings was
extracted.
E
204. In the background of the above exposition, the Tribunal
recorded that so long as the river flows are not wholly obstructed or
diverted or appropriation of the water by the upper riparian States is not
more than just and reasonable use, it cannot be said to be wrongful or
injurious to the right of the lower riparian State. It stated that equitable
apportionment would, thus, protect only those rights to the water that F
were reasonably required and applied especially in those cases where
water was scarce or limited. It emphasized that the water of a river
being a treasure in a sense, wasteful or inefficient use thereof cannot be
approved and only diligence and good faith would keep the privilege
alive. It, however, reflected that the theory of equitable apportionment G
pre-supposed equitable and not equal rights and any order, direction,
agreement or treaty has to take into consideration the economic and
social needs of different riparian States. It reiterated that while
determining the reasonable and equitable share, all relevant factors are
to be cumulatively considered.
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1014 SUPREME COURT REPORTS [2018] 5 S.C.R.

A 205. The Tribunal also took into consideration the report of the
71st Conference of the International Law Association held in Berlin in
August 2004 where the relevant factors necessary for determining an
equitable and reasonable use were again outlined. The factors mentioned
in the Helsinki Rules were retained along with precise emphasis on the
precept of collective consideration thereof for reaching a conclusion
B
qua apportionment of just and equitable share of water of an inter-state
river. Apart also from adverting to the “The Campione Consolidation of
the ILA Rules on International Water Resources, 1966-1999” which
substantially reiterated the above principles, the Tribunal also reminded
itself of the verdict of this Court that it was an acknowledged principle
C of distribution and allocation of waters between the riparian States that
the same has to be done on the basis of equitable share of each state,
however leaving it open to decide such equitable share depending on the
facts of each case. The Tribunal, thus, concluded that no doubt that prior
use has to be given due weight because cultivators have been irrigating
their lands in the lower riparian State as in the Delta in the case in hand
D
for centuries, but that factor has to be taken into consideration along
with several other factors for the purpose of determination of the just
and equitable share of water amongst the competing riparian states,
more particularly when the resources in demand were in short supply.
The Tribunal, therefore, held the view that though past utilization was a
E relevant factor, yet it was possible that the circumstances in the other
riparian States could be such that their demands for reasonable share
might outweigh such past utilization of any particular riparian State and,
consequently, the Courts and Tribunals would have ample power for
taking into consideration the overall relevant circumstances to curtail
and modify the past uses by any riparian State. This was more so in
F
view of Article IV of the Helsinki Rules which clearly indicate that 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.
206. Reverting to the contextual facts and the controversy founded
G thereon, the Tribunal analyzed the existing scenario and observed that
prior to the year 1924, the river Cauvery was in a state of flow in the
sense that whatever water came from the source and the tributaries in
the State of Mysore and Madras used to pass through the Delta and the
utilization of Cauvery water within the State of Mysore was negligible
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compared to that in the State of Madras especially in the Delta area. It A
further observed that the utilization of Cauvery water so far as Kerala
was concerned was virtually nil. The situation started changing with the
constructions of reservoirs in Mysore and Mettur in Madras for which
the flow of water of Cauvery was regulated to a great extent.
207. The Tribunal apprised itself of the background and observed B
that the main development and utilization of Cauvery basin before 1924
occurred in Madras mostly in the Delta area and it being the lower
riparian State, enjoyed almost full flow of river Cauvery as well as its
tributaries. It noted that as per the report submitted by the Cauvery Fact
Finding Committee in the year 1972, the inter se utilization of waters of
Cauvery by Tamil Nadu including the Karaikal region of Union Territory C
of Puducherry, Mysore and Kerala used to be 566.60 TMC, 176.82
TMC and 5 TMC respectively. In the background of the Agreements of
1892 and 1924, the Tribunal recapitulated the persistent protests of the
State of Karnataka qua the restraints put on it on the use of the waters
of the Cauvery river for which it was not possible on its part to irrigate D
lands even as contemplated under the Agreement of 1924. The plea
based on judicially enounced view that neither the upper riparian State
can claim paramount right to appropriate more water than what is its
reasonable requirement nor the lower riparian State can claim any
prescriptive right to the flow of water was noted. The Tribunal, thus,
accepted, as its guide, the principle that the waters of an inter-State or E
international river are to be shared in a just and equitable manner so as
to serve the need and necessity of each riparian State.
P.6 Determination of “irrigated areas” in Tamil Nadu and
Karnataka
F
208. With reference to the norms suggested by the party-States
for apportionment of Cauvery waters for pre and post Agreement of
1924 in the context of the irrigated areas corresponding to this time
phase, the Tribunal enumerated the following four categories, the needs
of irrigation whereof were required to be addressed:-
G
“(i) Areas which were developed before the agreement of the
year 1924.
(ii) Areas which have been contemplated for development in
terms of the agreement of the year 1924.
H
1016 SUPREME COURT REPORTS [2018] 5 S.C.R.

A (iii) Areas which have been developed outside the agreement
from 1924 upto 2.6.1990, the date of the constitution of the
Tribunal. (i.e. from 1924 to 1990)
(iv) Areas which may be allowed to be irrigated on the principle
of equitable apportionment.”
B 209. Having laid the preface for the discernment of the areas
developed for irrigation in the competing States prior to, under and beyond
the Agreement of 1924 and also areas which could be allowed to be
irrigated on the principle of equitable apportionment, the Tribunal took
up the claims of the competing States in succession.
C 210. Qua the areas developed by Madras/Tamil Nadu, it principally
adjudged the entitlements on the touchstone of Clauses 10(v), 10(xii)
and 10(xiv) of the Agreement of 1924 together with the Administrative
Report, 1923-24, CFFC Report, 1972, C.C. Patel Committee Report as
well as the reports of the Irrigation Commission and National Commission
D for Agriculture, 1976. While accounting for the water requirement for
the second crop in the irrigated areas grown prior to and in terms of the
1924 Agreement, the same was disallowed for the areas beyond it. Having
regard to the scarcity of water resources in the Cauvery Basin and the
principle of equitable apportionment, it noted that the practice of double
crops in the same field during an agricultural season required more water
E and, thus, the areas where the cultivable land is more and the availability
of water is a constraint, the projects are designed to cover larger areas
for cultivation of light irrigated crops. It observed that since paddy was
high water consuming crop, it would cover smaller areas than semi-dry
crops which needed lesser water for which the extent of areas could
F sometimes be 2 to 3 times. Having regard to the fact that in a country
like India, where the bulk of population was engaged in agriculture for
its livelihood, the Government policy was to cover as large area as
possible, a concept known as “Extensive Irrigation”. It was of the view
that in a water deficit basin like Cauvery, the annual intensity of irrigation
(Annual Intensity of Irrigation means acreage – area under irrigation) is
G a very significant factor and needed to be considered keeping in view
the large number of small farmers for sustenance of their livelihood and
bearing that in mind, it construed it to be proper to restrict the annual
intensity of irrigation to 100% and, accordingly, allowed the extent of
areas to be irrigated in each State depending upon the availability of
H water. It referred to the CFFC Report vis-a-vis Tamil Nadu wherein it
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was observed qua the crops of Kuruvai, Samba and Thaladi that savings A
could be effected by (i) restricting the double crop paddy area; (ii)
introduction of shorter duration variety in place of Samba and; (iii) growing
crops requiring less water.
211. The Tribunal, thus, determined the necessity to restrict the
double crop area as far as possible. Further, the recommendation of the B
National Commission on Agriculture, 1976 to the effect that rice should
be grown in no rainy season area or low rainfall areas only if the available
irrigation supplies cannot be put to more economic use for other crops
was noted in endorsement of this finding. It noted as well the opinion of
Dr. M.S. Swaminathan, witness for the State of Tamil Nadu, to the
same effect. C

212. Keeping in mind the fair and equitable share principle, it
expressed that in order to assess reasonable water requirements, it would
be essential to first consider the extent of areas which had already been
developed vis-a-vis the development permitted under the Agreement
and thereafter consider the just and fair claim of development for irrigation D
as placed by the party-States before it. It noted that the total claim of
the party-States for development of irrigation in the territories did far
exceed the availability of waters which called for imperative restrictions.
It mentioned that in the State of Tamil Nadu, the entire development in
the past and future was based on paddy cultivation which was a high E
water consuming crop and the State had almost reached the ultimate
potential of its irrigation development by 1974 as was evident from the
CFFC Report and also as claimed by it. In contrast, qua Karnataka, the
Tribunal marked that in the past, it had been growing paddy wherever it
could get irrigation facility but could not complete the development as
contemplated under the 1924 Agreement by 1974. It, however, noted F
that the State of Karnataka had embarked on the construction of reservoir
schemes some years previous to the completion of 50 years of the 1924
Agreement and along with the progress of the reservoirs, kept on releasing
waters to the newly opened areas for irrigation so that by the year 1990,
its contemplated development was almost thrice in extent to the G
development achieved in 1974. The fact that in comparison, Kerala could
hardly mark any development of irrigation except under minor irrigation
in a total area of about 50,000 acres till 1990, was noticed. The Tribunal
took up the task of ascertaining the extent of development which could
be allowed to the party-States and the crop water requirement therefor
so that a fair and reasonable allocation of surplus water would become H
1018 SUPREME COURT REPORTS [2018] 5 S.C.R.

A possible. It observed that for equitable distribution, one of the
considerations ought to be the existing development of irrigation. Keeping
this in view, the double crop developed beyond the provisions of the
1924 Agreement, whether in Tamil Nadu or in Karnataka, was not taken
note of. The Tribunal was, in this regard, also impelled by the fact that
equity demanded that the farming families should at least be having one
B
single crop which they could raise for their livelihood with the support of
irrigation facilities and thereby derive the benefit from the natural river
water resources which was common to all. In this respect, the Tribunal
underlined that the paddy crop should be so planned as to make maximum
advantage of the rainy season in the Cauvery basin area, relaxation
C however being extended to areas over which second paddy crop was
being grown prior to the Agreement of 1924 as well as second crop
permitted by the said Agreement by way of extension. While identifying
the areas developed or undergoing development in the State of Tamil
Nadu beyond the entitlements contemplated in the 1924 Agreement, the
Tribunal applied the following criteria, namely, no double crop/perennial
D
crop de hors the 1924 Agreement; no area for summer paddy; the area
of summer paddy raised prior to 1924 to be replaced by semi-dry crop;
annual intensity of irrigation to be restricted to 100%; cropping period to
be restricted within the irrigation season, i.e., from 1st June to 31st January
and ambitious Lift Irrigation Schemes to be discouraged. Apart from
E this, the Tribunal excluded the areas beyond the Cauvery Basin as well
as those utilized for high water consuming crop like sugarcane. Keeping
in view the shortfall in supply of water, the Tribunal, based on
contemporaneous data, did also scale down areas proportionately under
some schemes but did account for dry areas sought to be catered by the
corresponding projects.
F
213. Applying these principles generally, after an exhaustive
analysis of the relevant facts, it did fix the areas under the afore-mentioned
four categories qua Madras/Tamil Nadu as hereinbelow:
(i) Area under irrigation in Madras/Tamil Nadu prior to 1924
G Agreement = 15.193 lakh acres.
(ii) Area for development as per the provisions of 1924
Agreement = 6.19 lakh acres.
(iii) Area developed/under ongoing development beyond the
entitlements contemplated in the 1924 Agreement between 1924
and 1990 = 2.06 lakh acres.
H
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214. Thus, the Tribunal under the above three heads together with A
the area developed/under minor irrigation, which it ascertained to be
1.25 lakh acres, determined the total area in Tamil Nadu which had been
developed prior to 1924 along with those developed under ongoing
development in the State beyond the entitlement contemplated under the
1924 Agreement upto 1990 at 24.71 lakh acres. As the narration to this
B
effect would demonstrate, the Tribunal, while determining this area as a
whole, did take note of the crop pattern, the locations thereof in the
Basin with reference to the corresponding projects/schemes/channels,
etc. and the area developed under minor irrigation.
215. In the process of examination of the claim of the State of
Karnataka with regard to the development of the irrigated areas in the C
State in the Cauvery Basin, the Tribunal as in the case of Tamil Nadu did
cast its scrutiny over the same four categories, namely, areas developed
before the Agreement of 1924; those contemplated for development in
terms thereof; those developed outside the Agreement up to 02.06.1990
and the areas which could be allowed to be irrigated on the principle of D
equitable apportionment. It noted that at the commencement of the
century, irrigation in the then State of Mysore was mainly from direct
diversion channels from the rivers together with the system of tank
irrigation which was mentionably quite widespread. As there was no
reservoir, the waters of the Cauvery and its tributaries like Kabini,
Hemawathy, Harangi and Suvaranwathi used to flow through the State E
but their ultimate destination was the Delta area of the then State of
Madras. The Tribunal mentioned that prior to the 1924 Agreement,
irrigation in Mysore was mostly through Anicut Canal and minor irrigation
and as admitted by the State of Tamil Nadu in their statement, Karnataka
had developed only 3.14 lakh acres of land by 1924. Karnataka, however, F
stated that its irrigated area under the projects at the time of the 1924
Agreement was 3.1 lakh acres which increased to 3.14 acres in 1928.
On an analysis of the facts available on record, the Tribunal accepted
the irrigated area of the State of Karnataka before 1924 to be 3.43 lakh
acres which, of course, included areas covered by minor irrigation.
G
216. In respect of the entitlement of the States in terms of the
Agreement of 1924, the Tribunal referred to, in particular, Clauses 10(iv),
(xii), (xiii) & (xiv) to determine the new development of irrigation and
extension of irrigation thereunder. It noted that there was no time limit
for the envisaged development of irrigation under the various clauses of
H
1020 SUPREME COURT REPORTS [2018] 5 S.C.R.

A the Agreement and proceeded on the premise that once the construction
on the project envisaged under any term/clause thereof had been started,
that ought to be considered as permissible even though its completion
date had spilled over 1974. The relevant provisions of the Agreement
were referred to precisely to recall the entitlements of the parties thereto
as defined thereby permitting extension/development of the areas for
B
irrigation in the time to come. To draw sustenance for the view that it
was permissible to take account a project, the construction whereof had
been started under any term/clause of the Agreement of 1924, though
the completion date thereof was after 1974, the Tribunal referred to the
decision of the U.S. Supreme Court in State of Wyomoing v. State of
C Colorado (supra) as well as Article VIII (2)(a) of the Helsinki Rules
to the effect that a project was entitled to priority from the date when
the actual work of construction had begun and not from a date anterior
to the time when there was a fixed and definite purpose to take it up and
carry it through. On this basis, the plea of the State of Tamil Nadu to the
contrary was negated and it was concluded that all the projects on which
D
construction had started prior to 1974 would be covered under Category
II (entitlement under the terms of the 1924 Agreement) irrespective of
the date of completion provided those projects did qualify otherwise under
any of the clauses of the Agreement. From the materials on record, the
Tribunal noted that the development achieved by Karnataka under the
E 1924 Agreement till 1974 under Clauses 10(iv), (xii), (xiii) and (xiv) taken
together was 2.15 lakh acres, though it was entitled to achieve 7.45 lakh
acres. It also recorded that the planned irrigated area claimed by
Karnataka under the Agreement was 14.18 acres (net), i.e., single crop
and 17.04 lakh acres (gross) indicating single + second crop. These
figures represented the statistics both prior to and after 1974. It was
F
noted that the State had claimed second crop area under the projects
involved while setting out the gross plan area of irrigation as 17.046 lakh
acres which included 2.862 lakh acres as second crop area.
217. The Tribunal undertook an exhaustive exercise to examine
the tenability of the claim under the aforementioned clauses of the
G Agreement and accepted the area permissible for development of
irrigation under the 1924 Agreement, i.e., Category II to be 7.23 lakh
acres. As would be evident from the table, while allowing this figure,
the Tribunal did take into account the variety of the crops involved and
the extent of their coverage/acreage (which included Kharif Paddy,
H Perennial Crops, Kharif semi-dry crop, Rabi-semi dry crop). The Tribunal
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recorded that like Tamil Nadu, the State of Karnataka had extended A
irrigation by way of minor irrigation and there was extension of new
areas under the existing projects and new projects after 1974.
218. Vis-a-vis the areas developed/under ongoing development
in the State beyond the entitlements contemplated in the 1924 Agreement
upto the year 1990, the Tribunal marked the claim of the State of B
Karnataka to be 20.98 lakh acres under various projects. Having regard
to the date of the reference of the dispute to it, it adopted 1990 to be the
cut-off year for considering the equities between the party-States in the
matter of ascertaining the requirement of water. It, therefore, as a
corollary, decided to take note of the developments that had taken place
in between. Dealing with the plea of the State of Tamil Nadu that the C
relevant date for the apportionment should be 1974 when the period of
50 years from the date of execution of the Agreement of 1924 had
expired, the Tribunal observed that no attempt had ever been made by
the State of Tamil Nadu either before it or before this Court to contend
that the areas which could be irrigated during the pendency of the D
proceedings should be those which had been developed by Karnataka
only upto the year 1974 and on the other hand, the parties had pursued
their claim of apportionment of water with reference to the constitution
of the date of the Tribunal.
219. With regard to the claim of the State of Karnataka in respect E
of the area of planned development as made by it in June, 1990 as 20.98
lakh acres, the Tribunal observed that it included areas developed prior
to the Agreement of 1924, permitted in terms of the said agreement and
developed or committed for development outside the Agreement upto
June, 1990, though such areas had been planned and schemes had been
put into execution much before the cut-off year. From the data furnished F
by the State of Karnataka in support of its area of development as in
June 1990 to be 20.98 lakh acres, the Tribunal discerned that the additional
area which was under progress for irrigation development outside the
Agreement was 10.30 lakh acres, by that time.
220. In the process of verification of the claim under this head, G
i.e., areas developed or under ongoing development beyond the entitlement
under the Agreement of 1924 and upto the year 1990, the Tribunal
examined the relevant facts qua every individual project and returned a
finding that the State of Karnataka was entitled to an area of 6.91 lakh
acres. To this, an area of 1.26 lakh acres was allowed under minor H
1022 SUPREME COURT REPORTS [2018] 5 S.C.R.

A irrigation. Thus, in all, the Tribunal allowed 18.85 lakh acres of area
under Categories I, II and III, i.e., area existing under irrigation prior to
1974, permitted to be developed under the different provisions of the
Agreement and the area and minor irrigation works during the period
form 1924 to 1990.
B 221. In arriving at this figure, the Tribunal did not take note of the
development of the second crop in view of the scarcity of water in the
Basin and considered each item of claim on the yardstick of merit and
equity, judged on the touchstone of the entitlements under the Agreement
and the ground realities. In many cases, it kept in mind the rainfall pattern
and support and restricted the crop variety apart from suggesting the
C timings thereof. The scope of several projects were limited/curtailed on
the index of 100% annual intensity of irrigation and ayacuts (irrigated
areas) served by gravity flow were generally allowed and those tended
by lift schemes were excluded. To ensure economy of consumption of
water, crop pattern was also suggested. The Tribunal, however, clarified
D that though the claims of the States had been examined in respect of
areas requiring irrigation in the four categories, none of these was to get
any priority or precedence over the other in the matter of allocation of
water and all were to be treated at par according to the respective need
and necessity.
E P.7 Assessment of water for “irrigation needs” in Tamil Nadu
and Karnataka
222. The Tribunal next delved into the exercise of making an
assessment of the water required for irrigation for the areas delineated
for the competing States. It noted that on the aspect of such requirement,
F the States had produced documents including information provided in
the common format and had examined witnesses who are experts in the
field. It was indicated in particular that having regard to the demand of
the States, i.e., 566 TMC by Tamil Nadu, 466 TMC by Karnataka, 100
TMC by Kerala and 9 TMC by Union Territory of Puducherry, some
curtailments were indispensable in view of the total yield of the Basin
G computed on 50% dependability at 740 TMC. The Tribunal in order to
ensure equitable share to each State, adopted the following considerations
for the purpose:-
“i) The State of Tamil Nadu was having three paddy crops in
the delta area as well as in some other areas. In the same field
H
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they were having first Kuruvai and followed by Thaladi and in A
the rest, Samba crop which takes a longer time to mature was
being grown. After examining the records it appeared that
Madras/Tamil Nadu was having Kuruvai followed by Thaladi in
about 95,000 acres prior to the agreement of the year 1924 in
the delta area. From the agreement of 1924 read with its
B
Annexures it shall appear that the State of Madras was allowed
to extend double crop in the same field by 90,000 acres (70,000
acres in the old delta and 20,000 acres in the Mettur Project
area). The total being 1,85,000 acres. The practice of growing
double crop by the cultivators in the aforesaid area of 95,000
acres was being followed much before the execution of the C
agreement; it is difficult to direct to discontinue that practice.
Same is the position so far the balance of 90,000 acres are
concerned because that was permitted under the terms of the
agreement and has been specifically mentioned in the Cauvery
Mettur Project Report (1921) as well. All these aspects have
D
been discussed in earlier chapters. But it is an admitted position
that State of Madras/Tamil Nadu with the copious flows of water
being available started growing double crop of paddy in the same
field in different areas. The total of such areas has been discussed
in earlier chapters. Similarly Karnataka also followed a practice
of growing double crops which were not permitted by the E
agreement. In this background it is considered necessary in the
end of justice not to take note for the purpose of apportioning the
waters of inter-State river Cauvery in respect of growing second
paddy crop or any other crop in the same field in the same
agriculture year except in the areas in which these practices
F
were being followed prior to 1924 agreement or was specifically
permitted under the terms of the agreement.
ii) The State of Karnataka under the terms of the agreement
of the year 1924 was allowed to grow sugar-cane only on 40,000
acres which it has raised to about 70,000 to 90,000 acres. It is
well known that crop like sugarcane requires much more water, G
affecting equitable distribution of waters. Therefore, note is being
taken of areas for sugarcane only upto 40000 acres as provided
in the agreement for the purpose of apportioning the waters of
inter-State river Cauvery .
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1024 SUPREME COURT REPORTS [2018] 5 S.C.R.

A iii) It is admitted position that both the States were having summer
crop including summer paddy from the waters of river Cauvery.
When there is so much scarcity of water in the basin, they have
to be restricted from growing any summer paddy except in some
area where it was being grown prior to 1924 agreement, even
that is to be replaced by any light irrigated crop within the irrigation
B
season.
iv) The delta of water claimed on behalf of the two States in
respect of different crops including paddy have to be reduced in
view of the new variety of paddy and other inputs which have
been developed of late which require lesser delta of water.
C
v) Trans-basin diversion takes out the water of the basin to
another basin. As such no note is being taken for the purpose of
determining the need and the equitable share of the each State
in the waters of the inter-State river Cauvery in respect of any
trans-basin diversion already made or proposed for providing
D extra waters.
vi) Lift schemes will not be considered for water allocation.”
223. The stand of the two States, i.e., Tamil Nadu and Karnataka,
that admittedly the water requirement of the crops over the years (after
E 1920) have been reduced with the new variety of seeds of paddy and
semi-dry and dry crops was recorded. The position taken by the State
of Karnataka that it was not going to grow wet crop which consumed
more water in the new project areas and that only semi-dry crops could
be grown thereafter and water would be provided according to the
requirements of the plans was noted as well. After the examination of
F the expert witnesses produced by the States and in course of the
arguments, the Tribunal, by its order dated 12.11.2002, required the States
to file affidavits furnishing details of the water requirement as well as
the crops which they were growing with an indication of the minimum
crop water requirement in view of the scarcity of water in river Cauvery.
G Resultantly, Tamil Nadu filed its affidavit on 08.07.2004 (Ext. TN 1665)
and Karnataka did so on 28.03.2003 (Ext. KAR 518) providing the details
of, amongst others, the crops, the requirements of water including the
Delta (water depth) required in different seasons in different projects
and also supported the data furnished with various documents. It is
necessary to state here that the acceptance of Tamil Nadu’s affidavit
H has been seriously questioned before on the simon pure reason that the
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deponent was not made available for cross-examination. In defence of A
the affidavit, it is the stand of the State of Tamil Nadu that it was a
compilation of all that had been brought on record earlier. We have already
dealt with the same. We only repeat that what is admissible having already
been recorded on any public report shall alone be looked into.
224. The Tribunal mentioned that till 1928, the States of Mysore B
and Madras did resort to age old cultivation mostly of paddy crop wherever
irrigation facilities were available in the Basin and whereas in Mysore,
the paddy cultivation was provided irrigation through anicut canals or
tanks, the same was the case also in Tamil Nadu where bulk of paddy
cultivation was in the Cauvery Delta Area fed by Grand Anicut and
through other Anicuts across Cauvery, Bhavani and Amaravathi and C
later on, with the installation of the Krishna Raja Sagara Reservoir (KRS)
and the Mettur Reservoir as per the provisions of the 1924 Agreement,
Mysore and Madras respectively extended their irrigation to new areas.
The Tribunal noted that though after the construction of these two major
reservoirs facilitating large scale irrigation facilities, the bulk of cultivation D
in both the States remained confined to Paddy crop, yet in Karnataka
sugarcane which is a perennial crop was also resorted to.
225. The Tribunal next took on record the existing crops of the
two States as per the information furnished in their common formats.
Qua Tamil Nadu, it recorded that in respect of the Cauvery Delta system, E
“Kuruvai” and “Thaladi” crops of paddy and Samba crops were being
grown. In other projects of the State, sugarcane, banana and other crops
(groundnut and garden crop) had been introduced from 1980 onwards.
Besides, in the Anicut system, summer paddy in some projects had also
been introduced. Tamil Nadu in its common format indicated as well
that the normal pattern in the Cauvery Basin was to raise the first crop F
of short duration paddy known as “Kurubhai” in June with the waters of
South-West monsoon flowing down the river whereafter a second crop
of paddy of medium term duration known as “Thaladi” was grown on
the same area with the benefit of North-East monsoon to be harvested
by January – February. It was stated that in the rest of the areas, only G
one single crop of paddy of long term duration known as “Samba” was
grown from July/August to be harvested in December/January. In addition
thereto, in other riverine tracks subject to availability of supply, two paddy
crops were being grown followed by a cash crop like green gram and
black gram.
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1026 SUPREME COURT REPORTS [2018] 5 S.C.R.

A 226. Karnataka, in its statement, elaborated on the crop pattern
by indicating that in the Cauvery Basin in the State, Ragi, Jawar, Sesame,
Groundnut, Redgram and short duration pulses were common Kharif
crops (monsoon crops) under rain fed conditions and in some areas,
where there were pockets of retentive soils or where late rain occurred,
some Rabi crops like Jawar, Bengalgram and cotton were being
B
cultivated. It was indicated as well that failure of rains was very common
in these areas which were, as such, severely drought prone for which
appropriate doses of irrigation were necessary to help increase the
productivity and stability of the yield. It was explained that in the Cauvery
Basin, particularly in the old irrigation projects in Karnataka, rice and
C sugarcane were the main crops under irrigation, but in years of inadequate
monsoons, rice was discouraged and light irrigated crops like ragi,
groundnut, etc. were grown in rabi/summer. Karnataka explained further
that in the new irrigation projects, there was no provision to grow paddy
even during Kharif season except in limited areas to a limited extent. It
was underlined that irrigation in the State, including the Cauvery Basin
D
Projects, was aimed at extensive rather than intensive use of water to
afford protection to the drought affected areas. It was also mentioned
that in all the new projects, emphasis was on the growing of light irrigated
crops and that cropping pattern was largely Kharif and to a limited extent
Rabi. Karnataka stated that in the irrigated areas, rice was the pre-
E dominant crop, whereas in the light irrigated areas, Ragi was the main
crop followed by maize and potato and that depending on the availability
of water, sugarcane, mulberry, coconut and other fruit crops were also
grown. The Tribunal referred to the report of the National Commission
of Agriculture, 1976 which mentioned that in India, rice was grown in
about 40% of the irrigated area under all crops and that rice crop was
F
the largest consumer of irrigation water accounting for 50% of the total
irrigation supply, next to that it was wheat which consumed 15% followed
by other cereals which accounted for 12% of the irrigation supplies.
The report, as the Tribunal has noted, inter alia, recorded that in the
southern States, wherever the heavier black cotton soil was located in
G the valleys and the lighter red soils were higher up, it was a good
arrangement to confine growing rice in the valleys and reserving the
lighter soils for light irrigated crops, as otherwise apart from consuming
more water, due to greater percolation losses, the percolated water would
make the heavy soil lower down soggy, thereby rendering it unfit for
growing any crop other than rice. The Tribunal noted the view of the
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1027
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

National Commission on Agriculture that rice should be grown preferably A
where there was good support of rainfall which had a permeability of
less than 5 mm per day and that as water resources were scanty, irrigation
supplies, more particularly to the low rainfall areas, was required to be
put to the most economical use to extend the benefit of irrigation to as
large a number of people as possible. This view was subscribed to by
B
Dr. M.S. Swaminathan, a renowned agricultural scientist, who was
examined as an expert witness for the State of Tamil Nadu and who
endorsed the recommendation of the Commission that a second rice
crop, particularly in the non-rainy season, should be grown in an area
only if the irrigation supplies cannot be put to better use. The witness,
however, observed that as soil and climate in the Delta area in Tamil C
Nadu was very conducive for growing paddy, there should not be any
restriction on the number of paddy crops grown in the same field in the
same agricultural year. The Tribunal was of the view that having regard
to the principles of equitable apportionment, the approach in the matter
of allocation ought to be balanced so much so that the upper riparian
D
States have equal right to develop along with those located in the
downstream. It reminisced the stages of evolution of the principle of
equitable apportionment, now recognized throughout the world, to meet
the necessity of the dependent millions of riverine dwellers justifying
that one crop in one agriculture year to every cultivator ought to be
allowed. It also recalled its decision to permit growing of “Kuruvai” and E
“Thaladi” along with “Samba” in the areas which were grown prior to
the Agreement of 1924 as well as in the areas permitted by the Agreement
of 1924. It, however, keeping in view the shortage of water in the Basin,
reiterated that the second crop beyond the areas covered by the above
two categories could not be permitted. Vis-a-vis Karnataka, the Tribunal
F
recounted that as paddy and sugarcane were more water consuming
crops, they had been restricted to the areas for the period prior to 1924
as well as permitted under the terms of the Agreement. The evidence
of Dr. I.C. Mahapatra, the expert witness for the State of Karnataka,
that a suitable cropping pattern in the State would include ragi, pulses, oil
seeds, sugarcane and one crop of rice along with horticultural crops of G
fruits, flowers and useful areas was taken note of. His testimony to the
effect that two crops of rice which were being cultivated in some parts
of Karnataka ought to be discouraged was also accounted for. The
Tribunal took on record the statement of this witness to the effect that
Tamil Nadu had two or three crops of rice in different parts of the State
H
1028 SUPREME COURT REPORTS [2018] 5 S.C.R.

A as the temperature in the Cauvery Delta was not a limiting factor. The
witness, however, emphasized on the rainfall pattern to design the
cropping model depending on the relation to water availability. In response
to a query, this witness observed that the farmers of Tamil Nadu were
anxious to grow Kuruvai crop, as it was a short term crop and its
cultivation process in putting fields saplings, etc. could be started by the
B
end of June. The Tribunal mentioned that for growing Kuruvai, the State
of Tamil Nadu was primarily dependent on the release of water by
Karnataka to Mettur reservoir.
227. The Tribunal next adverted to the evidence of
Dr. J.S. Kanwar, expert witness on behalf of the State of Karnataka,
C who, in his affidavit, analyzed the various aspects of managing agriculture
in the drought areas in the Cauvery Basin lying in the State. It
contemplated area receiving less than 750 mm rainfall over 20% of the
year as drought areas where the percentage of irrigated areas was less
than 30% of the culturable area. The fact that 28 Taluks in Karnataka
D have been identified as drought-prone areas by the Irrigation Commission
within the Cauvery Basin was taken note of by the Tribunal, more
particularly with reference to the details thereof as furnished in the
affidavit of the witness. The testimony of Dr. Kanwar to the effect that
the lands in Karnataka were mostly red sandy soil and red loamy soil
which have low water holding capacity requiring artificial irrigation by
E way of artificial supplies and not by pattern of rainfall as is available in
the drought areas of the States and that 28 drought prone taluqs, thus,
necessarily needed protected irrigation for mitigating the effect of drought,
was taken note of.
228. The Tribunal marked the definition of “crop water
F requirement” as provided in the Government of India guidelines as the
depth of water needed for achieving full production potential. The fact
that the crop water requirement takes note of the topography of the
land, water in-take characteristics of the soil and its irrigability class
besides climatic conditions was noticed. It also took into account the
G observations of the CFFC with regard to the nature of crops which
were grown in the two States. In Mysore, mostly all the crops were
grown in the Kharif season alone, and the extent of rabi and summer
crop was very small, and the areas under ragi, jowar, pulses, etc., which
were mostly rain-fed, were predominant. For Mysore, the CFFC
concluded that ragi was the major crop accounting for 44% of the area
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1029
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

followed by paddy claiming 21%. It mentioned as well that the crop A
season in the State for paddy was from June - July to December-January.
229. Vis-a-vis Tamil Nadu, the Cauvery Fact Finding Committee
expressed that the Cauvery delta was the most important agricultural
track and almost the entire area was under paddy. It was mentioned
that agricultural operations in the Delta start with the advent of freshets B
(rush of fresh water) in the river with the commencement of South-
West monsoon and the Mettur reservoir is opened for irrigation only
when the said monsoon actively sets in. It affirmed that in some areas,
the first crop of paddy “Kuruvai” is grown with 105 days duration and
after the harvest of this crop, a second shorter duration crop known as
“Thaladi” is grown. It also mentioned about the long term crop “Samba” C
of 180 days duration which was a major crop in the Delta. The Tribunal,
in the above premise, observed that the practice was necessary to be
changed and the water depths (Delta), which were provided by these
States for their crops were required to be revised in order to ensure a
fair deal to all the cultivators of the Basin States. Referring to the CFFC D
Report, the Tribunal took cognizance of the fact that in the old channels
in Karnataka, the Delta varied from 5.2 ft to 6.3 ft. and in the newer
projects from 5.3 ft. to 6.6 ft. which suggested that even in the newer
systems, the high Delta indicated excessive use. The Tribunal also did
not disregard the observation of the CFFC that in the circumstances, if
the Kharif Ragi could be grown under irrigated conditions instead of E
paddy, there would be saving in water without any economic detriment
to the farmers. The fact that Karnataka had categorically stated before
the Tribunal that in its new projects, the State Government was planning
to raise only semi-dry crop, was noted. Vis-a-vis Tamil Nadu, the Tribunal
recorded that in the case of the Cauvery Delta system which covered F
the major irrigated area, the Delta varied from 5.3 ft. in 1901 to 4.2 ft in
1971 and in the new projects like Cauvery Mettur project, Lower Bhavani
and Mettur Canals, the Delta arrived in 1971 had been in the range of 4
ft. to 5.9 ft. The following recommendations of the Cauvery Fact Finding
Committee to effect savings were taken note of as well:-
G
(a) Restricting the double crop paddy area.
(b) Introduction of short duration variety in place of samba.
(c) Growing crops requiring less water.
230. As from the pleadings of the parties and the data furnished
by them, it appeared to the Tribunal that excessive water was being H
1030 SUPREME COURT REPORTS [2018] 5 S.C.R.

A used for raising of crops by the party States, it, during the course of
hearing, on 12.11.2002, directed them as well as the Union Territory of
Puducherry to file affidavits disclosing the steps already taken to reduce
the requirement of water for cultivation and likely to be taken in near
future indicating as well the minimum Delta that would be required for
different crop varieties in their areas.
B
231. Accordingly, to reiterate, Karnataka and Tamil Nadu filed
their respective affidavits marked as Ext. KAR-518 and Ext. TN–1665
in which they furnished details of the parameters normally used in the
computation of crop water requirement, i.e., crop duration, ET crop,
puddling requirements, percolation losses, effective rainfall and system
C efficiency. In the compilations so furnished, the States elaborated the
particulars vis-a-vis their different projects/systems. Whereas Tamil
Nadu recorded its crop water requirement to be 444.15 TMC for an
area of 25.824 lakh acres with a separate demand of 68.9 TMC for an
area of 3.445 lakh acres under minor irrigation and 10 TMC on the
D count of reservoir evaporation losses, Karnataka registered a claim of
381.71 TMC for cropped area of 25.27 lakh acres including therein 71.3
TMC for an area of 3.30 lakh acres under minor irrigation. In addition,
Karnataka demanded 28.158 TMC for its proposed projects covering
an area of 2.008 lakh acres to which the Tribunal responded by observing
that these proposed projects could be considered subject to the availability
E of water after meeting the requirements of the existing and ongoing
projects, domestic water, industrial water, environmental needs, etc.
232. Before undertaking the actual computation of the water
requirement on the basis of the information furnished by the States, the
Tribunal dealt with the aspect of trans basin diversion of waters of river
F Cauvery or its Tributaries. In this regard, it held a view that normally, all
the available water in a river basin should be utilised to meet the in-basin
requirements, i.e., different beneficial uses like drinking water for human
and animal population, irrigation, hydro-power generation, industrial use
and environmental protection, etc. and that after meeting such
G requirements, if there is still any surplus of water, the same could be
considered for transfer to other needy basin(s). However having regard
to the admitted position that the yield in Cauvery was much less than the
claims by different riparian States, the Tribunal eventually concluded
that no note can be taken of the claims made by the States for trans
basin diversion already made or proposed for any purpose. In arriving at
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1031
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

this determination, it noted that though in the Helsinki Rules of 1966, A
reference had been made to basin States, yet it was of the opinion that
diversion could not be resorted to by any one of the riparian States, at
the cost of other lower riparian States affecting their irrigation, economy
and social needs. The view expressed by the Krishna Water Disputes
Tribunal and the Narmada Water Disputes Tribunal, in substance, is that
B
diversion of water to another watershed may be permitted, but normally
in absence of an agreement, the prudent course may be to limit the
diversion to the surplus water left after liberally allowing for the pressing
needs of the basin areas. Reference was also made to the observation
of the U.S. Supreme Court in State of New Jersey v. State of New
York (supra) that removal of water to a different watershed obviously C
must be allowed at times, unless the States are to be deprived of the
most beneficial use on formal grounds. The comment of the Expert
Committee, 1973 headed by Shri C.C. Patel, as set up by the Government
of India, to study the report of the CFFC and suggest the scope of
economy in the use of Cauvery Water, that since the basin itself was
D
short of water, trans-basin transfers were not desirable, was given due
weight as well.
233. The Tribunal, after having determined the areas in the
Cauvery basin over which the States of Tamil Nadu and Karnataka
were entitled to irrigate and having as well determined the nature of
crops grown and ought to be grown, keeping in view the criteria applied, E
i.e., no double crop/perennial crop de hors the 1924 Agreement, no
summer paddy and area under summer paddy existing prior to 1924 to
be replaced by any semi-dry crop, proceeded to make the apportionment
of the Cauvery Waters for irrigation. In undertaking its exercise, the
Tribunal took note of the details of the various parameters furnished by F
the States mainly in respect of two categories of crops, i.e., Paddy and
its varieties and semi-dry crops (during Kharif and Rabi season). The
parameters were enumerated thus:-
Paddy Semi-dry crops
1. Crop duration Crop duration G
2. Puddling Main field preparation
3. E.T. Crop E.T. Crop
(Evapo-transpiration) (Evapo-transpiration)
H
1032 SUPREME COURT REPORTS [2018] 5 S.C.R.

A 4. Percolation loss -
5. Effective rainfall Effective rainfall
6. System efficiency System efficiency.
234. The States of Tamil Nadu and Karnataka, as per the orders
B of the Tribunal, also filed their crop calendars. Qua Tamil Nadu, the
duration of the three varieties of paddy were shown to be:-
(i) Kuruvai 105 days
(ii) Thaladi 135 days
(iii) Samba 150 days
C
235. The Tribunal, with the replacement of different variety of
seeds of Samba Paddy, observed that the duration of the said crop should
be reduced to 135 days or near about that. It was also of the opinion
that “Navarai’ crop of Tamil Nadu grown between the first week of
December and last week of March ought to be replaced by any light
D
irrigated crop within the irrigation season of June - January. The aspect
that identical economy of water should be practised in Amaravathi and
Lower Bhavani Project was also stressed upon. The Tribunal recalled
that the principal crops raised in the Cauvery basin in Karnataka were
Kharif paddy, kharif semi-dry, i.e., ragi, maize etc; rabi semi-dry, i.e.,
E groundnut, pulses, etc. together with perennial crops like sugarcane,
mulberry, garden crops, etc. besides summer crops, i.e., rabi/summer
paddy and rabi summer semi-dry. In view of the scarcity of water, the
Tribunal excluded summer paddy and summer semi-dry crops and
recorded the view that it would be prudent on the part of Karnataka to
go in for a paddy crop of medium duration which would give higher
F
yield. The fact that the State Government had successfully persuaded
the farmers to introduce short duration paddy variety of 120 to 130 days
which resulted in saving of about 10% water compared to the medium
duration of the variety was noted. It suggested that the State Government
of Karnataka should also encourage, as far as possible, replacement of
G the area of Kharif paddy by Ragi which is a Kharif semi-dry crop. On
the basis of the said analysis, the Tribunal clearly emphasized upon the
need of reduction of crop period to ensure economic and prudent use of
water and also suggested modification of the crop pattern in chime
therewith.
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1033
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

236. The Tribunal took into account the claims made by the States A
for different quantities of water vis-a-vis the corresponding stages required
for different crops, namely:-
1. Nursery Preparation
2. Puddling while preparing the main field.
B
3. Evapo Transpiration
4. Percolation Losses
5. Effective rainfall and
6. System Efficiency
C
237. It was noted that in deciding the reasonable Delta (water
depth) required for a crop, all these factors had a vital role. On the
aspect of land preparation, the Tribunal observed that as per Karnataka,
its crop water requirement in respect of semi-dry crops was about 100
mm for field preparation in respect of semi-dry crops before the crops
D
are sown and that normally the operation of sowing the seed was
undertaken when the field was wet for easy ploughing and as wetting of
the soil by rainfall was not certain as it depended upon the natural rainfall,
provision for wetting the soil was to be made so that the sowing of the
crop as per the crop calendar would become possible. The Tribunal, in
this regard, adopted the overall Delta for these crops as indicated in the E
project reports of Karnataka.
238. With regard to puddling, the Tribunal marked the emphasis
of Tamil Nadu on the requirement of water for this factor as most of the
areas in the basin including the Delta grow paddy. The Tribunal, however,
accepted the data furnished by the party-States in their respective F
statements as those were construed to be reasonable.
239. On the criterion of Evapo-Transpiration – E.T. Crop, the
Tribunal noted that the scientific computation of this parameter depended
on various factors, namely, (i) temperature along with day and night
weather conditions; (ii) elevation/altitude of the field; (iii) solar radiation; G
(iv) sunshine hours; (v) wind velocity; (vi) humidity, etc.
240. It gathered from the Government of India guidelines issued
in May, 1984 that the effect of climate on crop water requirements was
given by the reference of evapo-transpiration. It referred to the formula
H
1034 SUPREME COURT REPORTS [2018] 5 S.C.R.

A to compute the Evapo-Transpiration of a particular crop with the
observation that the said factor for a particular crop grown in different
regions would differ because of the variation in one or more or several
ingredients thereof. Though the Tribunal took note of the dissension
between the two States with regard to the applicability of the Food and
Agriculture Organization, United Nations and the Government of India
B
guidelines, yet it eventually accepted the coefficient (a factor applied for
computing evapo- transpiration) adopted by Tamil Nadu as worked out
by the Coimbatore Agriculture University as it yielded a lower Delta as
compared to the one worked out on the basis of Government of India
Guidelines.
C 241. As regards the percolation losses, it took note of the
observation of the expert witness, Dr. I.C. Mahapatra, cited by Karnataka,
that the same could be considerably reduced by proper puddling of the
field. The Tribunal noted that percolation losses of water depended on
the nature of the soil, climatic condition, etc. It recalled that the soil of
D Karnataka was mostly red soil and at places was sandy in nature in
contrast to the Tamil Nadu soil which was sandy loam specially in Delta,
formed with the deposit of silt over ages and was not as porous as that
of Karnataka. After taking into account the computations provided by
Tamil Nadu for the old Delta system and the remaining basin area and
having regard to the difference in the soil in the two locations, it allowed
E percolation losses per day at 2.5 mm. In respect of Karnataka, having
regard to the fact that paddy was being grown in low lying areas and
close to the river course for last several decades, percolation loss was
fixed at 3 mm per day for that State.
242. To compute the effective rainfall, the following recognized
F factors, namely, (i) topography of land; (ii) soil characteristics of the
land proposed to be irrigated; (iii) initial soil moisture content of the land;
(iv) ground water characteristics; (v) rate of consumptive use by a crop
variety; (vi) intensity, timing and duration of rainfall; (vii) frequency and
distribution of rainfall;(viii) climatic conditions; (ix) variety of crop and
G its stage of growth; and (x)water conservation of practices, etc., were
taken note of.
243. After referring to the Irrigation and Drainage paper no.25
on “Effective rainfall in irrigated Agriculture” published by the Food and
Agriculture Organization of United Nations in 1974 dealing with the
H measurement of effective rainfall and evaluation of various methods
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1035
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

with regard thereto, the Tribunal concluded that effective rainfall would A
vary from place to place and hence, its computed value would accordingly
change. In this regard, the Tribunal noted that both the States had furnished
their crop water requirement including effective rainfall in respect of
their projects in consultation with the experts.
244. On the aspect of system efficiency, the Tribunal registered B
that both these States as per the information furnished by them claimed
that they had worked out their crop water requirement as was optimally
required for different crops. Referring to the report of the National
Commission on Agriculture, 1976, the Tribunal observed that in water
short areas, giving fewer than optimum number of waterings to a large
crop area at appropriate stages of crop growth would result in greater C
overall agricultural production and, therefore, planning projects with
optimum Delta (water depth) would result in higher water demand and
may not be necessary in water paucity areas compared to an irrigation
system catering for fewer waterings which may cover larger areas and
secure greater overall production. The Tribunal was, thus, of the view D
that the party-States should improve their crop water management
practices which enfold several parameters involved in achieving the
desired results. It suggested that both the States should improve the
system efficiency to 65% in the existing projects which was possible
and appropriate. In this regard, it noted the suggestion of the C.C. Patel
Expert Committee of the year 1972 that efficiency should be 67% in E
both the States.
245. For the State of Tamil Nadu, the Tribunal, by taking the
system efficiency of 65%, worked out the Delta for 3 varieties of paddy
crop in the old Delta area and Lower Coleroon System as hereunder:-
F
A. Old Delta Area: Delta (Water Depth)
(i) Kuruvai - 4.00 ft.
(ii) Samba - 3.40 “
(iii) Thaladi - 2.50 “
G
B. Lower Coleroon Area:
(i) Kuruvai - 3.80 ft.
(ii) Samba - 3.20 “
(iii) Thaladi - 2.50 “ H
1036 SUPREME COURT REPORTS [2018] 5 S.C.R.

A 246. For the new Delta on the same yardstick, the following Delta
was adjudged:-
(i) Kuruvai - 4.10 ft.
(ii) Samba - 3.90 ft.
B (iii) Thaladi - 3.20 ft.

247. Calculation of Delta for other project areas was also
undertaken by applying system efficiency at 65% and finally, the water
requirement for the State of Tamil Nadu, by adopting the deltas so
C computed for main crops and applying the same to the cropped areas
worked out on the need basis, was quantified at 390.85 TMC for an
area of 24.71 lakh acres including reservoir losses of 10 TMC. In arriving
at this figure, the Tribunal rejected the contention of Karnataka that the
demand should be limited to 242 TMC as worked out in the Cauvery
D Mettur Project Report of 1921. This was, amongst others, by accepting
the explanation of Tamil Nadu that the state water requirement was
only an estimated one based on very high duty factors which proved to
be impractical and arbitrary and further the assessment of crop water
requirement of each State was necessary to be made on present day
standards. Further, the Tribunal was of the view that whatever be the
E claim of water made by the two States, it has to be worked out in such
a manner that neither the crops starve nor the apportionment of the
available water becomes an impossible task.
248. In the process of assessing the water requirement of
Karnataka, the Tribunal noted that the computations by it had been made
F adopting the Government of India guidelines. While recounting that the
nature of soil as well as the crops grown in Karnataka were different
from that of Tamil Nadu and that paddy and sugarcane require a lot of
water, the Tribunal suggested improvement of system efficiency to 65%
for the existing projects and 70% for the ongoing projects and further
fixed the percolation losses to 3 mm per day keeping in view the opinions
G
of various experts. For the computation of Delta, in respect of kharif
paddy cultivation, the projects within the State of Karnataka in the basin
were divided into two categories, (i) projects falling above Krishna Raja
Sagara reservoir where rainfall was higher; (ii) those falling below Krishna
Raja Sagara reservoir (including Krishna Raja Sagara Command) where
H the incidence of rainfall was comparatively less.
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1037
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

249. For the existing projects, the Delta for kharif paddy was A
worked out to be 4.6 ft. and for the ongoing projects as 4.25 ft. for the
areas falling below Krishna Raja Sagara reservoir including KRS
command. Pertaining to the areas falling above Krishna Raja Sagara
the Delta was worked out to be 4.3 ft. for existing projects and 4 ft. for
the ongoing projects. Similarly, the Delta of other projects as regards
B
semi-dry crops cultivated both in Kharif as well as in Rabi season was
worked out. For the perennial crop of sugarcane, 7½ ft. of Delta was
permitted. 1 TMC of water for mulberry cultivation was also allowed.
On the basis of the above parameters, the water requirement of
Karnataka was computed to be 250.62 TMC for 18.85 lakh acres.
Though the assessors had advised otherwise, yet the Tribunal was of C
the view that instead of keeping of water for the purpose of carry over
storage, it would be better to allocate the same amongst the parties
keeping in view the principle of equity for use by the concerned States
for any beneficial purpose according to the individual State’s own priority.
P.8 Assessment of water for “Domestic and Industrial Purposes” D
in Tamil Nadu and Karnataka
250. The Tribunal thereafter proceeded to assess the domestic
and industrial water requirements of Karnataka and Tamil Nadu. It noticed
that under the beneficial uses of waters of an inter-state river system,
drinking water requirement has been given the first priority not only in E
our National Water Policy but also by the Courts of different countries.
It noted the water supply requirement as recorded in the Indian Standard
– “Code of Basic Requirement for Water Supply Drainage and Sanitation”
IS.1172-1993 (4th revision) presented by Tamil Nadu in its note wherein
a minimum of 72 to 100 litres per head per day (for short “phpd”) has
been considered to be adequate for domestic needs of urban communities F
apart from non-domestic needs as flushing requirements. The said Code
divided communities on the basis of population as also by the type of
water supply delivery systems catering to their needs while specifying
the water requirements which is enumerated as hereinbelow:-
G
1) For commun ities with population up 40 (Min.)
to20,0 00 an d without flushing system. 70 to 100 lts. phpd
a) water supply through standpost
b) water supply through h ouse service
conn ection.
H
1038 SUPREME COURT REPORTS [2018] 5 S.C.R.

A
2) For commun ities with population 100 to 150
20,000 to 1,00,000 together with full lts. phpd
flushing system.
3) For commun ities with population 150 to 200 lts. phpd
above 1,00,000 togeth er with full
B flushing system.

251. The Tribunal also noted the statistics furnished in the Manual
of Water Supply and Treatment (3rd Edition) revised and updated by the
Ministry of Urban Development, New Delhi - May 1999 setting out per
C
capita water supply levels for designing schemes as under:-

Sl. No. Classification of tow ns/ Recom mended
cities maximum w ater
supply levels
D (lpcd)
1. Towns provided with piped water supply but 70
without sewerage system
2. Cities provid ed with piped water supply where 135
sewerage system is existing/contemplated
E 3. Metropolitan and Mega cities provid ed with 150
piped water supply where sewerage system is
existing/contemplated.

252. Being of the view that detailed information regarding the
population of various towns and cities, etc. in the Cauvery basin and also
F the type of water supply delivery systems were not available in exactness,
it assessed the drinking water requirement of urban population as
hereunder:
(i) 25% of urban population at 135 lts. phpd

G (ii) Remaining 75% of urban population at 100 lts. phpd
253. Qua the drinking water supply needs for rural areas, it
referred to the norms adopted by the Government of India in National
Drinking Water Mission publication Chapter–I at 40 lts. phpd with a
breakup as follows:-
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1039
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

A
Purpose Quantity (lt. phpd)
Drinking 3

hpd Cooking 5
Bathing 15 B
Washing utensils & house 7
Ablution 10

In addition, 30 lts. phpd for animals in hot and cold desert/eco-
system in the areas as mentioned therein was recommended. The C
Tribunal, in the absence of livestock figures of the party-States and the
Union Territory of Puducherry, premised that the animal population was
nded equal to the rural human population and accorded 30 lts. phpd for animals
w ater and 40 lts. phpd for human beings aggregating 70 lts. phpd in all.
vels
254. The Tribunal was of the view that as drinking water D
requirement would be spread over the entire area of the basin, it would
be reasonable to assess that 50% of the drinking water requirement
would be met from ground water sources as it is generally seen that
wells and tube-wells in urban and rural areas cater substantially to the
said need. It acknowledged that though the States were asked to project
their population for the period from 2000 to 2025 for working out the E
drinking water requirement, it considered it to be apt to make such
assessment taking 2011 to be the yardstick as it construed it to be
sufficient. It also noticed that out of 100 units of water initially lifted for
domestic use, only about 20 units are consumed and the remaining 80
units returned into the river basin. To this effect, the Tribunal referred to F
the CFFC report as well as the report of the Godavari Water Disputes
Tribunal which reproduced the percentage of actual utilization qua various
heads of uses as hereunder:-

Use M easurement
G
(i) Irrigat ion u se 10 0 p er cen t of t he qu antity div erted o r lifted
fro m the river or an y of the tributaries or
fro m any reservoir, sto ra ge o r canal an d 100
per cen t of ev aporatio n los ses in th es e
storages.

H
1040 SUPREME COURT REPORTS [2018] 5 S.C.R.

A
(ii) Power use 100 per cent of eva poration losses in the
storage.

iii) D omestic a nd 20 per cent of the quantity of water diverted
municipal wa ter or lifted from the river or any of its
B
supply within the tributaries or from any reservoir, storage or
basin canal
(iv) Industrial use 2.5 per cent of the qua ntity of water diverted
within the basin. or lifted from the river or any of its
tributaries or from any reservoir, storage or
C canal.
(v) All uses outside 100 per cent of the quantity diverted or lifted
the basin. from the river or any of it s tributaries or from
any reservoir, storage or canal.
255. The fact that the above observations were also quoted by
D the Krishna Water Disputes Tribunal in its report was noted.
256. Vis-a-vis the requirement of the city of Bengaluru, the
Tribunal concluded that from the information furnished by Karnataka,
64% of the city area lay outside the basin and only 36% thereof fell
within it. It, therefore, proceeded on the basis that 1/3rd of the city area
E is located within the basin and 2/3rd beyond it. After referring to the
materials furnished by Karnataka indicating the existing and ongoing
drinking water schemes and its demand on that count for Bengaluru city
as 30 TMC in a projection of 20 to 25 years, it estimated the same to be
14.52 TMC on the basis of its existing requirements as indicated by it as
F in 1990. The Tribunal was of the view that as 2/3rd of the Bengaluru city
lay outside the basin, its drinking water requirement for that area only
which lay within the Cauvery basin along with the remaining basin area
and for drinking water requirements for urban and rural population,
worked out by projecting the population of the basin for the year 2011,
needed to be computed. It recalled that 25% of the urban population had
G been allowed 135 lts. phpd and 75% thereof 100 lts. phpd keeping in
view the different categories of cities and towns falling in the Cauvery
basin. It assigned 150 lts. phpd to Bengaluru city area falling within the
basin and worked out the water requirement for the urban population to
be 8.70 TMC. Vis-a-vis the rural population at the rate of 70 lts. phpd,
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1041
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

the water requirement was quantified at 8.52 TMC, thus making the A
e total drinking water requirement to be 17.72 TMC. By assuming that
50% of the drinking water requirement would be met from ground water,
it was estimated that the component of river supply including transit
erted losses would be 8.75 TMC. The consumptive use, i.e., 20% of the total
for human population including livestock, was, thus calculated to be 1.75
B
e or TMC.
257. By adopting the same norms, by and large, the domestic
erted water requirement for the State of Tamil Nadu was computed. The total
drinking water requirement for the projected population of 2011 was
e or fixed at 21.98 TMC out of which 50% was supposed to be met by the
ground water sources and 50% from surface water which came to 10.99 C
lifted TMC. Judged by the consumptive use at the rate of 20%, 2.20 TMC
r from was allocated to Tamil Nadu from surface water.
258. The Tribunal vis-a-vis the industrial water requirement of
Tamil Nadu recorded its demand of 7.43 TMC during 2001 and 13.60
TMC in 2025. Having regard to the fact that industrial development D
depended on several factors including energy, infrastructure and massive
financial investments, it was of the view that the projection made by the
State was on the higher side. The Tribunal held the opinion that as the
industrial water requirement for the year 2011 was in contemplation,
100% increase on that count on the existing requirement in 1990 would E
be reasonable and, on that basis, worked out the same as 9.9 TMC out
of which the consumptive use was assessed at 2.5%. To it was added
the water requirement of the State for existing thermal power station at
Mettur as 54.339 cusecs with consumptive use of 9.057 cusecs which
equals to .28 TMC. It worked out the total consumptive use of water for
industrial purposes at .53 TMC (.25 + .28). F

259. As far as Karnataka is concerned, the Tribunal noted its
existing industrial requirement with 3.20 TMC with the projected demand
as 5.71 TMC and 8.02 TMC for 2000 and 2025 giving a growth ratio of
1.4 times. Noticing that the industrial development over the years had
gathered a good momentum in the State and as the industrial water G
requirement for the year 2011 was applied as the benchmark, the Tribunal
awarded 6.40 TMC (3.20 x 2) towards this item of requirement. It was
noted that the State had indicated that at present about 2.58 TMC would
be met from ground water sources signifying that the total industrial
H
1042 SUPREME COURT REPORTS [2018] 5 S.C.R.

A water requirement from the Cauvery basin would be to the tune of 3.82
TMC (6.40-2.58) and by allowing consumptive utilisation at the rate of
2.5% of the total requirement, the consumptive water requirement would
turn out to be .10 TMC.
260. The domestic and industrial water requirements of the States
B of Karnataka and Tamil Nadu were, thus, quantified at 1.85 TMC and
2.73 TMC respectively.
P.9 Assessment of water for “Environment Protection and
Inevitable Escapages into Sea” in Tamil Nadu and Karnataka
261. On the aspect of water requirement for Environmental
C Protection and Inevitable Escapages into sea, the Tribunal underlined
the significance thereof by observing that the balance and purity of the
environmental and ecological regime gets disturbed on account of
injudicious use of available resources by human beings which is further
aggravated by the explosion of population and distorted life style oriented
D towards consumerism. It took note of the fact that river water pollution
on account of industrial development, deforestation leading to siltation of
reservoirs, excessive use of irrigation water causing water logging and
salinity, etc. were areas of concern so much so that as a result of
insensible application of irrigation waters, fertile lands have suffered
from water logging and salinity. It reminded itself of its role of apportioning
E available supplies for various beneficial uses of the competing States
and while doing so also to take note of the environmental requirements
and to reserve some quantity of water for maintaining the river regime
in its various reaches right upto the mouth of the river Cauvery. It was
of the view that during the crop seasons, regulated releases from
F reservoirs would flow not only into the canal system but also in the river
lower down which would normally help in maintaining the river regime
and its health but during the non-irrigation season which coincides with
the non-monsoon summer months from February to May, conscious
efforts were required to be made to ensure that there are minimum
flows running in the system, particularly in the downstream. It referred
G to the testimony of Dr. B.B. Sundaresan, former Director, National
Environmental Engineering Research Institute, that lack of adequate river
flows is an overwhelming factor contributing to degradation of mangroves
in Cauvery estuary as mangroves thrive only at the fresh water – sea
water interface. The Tribunal noted the stand of Tamil Nadu and
H Karnataka in this regard and recorded that right from 1924 onwards, a
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1043
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

minimum flow of 1900 cusecs was being led into the river during non- A
irrigation months which was sufficient to meet the minimum water
requirement for environmental purposes. It, thus, assigned 10 TMC to
be reserved from the common pool to meet the needs of environmental
aspects from 1st February to 31st May to be maintained from Mettur
reservoir downward in the river Cauvery every year.
B
262. On account of inevitable escapages into the sea, the Tribunal
recorded that rainfall during the North-East monsoon season comes in
the form of cyclonic storms with heavy downpours for some days with
interspersed dry spell periods and as such, heavy surface flows during
the months of October, November and December in the Delta region
result in outflow into the sea as the flood flows. The Tribunal, on an C
assessment of the materials on record and taking note of the opinions of
different experts, concluded that only those escapages which flow down
into the sea as surplus at Lower Coleroon Anicut during the normal or
below normal years of precipitation could be counted as inevitable
escapages and quantified the volume to that effect as 4 TMC to be D
deducted from the normal yield of 740 TMC available for apportionment.
P.10 Water allocation for the State of Kerala and Union Territory
of Pondicherry (presently named as “Puducherry”)
263. The Tribunal, at this juncture, turned to determine the
allocations for Kerala and the Union Territory of Puducherry. E

264. In apportioning the share of the State of Kerala, the Tribunal
adverted to the report of the Cauvery Fact Finding Committee and
recorded that so far as the first and second crops are concerned, the
requirements of irrigation were nominal. From the chart appended to the
report showing the weekly evapo-transpiration and rainfall, it construed F
that the rainfall was so evenly distributed over the months of May to
November and in excess of evapo-transpiration that only occasional
assistance by artificial irrigation was required in the event of some failures
in small periods. It noticed the stand of Kerala in its statement of case
that agriculture was the basic occupation of the people in Kabini, Bhavani G
and Pambar basins with the main crop in the low elevation being paddy,
and plantation crops being grown in the middle and higher elevations.
Kerala had claimed that in the absence of assured water supply from
irrigation projects, excepting a few minor irrigation works serving limited
ayacut, the agricultural crops in the Cauvery basin therein were dependent
H
1044 SUPREME COURT REPORTS [2018] 5 S.C.R.

A on the seasonal rainfall. Kerala had pleaded that after Malabar came
over to it, it had submitted several schemes to the Government of India
for approval but except one project, viz., Karapuzha in the Cauvery
basin, no other scheme was approved because of the pending dispute on
sharing of water. According to Kerala, it was for this historical fact that
despite the availability and potential to use Cauvery water, the Malabar
B
area could not take up irrigation projects. The demand of Kerala in its
statement of case was 92.9 TMC under different heads covering Kabini,
Bhavani and Pambar sub-basins. The Tribunal noticed that out of this
volume of water, 35 TMC was demanded by Kerala for trans-basin
diversion to generate hydro-power. As a matter of fact, it claimed that
C its contribution to the Cauvery basin was about 20% of the total yield of
740 TMC and, thus, considering its peculiar needs as an over populated
and industrially under developed State, its share of water works out as
99.8 TMC including non-consumptive use of Pambar HE Scheme – 5.6
TMC, Siruvani Water Supply Scheme for Coimbatore – 1.3 TMC in
addition to their claim of 92.9 TMC. The demand of the State that it was
D
entitled to the use of Cauvery water for irrigation for paddy crop wherever
possible and plantation crops in the hill slopes in addition to the use of
such water for the generation of hydro-electric power was minuted.
The Tribunal took note of the stand of Tamil Nadu to limit the claim of
Kerala on the basis of an Agreement of 1969 between the two States,
E but negated the same and decided that its claim for its share of water
was to be considered on merit. While adjudging the demand of Kerala,
the Tribunal took note of the stand of Karnataka that in view of the
sufficient rain during South-West and North-East monsoons, the first
two paddy crops, namely, Virippu and Mundakan do not need any
irrigation support; summer paddy crop should not be allowed; since 1975
F
the overall area under paddy cultivation in the State had been declining
and as a whole, it had sufficient hydro-power potential in large number
and as such, transbasin diversion should not be allowed. The demurral
of Karnataka based on the project reports of Kerala that it proposed to
have three crops in all the projects, was also accounted for. The Tribunal,
G in this context, reflected on the efforts made by Kerala to push its projects
unsuccessfully over the years and its emphasis for the need to develop
the hilly region of Wyned and Attappaty which were under developed.
Before examining the tenability of the demand of Kerala, the Tribunal
first set out the broad heads thereof as under:-
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1045
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

A
Items TMC
1. Multi-purpose projects for hydro-power 35.0
generation and incidental use for irrigation
outside the Cauvery basin involving trans-
basin diversion.
B
2. Medium irrigation schemes for covering 38.8
areas within the basin.
3. Minor irrigation works (existing, ongoing & 6.1
proposed).
4. Domestic water supply (ultimate 5.5 C
requirement).
5. Industrial uses (ultimate requirement). 7.5
6. Non-consumptive use for Pambar Hydro- 5.6
electric Scheme within the basin.
7. Committed utilisa tion for Siruvani drinking 1.3 D
water supply for the benefit of Tamil Nadu.
Total 99.8

265. Vis-a-vis the first item, the Tribunal held that the water of
E
inter-State river was meant for use by all the riparian States according
to the reasonable needs and necessity of each State within the basin.
While underlining that irrigation had always been given higher preference
over generation of hydroelectricity unless water was surplus, it
enumerated the water allocation priorities as prescribed by the National
Water Policy of 2002 as hereinbelow:- F
• Drinking water
• Irrigation
• Hydro-power
• Ecology G
• Argo-industries and non-agricultural industries
• Navigation and other use.
266. Rejecting the plea on behalf of Kerala in support of transbasin
diversion based on the necessity and need of the whole State, the Tribunal
H
1046 SUPREME COURT REPORTS [2018] 5 S.C.R.

A held that if it is accepted that while determining the equitable share of a
particular riparian State, even the shortage of water in the neighbouring
basin which is outside the basin in question is to be considered, it would
lead to an anomalous situation. In its view, though in the Helsinki Rules
of 1966, there is a reference of basin states, yet the process of diversion
could not be executed by one of the riparian States at the cost of other
B
lower riparian States affecting their irrigation, economy and social needs.
The observation of the Krishna Water Disputes Tribunal and the Narmada
Water Disputes Tribunal in substance to the effect that in the absence of
any agreement, the prudent course may be to limit the diversion to the
surplus waters left after liberally allowing for the pressing needs of basin
C areas, was reiterated. The following observations of the U.S. Supreme
Court in State of New Jersey v. State of New York (supra) were also
recorded:-
“The removal of water to a different watershed obviously must
be allowed at times unless States are to be deprived of the most
D beneficial use on formal grounds.
Diversion of water from one river basin to another is viewed
with distrust and resisted by the basin population.”
267. The Tribunal also referred to the observation of the Expert
Committee headed by Shri C.C. Patel, the then Additional Secretary,
E Ministry of Irrigation and Power, against trans-basin diversions in a water
deficit basin. It, therefore, concluded that because of shortage of water,
no note could be taken of claims made by the States for apportionment
of water in respect of any trans-basin diversion already made or proposed
to be made for any purpose. The Tribunal, thus, declined to allocate
water for the projects involving transbasin diversion of waters.
F
268. Qua the demand for irrigation, domestic and industrial water
use, the Tribunal, on a scrutiny of the project reports as furnished in the
common format, catalogued the following aspects:-
“(i) Out of the irrigation schemes projected, only one scheme
i.e. Karapuzha project had been approved by the Government
G
of India.
(ii) While the State had been emphasizing on spice and plantation
crops, while placing demand, it had only submitted its requirement
mainly for paddy and vegetable crop, besides indicating demand
for domestic and industrial uses along with hydropower projects
H involving interbasin transfer of water.
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1047
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

(iii) As regards culturable command area (CCA) and ayacut A
under individual projects, the extent of proposed ayacut was much
less than CCA because of the physical nature of the area, which
was undulating in character.
(iv) Main crop in the low elevation areas was paddy, whereas in
the middle and higher elevations, it was plantation crops for which B
reasonable needs were to be assessed, so that the irrigated area
could be made equal to the CCA for the State has proposed two
paddy crops and one vegetable crop for the Kabini sub-basin.
While the first crop “Virippu” was raised during May to
September, water requirement whereof was met from South-
West monsoon, the second crop “Mundakan” was raised from C
end of September to end of January with the support of North-
East monsoon. The first was the rain fed crop and the second
principally, an irrigated crop. The third crop “Puncha” grown
from January end to early May was a summer crop, which
however could not be allowed because of non-availability of D
rainfall support.
(v) Though the State had proposed three paddy crops in their
Attappady Project in Bhavani sub-basin noticing that this basin
used to receive rainfall during South-West monsoon, which was
weaker, only one paddy crop was to be allowed during North- E
East monsoon, whereas the proposed paddy crop during South-
West monsoon was recommended to be replaced by any semi
dry crop. For Pambar sub-basin as well, though the State had
proposed two paddy crops, one paddy crop and one semi dry
crop was suggested.
F
(vi) No lift irrigation for raising paddy cultivation was allowable.
(vii) Demand for domestic and industrial water use was
excessive. The excessive demand for industrial use was restricted
to 33% of the quantity of the existing actual utilization for project
development till 2011. G
(viii) The Tribunal having regard to its above responses and
bearing in mind that the State had substantial tribal population in
Cauvery basin area worked out the project-wise allocations based
on socio-economic needs, agro-climatic conditions and availability
of land for cultivation.”
H
1048 SUPREME COURT REPORTS [2018] 5 S.C.R.

A 269. The analysis that followed reveals that the Tribunal did
examine the demand vis-a-vis the different projects in the Kabini, Bhavani
and Pambar basins in the context of their individual features and
corresponding crop water requirement. While doing so, the Tribunal also,
inter alia, examined the viability of the projects and excluded those
which were not viable. In assessing the claims made, the Tribunal was
B
particularly mindful of the crop pattern, annual intensity of irrigation,
delta requirements, etc. with specific reference to rainfall support. In
addition, demand towards minor irrigation schemes/projects in the
aforenamed basins were accounted for and eventually, the irrigation
water requirement of Cauvery basin, Bhavani basin and Pambar basin
C was assessed to be as hereunder:
Kabini basin – 19.43 TMC
Bhavani basin – 5.52 TMC
Pambar basin – 2.95 TMC
D 270. Noticeably, the Tribunal, while assessing the crop water
requirement for the above three sub-basins, allowed allocations for
“Virippu” and “Mundakan” paddy crops for Kabini sub-basin; kharif
semi-dry and miscellaneous, “Mundakan” and perennial crop for Bhavani
sub-basin and kharif semi-dry and miscellaneous and “Mundakan” for
E Pambar sub-basin.
271. While working out the domestic and industrial water
requirement, the Tribunal considered the population projection for 2011
and adopted the ratio of urban and rural population at the ratio of 30:70.
Against the drinking water requirement at a flat rate of 120 lts. phpd for
F the entire population, the Tribunal thought it reasonable to bifurcate the
demand between the rural and urban areas and quantified it to be 120
lts. phpd for urban population and 70 lts. phpd for the rural population
(human-being 40 lts. phpd + cattle 30 lts. phpd), thereby adjudging the
drinking water requirement on the above norms for Kabini, Bhavani and
Pambar sub-basins together at 1.53 TMC. As the actual consumptive
G use out of the above would be limited to only 20% and the remaining
80% would gradually flow back to the river system over a period of
time, the actual allocated share on this head was, thus, assessed to be
.31 TMC for the three sub-basins.

H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1049
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

272. Dealing with the industrial water requirement, the Tribunal A
took into account the existing industrial water use for different types of
industries in Kabini basin estimated at .50 TMC which was expected to
increase by another 33% by the year 2011 thus becoming .69 TMC.
Working on the same lines, the industrial water need for Bhavani sub-
basin and Pambar sub-basin was assessed at .21 TMC and .26 TMC
B
respectively making the total tally of 1.16 TMC. However, as the
consumptive use for industrial purposes was limited to 2.5% of the volume,
the Tribunal adjudged the share on this count to be .04 TMC as the
remaining bulk would return to the river system.
273. The Tribunal, on the basis of the population ratio inter se the
States, awarded Kerala 1.51 TMC out of the savings of 45.08 TMC so C
as to enable it to use the same keeping in view its own priorities in public
interest. Thus, the total water requirement of Kerala, taking into account
all heads of demand, was quantified at 29.76 TMC rounded up to 30
TMC. In parting, the Tribunal clarified that the allocation was based on
the needs established and accepted and did not signify the sanction of D
any project by it, as the clearance thereof under the law was to be
granted by the State Government. Having regard to the historical facts
that Kerala would take some time to utilize its full allocated share so
much so that some unutilized water from its share would be flowing in
Kabini, Bhavani and Amaravathi reservoirs and recalling that the Tribunal
had not taken note of the claim of Tamil Nadu of its irrigated area of E
second/double crop totaling 2,80,800 acres, it was provided that till such
time Kerala would be in a position to utilize its allocated share of water,
the unutilized water from its share be permitted to be used by Tamil
Nadu. While holding so, the Tribunal observed that this temporary
arrangement of use by Tamil Nadu of the unutilized water from the F
share of Kerala, however, would not confer any right on it.
274. Adverting to the claim of the Union Territory of Puducherry
for the Karaikal region, the Tribunal recorded that the economy of that
region was predominantly based on agriculture and that due to its close
proximity to the sea, the ground water was generally brackish and G
unsuitable for drinking and irrigation purposes. The claim of the Union
Territory for its water requirement vis-a-vis the crop grown as extracted
hereinbelow was noticed:-

H
1050 SUPREME COURT REPORTS [2018] 5 S.C.R.

A
S. No. Crop Area Water Requirement
(hectares) (Mcft.)
(1) Samba (Single 4760 3006
Crop)

B (2) Kuruvai (Khariff 6230 2868
double crop)
(3) Thalady (Rabi – 6230 3366
double crop)
Total 9240
C
275. Thus, the total area summed up to 42,533 acres and the total
water requirement was estimated at 9.355 TMC including 115 mcft for
drinking water. The Tribunal marked that there was, in fact, no denial of
the irrigated area claimed by the party-States, though Karnataka, in its
rejoinder, did not admit its crop pattern as projected and the corresponding
D water requirement. The fact that the irrigated area of 43000 acres had
also been endorsed by the Cauvery Fact Finding Committee was duly
noted. Further, the aspect that the Union Territory of Puducherry, due to
its own compulsions, did not have any scope for extension of the said
area also did not miss the attention of the Tribunal and, thus, on a totality
of the above considerations, its claim for second crop was allowed in
E particular keeping in view the geographical and climatic conditions and
the soil features of the territory.
276. Noticeably, the State of Tamil Nadu, while arguing its demand
of water as well as the area under irrigation, had indicated its stand in
respect of the Union Territory of Puducherry and provided the following
F particulars to demonstrate the overall need of the Union Territory:-

S. No. Sector Pondicherry
Area in Water
lakh acres required in
G TMC
(1) (2) (3) (4)
A Domestic and livestock need 0.356
B Environmental/Ecological 0.000
Needs
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1051
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

A
ment C Irrigation r equirement for the 0.430 6.840
area under Priority – I to IV
C Industrial & Power 0.070
Total 0.430 7.266
B
277. From this, the Tribunal construed that not only Tamil Nadu
admitted that the gross irrigated area in Puducherry was 43000 acres,
but also measured its total water requirement to be 7.266 TMC.
278. In respect of the crop water requirement of Puducherry in
C
particular, the Tribunal observed that the extent of area under Kuruvai,
Samba and Thaladi was 15,388, 11,757 and 15,388 acres respectively
out of which the first crop (Kuruvai and Samba) covered 27,145 acres
and the second crop (Thaladi) was raised over 15,388 acres. The Tribunal
also mentioned that the Karaikal region of the Union Territory of
Puducherry was situated at the tail end of the Tamil Nadu Delta system D
and for all practical purposes, could be taken to be the natural extension
of the Cauvery Delta system of Tamil Nadu and, therefore, the cropping
pattern as well as the water requirement for the crops did also broadly
match. It was, however, indicated that the Karaikal region was in the
close proximity of the sea for which the effect of sea water on the
E
cultivable area was an aspect which needed special consideration. This
was, as the Tribunal underlined, to ensure that the brackish water
remained well below the crop root zone for which liberal provision for
irrigation water was warranted. Though it noted that the North-East
monsoon helps in leaching the salt deposited over the land as well as in
the sub-soil, yet having regard to the above factors, a volume of 6.35 F
TMC by way of crop water requirement was allowed.
279. For domestic and industrial water requirement of the Union
Territory, the Tribunal noted that the total population of its Karaikal region,
in as projected for 2011, was to be applied. It construed the ratio of urban
to rural population to be 35:65 and by applying the yardstick of 120 lpcd G
4) against urban domestic water supply requirement and 70 lpcd for the
rural population including livestock, it worked out the total domestic water
356 requirement to be .225 TMC. Though 80% of the domestic water supply
000 was generally expected to return back to the river system, yet in the
case of Karaikal region, this norm was not applied as the water would
H
1052 SUPREME COURT REPORTS [2018] 5 S.C.R.

A not take that course but would flow into the brackish sub-soil or into the
sea. The Tribunal, thus, allowed the full quantity of .225 TMC for domestic
water requirement.
280. In respect of its industrial water requirement, the Union
Territory of Puducherry, in its common format, indicated its demand to
B be .034 TMC. The Tribunal was of the view that by 2011, this demand
would increase by about 33% to become .045 TMC. As on the analogy
of reasonings qua domestic water requirement, the industrial water taken
for use from the river system will not return to it and, hence, the full
quantity, i.e., .045 TMC was accepted. Thus, the total water requirement
of the Union Territory of Puducherry towards irrigation, domestic water
C supply and industrial use was assessed at 6.62 TMC.
281. Added to this, out of the balance water of 45.08 TMC on
savings, as per its population in the year 1991, the bench mark used for
the other States, its share was worked out to be .22 TMC. The total
allocation of water for Puducherry on all these counts, thus, totalled to
D 6.84 TMC which was rounded upto 7 TMC. It was mentioned that this
quota allocated to Karaikal was required to be delivered at the seven
locations at the inter-state crossing points (between Tamil Nadu and
Karaikal) of 7 rivers, namely, Nandalar, Nattar, Vanjiar, Noolar, Arasalar,
Thirumalairajanar and Pravadayanar. With regard to the monthly delivery
E of supplies, it was noted that Tamil Nadu and Union Territory of
Puducherry had an agreement which had been working satisfactorily
and, thus, it was ordered that the same would continue. It was indicated
that in case of any disagreement, the matter could be resolved by the
Cauvery Management Board.

F P.11 Final water allocation amongst competing States
282. Having dealt with the allocations for the individual States as
above, the final calculations were set out in a tabular form as herein
below:-
States T ot al
G K erala Karn ata ka Tamil UT of
Nadu Pon cid h erry
i) Area 1 .93 1 8.85 24.71 0.43 45.92

ii)Irrigat ion 2 7.9 0 2 50 .6 2 390.8 5 6.35 675.7 2
requirement
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1053
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

A
iii) Domestic 0.35 1.85 2.73 0.27 5.20
and Industrial
water
requirement
projected for
2011
B
iv) Water - - - - 10.00
requirement for
environmental
protection
v) Inevitable - -gv - - 4.00
escapages into C
sea
vi) Share in 1.51 17.64 25.71 0.22 45.08
balance water
Total 29.76 270.11 419.29 6.84 740.00
D
Say 30.00 270.00 419.00 7.00 726+14
=740

283. Simply put, the final allocated shares of the competing States
together with the provisions for environmental protection and inevitable
escapages into sea, as determined by the Tribunal, can be reflected thus:- E
1. Kerala 30 TMC
2. Karnataka 270
3. Tamil Nadu 419
4. Union Territory of Pondicherry 7
F
5. Environmental protection 10
6. Inevitable escapages into sea 4
__________
740 TMC
284. Significantly, in computing the balance quantity of 45.08 TMC G
which the Tribunal distributed on the basis of the respective population
figure, the Tribunal attributed this quantum to the proposed carry over
92
storage of 10 TMC, each for the States of Karnataka and Tamil Nadu,
5.7 2 as recommended by the Assessors as well as a volume of 25.08 TMC
that was available in view of the limitations prescribed in allotment.
H
1054 SUPREME COURT REPORTS [2018] 5 S.C.R.

A According to the Tribunal, on a consideration of different aspects, it was
decided to keep 20 TMC (10 TMC x 2) as advised by the Assessors as
carry over storage, to allocate the same together with the other 25.08
TMC available to the States on the principle of equity, leaving them at
liberty to utilize the same as per their own priority.
B P.12 Monthly schedule for delivery of water at inter-State contact
points
285. The Tribunal next dwelt upon the monthly schedule of flows
at the inter-State contact point between Karnataka and Tamil Nadu to
ensure timely supplies for successfully raising crops in different crop
C seasons. It noticed that for the fields in which paddy was grown by the
State of Tamil Nadu, the nurseries were put in the field between middle
of June to middle of July followed by transplantation during last week of
July onwards. Having regard to the fact that in Tamil Nadu, the first
crop of “Kuruvai” was harvested in September followed by the second
crop “Thaladi” to be harvested in January-February and that the main
D crop “Samba” is transplanted in the month of August- September and
harvested in December, the Tribunal prepared a schedule of the monthly
releases from mid-June to end of January spanning over the agricultural
season so that the interests of both the states of Tamil Nadu and
Karnataka were taken care of. In drawing up the monthly schedule of
E release of water, the Tribunal kept in mind that in normal years, such
release would not pose any difficulty to the State of Karnataka and at
the same time would meet the requirement of Tamil Nadu. The inter-
state contact points were enumerated thus:-
i) B etw een K er ala a nd K a rna taka : K abin i reser vo ir s ite
ii) B etw e en K era la a nd T am il :
F N a du
( a) Fo r B h avan i s ub -b a sin : Chav a diy oo r G .D . site

I t is rep or ted tha t Ch a va d iyoo r
gau ge s ite w as b eing op erat ed
b y th e State of K e ra la w hich
c ou ld b e re v ive d for int er -S ta te
G ob servatio ns .
( b) F or P amb ar s ub -b as in : A ma ra va thi re se rvo ir sit e
iii) B etw e en K ar na t a ka and T a m il : Billigu n du lu G .D . site/an y
N a du oth er site on c o mm o n
bo rd er
iv) B etw e en T a m il N adu and : Seven C ont act p oin ts”
H P o nd ic her ry
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1055
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

286. It was mentioned that the identified inter-state contact point A
between Karnataka and Tamil Nadu was at Billigundulu gauge where
the discharge site was maintained by the Central Water Commission, an
independent organization of the Central Government having due expertise
in the river gauging techniques. The Tribunal was of the opinion that the
gauge and discharge observation stations where direct observations can
B
be made would be a better location than a reservoir site where the
measurements can be taken only in an indirect way. The Regulatory
Authority was, however, left at its discretion, if needed, to require the
Central Water Commission, in consultation with the State Governments,
to establish new gauge and discharge station on the common border.
The unutilized water allocated to the State of Kerala, which would be C
flowing to the lower States, namely, Karnataka and Tamil Nadu and the
existing reservoirs of Kabini, Bhavani and Amaravathi from which the
distribution was ordered was to be monitored by the Cauvery
Management Board. The fact that the annual allocation of 7 TMC for
the Union Territory of Puducherry would be required to be delivered by
D
Tamil Nadu over a period of one year at 7 different contact points, as in
the past, was indicated. The calculations of the flow required to be
delivered at the inter-state site were summed up as hereunder:-
T MC
“1 ) T he to ta l yie ld of th e ba si n at 5 0% 74 0
d ep e nd a bility
E
2) Y ie ld a t M e ttur r es er v oir . 50 8
( R e f : T N DC V ol. X V , p a ge 8 7 a n d T N
S ta te m en t N o. 5 7, ite m 1 da t ed 1 0. 2 .20 05 )
3) Y ie ld g e ne ra ted in T a m il N a du a re a a bo ve 25
M e ttur r es er v oir
( R e f : T N S ta te m e nt N o. 5 7, ite m 4 a n d T N
S ta te m en t 86 , ite m 1 ) F
4) ( a ) Y ie ld a va i la ble be lo w M e ttur ( 74 0– 50 8) 23 2
( R e f : T N N ote 46 , An ne x ur e -3 , p a ge 54 ;
T N S ta te m e nt 8 3, ite m 1)
( b) D ed uc ti ng f oll ow ing us es :-
i) Al loc a tio n to K e ra la in
B h ava n i s ub -b a sin - 6 TMC
ii) A lloc a tio n to K e r a la in G
P a m ba r sub - ba sin - 3 TMC
sit e iii) A lloc a tio n to UT of 20
e /a n y P o nd ic he r ry - 7 TMC
mm o n iv )I ne v ita ble e sc a pa g es
in to se a - 4 TMC
_ _ __ __ __
20 T MC
H
1056 SUPREME COURT REPORTS [2018] 5 S.C.R.

A (c) Balan ce ava ilable for use i n Tamil Nadu 21 2
(232–20)
5) Tota l of water availabl e for us e in Tamil 23 7”
Nadu (2 12 +25 )
287. Deducing therefrom and having regard to the allocated share
B of 419 TMC, the Tribunal ordered that the balance 182 TMC (419-237)
+ 10 TMC for environmental protection, i.e., 192 TMC was to be delivered
by the State of Karnataka at the inter-State border. In this regard, the
three components contributing to the annual quantum of water to be
delivered by the State of Karnataka at the inter-State contact point were
identified as herein below:
C
“i) Flows coming in the river Cauvery from the uncontrolled
catchment of Kabini sub-basin downstream of Kabini reservoir,
the catchment of main stream of Cauvery river below
Krishnarajasagara, uncontrolled flows from Shimsha, Arkavathy
and Suvernavathy sub-basins and various other small streams.
D
ii) Regulated releases from Kabini reservoir; and
iii) Regulated releases from Krishnarajasagara reservoir.”
288. It was clarified as well that the delivery of 192 TMC of
water at the inter-state contact point was to be maintained in a normal
E year and that if there was any deficiency in the quantum of inflows, it
would be open to the Cauvery Management Board/Regulatory Authority
to suitably adjust the flows. The monthly schedule of deliveries finally
prepared in consultation with and on the basis of the advice of the
assessors at Billingundulu was designed thus:-
F “Month TMC Month TMC
June 10 December 8
July 34 January 3
August 50 February 2.5
G September 40 March 2.5
October 22 April 2.5
November 15 May 2.5
Total 192 TMC”
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1057
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

289. While clarifying that Kabini’s flows of the unutilized water A
out of the Kerala’s allocated share, from Kerala to Tamil Nadu would
be in addition to the flow of 192 TMC as per the monthly schedule till
Kerala develops its own potential to use the same, the Cauvery
Management Board/Regulatory Authority was also required to set up its
mechanism and further devise its method to determine the quantum of
B
unutilized water to be received from Kerala by Tamil Nadu through
Kabini and its tributaries and ensure the delivery thereof in Tamil Nadu
at the common border. The Regulatory Authority was also required to
monitor flows from Krishna Raja Sagara reservoir as also from Kabini
and other tributaries meeting Kabini below Krishna Raja Sagara upto
Billigundulu site. It was again clarified that the monthly schedule of C
deliveries was on the basis of the flow in a normal year giving a total
annual yield of 740 TMC at 50% dependability which was a theoretical
computation based on the crop water requirement of different projects
and the computed withdrawal therefor along with the data of inflows
into the various reservoirs as furnished by the party-States in their common
D
formats. However, the Tribunal was not unmindful of the fact that rainfall
during any monsoon season was likely to vary in space and time and
also in intensity and duration which would have impact upon the pattern
of flows in different sub-basins and which may not tally with the flows
considered for working out the above schedule. In this premise, the
Tribunal suggested an entity, namely, the Cauvery Management Board/ E
Regulatory Authority to monitor, with the help of the Cauvery Regulation
Committee and the concerned State Authorities, the available storage
position in the Cauvery basin along with the trend of rainfall and make
an assessment about the likely inflows which may be available for
distribution amongst the party-States within the overall schedule of water
F
deliveries as suggested. It was also made clear that in case the yield
was less in a distress year, the allocated shares would be proportionately
reduced amongst the States involved by the Regulatory Authority. Having
regard to the fact that the irrigation season starts from 1st of June and
the normal date of onset of South-West monsoon in Kerala is of the
same date so much so that any delay in the advent of the said monsoon G
would affect the inflows and consequently dislocate the schedule of
releases from Krishna Raja Sagara and Kabini reservoirs, the Tribunal
felt it to be advisable that at the end of May each year, as much storage
as was possible during a good year should be consciously conserved as
that would help in adhering to the schedule of monthly deliveries. The
H
1058 SUPREME COURT REPORTS [2018] 5 S.C.R.

A Tribunal, however, authorized the Cauvery Management Board/
Regulatory Authority to relax the schedule of deliveries and get the
reservoirs operated in an integrated manner through the States to minimize
any harsh effect of a bad monsoon year in the event of two consecutive
distress years. The Cauvery Management Board/Regulatory Authority
was also required to monitor the entire spectrum of monthly availability
B
of storages and rainfall pattern vis-a-vis the schedule of monthly flows
to be delivered at Billigundulu/inter-State contact point for a period of
five years and to effect the necessary adjustments in the monthly schedule
in consultation with the party-States and with the help of the Central
Water Commission without, however, changing the annual allocation
C awarded to the parties. In suggesting these measures, the Tribunal was
conscious that there was no element of human control on the happenings
in nature and that only an attempt was to be made to ensure beneficial
use of the available quantum of flows in any year and to distribute the
same for the benefit of the basin as a whole by integrating the releases
from different storage reservoirs. A caveat was also sounded to the
D
upper riparian State to desist from any action so as to affect the scheduled
deliveries of water to the lower riparian States.
Q. Mechanism (Cauvery Management Board) for implementation
of Tribunal’s decisions

E 290. The Tribunal also did devise the machinery for
implementation of its final decisions/orders and in doing so, took note of
Section 6A introduced in the 1956 Act by Act 45 of 1980 with effect
from 27.08.1980 empowering the Central Government to frame schemes,
if any, in respect of such implementation. It also noticed the amendment
to Section 6 of the Act whereby in terms of Section 6(2), the decision of
F the Tribunal after its publication in the Official Gazette was to have the
same force as an order or decree of the Supreme Court. In this statutory
background, the Tribunal was of the view that any direction to frame a
scheme for the implementation of its decision would result in an anomalous
situation. However, in its view, as the Inter-State Water Disputes
(Amendment) Act, 1980 did not provide for details with regard the to
G
constitution of the machinery and its functions, it had the implied power
to make recommendations in that regard for implementing its decision.
It, thus, recommended that the Cauvery Management Board be constituted
on the lines of Bhakra Beas Management Board by the Central
Government. It underlined that unless an appropriate mechanism was
H set up, the prospect of implementation of its decision would not be secured.
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1059
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

It further recommended that as its award involved regulation of supplies A
from various reservoirs and other important nodal points/diversion
structures, it was imperative that the mechanism, Cauvery Management
Board, be entrusted with the function of supervision of the operation of
reservoirs and the regulation of water releases therefrom with the
assistance of the Cauvery Water Regulation Committee (to be constituted
B
by the Board). It then suggested the constitution of the Cauvery
Management Board, its composition, its items of business, etc. It also
recommended the composition of the Cauvery Water Regulatory
Committee and outlined its functions. The Cauvery Management Board
was also required to submit an annual report to the four party-States
before the 30th of September of each year. The Tribunal prescribed C
guidelines for the Cauvery Management Board which besides being
exhaustive were intended to touch upon the functional details relating to
the supplies out of the allocated shares. We do not intend to state the
guidelines laid down by the Tribunal as we shall be addressing to many
an aspect while analyzing the concept of the scheme as envisaged under
D
Section 6.1 of the 1956 Act
R. Final order of the Tribunal
291. On the culmination of the above exercises, the Tribunal
formulated its final order with its determinations and directions on all the
facets of the dispute. As the layout of the final order portrays the E
summation of the adjudication made, it would be apposite to quote the
same as hereunder for immediate reference:
“Final Order and Decision of the Cauvery Water Disputes
Tribunal
The Tribunal hereby passes, in conclusion the following order:- F
Clause-I
This order shall come into 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 as amended from
time to time. G
Clause-II
Agreements of the years 1892 and 1924:
The Agreements of the years 1892 and 1924 which were
executed between the then Governments of Mysore and Madras
cannot be held to be invalid, specially after a lapse of about more H
1060 SUPREME COURT REPORTS [2018] 5 S.C.R.

A than 110 and 80 years respectively. Before the execution of the
two agreements, there was full consultation between the then
Governments of Madras and Mysore. However, the agreement
of 1924 provides for review of some of the clauses after 1974.
Accordingly, we have reviewed and re-examined various
provisions of the agreement on the principles of just and equitable
B
apportionment.
Clause-III
This order shall supersede –
i) The agreement of 1892 between the then Government of
C Madras and the Government of Mysore so far as it related to
the Cauvery river system.
ii) The agreement of 1924 between the then Government of
Madras and the Government of Mysore so far as it related to
the Cauvery river system.
D
Clause-IV
The Tribunal hereby determines that the utilisable quantum of
waters of the Cauvery at Lower Coleroon Anicut site on the
basis of 50% dependability to be 740 thousand million cubic feet-
TMC (20,954 M.cu.m.).
E
Clause-V
The Tribunal hereby orders that the waters of the river Cauvery
be allocated in three States of Kerala, Karnataka and Tamil Nadu
and U.T. of Pondicherry for their beneficial uses as mentioned
F hereunder:-
i) The State of Kerala - 30 TMC
ii) The State of Karnataka - 270 TMC
iii) The State of Tamil Nadu - 419 TMC
iv) U.T. of Pondicherry - 7 TMC
G
________
726 TMC
In addition, we reserve some quantity of water for (i)
environmental protection and (ii) inevitable escapages into the
sea as under:-
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1061
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

(i) Quantity reserved for environmental – 10 TMC A
protection
(ii) Quantity determined for inevitable – 4 TMC
escapages into the sea 14 TMC
Total (726 + 14) 740 TMC B
Clause – VI
The State of Kerala has been allocated a total share of 30 TMC,
the distribution of which in different tributary basins is as under:
(i) Kabini sub-basin - 21 TMC C
(ii) Bhavani sub-basin - 6 TMC
(iii) Pambar sub-basin - 3 TMC
Clause – VII
In case the yield of Cauvery basin is less in a distress year, the D
allocated shares shall be proportionately reduced among the
States of Kerala, Karnataka, Tamil Nadu and Union Territory of
Pondicherry.
Clause VIII
E
The following inter-State contact points are identified for
monitoring the water deliveries:
i) Between Kerala a nd Karnataka : Kabini reservoir site
ii) Between Kerala an d Tamil -
Nadu : C havadiyoor G.D. site
a) F or Bhavan i sub-basin It is F
reported that Chavadiyoor
gauge site was being operated
b y t he S tate of Kerala which
could be revived for inter-S tate : Amaravat hy reservoir
observations. sit e

b ) For Pambar sub -b asin G
iii) Between Karnataka and Tamil : Billi gu ndulu G.D.
Nadu sit e/an y other site on
commo n bord er
iv) Between Tamil Nadu and : Seven Contact points
Pondic herry as alread y in
operation”
H
1062 SUPREME COURT REPORTS [2018] 5 S.C.R.

A Clause-IX
Since the major shareholders in the Cauvery waters are the States
of Karnataka and Tamil Nadu, we order the tentative monthly
deliveries during a normal year to be made available by the State
of Karnataka at the inter-State contact point presently identified
B as Billigundulu gauge and discharge station located on the common
border as under:
Month TMC Month TMC
June 10 December 8

C July 34 January 3
August 50 February 2.5
September 40 March 2.5
October 22 April 2.5
D November 15 May 2.5
192 TMC
The above quantum of 192 TMC of water comprises of 182
TMC from the allocated share of Tamil Nadu and 10 TMC of
water allocated for environmental purposes.
E
The above monthly releases shall be broken in 10 daily intervals
by the Regulatory Authority.
The Authority shall properly monitor the working of monthly
schedule with the help of the concerned States and Central Water
F Commission for a period of five years and if any modification/
adjustment is needed in the schedule thereafter, it may be worked
out in consultation with the party States and help of Central Water
Commission for future adoption without changing the annual
allocation amongst the parties.
Clause X
G
The available utilisable waters during a water year will include
the waters carried over from the previous water year as assessed
on the 1st of June on the basis of stored waters available on that
date in all the reservoirs with effective storage capacity of 3
TMC and above.
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1063
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

Clause – XI A
Any upper riparian State shall not take any action so as to affect
the scheduled deliveries of water to the lower riparian States.
However, the States concerned can by mutual agreement and in
consultation with the Regulatory Authority make any amendment
in the pattern of water deliveries. B
Clause-XII
The use of underground waters by any riparian State and U.T.
of Pondicherry shall not be reckoned as use of the water of the
river Cauvery.
C
The above declaration shall not in any way alter the rights, if
any, under the law for the time being in force, of any private
individuals, bodies or authorities.
Clause-XIII
The States of Karnataka and Tamil Nadu brought to our notice D
that a few hydro-power projects in the common reach boundary
are being negotiated with the National Hydro-Power Corporation
(NHPC). In this connection, we have only to observe that
whenever any such hydro-power project is constructed and
Cauvery waters are stored in the reservoir, the pattern of
E
downstream releases should be consistent with our order so that
the irrigation requirements are not jeopardized.
Clause-XIV
Use of water shall be measured by the extent of its depletion of
the waters of the river Cauvery including its tributaries in any F
manner whatsoever; the depletion would also include the
evaporation losses from the reservoirs. The storage in any
reservoir across any stream of the Cauvery river system except
the annual evaporation losses shall form part of the available
water. The water diverted from any reservoir by a State for its
own use during any water year shall be reckoned as use by that G
State in that water year. The measurement for domestic and
municipal water supply, as also the industrial use shall be made
in the manner indicated below:

H
1064 SUPREME COURT REPORTS [2018] 5 S.C.R.

A
Us e M easurement

Domestic and municipal Water B y 20 per cent of the quantity
supply of water diverted or li fted from
the ri ver or any of its tributaries
or from any reservoir, storage
B or canal .
Indust rial use B y 2.5 per cent of the quantity
of water diverted or lifted from
the river or any of i ts tributaries
or from any reservoir, storage
or canal .
C
Clause-XV
In any riparian State or U.T. of Pondicherry is not able to make
use of any portion of its allocated share during any month in a
particular water year and requests for its storage in the designated
reservoirs, it shall be at liberty to make use of its unutilized share
D in any other subsequent month during the same water year
provided this arrangement is approved by the implementing
Authority.
Clause-XVI

E Inability of any State to make use of some portion of the water
allocated to it during any water year shall not constitute forfeiture
or abandonment of its share of water in any subsequent water
year nor shall it increase the share of other State in the subsequent
year if such State has used that water.

F Clause-XVII
In addition, note shall be taken of all such orders, directions,
recommendations, suggestions etc. which have been detailed
earlier in different chapters/volumes of the report with decision
for appropriate action.
G Clause XVIII
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.
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1065
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

Clause-XIX A
t
In this order,
antity
(a) “Normal year” shall mean a year in which the total yield of
from
utaries the Cauvery basin is 740 TMC.
torage (b) Use of the water of the river Cauvery by any person or B
entity of any nature whatsoever, within the territories of a State
uantity
d from shall be reckoned as use by that State.
utaries (c) The expression “water year” shall mean the year commencing
torage
on 1st June and ending on 31st May.
(d) The “irrigation season” shall mean the season commencing C
on 1st June and ending on 31st January of the next year.
(e) The expression “Cauvery river” includes the main stream of
the Cauvery river, all its tributaries and all other streams
contributing water directly or indirectly to the Cauvery river.
D
(f) The expression “TMC” means thousand million cubic feet of
water.
Clause-XX
Nothing contained herein shall prevent the alteration, amendment
or modification of all or any of the foregoing clauses by E
agreement between the parties”.
[emphasis supplied]
S. Arguments advanced on behalf of State of Karnataka as regards
the allocation of water on various heads
F
S.1 Submissions of Mr. Fali S. Nariman:
292. It is submitted by Mr. Nariman, learned senior counsel
appearing on behalf of the State of Karnataka, that while Tamil Nadu’s
statement of claim before the Tribunal set out that it had developed
28.20 lakh acres of irrigation before 1974, the Tribunal’s final order
G
recognised Tamil Nadu’s right to develop only 21.38 lakh acres. However,
the Tribunal, in an unreasonable and inequitable manner, allocated water
to Tamil Nadu for irrigating an additional 3.32 lakh acres on the vague
ground of “merit and equity”. This additional allocation for 3.32 lakh
acres lay squarely outside the ambit of the 1924 Agreement and could
H
1066 SUPREME COURT REPORTS [2018] 5 S.C.R.

A not be termed as equitable apportionment. Further, the Tribunal’s allocation
of water was not based on the principles of equitable apportionment as
elaborated in the Helsinki Rules, 1966 which set out that such kind of
apportionment must be done to satisfy the needs of a basin State without
causing substantial injury to a co-basin State. The Tribunal allocated
water on the basis of the 1924 Agreement which was based on flow
B
rather than on the basis of established and comparative needs of the
parties. He submitted that Karnataka’s stance before the Tribunal had
always been that the needs of the States, rather than the flow of the
water, ought to be the basis for apportionment. This need-based
apportionment depends on the contribution of water to the river valley
C by each State, the population of each State in the river basin and the
cultivable area of each State in the basin requiring application of water
to grow crops. None of these factors had been given due importance by
the Tribunal even though they were highlighted by this Court in In Re:
Presidential Reference (Cauvery Water Disputes Tribunal) (supra).
D 293. He submitted that such quantum of water had been allocated
after taking into account the land in Tamil Nadu which was outside the
scope and purview of the 1924 Agreement. Tamil Nadu itself had
consistently taken the stand that the 1924 Agreement was the law on
the subject and that the parties had to be governed by the terms therein.
Thus, Tamil Nadu could not benefit from excess water allocated on the
E basis of land which lay outside the scope of the 1924 Agreement. It is
his further submission that over and above the transgressions made by
the Tribunal, it had also treated Karnataka unfairly by failing to consider
the constraints imposed on Karnataka’s predecessor State and by
overlooking the needs of Karnataka while allocating water. The Tribunal
F has given several concessions to Tamil Nadu during the course of hearing
and also granted Tamil Nadu water far in excess of its needs and outside
the scope of the 1924 Agreement despite the evidence on record. He
highlighted this aspect by referring to the Saldanha Committee Report,
1977 which had recommended large savings in existing use of water
and had allocated only 393 TMC of water to Tamil Nadu as opposed to
G the significantly larger quantum allocated by the Tribunal.
294. He argued that alternatively, the allocation of water could be
done equitably and in accordance with justice by restoring equal rights
to the party-States. He submitted that Karnataka and Tamil Nadu were
co-equal States and that justice had to be done to both while allocating
H water, a fact which the Tribunal had failed to recognise. He submitted
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1067
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

that the various applicable factors set out in the Helsinki Rules, 1966 A
were more or less evenly balanced between the two States and the
same have not been kept in view. Further, based on the maxim that
equality was equity, the balance or remaining volume of water available
after subtracting the share of Kerala and Puducherry and after
accounting for wastage ought to have been divided equally between
B
Karnataka and Tamil Nadu. According to his calculations, Karnataka
and Tamil Nadu would each get 339.5 TMC of water.
S.2 Submission of Mr. S.S. Javali:
295. Supplementing the argument of Mr. Nariman, Mr. Javali,
learned senior counsel appearing for Karnataka, submitted that the C
Tribunal had recorded its findings based on conjectures and surmises
rather than on evidence. He took this Court through the record of
proceedings to highlight the point as to how the Tribunal had made several
observations which are founded on materials on record. Further, the
Tribunal also allowed Tamil Nadu to file an affidavit (Ext. 1665) regarding
crop water requirement much after the stage of closing of evidence and, D
in fact, relied upon the said affidavit while allocating water. Karnataka
was not even allowed to cross examine Tamil Nadu on the said affidavit
and Tamil Nadu unjustly gained an advantage over Karnataka. Additionally,
Tamil Nadu failed to establish that it had suffered injury on account of
Karnataka’s actions, a sine qua non for maintaining the complaint. He E
also touched on several other aspects that the Tribunal failed to consider,
including drinking water for the city of Bengaluru, excess water already
available to Tamil Nadu, Karnataka’s water projects and its drought
areas, and overall, the frustration of Karnataka’s claims and the denial
of complete justice to Karnataka. The Tribunal failed to account for all
the aforesaid shortcomings and its final decision was grossly violative of F
the principles of natural justice.
296. He relied upon the judgments in In Re: Presidential
Reference (Cauvery Water Disputes Tribunal) (supra), Union of India
and another v. Tulsiram Patel32, Satyavir Singh and others v. Union
of India and others33, A.K. Kaul and another v. Union of India G
andanother34, Anisminic Ltd. v. Foreign Compensation35, Ganga
32
(1985) 3 SCC 398
33
(1985) 4 SCC 252
34
(1995) 4 SCC 73
35
[1969] 1 All ER 208
H
1068 SUPREME COURT REPORTS [2018] 5 S.C.R.

A Kumar Srivastava v. State of Bihar 36, P.S.R. Sadhanantham v.
Arunachalam and another37, Bengal Chemicals & Pharmaceuticals
Works Ltd., Calcutta v. Their Workmen38, Jose Da Costa & another
v. Bascora Sadasiv Sinai Narcornim and others.39, Ram Piari v.
Bhagwant and others40, Phulchand Exports Ltd. v. O.O.O. Patriot41,
Crompton Parkinson (Works) Pvt. Ltd., Bombay v. Its Workmen
B
and others42, Vashit Narain Sharma v. Dev Chandra and others43,
Ram Bharosey Agarwal v. Har Swarup Maheshwari44 and Jamshed
Hormusji Wadia v. Board of Trustees, Port of Mumbai and another45.
S.3 Contention raised by Mr. Mohan V. Katarki:
C 297. Mr. Katarki, appearing for the State of Karnataka, urged
that the affidavit (Ext.1665) stated that the crop water requirements
mentioned therein were estimated in consultation with Tamil Nadu
Agriculture University; however, no material was placed on record to
justify such consultation. Certain formulae mentioned in the affidavit
(Ext. 1665) to arrive at the crop water requirements were also incorrect.
D The assertions made in the affidavit (Ext.1665) especially with regard to
over estimation of evaporation of crops and under estimation of effective
rainfall, were blatantly incorrect. Tamil Nadu also incorrectly interpreted
the evidence of Karnataka in an attempt to bolster its own case. Tamil
Nadu also attempted to justify its affidavit (Ext. 1665) by arguing that
E the calculations made therein with respect to evaporation were based
on the Government of India (GoI) guidelines, 1984 whereas Karnataka
had relied upon papers from the United Nations Food and Agriculture
Organisation (FAO). Tamil Nadu incorrectly argued that in such conflict,
the guidelines issued by the GoI had to take precedence. He submitted
that the GoI guidelines and FAO papers had to be read together and that
F the methodology adopted by Tamil Nadu in making such calculations
was too general. Such general methodology could not be applied to the
specific facts of the case. During cross examination, Tamil Nadu’s own
36
(2005) 6 SCC 211
37
(1980) 3 SCC 141
38
G (1959) (Supp) (2) SCR 136
39
(1976) 2 SCC 917
40
(1990) 3 SCC 364
41
(2011) 10 SCC 300
42
(1959) Supp (2) SCR 936
43
(1955) 1 SCR 509
44
(1976) 3 SCC 435
45
H (2004) 3 SCC 214
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1069
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

witness deposed that Tamil Nadu’s water requirement was only 242 A
TMC and on this basis itself, the calculation of water to be provided by
Karnataka at the Mettur reservoir should have only been 137 TMC as
against the 377 TMC claimed by Tamil Nadu.
298. He took this Court through the factual aspects of how the
quantity of rainfall affected the flow of the river. Heavy rainfall resulted B
in greater run-off water which fed the river while moderate or lesser
rainfall resulted in lesser run-off as the water would percolate into the
ground and increase the level of ground water.
299. He then submitted that the Tribunal also failed to factor Tamil
Nadu’s admission before the Cauvery Fact Finding Committee that its
Samba crop was fed primarily by the North-East monsoon. Tamil Nadu C
intentionally downplayed the contribution of this rainfall in its affidavit
(Ext. 1665) to assert that it needed more water to irrigate such crop.
The Tribunal adopted almost the entirety of Tamil Nadu’s affidavit (Ext.
1665) for estimating crop water requirements while making only minor
corrections in its final order. D
300. He further submitted that Tamil Nadu obstructed the
development of water projects in Karnataka thereby resulting in large
tracts of land in Karnataka remaining undeveloped. Tamil Nadu wrongly
invoked Karnataka’s so-called obligation to obtain its consent under the
1892 and 1924 Agreements and in the case of the Kabini project, Tamil E
Nadu did not give its consent even after its own technical officers had
agreed to the same. Tamil Nadu also stalled the Harangi project by
wrongly insisting on consent from the erstwhile State of Coorg which
was not even a requirement under the Agreements.
301. He then submitted that the equitable share of water to be
allocated to the party-States had to be based on needs rather than on the F
flow of the river. No State had any right to natural flow of an inter-state
river and several factors had to be considered while assessing the needs,
like basin factors, drought area and population. He took us through several
doctrines and theories including the Harmon Doctrine, Natural Flow
Theory and Helsinki Rules, 1966 to emphasise his point. He also relied G
upon the judgment of New Jersey v. New York (supra).
302. He submitted that in Karnataka’s case, the aforementioned
factors had to be looked at in combination with Karnataka’s claim under
the 1924 Agreement of an area of 12.64 lakh acres. Karnataka had a
large extent of drought prone areas which required a suitable allocation
H
1070 SUPREME COURT REPORTS [2018] 5 S.C.R.

A of water. While Karnataka claimed a quantity of 408 TMC for irrigation
of 27.29 lakh acres, the Tribunal arbitrarily considered an area of only
18.85 lakh acres while allocating water to Karnataka. The Tribunal applied
the rule of priority contrary to the rules of equitable apportionment and
excluded large areas of land based on incorrect interpretation of the
1924 Agreement and also reduced the water allocated to various water
B
projects based on flimsy reasoning. By reducing the allocation of water
to various water projects in Karnataka on the ground of constraint of
water availability/highly water-deficit basin, the Tribunal was left with
45.08 TMC of water, termed as “balance amount” of water, which it
then distributed between all the States. This reduction and redistribution
C of water was grossly inappropriate and not based on the principles of
equity. Such volume of “balance amount of water” had been taken from
Karnataka’s projects citing lack of water for other States and then been
unfairly distributed between all the States. As per Karnataka’s
calculations, the actual amount of water to be allocated to Tamil Nadu
ought to have been 311.6 TMC as opposed to the amount of 390.85
D
TMC allocated by the Tribunal.
303. He then argued that Tamil Nadu was not entitled, either in
law or on fact, to claim water on the ground of protected use. He
submitted that the concept of “existing use” could not be claimed as a
right but could only be considered as a factor influencing equitable
E apportionment. Existing use had to arise as a legally protected interest
of the State and was not justifiable either by domestic law or by
international law. Although several international legislations provided for
existing use, in each of those cases, it was clear that existing use along
with potential use was, at best, to be considered as a contributing factor
F and not as a right. The extent of existing use had to be measured by the
concept of beneficial use and not by diversion or natural flow. Tamil
Nadu’s claim of existing use of water for irrigating 28.2 lakh acres was
untenable. The concept of whole flow/natural flow was also imposed on
Mysore by virtue of the impugned agreements. He has commended us
to the authorities in In Re: Presidential Reference (Cauvery Water
G Disputes Tribunal) (supra), State of Nebraska v. State of Wyoming
(supra), State of Colorado v. State of New Mexico (supra), The State
of Washington Department of Ecology v. Clarence E. and Peggy V.
Grimes46 and In Re: Hague v. Nephi Irrigation Co.47.
46
121 Wash. 2d. 459
H 47
16 Utah 421, 52 P. 765 (1898) : 41 LRA 311
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1071
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

304. He further argued that Karnataka was entitled to water A
allocation of 407.70 TMC considering the scale of its existing and ongoing
water projects set out in its statement of claim before the Tribunal in
1990. Tamil Nadu did not dispute that these water projects presently
existed and ongoing, rather it only argued that they were unauthorized,
illegal and operating without taking its consent as supposedly mandated
B
under the 1892 and 1924 Agreements.
305. He then submitted that the territorial changes of the riparian
States lying in the Cauvery river and its tributaries materially affected
the basis of rights and obligations of Madras and Mysore under the 1924
Agreement. He elaborated as to how several territories were either
upper or lower riparian based on the 1892 and 1924 Agreements. After C
the commencement of the Constitution and subsequently, the 1956 Act,
the new State of Mysore, which was originally a mid-riparian State,
became an upper riparian State and the State of Madras, which was
earlier both upper and lower riparian, became a lower riparian State.
306. He challenged Tamil Nadu’s argument that water allocated D
to Karnataka for its crop should be reduced. Karnataka’s crop water
requirement had not been challenged by any State and any argument to
the contrary was merely an after-thought. Further, Tamil Nadu’s entire
argument revolved around the premise that the soil in Karnataka was
unproductive for irrigation and was unsustainable for paddy growth. This E
premise itself was baseless insofar as Tamil Nadu admitted in its own
pleadings that Karnataka’s soils were “favourable to grow a wide range
of crops”. Further, the Helsinki Rules, which set out the basis for equitable
apportionment, did not recognise soil condition or quality as a relevant
factor in equitable allotment. The relevant factors were the existence of
cultivable land or area and shortage of rainfall to meet the consumptive F
utilisation of crop. He also argued that one riparian State’s productive
use of water was no ground to deprive another co-riparian State’s share.
307. It is canvassed by him that the Tribunal did not allocate
excessive water to Karnataka’s water projects, especially the Hemavathy
Project. He urged that Karnataka was entitled to construct a reservoir G
of 45 TMC with utilisation capacity of 67.5 TMC. Since the current
gross capacity of the Hemavathy reservoir was only 37.1 TMC and the
Tribunal had allocated only 43.67 TMC, there was no question of any
excessive water being allocated to Karnataka. As regards Tamil Nadu’s
argument that the number of days to be considered for growing paddy in H
1072 SUPREME COURT REPORTS [2018] 5 S.C.R.

A Karnataka should be reduced from 145 days to 120 days and that the
water allocation should be reduced accordingly, as also the argument
that the puddling requirement should be reduced from 267 mm to 150/
200 mm, he replied that these facts and figures had, in fact, been nullified
by the findings of the Tribunal and by the Assessors appointed by the
Tribunal whose findings were contrary to the said argument.
B
308. He also challenged Tamil Nadu’s argument before the
Tribunal that excessive water had been allocated to Karnataka for rice
cultivation. He submitted that the rice cultivated in Karnataka was in
drought regions and could not be compared to the rice cultivated in non-
drought areas in Tamil Nadu as there was a substantial difference in
C contributing factors such as percolation and puddling losses. Climatic
constraints justified higher water allocation to drought areas. For the
same reason, Tamil Nadu’s demand for higher allocation of water was
also unjustified and improper. Infact, Tamil Nadu’s cultivation of double
crop was completely inconsistent with the prevailing climatic conditions
D in the area. Tamil Nadu’s Kuruvai crop, which would have benefitted
from water provided by the North-East monsoon, was instead primarily
sustained by irrigation supplies from Karnataka as it was cultivated much
before the onset of the rains. The only sensible course of action would
be to disallow Tamil Nadu’s Kuruvai double crop and allow only the
Samba single crop.
E
S.4 Proponements of Mr. Shyam Divan:
309. Mr. Divan, learned senior counsel appearing for Karnataka,
has stressed on the need to recognize the importance of ground water
while allocating available water resources. Ground water is a renewable
F resource and, if not extracted regularly, would reduce the absorption
capacity of the underlying aquifer resulting in rain water/surface water
being wasted as run-off. Extraction of ground water is, thus, an optimal
utilisation of available resources.
310. He submitted that the Tribunal had erroneously excluded a
G large coastal area while rejecting the argument for groundwater. He
also submitted that the Tribunal committed a patent error by failing to
reduce the amount of water allocated to Tamil Nadu despite recognising
the availability of 20 TMC ground water in Tamil Nadu and the conjunctive
use of the same along with surface water. Such quantum of ground
water ought to have been factored in as an available/additional resource
H in Tamil Nadu for the purposes of irrigation.
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1073
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

311. The quantum of water allocated to Tamil Nadu under the A
head of “irrigation requirement” ought to have been reduced by the
quantum of available ground water by either 47 TMC (as per Tamil
Nadu’s rejoinder recorded in the final report of the Tribunal) or 30 TMC
(as per Tamil Nadu’s pleadings) or, at the very least, 20 TMC (as per the
findings of the Tribunal) and, accordingly, the quantum of water to be
B
provided by Karnataka at the inter-state border also ought to have been
reduced proportionately. The efficiency of utilising ground water, as
compared to surface water, was much higher and when factoring the
available amount of ground water and its greater utilisation efficiency,
the aforementioned figures of 47/30/20 TMC ought to be increased to
72/46/30 TMC respectively. C
312. He then submitted that the Tribunal had completely
overlooked the water requirements for the city of Bengaluru in its final
order. Bengaluru being a metropolis with a burgeoning population ought
to have been treated as sui generis and been given special dispensation
while water was being allocated. Water supply for Bengaluru was entirely D
sourced from the Cauvery river but its use could not be treated as a
trans-basin diversion as erroneously claimed by Tamil Nadu which itself
was responsible for trans-basin diversion of water to irrigate an area of
3.29 lakh acres within its territory. The Tribunal allocated a miniscule
amount of 1.85 TMC to Karnataka under the head “domestic and
industrial water requirement projected for 2011” while arriving at 20% E
consumptive use for domestic purposes and 2.5% for industrial purposes.
He did not challenge the percentage of consumptive use; rather he
contended that the Tribunal had not considered the actual water
requirements for the city of Bengaluru.
313. He then contended that the Tribunal had wrongly considered F
water allocation for only 1/3rd of the population of Bengaluru on the basis
that 36% of the city lay within the basin. This amount of water was even
further reduced by the Tribunal on the basis of unverified figures provided
by Tamil Nadu. The Tribunal also reduced the quantum of water allocated
to Bengaluru on the basis that 50% of its needs could be met from G
groundwater without relying upon any evidence or pleadings to that effect.
For Bengaluru, groundwater, at best, could be considered as a
complementary/supplementary source rather than a primary source.
While allocating water to the States, priority had to be given to drinking
water but the Tribunal had failed to consider this aspect. Accordingly,
Bengaluru should be given an increased water allocation of 10.14 TMC. H
1074 SUPREME COURT REPORTS [2018] 5 S.C.R.

A 314. He contended that the water requirements for Bengaluru
were projected up till the year 2011 as set out in the pleadings/submissions
which had been submitted at the time of the initial hearing in 1990.
Seventeen years had elapsed by the time the final order was passed.
The projections mentioned in the pleadings, thus, could not be limited till
the year 2011 especially when the Tribunal itself had suggested that
B
drinking water ought to be calculated on the basis of projections for
2025. Despite this factual situation, the Tribunal proceeded on the basis
of projections till the year 2011. The time gap between the submission of
pleadings and the final order ought to have been a relevant factor while
allocating water.
C 315. It is further urged by him that the Tribunal had erroneously
rejected Karnataka’s claim of water for its second crop while allowing
Tamil Nadu’s claim for second crop. Such rejection was inequitable and
improper. The Tribunal had allowed allocation of water for Tamil Nadu’s
Thaladi second crop to the extent of 1.85 lakh acres with the justification
D that approximately 95,000 acres were developed prior to 1924 and a
further 90,000 acres were developed as per the 1924 Agreement. Based
on equitable apportionment, Karnataka should have been allocated atleast
the same amount of water for an equivalent area of 1.85 lakh acres, but
the Tribunal failed to do so. Surprisingly, while recognising Karnataka’s
entitlement for second crop to the extent of 67,000 acres, the Tribunal
E failed to allocate any water for the same.
316. The Tribunal also failed to account for the fact that
Karnataka’s farmers had been growing second crops much prior to 1974
and by the time the final order was passed in 2007, the farmers had been
growing second crop for decades. These farmers had developed their
F practices and expectations based on second crop and it was wholly
inequitable for the Tribunal to reject Karnataka’s claim. He also reiterated
Karnataka’s stance that the final figure of 45.08 TMC “balance resource”
of water was erroneously arrived at. The Tribunal should have first
considered and allocated water for Karnataka’s claim for second crop
G after which it could have arrived at a “balance” amount of water available.
317. It is his further submission that the Tribunal had incorrectly
rejected all schemes for lift irrigation in its final order. This was
problematic for Karnataka which relied upon lift irrigation, particularly
in drought-prone areas like the Kabini region, to the extent of almost
H 3.04 lakh acres which requires approximately 18 TMC of water. Tamil
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1075
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

Nadu, on the other hand, primarily relied on flow irrigation and minor A
irrigation and did not have any major lift irrigation schemes. Thus, the
Tribunal’s order rejecting all lift irrigation schemes substantially affected
Karnataka while making negligible impact on Tamil Nadu.
318. He also argued that the Tribunal had unjustifiably allocated
an excess amount of water to Tamil Nadu with respect to the Cauvery B
Mettur project. The 54.68 TMC of water allocated to Tamil Nadu for
3.21 lakh acres was based on the deposition of Tamil Nadu’s Witness
No. 1 and Tamil Nadu’s affidavit (Ext. 1665). The deposition of Tamil
Nadu’s Witness No. 1 confirmed the contents of the Cauvery Mettur
Project Report which indicated that Tamil Nadu’s water requirement
was actually 41.89 TMC. On the other hand, Ext. 1665 had no evidentiary C
value since the same was an unverified affidavit for which Karnataka
was not allowed to cross-examine the deponent. Even the Tribunal had
indicated that the said affidavit would not be relied upon for supporting
Tamil Nadu’s case, rather it would only be used as an admission. The
reliance placed on Ext. 1665 was misplaced and ought not to have been D
considered at all. The evidence of Tamil Nadu’s Witness No. l should
have been the sole criteria for allocation of water for the Cauvery Mettur
project. Thus, the Tribunal should have allocated not more than 41.89
TMC of water to Tamil Nadu for the said project and not 54.68 TMC as
done in the final order.
E
319. Finally, he submitted that the Tribunal had failed to recognize
that the area of irrigation requiring water allocation, as submitted by
Tamil Nadu, was covered by two irrigation projects/systems in Tamil
Nadu and had awarded an excess amount of 9.51 TMC in that regard.
This “double accounting” of irrigable areas was erroneous and the water
allocated to Tamil Nadu had to be proportionately reduced. Tamil Nadu’s F
witness, A. Mohanakrishnan, had himself admitted that the existing second
crop area was 70,000 acres whereas the Tribunal considered the area to
be 87,500 acres. Similar admissions had been made with respect to other
areas in Tamil Nadu. Thus, the water allocated by the Tribunal was far
in excess of the water required by such areas for irrigation. G
T. Arguments put forth by the State of Tamil Nadu
T.1 Submissions of Mr. Shekhar Naphade:
320. Mr. Naphade, learned senior counsel, opened the arguments
on behalf of the State of Tamil Nadu by taking this Court through several
H
1076 SUPREME COURT REPORTS [2018] 5 S.C.R.

A documents, including the National Water Policies of 1987 and 1992, the
Helsinki Rules, 1966 and the Campione Consolidation of the International
Law Association Rules on International Water Resources, relevant
historical aspects of the matter and the evidence on record. He also
took this Court through the scope and extent of the 1956 Act and pointed
out the interplay between several sections of the Act. He submitted that
B
the term ‘agreement’ as mentioned in Section 2(c) of the 1956 Act included
all agreements executed prior to the coming into force of the Act and
that there was no limitation on any kind of agreement under this section.
Even pre-1947 agreements in relation to the use, distribution or control
of inter-State waters were brought under this ambit. Thus, Karnataka’s
C submission that the 1892 and 1924 Agreements were not within the scope
of the said Act was baseless. He submitted that the river was a
hydrological unit and remained unaffected by political boundaries.
321. He then took this Court through certain statistical data and
evidence on the basis of which water ought to be apportioned between
D the States. He submitted that the water ought to be apportioned equitably
in line with the formula laid down in the Helsinki Rules, 1966. The density
of population is much higher in Tamil Nadu than in Karnataka thus putting
a greater demand on water for all sectoral uses. He submitted that the
Cauvery basin upto the Mettur Dam is influenced by the South-West
monsoons whereas the area downstream of the Mettur Dam is influenced
E by the North-East monsoons which are erratic, undependable and, being
associated with cyclonic storms, also responsible for heavy rainfall and
consequent loss of agricultural produce in the basin. Karnataka is primarily
influenced by the more effective South-West monsoons whereas Tamil
Nadu, lying downstream from the Mettur Dam, faces the brunt of the
F ineffective North-East monsoons. He stressed that the North-East
monsoons could not be relied upon for irrigation owing to their
unpredictability, a fact which Karnataka’s witnesses had also deposed
to. He referred to the Saldanha Report, 1977, specifically the chart therein,
which set out the storage capacity of water much above the 124 TMC
figure. He expressed his apprehension that if Karnataka was granted
G further capacity to store water, such excess water retention would be
the cause for further disputes between the States.
322. On the aspect of soil capacity in the two States, he submitted
that while Tamil Nadu has clayey soil which is ideal for paddy cultivation,
Karnataka has red, loamy/laterite soil which is more suited for dry crop.
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1077
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

He highlighted several pieces of evidence to buttress this argument A
including depositions from Karnataka’s witnesses wherein it has been
stated that Karnataka should restrict its rice crop and not grow a second
rice crop. He submitted that the water requirement for growing paddy in
Tamil Nadu is substantially less than the requirement for growing the
same amount of paddy in Karnataka and there is greater productivity of
B
growing paddy crops in Tamil Nadu. He also mentioned that the
recommendations made by the C.C. Patel Committee were outdated
and that Karnataka’s reliance on the same was unjustified.
323. He also set out the three main kinds of paddy crop grown in
Tamil Nadu, namely, Kuruvai, Thaladi and Samba, and the water
requirements for growing these crops and how Tamil Nadu’s climate C
was ideal for growing such crop. He submitted that owing to the cropping
pattern combined with the soil types, there should be no restriction on
Tamil Nadu for growing second crop of paddy whereas Karnataka should
be restricted from growing any second rice crop and even its first rice
crop should be limited. He has placed reliance on data and evidence D
regarding Karnataka’s Kabini and Hemavathy water projects. He argued
that these projects had violated the provisions of the 1892 and 1924
Agreements and have affected Tamil Nadu’s existing use of water. It is
submitted that Karnataka constructed the Hemavathy Project without
taking Tamil Nadu’s consent and also failed to provide Tamil Nadu with
details about the project as mandated under the 1892 and 1924 E
Agreements. The Hemavathy reservoir was designed in such a way as
to deplete its entire storage capacity without making provisions for carry-
over storage thereby preventing any surplus water from being released
to Tamil Nadu. Karnataka proposed the Kabini Project in such a manner
as to utilise the entire yield of water at the site of the dam thereby F
denying water to the lower riparian States. The Kabini reservoir
diminished the flow of water downstream to Tamil Nadu, thus, affecting
Tamil Nadu’s existing use. Karnataka submitted multiple proposals for
supplementing the water from this project with lift irrigation schemes
but this was expressly disallowed by the Tribunal in its final order. In
spite of this, Karnataka has gone ahead and executed a lift irrigation G
scheme in the Kabini sub-basin and utilized the same for irrigation, while
refusing to release water to Tamil Nadu.
324. He submitted that while the Tribunal had overall allocated
water to Karnataka for an area of 18.853 lakh acres, that figure included
H
1078 SUPREME COURT REPORTS [2018] 5 S.C.R.

A an area of 3.44 lakh acres which had been erroneously allowed on
grounds of merit without any evidence or material to justify the same.
Thus, the overall figure of 18.853 lakh acres deserved to be reduced by
3.44 lakh acres. This was without prejudice to the argument that the
area to be considered had to be restricted to the existing area as in June
1990, the cut-off date for the Tribunal’s consideration. Further, the area
B
under consideration for Karnataka’s Kharif paddy has to be reduced
and the number of days for cultivation also had to be cut down from 145
to 125 days. He stressed on the evidence on record submitting that there
is uncontroverted expert opinion which categorically states that
Karnataka was responsible for wastage of large quantities of water and
C that Karnataka ought to reduce its paddy crop. This evidence had not
been considered by the Tribunal. He also submitted that Karnataka should
not be allowed to draw water from the major water reservoirs, viz.,
Harangi, Hemavathy, Krishna Raja Sagara and Kabini, during the summer
season except for perennial crop and domestic needs and this, too, has
to be monitored by the Regulatory Authority. He suggested that
D
Karnataka ought to consider the possibility of building another dam above
Mettur at the border to resolve its water problems.
325. It is further argued by him that around 64% of Bengaluru lay
outside the basin and the Tribunal was right to consider only 1/3rd of
Bengaluru’s needs while determining its water supply. Any further water
E supplied to Bengaluru would amount to trans-basin diversion in complete
contravention of the principles of equitable apportionment, the National
Water Policy and the Helsinki Rules, 1966. Such trans-basin diversion is
detrimental and would lead to chaos. He also submitted that Karnataka’s
contention that the Tribunal ought to have considered water projections
F for the year 2025 would necessarily imply that water resources for Tamil
Nadu’s territories, especially the urban areas, would also have to be
distributed in the same light. Karnataka did not follow the Town Planning
Act/Rules and allowed Bengaluru to grow unchecked and unplanned
and also failed to plan for the development of Bengaluru’s water supply,
a fact made clear from its Master Plan of 1976 which significantly omits
G to provide for the domestic water needs of Bengaluru. Further, Karnataka
did not treat the sewage water released by Bengaluru and such sewage
was being released into the Cauvery which, in turn, was flowing down
to Tamil Nadu. Karnataka would be able to procure a large amount of
water for Bengaluru if it treated such sewage water.
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326. He argued that Karnataka already had adequate and A
alternate water resources for Bengaluru, including ground water, the
Netravathy River and the Tungabhadra tributary of Krishna River. These
resources were under-utilised and could be used to provide water to
Bengaluru. Per contra, Chennai was woefully in short supply of water
owing to lack of water resources and poor rainfall. Tamil Nadu was
B
forced to divert water from other areas to Chennai to meet such shortfall.
He argued that it was unfair to burden Tamil Nadu with the responsibility
of providing for Bengaluru’s water supply when Karnataka itself had
been negligent in planning for it, especially when the Cauvery basin was
a drought basin and large parts of Tamil Nadu were also drought prone.
327. He also stressed on Tamil Nadu’s method used to calculate C
crop water requirements as the guidelines based on Food and Agriculture
Organisation (FAO) guidelines which were also recorded in the
Government of India (GoI) Guidelines, 1984. He took this Court through
the various factors and calculations involved under these guidelines,
including evapo-transpiration, percolation loss, puddling and nursery D
requirements, system efficiency and effective rainfall. He submitted that
Tamil Nadu had adopted calculations for the above factors based on the
FAO and that Karnataka’s contention that Tamil Nadu had miscalculated
the extent of evapo- transpiration and effective rainfall was baseless.
328. He argued that as on the cut-off date (June 1990), Tamil E
Nadu had developed/irrigated an area of 29.269 lakh acres whereas the
area developed in 1972 was 28.208 lakh acres. Despite the above figures,
the Tribunal gave a concession for only 24.708 lakh acres while also
disallowing large areas for second crop even though the agro-climatic
conditions prevalent in the area were ideal for raising two crops. He
highlighted that while Tamil Nadu had adopted 60% overall efficiency F
while calculating the gross irrigation requirement which was the maximum
possible level allowed, the Tribunal chose to adopt a higher figure of
65%. He took this Court through the evidence and record to submit that
the Tribunal ought to have allocated a higher quantum of water to Tamil
Nadu and reduced the quantum allocated to Karnataka. He submitted G
that under the 1924 Agreement, both Karnataka and Tamil Nadu were
allowed to extend the area under irrigation solely by improvement of
duty, without any increase in the quantity of water used, apart from the
area permitted under Clauses 10(iv) and 10(v). Karnataka strictly adhered
to the 1924 Agreement till 1974 but claimed entitlement for areas which
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1080 SUPREME COURT REPORTS [2018] 5 S.C.R.

A it had not even developed after 1974. Tamil Nadu never claimed any
extra quantity of water other than the volume it was entitled to under the
Agreement. He also stressed on the need to allow Tamil Nadu double
cropping owing to the favourable climatic and soil conditions whereas
Karnataka ought not to be allowed double cropping owing to its drought
areas and sub-standard soil conditions.
B
329. He then countered Karnataka’s submission that groundwater
was an additional resource and submitted that such water supply could
not be considered as an additional resource as it was recharged by surface
water and was subject to various factors like rainfall and soil
characteristics. Ground water levels were not consistent throughout the
C year and Karnataka’s construction of water projects had even reduced
the flow of water into the Mettur Reservoir which, in turn, had drastically
reduced the groundwater recharge level available to Tamil Nadu.
Estimating the levels of ground water was scientifically complicated and
difficult requiring huge amounts of data and field exploration. In fact,
D there was no single comprehensive technique to determine ground water
and Karnataka’s own witness had deposed that it was not possible to
estimate the recharge component of ground water when it was recharged
by surface flows and rainfall. The other Water Tribunals like NWDT
and KWDT had not considered groundwater to be a factor while
apportioning water, a fact which was recorded by the Tribunal. The
E UNDP Report relied upon by Karnataka to establish its argument was
not relevant in the present context as the same was outdated and there
had been a substantial change in the flow regime. The Central Water
Board too had not agreed with the assessment of the UNDP Report,
concluding that the use of ground water could not be reckoned as use of
F the Cauvery river water. He also referred to the study conducted by W.
Barber of World Bank, 1985 and the UNDP Study Report, 1973 in that
regard.
330. He submitted that in any event, from February to June/July,
the water requirements of the entire Delta region had to be met from
G ground water as there was no surface flow during that time. Reports
from government bodies recorded that the groundwater was required
for domestic and livestock uses during the aforestated months and, thus,
such water could not be used for irrigation purposes. Additionally,
groundwater in the Delta region was used for protective irrigation and to
grow early nurseries. He submitted that the evidence on record showed
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STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1081
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that in the Cauvery Delta region, reduction in surface flow resulted in A
lesser groundwater recharge which ultimately resulted in salt water
intrusion from the sea. The quality of available ground water was ultimately
poor, saline/brackish and unsuitable for use.
331. He submitted that Karnataka could not ask for 5 TMC water
out of the 10 TMC which had been allotted to Tamil Nadu towards B
environmental needs. He submitted that a certain minimum flow of the
river had to be maintained to keep the river free flowing as set out in the
National Water Policy, 2002. Such natural flow could not be considered
as wastage as it was essential for maintaining the ecology and ecosystem
in and around the river. He also submitted that as regards the allegation
that 88 TMC of water was going into the sea and being wasted, there C
were several factors to consider in that regard and that Tamil Nadu was
taking utmost care to ensure that no wastage occurred. A certain minimum
standard of outflow had to be maintained to prevent erosion, reduce salt
water intrusion and to maintain marine life and bio diversity. Further, the
topography of the Delta region was such that no viable storage area D
could be built to conserve this water. He submitted that the North--East
monsoons, being erratic, would result in heavy showers, not all of which
could be conserved.
332. Further, Karnataka’s contention that there had to be an equal
apportionment of water between the two States was untenable. He relied E
upon the observation made by the Narmada and Krishna Water Disputes
Tribunals that the principle of equality did not imply that there must be an
equal division of water between the States but instead meant that the
States must have equal consideration and equal economic opportunity.
Such equality would not necessarily result in the same quantity of water
being provided to the parties. F

333. He stressed that Tamil Nadu needed month-wise release of
water from June onwards to ensure that its Kuruvai crops were irrigated.
Post 1974, Karnataka had been impounding water in its reservoirs and
delaying flow of water to Tamil Nadu and contending that any shortfall
could be adjusted at the end of the season. He submitted that the water G
was needed at a particular time, from June onwards, to irrigate its crops
and that any end-of-season release of water would not fulfill the objective
of such water being used for irrigation purposes.
334. He also argued that Karnataka had been persistently defiant
in preventing Tamil Nadu from utilizing its share of the Cauvery water H
1082 SUPREME COURT REPORTS [2018] 5 S.C.R.

A and that such defiance necessitated the need for the Cauvery
Management Board. Karnataka had started construction on four
reservoirs across the Cauvery tributaries, viz., Kabini, Hemavathy,
Suvarnavathy and Harangi, without taking the requisite approvals from
the Planning Commission or consent from Tamil Nadu. Karnataka also
objected to the formation of the Tribunal and needlessly delayed the
B
proceedings. Even after the formation of the Tribunal, Karnataka violated
the Tribunal’s interim order which had directed it to release 205 TMC of
water at Mettur. Karnataka even went so far as to promulgate an
Ordinance to nullify the interim order which was then set aside by this
Court. Even when compelled to follow the interim order, Karnataka
C delayed in constituting the implementation machinery required to enforce
the said order and also challenged the Tribunal’s order in separate court
proceedings to delay its implementation. Karnataka also refused to strictly
follow the order thereby failing to ensure monthly quantities of water
inflows at the Mettur during the June period. Even after the final award
was passed, Karnataka failed to ensure stipulated flows mandated by
D
the award. In the light of Karnataka’s transgressions, he submitted that
there was a need for effective machinery to implement the Tribunal’s
order.
335. He also argued that the Tribunal was completely justified in
rejecting Kerala’s claims for trans-basin diversion of water. Kerala had
E wrongly claimed that the Cauvery basin was a surplus basin, something
completely contrary to fact and which had been recorded by the Tribunal.
Trans-basin diversion of water could not be allowed unless the needs of
in-basin requirements were met and even then, such diversion was against
the spirit of the Inter-State Water Disputes Act. Kerala wished to operate
F its hydro-electric projects but the Tribunal had clearly held that irrigation
projects had to be given preference to. Kerala tried to hoodwink the
Tribunal by adding irrigation components to its hydro-electric projects.
The irrigation components were incidental to the primary use of these
projects and in fact, such projects had not even been approved by the
competent authorities.
G
336. Even otherwise, the irrigation sought to be achieved by Kerala
was excessively high and was done so without keeping in mind its
limitations in respect of soil and topography which required excessive
water to be utilised. Kerala was seeking to grow summer and perennial
crops utilizing water from a deficient basin which was an unsuitable
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1083
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proposition. Kerala already had a good irrigation system in place and A
such irrigation was supplemented by rainfall which it receives. Kerala
also received drinking water supply from the Siruvani reservoir and several
dams had already been constructed across its rivers for providing water.
The Tribunal, thus, rightly rejected Kerala’s claims.
337. He also challenged Karnataka’s submission as regards its B
drought area. He submitted that there is no universally accepted definition
of drought and if at all drought is to be considered as a factor for equitable
apportionment, then Tamil Nadu too has a significant drought area.
Karnataka’s claimed drought area is highly exaggerated but if the Tribunal
was to consider Karnataka’s drought area while allocating water, then
Tamil Nadu also ought to be given a proportionate share of water to C
irrigate its own drought area.
T.2 Contentions raised by Mr. Rakesh Dwivedi:
338. Mr. Dwivedi, learned senior counsel appearing for Tamil
Nadu, argued, apart from other aspects which we have already D
addressed, on the aspect of injury suffered by/prejudicial affectation
caused to Tamil Nadu on account of Karnataka’s actions. He submitted
that there was ample evidence on record to prove that Karnataka’s
upstream abstraction post 1974 substantially reduced the area and
quantum of water available to Tamil Nadu. Karnataka increased the
area of irrigation much beyond the scope of the 1924 Agreement which, E
in turn, affected the existing irrigation of Tamil Nadu and the evidence
for the same had been placed before the Tribunal. It was further submitted
that existing use of water was a facet of equitable apportionment and
Karnataka had failed to prove that its planned diversion of water would
not harm the existing, established use. Tamil Nadu’s claim was not with F
regard to the flow of water, as wrongly claimed by Karnataka, rather it
was based on protection of existing use established under the 1892 and
1924 Agreements.
339. He argued that Karnataka’s plea that the erstwhile State of
Madras effectively had veto power over its water projects was untenable. G
The entire purpose of seeking consent from Madras before constructing
any water project was to ensure that existing irrigation was not jeopardized
and even otherwise, consent was always required from the lower riparian
State when constructing such projects. He also submitted that there had
been no violation of natural justice by the Tribunal while hearing the
matter. It was submitted that the Tribunal had clearly analysed every H
1084 SUPREME COURT REPORTS [2018] 5 S.C.R.

A parameter and made suitable changes to such parameters as required
while passing the final order. Tamil Nadu’s affidavit (Ext. 1665) was
merely a collation of materials already available on record. Pertinently,
Karnataka itself contended that the Tribunal’s Assessors were not
competent to assess crop water requirement as they relied on Ext. 1665
but then relied upon the Assessors’ recommendation for justifying its
B
own crop water requirement.
340. Both Mr. Naphade and Mr. Dwivedi touched upon the scope
and extent of this Court’s power under Article 136 of the Constitution of
India to hear an appeal against the Tribunal’s orders. It was submitted
that this Court had the discretion to use such power and that while the
C extent of this power is wide in amplitude, this Court has traditionally
applied judicial restraint while exercising it. It is submitted that the present
dispute is complex and riddled with factual and scientific complexities
which this Court may find insurmountable while assessing. It is also put
forth that the Tribunal had taken into account various factual aspects
D and relied upon the assistance of technical experts while considering the
scientific principles applicable to the present dispute in the course of the
long hearing in the matter. The Tribunal has also considered socio-
economic factors and public interest while rendering its final decision.
Considering the above submissions, a thorough understanding of scientific
principles as well as possessing a relevant discipline in science to apply
E the scientific principles to the factual matrix is required and it is an exercise
which would not fit into the accepted principle of judicially manageable
standards.
341. Mr. Naphade and Mr. Dwivedi have placed reliance on
number of decisions to bolster their stand some of which have already
F been referred to and some shall be referred to wherever necessary.
U. Arguments advanced on behalf of the State of Kerala
342. Mr. Jaideep Gupta, learned senior counsel appearing on behalf
of the State of Kerala, submitted that Kerala contributed around 147
G TMC to the Cauvery basin, around 20% of the water, and had asked for
a proportionate share of water by claiming 99.8 TMC. The Tribunal,
however, had allocated a meagre 30 TMC of water to Kerala, around
4%, for its needs. Such allocation is absolutely not equitable. He argued
that equity, and not equality, should govern the allocation of water between
the States and that it was unreasonable that Karnataka and Tamil Nadu
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1085
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

should be given equal share of the entire amount of water allocated by A
the Tribunal. The concept of equity has been recognized in the Helsinki
Rules, 1966 and the factors governing such apportionment have also
been mentioned therein, later affirmed in the Berlin Rules.
343. He went into the historical perspective and explained to this
Court as to how Kerala, which was not party to the 1892 and 1924 B
Agreements, became introduced to the dispute. He submitted that
Karnataka and Tamil Nadu were not wholly representative of the Cauvery
basin and that Kerala too was an integral part of the basin, contributing
a large percentage of the water. The 1892 and 1924 Agreements executed
by and between Mysore and Madras did not bind Kerala, which was not
party to the same. None of the predecessor States to Kerala, viz., C
Travancore, Cochin or Malabar, were recognized as interested parties
during the disputes between the riparian States of the Cauvery basin
and these riparian States also objected to the involvement of Kerala in
the dispute. He elaborated that even as per the definitions given in the
1956 Act, Kerala could not be considered as a principal successor State D
to its predecessor as its predecessor States were not party to the 1924
Agreement. As the 1892 and 1924 Agreements were in the form of
treaties entered into between two sovereign entities, the Tribunal lacked
the jurisdiction to enforce them. He also submitted that when Kerala
raised its objections before this Court regarding the necessity to be involved
in the matter, it was told to abstain from the proceedings until the matter E
was finally adjudicated between Tamil Nadu and Karnataka.
344. He submitted that allocation of water by the Tribunal was
required to be based on certain factors and that such allocation had to be
done in a particular manner. First, the Tribunal had to determine the total
yield of basin water including surface and ground water. Then, the total F
yield of water had to be apportioned and there had to be a mechanism
for release of such water. Finally, there needed to be a monitoring system
to ensure that such release of water was done properly. He also submitted
that the allocation of water had to be done on a need-based priority and
the Tribunal ought to have considered the consumptive and non- G
consumptive needs while making such allocation.
345. He submitted that although the Kabini and Bhavani tributaries
of the Cauvery flowed through the erstwhile Malabar district of Madras,
yet no developmental activities could be taken up in that region. Even
after the State of Kerala was formed in 1956 by combining Travancore, H
1086 SUPREME COURT REPORTS [2018] 5 S.C.R.

A Cochin and Malabar, it could not take up any developmental activities in
the Malabar region due to protests from Tamil Nadu and Karnataka
who argued that the 1924 Agreement could only be reviewed in 1974.
Even after 1974, all but one of Kerala’s projects were denied sanction
by the Central Government despite the fact that the Cauvery Basin in
Kerala had a high head and steep gradient, thus, making the area ideal
B
for generation of hydro-electricity. Owing to its geography and topography,
Kerala has a higher capacity/potential to generate hydro-electricity. This
fact had been proved before the Tribunal. Kerala also has an acute
shortage of electricity, a problem which has stunted its industrial growth
and there is a pressing need to utilise the potential of water projects in
C the State. There was also an inability to set up alternate types of power
plants like nuclear power owing to the topography of the region. Also,
the rainfall distribution in Kerala was such that there is no rain in summer
and the west flowing rivers within the State go dry during the summer
thereby causing water scarcity. All these factors have necessitated the
construction of water projects in Kerala.
D
346. He argued that the Tribunal’s refusal to allow Kerala’s water
projects is based on an erroneous assumption that such projects would
result in trans-basin diversion of water. He submitted that Tamil Nadu
and Karnataka had exaggerated their claims resulting in an impression
being created that the Cauvery basin could not cater to their needs and,
E hence, was water deficient. He argued that legally, there is no bar on
preventing trans-basin diversion from a water deficit basin. He also
touched upon the concept of the doctrine of stability and submitted that
while the Tribunal had the jurisdiction to allocate the water to the States,
the States are to be allowed to utilise such water in a manner that they
F deemed fit and that the Tribunal could not dictate as to how the States
used such water. Next, he argued that in the present case, trans-basin
diversion is essential to ensure the most economical way of utilizing the
river’s water and that a basin State must have full freedom to utilise the
waters which it is entitled to. He further argued that the Tribunal had
allowed water projects to come up in Tamil Nadu and Karnataka which
G have actually diverted water from the Cauvery basin but in Kerala’s
case, where there was an urgent and pressing need for such projects,
the Tribunal has rejected Kerala’s proposals. Finally, he argued that the
rights in interstate river waters belonged to the inhabitants of the basin
State and not to the inhabitants of the basin itself.
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STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1087
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347. He argued that the Tribunal has erroneously omitted to A
account for 20TMC of ground water which was available in Tamil Nadu.
Tamil Nadu had access to ground water resources while Kerala did not
as set out in the report of the Cauvery Fact Finding Committee. He also
argued that the Tribunal has failed to account for the hydrology of the
basin, particularly the contribution of water by each basin State. The
B
Tribunal ought to have allocated appropriate volume of water for Kerala’s
Banasurasagar project, the Mananthody Scheme and Kerala Bhavani
Scheme, apart from other water projects being developed in the State.
348. He also challenged the Tribunal’s decision to make Kerala
adopt a single-crop paddy. He argued that Tamil Nadu and Puducherry
had been allocated water for three-crop paddy as also for dry irrigated C
crops, whereas Kerala’s farmers had been barred from cultivating their
crops in their traditional manner. He argued that the Tribunal’s decision
is contrary to the prevailing geological, geomorphological, climatic and
soil patterns prevalent in the State and also erroneous in restricting Kerala
from optimal cropping patterns. Combined with the Tribunal’s decision D
to restrict all lift irrigation schemes, the Tribunal’s decision left Kerala
with limited cultivation.
349. He has further submitted that Tamil Nadu has been
intentionally obstructing Kerala from setting up water projects as it was
benefitting from the transitional provisions in the Tribunal’s award. He E
submitted that pending the completion of its water projects, Kerala was
unable to retain the full amount of 30TMC water allocated to it. The
Tribunal has directed Kerala to release water in excess of 30TMC to
Karnataka and Tamil Nadu until it is capable of utilizing the full capacity.
To benefit from this transitional provision, Tamil Nadu has purposely
been impeding Kerala’s water projects. F

350. He submitted that the Tribunal has failed to make provisions
for surplus water, restricting Kerala’s water allocation to 30 TMC a
year in case of a surplus. This would benefit the other States due to lack
of a specific provision for sharing surplus water with Kerala. He also
submitted that Tamil Nadu is responsible for wasting large amounts of G
water and that the Tribunal has failed to rectify the situation. He also
submitted that Kerala ought to be compensated for the water supplied
from its Siruvani reservoir to Coimbatore. He referred to the judgments
of in In Re: Presidential Reference (Cauvery Water Disputes
Tribunal) (supra) and Tamil Nadu Cauvery Neerppasana H
1088 SUPREME COURT REPORTS [2018] 5 S.C.R.

A Vilaiporulgal Vivasayigal Nala Urimai Padhugappu Sangam v.
Union of India and others48 while making his submissions.
V. Submissions urged on behalf of Union Territory of Puducherry
351. Mr. Nambiar, learned senior counsel appearing for the Union
Territory of Puducherry, submitted that Puducherry had claimed 9 TMC
B of water for its needs whereas the Tribunal had allocated only 7 TMC of
water to it. Puducherry was now seeking only an additional 1 TMC of
water to be allocated to it from the month of June onwards which could
either be released by Tamil Nadu or be allocated to Puducherry out of
the 10 TMC reserved by the Tribunal for environmental purposes.
C 352. He submitted that Puducherry’s topography, soil and climatic
conditions favoured cultivation of only paddy crop and that no other crop
could survive in the heavy clay prevalent in the region’s soil. Further, the
topography in the region being plain and monotonous, there was no scope
for putting up storage structures for holding water and Puducherry was
completely dependent on the water released by Mettur dam. He submitted
D
that Puducherry has 27,000 acres of cultivable area which has remained
static over the years and that there is no scope for increase of such
area. He also submitted that the rainfall in the region is erratic coming
primarily from the North-East monsoons. This resulted in heavy bursts
of rain with long, dry spells. Such sudden and heavy influx of water
E damaged the standing crops and flowed into the sea since there is no
facility capable of storing such water. Thus, Puducherry’s only reliable
source of water is from the Mettur Dam. However, water released
from the Mettur Dam is sometimes insufficient for Puducherry’s needs
and is incapable of irrigating Puducherry’s entire paddy crop.
F 353. He then submitted that there is no extractable ground water
in the region due to the intrusion of saline water from the neighbouring
Bay of Bengal. He submitted that saline water has intruded 6 kilometres
into the land along the river channels and has rendered wells and shallow
aquifers unusable for irrigation and domestic needs. In light of this, he
submitted that ground water could not be taken into consideration while
G
allocating river water. He also argued that the Tribunal’s scope of
adjudication is limited to inter-State river water and that ground water
could not be treated as river water. While the Berlin Rules set out that
river water included groundwater, no such definition is available either in
the Constitution or any other Indian law.
H 48
1990 (3) SCC 440
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1089
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354. He also submitted the cropping pattern in Puducherry A
required higher allocation of water. He submitted that Kuruvai crop is
grown between July and September after which Thaladi crop is grown
on the same land and then the Samba crop is grown. He submitted that
the Kuruvai and Samba crop could only be planted after flushing off the salt
on the land. This flushing required around 0.5TMC of water before planting
B
the crop in June. The Tribunal, however, erroneously directed Puducherry
to obtain the requisite water from rainwater, the supply of which was
not only erratic but also primarily occurring from October onwards.
355. He submitted that despite the Tribunal having allocated
7TMC of water to Puducherry, such volume is not being made available
to it. He submitted that since Puducherry does not have adequate storage C
capacity, such volume of water ought to be made available by Tamil
Nadu at the border.
356. He argued that Puducherry has not filed an appeal under
Article 136 of the Constitution against the Tribunal’s final order as it is of
the opinion that this Court could not entertain such an appeal against the D
final order. Hence, Puducherry had filed an application under Section
5(3) of the 1956 Act instead, which is pending. He argued that since this
Court is hearing the matter finally, Puducherry’s application under Section
5(3) ought to be considered by this Court.
357. He also submitted that the waters of the Cauvery ought to E
be free-flowing for effective utilisation and in the light of the same,
Karnataka ought not to be allowed to build any further structures to
impede/obstruct such flow.
W. Arguments on behalf of Union of India
F
358. Mr. Ranjit Kumar, the learned Solicitor General of India,
contended that the purpose of enacting the 1956 Act is to provide a
mechanism for adjudication of water disputes arising among the various
States and that it is a complete code in itself. He took this Court through
various sections of the Act to buttress his argument that a con-joint
reading of Sections 4, 6, 6A and 11 provides for the constitution of a G
Tribunal to hear water disputes, the power to make a scheme to
implement the decision of the Tribunal and further there is a constitutional
bar on the jurisdiction of this Court and other courts in respect of such
water disputes. Such extensive provisions highlight that the Act is a
complete code in itself.
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1090 SUPREME COURT REPORTS [2018] 5 S.C.R.

A 359. He submitted that as per the provisions of the Act, once the
Tribunal’s award has been published in the Official Gazette, the same is
final and the mechanism for implementation of this award is set out in
Section 6A of the Act and empowers the Central Government to make
schemes to implement the said award. Such scheme had to be tabled
before both Houses of the Parliament. The Central Government is also
B
empowered to decide the jurisdiction and powers of the Authority
established to implement the Tribunal’s award. As contrasted with the
provisions of the Consumer Protection Act which allowed for the
Consumer Forum’s order to be sent to a civil court for execution in case
the Forum was unable to execute it, the provisions of the 1956 Act only
C allows for the award of the Tribunal to be treated as a decree of this
Court and be implemented by virtue of a Central Government scheme.
360. It is submitted by Mr. Ranjit Kumar, learned Solicitor General
appearing for the Union of India, that the word used “may” instead of
“shall” has a purpose because in certain situations there may be no
D necessity to frame a scheme for implementation of the awards passed
by the Tribunal. He has apprised us that awards were passed by the
Krishna Water Disputes Tribunal, Godavari Water Disputes Tribunal and
Narmada Water Disputes Tribunal and a scheme for implementation of
award was framed when required and only in the case of Narmada
Water Disputes Tribunal and no scheme was framed in respect of awards
E passed by the other Tribunals. According to him, framing of a scheme is
not mandatory and the Central Government being alive to its role shall
do the needful at the relevant time. It is further argued that it is the
mandate of the 1956 Act that the scheme framed under Section 6A is to
be by laying before both Houses of the Parliament and, hence, it has to
F be treated as a legislative policy and, therefore, the Court, in such a
situation, should not issue any direction. He has drawn inspiration from
the authorities in Atlas Cycle Industries Ltd. and others v. State of
Haryana49, Common Cause v. Union of India and others50, K.T.
Plantation Private Limited and another v. State of Karnataka51 and
Accountant General, State of Madhya Pradesh v. S.K. Dubey and
G another52. Learned Solicitor General has also referred to Craies on
Statute Law Interpretation which has been noticed with approval in
49
(1979) 2 SCC 196
50
(2003) 8 SCC 250
51
(2011) 9 SCC 1
52
(2012) 4 SCC 578
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STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1091
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Hukum Chand v. Union of India53 which speaks that there are three A
kinds of laying, namely, (i) laying without further procedure; (ii) laying
subject to negative resolution; and (iii) laying subject to affirmative
resolution. Emphasizing on “subject to affirmative resolution”, learned
Solicitor General would contend that Section 6(7) essentially commands
that this Court should not issue a mandamus to the executive to enact a
B
particular law in a particular manner at particular time or a stipulated
time frame. He would further urge that Section 6A is a complete code in
itself and, therefore, this Court should leave it to the discretion of the
Central Government.
361. In oppugnation to propositions put forth by the learned
Solicitor General, learned counsel for the other States and the senior C
counsel for the Union Territory of Puducherry submitted that Section
6A does not confer any extraordinary power on the Union of India except
that it has the authority to frame a scheme singularly for implementation
of the award as passed by the Tribunal or if modified by this Court. The
further submission is that the formulation of the scheme and other D
procedural ancillaries do not confer any greater status on the authorities
coming into existence under the scheme.
X. Our findings on issues of allocation
X.1 Principles of apportionment to be followed:
362. Having dealt with the issues of paramountcy, perceived E
unconscionability of the Agreements, continuation thereof after coming
into force of the 1956 Act as well as non-maintainability of the dispute
on the basis of such Agreements being in infraction of Article 363, it is
now essential at this juncture, in the backdrop of the above contentious
assertions, to dwell on the principles of allocation of water of the inter- F
state Cauvery river and the make-up thereof for uniform application.
That apart, the fact of the Agreement of 1924 having expired after 50
years in the year 1974 has been already determined. As rightly minuted
by the Tribunal, having regard to the progression of events after the
execution of the said Agreement, the accusations of breach and violations
of the Agreement have to be treated as inconsequential at this distant G
point of time. Besides, there is no objective and judicially manageable
standard to examine and evaluate the same in a golden scale or embark
upon in an exercise of exactitude and precision to weigh the impact
thereof for determination of allocation of the share.
53
(1972) 2 SCC 601 H
1092 SUPREME COURT REPORTS [2018] 5 S.C.R.

A 363. As enunciated by this Court in In Re: Presidential
Reference (Cauvery Water Disputes Tribunal) (supra), the waters of
an inter-State river passing through the corridors of the riparian States
constitute national asset and cannot be said to be located in any one
State. Being in a state of flow, no State can claim exclusive ownership
of such waters or assert a prescriptive right so as to deprive the other
B
States of their equitable share. It has been propounded therein that the
right to flowing water is well-settled to be a right incident to property in
the land and is a right publici juris of such character, that while it is
common and equal to all through whose land it runs and no one can
obstruct or divert it, yet as one of the beneficial gifts of Nature, each
C beneficiary has a right to just and reasonable use of it. We endorse the
view of the Tribunal in the attendant perspectives that the acknowledged
principle of distribution and allocation of waters between the riparian
States has to be done on the basis of their equitable share, however
contingent on the facts of each case.
D 364. For the sake of brevity, we do not intend to dilate anew on
the judicial precedents on this aspect of sharing of water of inter-state
river and the evolution and/or shift of the principles relatable thereto
from the “Harmon Doctrine” to that of equitable apportionment, a
prescript internationally recognized and being applied in resolution of
disputes pertaining thereto. This principle of equitable apportionment as
E is now intrinsically embedded generally in a pursuit for apportionment of
water of an international drainage basin straddling over two or more
States predicates that every riparian State is entitled to a fair share of
the water according to its need, imbued with the philosophy that a river
has been provided by nature for the common benefit of the community
F as a whole through whose territory it flows even though those territories
may be divided by frontiers as postulated in law. With reference, in
particular, to the Helsinki Rules of 1966, it has been expounded
hereinbefore that Articles IV and V thereof recognize equitable use of
water by each basin State, setting out the factors, not exhaustive though,
to be collectively taken into consideration as a whole. The view that the
G principle of equality does not imply equal division of water but connotes
equal consideration and equal economic opportunity of the co-basin States
and that justice ought to be done to them, has been emphasized in the
course of the arguments. To conceive that equality rests on equal sharing
of water within an arithmetical formula, would be fundamentally violative
H of the established conception of equitable apportionment because the
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1093
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

said concept inheres a multiple factors. It is the obligation of the Tribunal A
to address the same and the duty of this Court is to adjudge within the
permissible parameters of the justification of the said adjudication. To
reiterate, having regard to the above propositions as well as the provisions
of the 1956 Act, the dissension has to be addressed in the backdrop of
equal Status of the States and the doctrine of equitability.
B
365. Though noticed in the passing hereinbefore, the prevalent
rules as guiding precepts to endeavour equitable apportionment of waters
of an international drainage basin and conceptually extendable to an
inter-state river deserve somewhat detailed scrutiny.
366. There is no quarrel that the Helsinki Rules on the use of C
waters of international rivers lack statutory status of binding nature, yet
the same, having been adopted by the International Law Association in
its Conference held at Helsinki in August, 1966, set down the criteria to
determine equitable utilization of waters of an international drainage basin.
As the relevant portion thereof has been extracted before it is not
necessary to reproduce the same. However, suffice it to refer to the D
relevant clauses for the present purpose. The statement in Article I that
the general rules of International Law, as contained in the Chapters
comprising the Rules, are applicable to the use of the waters of an
international drainage basin except as may be provided otherwise by
convention, agreement or binding custom among the basin States, attests E
the non-statutory character thereof. Article II defines international
drainage basin to be a geographical area extending over two or more
states determined by the watershed limits of the system of waters,
including surface and underground waters, flowing into a common
terminus. The idea of international drainage basin per se inherits some
identifiable flexibility of the basin vis-a-vis the constituent states, F
separated by watershed limits of the system of waters so much so that
in an exigent fact situation the basin need not be rigorously confined to
the area immediately abutting it in a given state but depending on the
situational topography may include other areas of the state concerned
entitled to the benefit of the basin. The perception of “basin state” as G
explicated in Article III is a state, the territory of which includes a portion
of an international drainage basin and projects it to be a single synthesized
territorial component. As per Article IV, under Chapter II of the Rules,
each basin state is entitled, within its territory, to a reasonable and
equitable share in the beneficial uses of the waters of an international
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1094 SUPREME COURT REPORTS [2018] 5 S.C.R.

A drainage basin. Article V enumerates the relevant factors, not exhaustive
or limited thereto, to determine the reasonable and equitable share within
the meaning of Article IV. These factors being unavoidably required to
be extracted, are quoted hereinbelow:-
“1. The geography of the basin, including in particular the extent
B 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;

C 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;
D
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
E 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; and
11. The degree to which the needs of a basin State may be
satisfied, without causing substantial injury to a co-basin state.”
F
[Emphasis supplied]
367. Article V explicates in clear terms that the weight to be
given to each factor as above is to be determined by its importance in
comparison with that of other relevant factors, but in determining what
is reasonable and equitable share, all relevant factors are to be considered
G
together and the conclusion has to be reached on the basis of the whole.
The above factors, although not exhaustive, have been construed to be
of significant bearing to ascertain the reasonable and equitable share of
waters in an international drainage basin. The said principles can be
regarded as functional dynamics while equitable distributing the water in
H an inter-State river disputes. The salient feature of all these factors has
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1095
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

to have inherent variability and inevitable flexibility thereof having regard A
to the local conditions, for it is difficult to ignore the undeniable and
common emphasis necessary to ensure beneficial use of the available
resources for a basin state and logically for its dependent populace
warranted by the economic and social needs. Be it stated, while
determining the said needs, amongst others, past and existing utilization
B
of the water have to be borne in mind. To remain oblivious to the same
would amount to playing possum with the doctrine of equitable distribution
in praesenti. The noticeable quintessence of the determinants is the
predication for a delicate balance in adjustments of the needs based on
realistic, reasonable, judicious and equitable canons so much so that while
satisfying the requirements of a basin state, a co-basin state is not C
subjected to any substantial injury. Though in terms of Articles VI and
VII, any other category of users is not entitled to any inherent preference
over any other use or category of users, yet the precedence of an existing
reasonable use of a basin state over a proposed future use of a co-basin
state has been recognized. Significantly, in terms of Article VIII, an
D
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 clearly signifying that an existing use is also
not absolute in terms and is subject to exigency based adjustments.
368. Substantially on the same lines is the Campione Consolidation E
of ILA Rules on International Water Resources 1966-1999 (hereinafter
to be referred to as the “Campione Rules”). The distinguishing attribute
of these Rules is the inclusion of water of an aquifer, i.e., underground
water or “fossil waters” intercepted by the boundary between the two
or more states as international ground water so much so that it would F
form an international basin or part thereof qua the relevant factors to
determine reasonable equitable share. These Rules include the criterion
of interdependence of underground waters and other waters, including
any interconnections between aquifers and any leaching into aquifers
caused by activities in areas under the jurisdiction of the basin states.
G
369. The next in line, before adverting to the National Water Policy
of 1987 and 2002, is another set of rules on international drainage basin
called the Berlin Rules adopted by the International Law Association in
its Berlin Conference in the year 2004. On the aspect of equitable
utilization, Article 12 thereof provides that basin states would in their
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1096 SUPREME COURT REPORTS [2018] 5 S.C.R.

A respective territories manage the waters of an international drainage
basin in an equitable and reasonable manner, having due regard for the
obligation not to cause significant harm to other basin states and in
particular, the basin states, would develop and use the waters of the
basin in order to attain optimal and sustainable use thereof. The interest
of the other basin states are to be kept in view.
B
370. Article 13 of the Rules catalogues as well the relevant factors
to determine the equitable and reasonable use of a basin state. While
reiterating in essence the Rules as prescribed by the Helsinki Rules, the
additional aspect to be considered is minimization of environmental harm.
Article 14 of these Rules stipulates that in determining an equitable and
C reasonable use, the states shall first allocate waters to satisfy vital human
needs and that no other use or category of uses shall have an inherent
preference over any other use or category of uses. Article 17 postulates
that every individual has a right of access to sufficient, safe, acceptable,
physically accessible and affordable water to meet his vital human needs
D and it is the obligation of the States to ensure the implementation of right
of access to water on a non-discriminatory basis.
371. The common thread decipherable from these Rules is the
universal acknowledgment of the principle of equitable utilization as an
effective and workable tool for the management of waters of an
E international drainage basin.
372. Presently, we shall refer to the National Water Policy which,
in our estimate, occupies an extremely significant space to spearhead
the planning and development of water resources. In its 1987 version, it
sounded a threshold caveat that water is a prime natural resource, a
F basic human need and a precious national asset. While emphasizing that
this resource is one of the most crucial elements in development planning,
the policy announced that it is a scarce and precious national asset to be
planned, developed and conserved on an integrated environmentally sound
basis, keeping in view the needs of the States concerned. It underlined
that resource planning in the case of water has to be done for a
G hydrological unit such as drainage basin as a whole or for a sub-basin
and that all individual developmental projects and proposals should be
formulated by the States and considered within the framework of such
an overall plan for a basin or sub-basin so that the best possible
combination of options can be made.
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STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1097
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373. As is manifest from the policy, it enjoined that water should A
be made available to water deficient areas by transfer from other areas
including transfers from one river basin to another based on national
perspectives after taking into account the requirements of the areas/
basins. That apart, making provision for drinking water should be a
primary consideration which was also highlighted. As regards the ground
B
water resources, it was marked that exploitation thereof should be so
regulated as not to exceed the recharging possibilities as also to ensure
social equity and to prevent ingress of sea water into sweet water aquifers.
In the realm of planning and operation of systems, water allocation
priorities were broadly outlined as (a) drinking water, (b) irrigation, (c)
hydropower, (d) navigation and (e) industrial and other uses. C
374. As far as the allocation is concerned, the uses are to be
governed by the rider that these priorities must be modified, if necessary,
in particular region with reference to area specific considerations. In
conclusion, the policy laid stress that in view of vital importance of water
for human and animal life, for maintaining ecological balance and for D
economic and developmental activities of all kinds and considering its
increasing scarcity, the planning and management of this resource and
its optimal, economical and equitable use has become a matter of utmost
urgency. It emphasized that the success of the National Water Policy
would depend entirely on the development and maintenance of a national
consensus and commitments to its underlying principles and objectives. E
Significantly, the Policy, which is a national charter for Planning and
Development of Water Resources for its disciplined and judicious
utilization recognizes and accepts it to be scarce and valuable bounty of
nature to be developed, conserved and put to planned use on an
environmentally sound basis with due regard to the needs of the State F
concerned. The Policy, thus, sustains the concept of basin state as
contemplated in the Helsinki Rules, Campione Rules and Berlin Rules.
375. It is worthy to note that it significantly underlines that water
starved areas ought to be serviced by transfer from one river basin to
another based on national perspective after taking into account the needs G
of such areas/basins. Drinking water has been assigned the highest
priority in the category of uses. Though use of ground water resources
has not been wholly debarred, yet regulated exploitation thereof, not in
excess of recharging possibilities, has been highlighted.

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1098 SUPREME COURT REPORTS [2018] 5 S.C.R.

A 376. The National Water Policy of 2002 which is a revised and
updated form of the earlier model, reiterates the emphasis on the need
for planning, development and management of the water resources from
the national stand point. Pertaining to water allocation priorities, this Policy
added to the list, in particular, ecology and agro industries and non-
agricultural industries, qualifying that the priorities as enumerated could
B
be modified or added if warranted by the specific considerations of the
areas/regions. The primacy of drinking water was reiterated. On the
aspect of ground water development, it was stated that a periodical re-
assessment of the ground water potential on the scientific basis should
be made taking into consideration the quality of water available and the
C economic viability of its extraction. Same caution against over exploitation
of ground water was sounded. It was, inter alia, mandated that adequate
safe drinking water facility should be provided to the entire population,
both in urban and in rural areas, and irrigation and multipurpose projects
should invariably include in it drinking water component wherever there
is no alternative source of drinking water. It was clarified that drinking
D
water needs of human beings and animals should be the first charge on
any available water. Qua irrigation, the Policy stated that planning either
in an individual project or in a basin as a whole should take into account
the irrigability of land, cost effective irrigation options possible from all
available sources of water and appropriate irrigation techniques for
E optimising water use efficiency. The aspect that the irrigation intensity
should be such as to extend the benefits of irrigation to a large number
of farm families as much as possible, keeping in view the need to
maximize production, was also underlined. It was most importantly
provided that water sharing/distribution amongst the States should be
guided by national perspective with due regard to the availability of water
F
resources and the needs within the river basin. The Policy, therefore, did
not bar as such the sharing or allocation of water in areas within the
basin state. In conclusion, the Policy recorded that its success would
depend entirely on evolving and maintaining national consensus and
commitment to its underlying principles and objectives. It also laid emphasis
G on the needs of the community that requires to be taken into account for
the development and management water resources.
377. The national policies of the country as above, therefore,
evidently supplement and consolidate the prescriptions of the Helsinki
Rules, Campione Rules and Berlin Rules in the matter of ascertainment
H of reasonable and equitable share of water in an inter-state river. To
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1099
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

reiterate, the Helsinki Rules and the other Rules envisage a basin state A
on the issue of equitable apportionment of an inter-State river. Though
the Rules predicate that in determining the share of one basin state, the
other co-basin states would not be subjected to substantial injury, yet the
clear emphasis is to fulfill the economic and social needs of the population
of the State and in the sphere of irrigation, its farmer community.
B
Indubitably, the principle of apportionment would apply uniformly to all
river basins in a State. The sharing of an inter-state river, as the professed
norms of distribution suggest, has to be with the spirit of harmonious
disposition and equanimous dispensation. The norms or the factors
suggested, understandably, can never be exhaustive and designed only a
balanced framework of pragmatic measures to ensure beneficial use of C
water resources in an inter-State river on need-based application thereof
and reciprocal adjustments for common good. In the regime of a welfare
state wedded to the guarantees enshrined in the National Charter, any
yardstick for distribution of any national asset like water would have to
be essentially in furtherance thereof. The criteria identified in the Rules
D
and supplemented by the national policies in letter and spirit, though in
quite detail, can only be construed as illustrative and cannot be perceived
as a strait-jacket formula or put in a compartment of mathematical
exactitude to exclude any other consideration or exigency to effect a
desirable apportionment of water of an inter-state river depending on
the prevalent eventualities. Having regard to the geographic, hydrographic, E
hydrological, hydrogeological, climatic, ecological and other fluvial
phenomena attendant on time, the spectrum of priorities and the factors
associated therewith are bound to vary. Be it clearly stated that while no
precise formula can be adopted, there has to be a sincere and pragmatic
endeavour to have a rational amalgam of globally accepted norms and
F
the local necessities founded on the doctrine of fairness and equity. The
factors already enumerated, needless to say, may inter se demand
precedence of one over the other depending on the ground realities, the
ultimate test being to ensure that the allocations on the basis thereof in
favour of one basin State ought not to be substantially detrimental to the
co-basin States. The order of precedence in the areas of necessity, as G
set out in the National Policy, is not incompatible with the acknowledged
determinants for ascertaining the reasonable and equitable share of an
inter-State river. Nevertheless, the weightage of one item of need would
depend in a given situation on the degree and priority thereof thereby
necessitating grant of preference of one over the other in departure of
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1100 SUPREME COURT REPORTS [2018] 5 S.C.R.

A the sequence set out in the policy. This again is to underline the attribute
of variability in the approach of application of the otherwise identified
criteria, the ultimate goal being equitable apportionment of the resources.
This concept gains more significance where the resource is scarce and
inadequate qua the demand thereof. It is warrantable as the dispute
involves the inhabitants of one State with the inhabitants of another State.
B
Such involvement by statutory command engulfs the principle of obtaining
situational adjustment having due regard to priority. In the above
predominant conspectus, in our estimate, the factors as set out in the
Helsinki Rules and endorsed as well as supplemented by the Campione
Rules and the Berlin Rules and further consolidated by our national policies
C as above are efficient, rational, objective and pragmatic guidelines to
conduct any exercise for determining the reasonable and equitable share
of basin States in the water of an inter-state river like Cauvery as in the
present case.
378. With these guidelines at disposal, the endeavour has to be
D essentially to ensure an appropriate balance of the genuine competing
demands and interests of the basin States. The balancing has to be done
in a pragmatic and feasible manner so that it will be ultimately functional
and meet the aspirations of the riparian States. In such a working process,
there has to be adjustment of the available resources. That apart, the
process indeed has to be informed with egalitarian vision for achieving
E utilitarian ends keeping in view the inclusive spirit and the pluralistic
ethos. Thus viewed and understood, periodical reviews to update the
allocations merited by changes in the aforementioned natural and
environmental phenomena bearing on the resources for supply and
resultant reorientation of the inter se needs of the basin States, would
F have to be unfailingly undertaken on time.
379. It needs to be stated that the gravamen of the rival assertions
span from wrong application of the principles of equitable apportionment
to the facts of the case, defective assessment of the materials on record
bearing on the requirements registered by the competing States, faulty
G approach in the matter of evaluation of the parameters bearing in
particular on the crop water requirement, ground water availability and
use and unmerited rejection of various projects as testimony of rightful
claims to resultant inaccurate allocation of the water of the inter-state
river involved. As detailed hereinbefore, the impugned decision of the
Tribunal would demonstrate that it had undertaken a detailed exercise
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1101
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

on the basis of the pleadings of the parties, the evidence, oral and A
documentary, including several contemporary official records and
statistics supplemented by the testimony of various acclaimed experts in
the field of water research and use over the years. Having regard to the
jurisdiction being exercised, we would, in this factual backdrop, test the
competing contentions on the basis of broad features of the controversy
B
and the established legal postulates applicable thereto and interfere in
the event of any discernible vitiating infirmity, incurably afflicting the
adjudicative pursuit of the Tribunal thereby rendering its appraisal of the
materials on record on any issue as well as the final determination to be
patently unsustainable.
X.2 Determination of ‘irrigated areas” in Tamil Nadu and C
Karnataka:
380. As we notice, the Tribunal, after adopting the principle of
equitable apportionment, in the process of computing the reasonable and
equitable shares of the basin States as the first initiative, determined the
irrigated areas of the States and in doing so, noted from the report of the D
Cauvery Fact Finding Committee submitted in the year 1972 that the
utilization of waters of Tamil Nadu including Karaikal region of the Union
Territory of Puducherry, Mysore and Kerala had been 566.60 TMC,
176.82 TMC and 5 TMC respectively. As the background of the
Agreements of 1892 and 1924 would reveal, the State of Karnataka had E
been raising persistent protests against the restraints put on it on the use
of the waters of the river for which it alleged that it was not possible on
its part to irrigate lands even as envisaged in the Agreement of 1924.
This was clearly by way of its remonstrance against Tamil Nadu’s
endeavours to wrest its dominion over the water by exercising its
prescriptive right to the natural flow thereof within its territories. F
Noticeably, the principle of equitable apportionment, as has evolved over
the time, has not been and rightly not disputed by the party-States as the
yardstick for the allocation in praesenti. In view of the fact that river
Cauvery is deficit in its water content compared to the demands of the
riparian States involved, restrictions and savings in the matter of use G
thereof are not only necessary but also natural corollaries. In that view
of the matter, it is incumbent to identify the areas under irrigation with
the expansion thereof with time, together with the crop pattern and the
suitability thereof, having regard to the extent of utilization of the deficient
surface flow available. On the basis of the reports of the various
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1102 SUPREME COURT REPORTS [2018] 5 S.C.R.

A Committees and the recorded data referred to hereinabove, the bearing
of the 1924 Agreement in particular over the march of events cannot
also be totally disregarded. The Tribunal, after taking into account all
these factors, vis-a-vis Tamil Nadu, applied the restrictions to work out
the irrigated area to which it would be entitled to assert its share of
allocation, namely, no area for summer paddy; area of summer paddy
B
raised prior to 1924 to be replaced by semi-dry crop; annual intensity of
irrigation to be restricted to 100%; cropping period to be restricted within
the irrigated season, i.e., 31st June to 31st January and ambitious lift
irrigation schemes to be discouraged. It, thus, quantified such area for
Tamil Nadu to be 24.71 lakh acres against its claim of 29.26 lakh acres.
C As far as Karnataka is concerned, the Tribunal noticed that in the pre
1924 Agreement era, irrigation in the then State of Mysore was primarily
from direct diversion channels from the rivers together with the system
of tank irrigation and that in the absence of any reservoir, the waters of
Cauvery and its tributaries like Kabini, Hemawathi, Harangi and
Suvaranwathi used to flow through the State but their ultimate destination
D
was the Delta State of the then State of Madras as a result whereof,
even as admitted by the State of Tamil Nadu, Karnataka could develop
only 3.14 lakh acres of land by 1924. This inability of the State of
Karnataka to develop its land for irrigation in the background of its
persistent cavil of being deprived of its legitimate share and use of the
E water of Cauvery cannot be ignored. It is a recorded fact that though
under the 1924 Agreement, Karnataka in terms of the relevant provisions
thereof ought to have developed 7.45 lakh acres by 1974, it could achieve
only 2.15 lakh acres. However, the Tribunal in all allowed 18.85 lakh
acres of area to Karnataka being under irrigation prior to 1974 against
its claim of 20.98 lakh acres. In case of Karnataka as well, the Tribunal
F
excluded the development of second crop in view of the scarcity of
water in the basin with due regard to the rainfall pattern and even
suggested restrictions on the crop variety and the duration thereof. On
an overall consideration of the relevant materials to which our attention
has been drawn, we are of the view that having regard to the imperative
G of economy of consumption of water, the approach of the Tribunal cannot
be found fault with having regard to the exiting situation
X.3 Assessment of water for “irrigation needs” in Tamil Nadu
and Karnataka:
381. We may analyse the present demand qua the assessment of
H crop water requirement of the basin states, the relevant information of
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1103
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

which had been furnished by them in common format supplemented by A
the oral testimony of experts and documentary evidence. They registered
their demand for allocation as hereinbelow:
Tamil Nadu – 566 TMC
Karnataka – 466 TMC
B
Kerala – 100 TMC
Union Territory of Pondicherry – 9 TMC
The Tribunal, to reiterate, to ensure equitable share to each State,
applied the following criteria:
C
(i) Double crop only over areas before the Agreement of the
year 1924 and as permitted under the said Agreement and
not beyond.
(ii) Summer crop restricted in some areas where it was grown
prior to 1924 Agreement which ought to be replaced by D
any light irrigated crop within the irrigation season.
(iii) Delta to be reduced in view of new variety of paddy and
developed techniques which require lesser Delta of water.
(iv) No transbasin diversion.
E
(v) No lift schemes.
382. As the records reveal, after the evidence of the expert
witnesses was recorded, as required by the Tribunal, the States filed
their affidavits furnishing details of water requirements as well as the
crops grown by them together with an indication of a minimum crop F
water requirement. The affidavit filed on behalf of Tamil Nadu was
marked as Ext. TN1665 and that of Karnataka as Ext. KAR518. Hence,
we shall analyse the ultimate determination by the Tribunal and scrutinize
its ultimate justification. As has been noted earlier, there has been a
considerable dispute over Ext.1665 and the area of dispute relates to the
violation of the principles of natural justice, non-providing of opportunity G
of cross-examination, admissibility of the affidavit in evidence and, above
all, the transgression of the sense of propriety by the State of Tamil
Nadu. We have already stated that what had already been available on
record can be considered from the factual assertions of the affidavit. Be
that as it may, there has to be an adjudication by this Court and not allow
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1104 SUPREME COURT REPORTS [2018] 5 S.C.R.

A the main protagonist States to keep the fight in continuance. The Tribunal,
as is demonstrable, on the basis of the overall materials before it, took
note, amongst others, of the crop pattern, duration of the crops,
consumption of water thereby, soil conditions conducive thereto, rainfall
pattern, Delta and system efficiency along with the drought conditions
of Karnataka as projected by it, in conjunction with the testimony of the
B
expert witnesses of both the States of Tamil Nadu and Karnataka, and
in the interest of economical use of the water of the deficit basin, allocated
250.62 TMC to Karnataka for its irrigated area of 18.85 lakh acres and
390.85 TMC to Tamil Nadu for its irrigated area of 24.71 lakh acres.
Significantly, it is worthwhile to notice, in this context, the
C recommendations of the Cauvery Fact Finding Committee required
restriction on double crop paddy area; introduction of short duration variety
in place of “Samba” crop and preference to crops needing less water.
Further, the Tribunal has considered the crop water requirement, namely,
crop duration, ET crop, puddling requirements, percolation losses,
effective rainfall and system efficiency. Keeping in view the accepted
D
principles, we find that neither the analysis undertaken by the Tribunal
nor the findings relatable thereto can be regarded as implausible by any
standard. Certain parameters have been exhaustively examined by the
Tribunal on the basis of the materials brought on record with supporting
reasons and, therefore, the conclusion on this score cannot be termed as
E untenable warranting interference in the exercise of this Court’s
jurisdiction under Article 136 of the Constitution of India. We may pause
here to clarify. In our first verdict that pertained to the delineation of the
maintainability of appeals by special leave while holding the appeals to
be maintainable, we had kept it open for advertence at a later stage the
issue whether there should be broad approach or a narrow one. After
F
hearing all the sides at length, at this juncture, we are inclined to say that
while adjudicating a matter of such a nature we cannot be totally guided
exclusively either by “broad” or extraordinary discretionary or “narrow”
or restrictive approach but think it appropriate to have an intermediary
approach as the controversy covers a span of more than 100 years
G involving change in boundaries, population growth and subsequent events.
We may hasten to add that though the parameters of applicability of
Article 136 can be broad to appreciate the materials and scrutinize the
manner of appreciation by the Court/Tribunal depending upon the lis
raised. In the present appeals preferred by special leave, we think it
condign to adopt an approach which is neither broad nor narrow but an
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1105
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

“intermediary one”, especially having regard to the nature of the dispute A
that involves the inhabitants of three States and a Union Territory.
383. In the realm of determination of irrigated area, the assessment
by the Tribunal, as we find, encapsules the factual and characteristically
complex situation. Lands have already been irrigated. It is an issue of
sustenance at the ground reality level. To reduce the allocation of water B
on this core would be inequitable. Therefore, in the obtaining fact situation,
in our comprehension, no interference is warranted. That apart, having
regard to the degree of wiredrawn complexities involved, requiring in-
depth expertise to dislodge the otherwise well-reasoned findings of the
Tribunal founded on an exhaustive appreciation of the materials on record,
we are not inclined to upset the determination made by it in this regard. C
On an overall scrutiny of the materials to which our attention had been
drawn, we are in general agreement with the approach and assessment
made by the Tribunal and the deductions made by it on the basis thereof.
Sans rhetoric and emotionally appealing submissions, we find that the
rival contentions are equally balanced and to reiterate, on an overall D
consideration of the materials on record, we do not feel persuaded to
differ with the Tribunal’s adjudication.
X.4 Water allocation for the State of Kerala:
384. In respect of the claim of Kerala, it is a matter of record that
rainfall is evenly distributed over the months of May to November so E
much so that occasional support by artificial irrigation is required in the
instances of shortfall in rains and that too during small periods. Against
its demand of 99.8 TMC under different heads, it had demanded 35
TMC for transbasin diversion to generate hydro-electrical power. The
Tribunal rejected the State’s request for transbasin diversion for hydro- F
power projects which, in terms of the National Water Policy of 2002,
was even otherwise lower in preference to drinking water and irrigation.
The Tribunal in adjudging the State’s share did notice that it had been
unsuccessful in furthering its projects so much so that pending the
completion and utilization thereof, the unutilized water allocated to it
subject to the mechanism set up by the Cauvery Management Board/ G
Regulatory Authority, would be received by Tamil Nadu. The Tribunal
examined the information furnished by it in the common format and
adjudged 29.76 TMC which was rounded upto 30 TMC as its share
after due regard to its demand, amongst others, pertaining to different
projects in Kabani, Bhavani, and Pambar basins having regard to their H
1106 SUPREME COURT REPORTS [2018] 5 S.C.R.

A individual features and corresponding crop water requirement. This
allocation included the share for domestic and industrial water purposes
as well with the population projection for 2011. The findings of the
Tribunal are not belied by the materials in support thereof and, therefore,
we are inclined to accept the same.
B X.5 Water allocation for the Union Territory of Puducherry:
385. With regard to the claim of Union Territory of Puducherry
for Karaikal region, it is a matter of record that because of its close
proximity to the sea, the ground water by its nature is unsuitable for
drinking and irrigation purposes and, thus, the Tribunal having regard to
C its irrigated area of 43000 acres allowed its second crop in departure
from the yardstick applied for Karnataka and Tamil Nadu and granted
6.35 TMC by way of crop water requirement. It also relieved the Union
Territory of the application of 20% consumptive utility formula while
assessing its domestic and industrial water requirements. In the absence
of any convincing reason to determine otherwise, the adjudication of the
D Tribunal on this count does not deserve any interference.
X.6 Recognition of ground water as an additional source in Tamil
Nadu:
386. While exploring the possibility of ground water as an additional
E source to be conjunctively used along with the surface flow of river
Cauvery, the factual matrix reveals, based on empirical data, that the
contributions thereto are from surface water through infiltration into the
ground by way of natural recharge, stream flow, lakes and reservoirs.
The recharge of ground water is principally from rainfall as well as
artificial modes, namely, application of water to irrigate crops, flooding
F of areas caused by overflowing of streams to their sites and seepage
from unlined canals, tanks and other sources. Ground water, as the study
by the Central Ground Water Board, Ministry of Water Resources,
Government of India attests, caters to more than 45% of irrigation in the
country. As against the stand of Tamil Nadu that the ground water
G within its Delta areas is mainly by way of recharge from the supplies of
Mettur Dam which really is a component of the surface flow of river
Cauvery and further that the same is utilized by the farmers for raising
of early nurseries ahead of releases from Mettur and for irrigating belated
crops after stoppage of Mettur releases, exhaustive studies undertaken,
amongst others, by the Central Ground Water Board, Ministry of Water
H Resources, Government of India, Irrigation Commission, 1972 and United
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1107
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

Nations Development Programme evidenced availability of replenishable A
ground water in Tamil Nadu. The United Nations Development
Programme in its report, amongst others, mentioned that yearly quantity
of ground water that can be extracted by using centrifugal pumps in the
Cauvery sub-basin, Vennar sub-basin and in the new Delta was 33.7
TMC, 5.4 TMC and 32.5 TMC respectively and in addition 56.5 TMC
B
of ground water per year can also be made available in the Cauvery
sub-basin by lowering seasonally ground water level to 10 meters depth
below the regional ground water level. Other studies made by the team
of the Central Ground Water Board indicated ground water potential in
the Delta area of Tamil Nadu to the extent of 64 TMC. The report of
Mr. W. Berber, Consultant, World Bank on Ground Water Resources of C
Cauvery Delta estimated the available ground water in Cauvery Delta
at 51.56 TMC. Apart from the above, Tamil Nadu, in its pleadings,
admitted that the total ground water extraction during the year 1989 was
approximately 28.4 TMC in the Cauvery sub-basin, 7.3 TMC in the
Vennar sub-basin and 11.3 TMC in the Grand Anicut Canal area (new
D
Delta area) totaling 47 TMC. Tamil Nadu, in its pleadings, also mentioned
that in the old Delta, there was a scope of conjunctive use of ground
water to the extent of 30 TMC. On the basis of these recorded and
empirical inputs, the Tribunal returned a finding that in a normal year
when there would be regular releases of water from Mettur, the bulk of
contribution to ground water in the Cauvery sub-basin would be from E
such releases, but in any case, the contribution from surface irrigation
and rainfall could by no means be overlooked. On weighing the pros and
cons and having regard to the severe limitations in the mechanism for
assessment of ground water resource, the Tribunal made an extremely
safe estimate of 20 TMC of ground water which, in its view, could be
F
used by Tamil Nadu conjunctively with surface water. In categorical
terms, the Tribunal clarified that this quantum was arrived at after
excluding the component of ground water recharge from river water
bilateral infiltration. In other words, the Tribunal estimated 20 TMC of
ground water available in the State of Tamil Nadu which was independent
of any contribution from the surface flow of the river Cauvery and, thus, G
could be construed to be a stock available with it unconnected with the
yield of 740 TMC otherwise quantified for allocation. It is in this context
that the assertion made on behalf of Karnataka that ground water being
a renewable resource, if not extracted regularly, would reduce the
absorption capacity of the underlying aquifer resulting in rain water/
H
1108 SUPREME COURT REPORTS [2018] 5 S.C.R.

A surface water turning into wastage as run-off and that the admission of
Tamil Nadu in its pleadings of availability of 30/47 TMC as ground water
warranted reduction of at least 20 TMC, as estimated by the Tribunal,
from the final allocated share of Tamil Nadu with proportionate reduction
in the quantum of water to be provided by Karnataka at the inter-state
border, assumes significance. In our view, having regard to the
B
overwhelming empirical data following multiple research studies by
different authorities authenticating beyond doubt availability of
replenishable ground water in the Delta areas of Tamil Nadu, 20 TMC
of ground water quantified by the Tribunal is an eminently safe quantity
to be accounted for in finally allocating/apportioning the share of Cauvery
C water. While expressing this view, we are not unmindful of the stand of
Tamil Nadu and the aspect that over-extraction of ground water in the
absence of adequate replenishment and further in the areas proximate
to the coastal zone is generally avoidable. However, in the attendant
facts and circumstances, in view of the studied scrutiny of all pertinent
facets of the issue by balancing all factors, we are of the unhesitant
D
opinion that at least 10 TMC of ground water available in the Delta
areas of Tamil Nadu can be accounted for in finally determining the
apportionment of the share of the otherwise deficit Cauvery basin without
touching the yield of 740 TMC.
387. To recall, the national policies discussed above, do not, as
E such, debar the conjunctive use of ground water, the only caveat being
periodical assessment on a scientific basis thereof and to guard against
exploitation of the said resource so as not to exceed the recharging
possibilities. The series of research studies made by different authorities
and the range of availability of ground water as indicated by the
F experimental data, in our view, not only demonstrate availability of ground
water in the Deltas in the State of Tamil Nadu but also that adjustment
of 10 TMC thereof, as proposed, would be safely permissible. Noticeably,
the kind of experiment and research that had been made in the realm of
ground water availability in the Deltas of Tamil Nadu has not been
undertaken in Karnataka and there is no reliable empirical data with
G regard thereto vis-a-vis that State.
X.7 Water allocation for Domestic and Industrial purposes in Tamil
Nadu:
388. With regard to the computation and allotment of water for
H domestic and industrial purposes in Tamil Nadu and Karnataka, we are
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1109
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

in agreement with the formulae noted and applied by the Tribunal in A
working out the per capita daily requirements of the urban and rural
population. There is also no reason to differ from the postulation with
regard to the percentage of actual utilization qua various heads of uses,
namely, irrigation, power, domestic and municipal water supply, industrial
use, etc., as referred to in the Report of the Cauvery Fact Finding
B
Committee which, for our immediate purposes, indicate that whereas
20% of the quantity of water supplied would be actually consumed in
domestic use, only 2.5% would be effectively utilized for industrial use
within the basin and the rest would return to the source, i.e., river or its
tributaries or the reservoir, storage and canal, as the case may be.
X.8 Water allocation for Domestic and Industrial purposes of State C
of Karnataka:
389. As regards the grievance of the State of Karnataka that
while quantifying the allocation of water for domestic purposes, the
Tribunal had accounted for only 1/3rd of the city of Bengaluru to be
falling within the river basin and had, as a result, drastically cut down its D
overall share under this head. It is significant to notice that in its statement
of case, Karnataka had registered its claim for water for domestic and
industrial uses as hereunder:-
Bangalore water supply – 30 TMC
E
Urban water supply (other than Bangalore) – 10 TMC
Rural water supply – 6 TMC
Industrial uses – 4 TMC
This along with its claim for irrigation - 408 TMC and for power
F
projects (reservoir losses 6 TMC and Thermal Power Project - 1
TMC) – totals to 465 TMC. Karnataka, therefore, registered a claim of
30 TMC only for the city of Bengaluru. The Tribunal, at the first instance,
presumed that 50% of drinking water requirement would be met from
the ground water sources as it is generally seen that wells and tube-
wells in urban and rural areas cater to substantial requirement of drinking G
water. While noting that it had called for information in the common
format whereby the States had been required to project their population
for the year 2000 and 2025 for working out drinking water requirement,
the Tribunal, however, decided to assess the drinking water requirement
as in the year 2011. On the basis of the information available, it held that
H
1110 SUPREME COURT REPORTS [2018] 5 S.C.R.

A only 1/3rd of the Bengaluru city lay within the Cauvery basin as was
urged in the course of the arguments. It, therefore, limited its consideration
of drinking water requirement of Bengaluru to that area only which was
located within the Cauvery basin. It noticed that Karnataka had stated
that the existing and ongoing drinking water schemes for the city were
for 14.52 TMC in all as in June 1990 and also that it had claimed 30
B
TMC for Bengaluru city in its projection for 2025. The Tribunal, as is
perceptible, was disposed to work out the water requirement for urban
and rural population on the basis of population projection of the basin for
the year 2011 by adopting the percentage decennial growth for the year
1981-1991 census, district-wise and the area of each district falling within
C the Cauvery basin as furnished by Karnataka. The population projection
of Bengaluru city on the Census Report of 2011, as furnished by Tamil
Nadu, was taken note of as well. The Tribunal next quantified the water
requirement of urban population to be 8.70 TMC and for rural population
at 8.52 TMC. The Tribunal, as a consequence, proceeded to quantify
the total drinking water requirement for urban and rural population to be
D
17.22 TMC (8.70 TMC + 8.52 TMC). It next assumed that 50% of the
drinking water requirement would be met from ground water and the
remaining 50% from the surface water. Thus, segregating 8.75 TMC to
be catered to by the surface water, it worked out the consumptive use,
i.e., 20% of the total for the human population including live stock to be
E 1.75 TMC (20% of 8.75 TMC).
390. Apart from the fact that there is no basis whatsoever for the
Tribunal for having quantified the water requirement for urban population
to be 8.70 TMC as well as for rural population to be 8.52 TMC, its
assumption that 50% thereof would be met from ground water only in
F view of its perception that wells and tube-wells in urban and rural areas
cater to the substantial requirement of drinking water, in our view, is
unacceptable and cannot be sustained. That apart, in the context of
Bengaluru city, especially in view of the growth and rise of population in
space and time, the Tribunal’s approach of confining the entitlement of
its population in general to only 1/3rd of their requirement only in view of
G the location of 1/3rd of its physical entity within the Cauvery basin demands
scrutiny. True it is, the concept of a basin and the beneficial uses of the
water thereof ought to be traced generally to the sites and population
thereof located in the basin, nevertheless, the principles of apportionment
and the conception of reasonable and equitable share perceived for such
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1111
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

uses comprehend a basin State addressing the social and economic needs A
of its community as a whole. Territorial or geographical demarcation for
extension of beneficial uses of an inter-state river basin cannot always
be strictly construed. We are inclined to think so as the perception of a
basin State inheres in it a degree of flexibility in approach in a unique
fact situation to justify a warrantable flexibility and departure from such
B
rigoristic approach. We are disposed to think so, for the city of Bengaluru,
as an evident phenomenon, has burgeoned over the years and has grown
today into a progressively sophisticated, sprawling, vibrant and a much
aspired seat of intellectual excellence particularly in information
technology and commercial flourish. It has transformed into a nerve
centre of contemporaneous significance and its population is daily on the C
rise, thus, registering an ever enhancing demand for all civic amenities.
Having regard to its exclusive attributes, it is incomparable in many ways
not only to other urban areas in the State, but also beyond. The
requirements of its dependent population as a whole for drinking and
other domestic purposes, therefore, cannot justifiably, in the prevailing
D
circumstances, be truncated to their prejudice only for consideration of
its physical location in the context of the river basin. We think so since
the city of Bengaluru cannot be segregated having an extricable
composition and integrated whole for the purposes of the requirements
of its inhabitants, more particularly when the same relates to allocation
of water for domestic purposes to meet their daily errands. It will be E
inconceivable to have an artificial boundary and deny the population the
primary need of drinking water. We hold so in the special features of the
case keeping in view the global status the city has attained and further
appreciating the doctrine of equitable proportionality on the bedrock of
pressing human needs.
F
391. At this juncture, we need to recount that as per the national
water policies, not only drinking water has been placed at the top of the
other requirements in the order of priority, but it has also been predicated
that adequate drinking water facilitates should be provided to the entire
population, both in urban and rural areas and that drinking water should
be made a primary consideration. It was declared as well that drinking G
water needs of human beings and animals should be the first charge on
any available water. Article 14 of the Berlin Rules also mandates that in
determining an equitable and reasonable use, the States shall first allocate
water to satisfy vital human needs.
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1112 SUPREME COURT REPORTS [2018] 5 S.C.R.

A 392. In view of the above, we are constrained to observe that the
approach of the Tribunal cannot be approved in the facts and
circumstances indicated hereinabove. We are, thus, of the considered
opinion that the allocation of water for drinking and domestic purposes
for the entire city of Bengaluru has to be accounted for. Noticeably,
Karnataka had claimed 14.52 TMC, i.e., 6.52 TMC for existing water
B
schemes for Bengaluru and 8.00 TMC for the ongoing drinking water
schemes for the city as in June, 1990. It had demanded 30 TMC as
drinking water requirement for the city with the projection of 2025. Having
regard to the percentage of decennial growth, as has been adopted by
the Tribunal, in 2011, the demand of Karnataka for drinking water
C requirement for Bengaluru city would be in the vicinity of 24 TMC.
Even excluding the computation for urban population of the State to be
8.70 TMC as arrived at by the Tribunal and that too without any basis
and accepting the water requirement of rural population to be 8.52 TMC
though also without any basis, the total figure representing drinking and
domestic water requirement of the urban and rural population would be
D
32.5 TMC rounded upto 33 TMC in comparison to 46 TMC as claimed
by Karnataka in its statement. Having rejected the assumption that 50%
of the drinking water requirement would be met from ground water, this
33 TMC would, in our estimate, be a safe and acceptable figure qua
drinking and domestic water requirement of the State of Karnataka for
E its urban and rural population. By applying the consumptive percentage
of 20%, the volume of water to be allocated to Karnataka on this count
would be 6.5 TMC in lieu of 1.75 awarded by the Tribunal, i.e., an increase
by 4.75 TMC.
393. Qua the view against transbasin diversion, suffice it to state
F that not only in the context of Bengaluru city, for the reasons cited
hereinabove, a digression from the confines of the concept of in-river
basin would be justified, since the National Water Policy of 1987, in
categorical terms, enjoined that water should be made available to water
short areas by transfer from other areas including transfers from one
river basin to another. This very conspicuously emphasizes on an inclusive
G comprehension and in a deserving case like Bengaluru city, it would not
be incompatible with the letter and spirit of the factors that ought to
inform the determination of reasonable and equitable share of water in
an interstate river as well as of the national policies formulated for
planning and development of the precious natural resource involved.
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1113
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

X.9 Allocation of water towards environmental protection: A
394. On the aspect of allocation qua environmental protection,
the Tribunal, in order to secure the purity of environmental and ecological
regime in view of the injudicious use of available resources by human
beings compounded by population explosion and distorted lifestyles and
having regard to the spectre of river water pollution on account of industrial B
development and deforestation leading to siltation of reservoirs, etc.,
assigned 10 TMC to be reserved from the common pool to meet the
environmental aspects.
395. We appreciate the endeavour and the initiative of the Tribunal
having regard to the sustenance of purity of environment to which every C
individual is entitled and also simultaneously obliged to contribute to
cultivate the feeling of environmental morality. That is the constant
need of the present. In view of such an obtaining situation, we are not
inclined to interfere in any manner in the allocation of the quantum of 10
TMC towards environmental protection. It stands affirmed.
D
X.10 Revised water allocation amongst competing States:
396. The river Cauvery originates in Karnataka and eventually
after its full flow through the other riparian States of the basin assimilates
in the Bay of Bengal. With the evolution of the principle of equitable
apportionment which is really to ensure equal justice to the basin States, E
the concept of prescriptive right or right to the natural flow of any inter-
state river has ceased to exist. Having regard to the historical facts
which demonstrate the constraints suffered by Karnataka resulting in its
limited access and use of the surface flow of Cauvery in spite of being
the upper riparian state, compared to Tamil Nadu, then Madras presidency,
as well as severally drought conditions in its 28 districts/taluks, we are F
inclined to award an additional quantity of water to it in the measure of
14.75 TMC in all, i.e., 10 TMC (on account of availability of ground
water in Tamil Nadu) + 4.75 TMC (for drinking and domestic purposes
including such need for the whole city of Bengaluru). On these
considerations, we consider Karnataka to be more deserving amongst G
the competing States to be entitled thereto. Out of this, 14.75 TMC
would be deducted from the quantum allocated by the Tribunal in favour
of Tamil Nadu. In other words, the final allocation of the shares in view
of this determination would be as hereunder:-

H
1114 SUPREME COURT REPORTS [2018] 5 S.C.R.

A Karnataka : 284.75 (270 + 14.75) TMC
Tamil Nadu : 404.25 (419 – 14.75) TMC
Kerala : 30 TMC
UT of Pondicherry : 7 TMC
B Environmental Protection : 10 TMC
Inevitable escapagaes into sea : 4 TMC
Total : 740 TMC
397. As a consequence of the aforesaid allocation, the State of
C Karnataka would now be required to make available at the interstate
border with Tamil Nadu, i.e., at Billigundulu, 177.25 TMC of water for
the basin. Apart from the modifications effected hereinabove, no
interference with the determination and findings recorded by the Tribunal,
in view of the scrutiny of the available materials on record, is called for.
D 398. At this stage, we may reproduce how the Tribunal has dealt
with monthly deliveries by the State of Karnataka which is as follows:-
“Since the major shareholders in the Cauvery waters are the
States of Karnataka and Tamil Nadu, we order the tentative
monthly deliveries during a normal year to be made available by
E the State of Karnataka at the inter-State contact point presently
identified as Billigundulu gauge and discharge station located on
the common border as under:
Month TMC Month TMC
June 10 December 8
F
July 34 January 3
August 50 February 2.5
September 40 March 2.5
October 22 April 2.5
G
November 15 May 2.5
192 TMC
The above quantum of 192 TMC of water comprises of 182
TMC from the allocated share of Tamil Nadu and 10 TMC of
H water allocated for environmental purposes.”
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1115
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

399. The Tribunal directed appointment of a Regulatory Authority A
to properly monitor the working of monthly schedule with the help of the
concerned States and Central Water Commission and further directed
that the upper riparian State shall not take any action so as to affect the
scheduled deliveries of water to the lower riparian States. The other
directions which had been issued by the Tribunal, we think it appropriate
B
to reproduce, are as under:-
“Clause-XIV
Use of water shall be measured by the extent of its depletion of
the waters of the river Cauvery including its tributaries in any
manner whatsoever; the depletion would also include the C
evaporation losses from the reservoirs. The storage in any
reservoir across any stream of the Cauvery river system except
the annual evaporation losses shall form part of the available
water. The water diverted from any reservoir by a State for its
own use during any water year shall be reckoned as use by that
State in that water year. D

Clause-XV
In any riparian State or U.T. of Pondicherry is not able to make
use of any portion of its allocated share during any month in a
particular water year and requests for its storage in the designated E
reservoirs, it shall be at liberty to make use of its unutilized share
in any other subsequent month during the same water year
provided this arrangement is approved by the implementing
Authority.
Clause-XVI F
Inability of any State to make use of some portion of the water
allocated to it during any water year shall not constitute forfeiture
or abandonment of its share of water in any subsequent water
year nor shall it increase the share of other State in the subsequent
year if such State has used that water.
G
x x x x x x
Clause XVIII
Nothing in the order of this Tribunal shall impair the right or
power or authority of any State to regulate within its boundaries
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1116 SUPREME COURT REPORTS [2018] 5 S.C.R.

A 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.”
400. In view of the reduction in the quantum of water, now
required to be released by Karnataka at the inter-State border with Tamil
Nadu, i.e., at Billigundulu, there would be, logically, a proportionate
B decrease in the monthly releases as worked out by the Tribunal. However,
the same pattern therefor, as modeled by it would be maintained for the
reduced releases.
Y. Interpretation of Section 6A of the 1956 Act
401. Now we shall deal with the provisions of Section 6A of 1956
C Act. It reads as under:-
“Section 6A. Power to make schemes to implement
decision of Tribunal.
(1) Without prejudice to the provisions of section 6, the Central
D Government may, by notification in the Official Gazette, frame a
scheme or schemes whereby provision may be made for all
matters necessary to give effect to the decision of a Tribunal.
(2) A scheme framed under sub- section (1) may provide for—
(a) the establishment of any authority (whether described as such
E or as a committee or other body) for the implementation of the
decision or directions of the Tribunal;
(b) the composition, jurisdiction, powers and functions of the
authority, the term of office and other conditions of service of,
the procedure to be followed by, and the manner of filling
F vacancies among, the members of the authority;
(c) the holding of a minimum number of meetings of the authority
every year, the quorum for such meetings and the procedure
thereat;
(d) the appointment of any standing, ad hoc or other committees
G by the authority;
(e) the employment of a Secretary and other staff by the authority,
the pay and allowances and other conditions of service of such
staff;

H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1117
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

(f) the constitution of a fund by the authority, the amounts that A
may be credited to such fund and the expenses to which the
fund may be applied;
(g) the form and the manner in which accounts shall be kept by
the authority;
(h) the submission of an annual report by the authority of its B
activities;
(i) the decisions of the authority which shall be subject to review;
(j) the constitution of a committee for making such review and
the procedure to be followed by such committee; and C
(k) any other matter which may be necessary or proper for the
effective implementation of the decision or directions of the
Tribunal.
(3) In making provision in any scheme framed under sub- section
(1) for the establishment of an authority for giving effect to the D
decision of a Tribunal, the Central Government may, having regard
to the nature of the jurisdiction, powers and functions required to
be vested in such authority in accordance with such decision
and all other relevant circumstances, declare in the said scheme
that such authority shall, under the name specified in the said
E
scheme, have capacity to acquire, hold and dispose of property,
enter into contracts, sue and be sued and do all such acts as may
be necessary for the proper exercise and discharge of its
jurisdiction, powers and functions.
(4) A scheme may empower the authority to make, with the
F
previous approval of the Central Government, regulations for
giving effect to the purposes of the scheme.
(5) The Central Government may, by notification in the Official
Gazette, add to, amend, or vary, any scheme framed under sub-
section (1).
G
(6) Every scheme framed under this section shall have effect
notwithstanding anything contained in any law for the time being
in force (other than this Act) or any instrument having effect by
Virtue of any law other than this Act.

H
1118 SUPREME COURT REPORTS [2018] 5 S.C.R.

A (7) Every scheme and every regulation made under a scheme
shall be laid, as soon as may be after it is made, before each
House of Parliament, while it is in session, for a total period of
thirty days which may be comprised in one session or in two or
more successive sessions, and if, before the expiry of the session
immediately following the session or the successive sessions
B
aforesaid, both Houses agree in making any modification in the
scheme or the regulation or both Houses agree that the scheme
or the regulation should not be made, the scheme or the regulation
shall thereafter have effect only in such modified form or be of
no effect, as the case may be; so, however, that any such
C modification or annulment shall be without prejudice to the validity
of anything previously done under that scheme or regulation.”
402. We have already noted the submissions of the learned
Solicitor General. His submission, in essentiality, is that the Court should
not issue any direction to the Central Government and allow the discretion
D to be exercised by it as the provision uses the word may. The said
argument, as we perceive on a first blush, may look quite attractive or
for a while impressive but really cannot stand the substance test. In
State of Karnataka (supra) while interpreting the said provision in the
context of maintainability, we had held:-
E “….The learned Senior Counsel for the respondent has drawn a
distinction between the conferment and the exclusion of the power
of the Supreme Court of India by the original Constitution and
any exclusion by the constitutional amendment. Be that as it
may, the said aspect need not be adverted to, as we are only
required to interpret Section 6(2) as it exists today on the statute
F book. The said provision has been inserted to provide teeth to
the decision of the Tribunal after its publication in the Official
Gazette by the Central Government and this has been done
keeping in view the Sarkaria Commission’s Report on Centre-
State Relations (1980). The relevant extract of the Sarkaria
G Commission’s Report reads as follows:
“17.4.19. The Act was amended in 1980 and Section 6-A was
inserted. This section provides for framing a scheme for giving
effect to a Tribunal’s award. The scheme, inter alia provides
for the establishment of the authority, its term of office and
H other conditions of service, etc. But the mere creation of such
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1119
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

an agency will not be able to ensure implementation of a A
Tribunal’s award. Any agency set up under Section 6-A cannot
really function without the cooperation of the States concerned.
Further, to make a Tribunal’s award binding and effectively
enforceable, it should have the same force and sanction behind
it as an order or decree of the Supreme Court. We recommend
B
that the Act should be suitably amended for this purpose.
* * *
17.6.05. The Inter-State Water Disputes Act, 1956 should be
amended so that a Tribunal’s award has the same force and
sanction behind it as an order or decree of the Supreme Court C
to make a Tribunal’s award really binding.”
74. The Report of the Commission as the language would suggest,
was to make the final decision of the Tribunal binding on both
the States and once it is treated as a decree of this Court, then it
has the binding effect. It was suggested to make the award D
effectively enforceable. The language employed in Section 6(2)
suggests that the decision of the Tribunal shall have the same
force as the order or decree of this Court. There is a distinction
between having the same force as an order or decree of this
Court and passing of a decree by this Court after due adjudication.
Parliament has intentionally used the words from which it can E
be construed that a legal fiction is meant to serve the purpose
for which the fiction has been created and not intended to travel
beyond it. The purpose is to have the binding effect of the
Tribunal’s award and the effectiveness of enforceability. Thus,
it has to be narrowly construed regard being had to the purpose F
it is meant to serve.”
403. We have referred to the aforesaid passages as the award of
the Tribunal has to be treated as decree of the Supreme Court. It is so
stated in Section 6(2) to give teeth to the award passed by the Tribunal
so that none of the States can raise objection to the same and be guided G
by the directions of the Tribunal. The purpose of framing the scheme is
exclusively for implementation of the award. The authorities cited by
Mr. Ranjit Kumar, we are afraid, are of no assistance in the present
context. It needs no special emphasis to state that the purpose of Section
6A is to act in the manner in which the award determines the allocation
and decides the dispute with regard to allocation or sharing of water. H
1120 SUPREME COURT REPORTS [2018] 5 S.C.R.

A Keeping that in view, we direct that a scheme shall be framed by the
Central Government within a span of six weeks from today so that the
authorities under the scheme can see to it that the present decision which
has modified the award passed by the Tribunal is smoothly made
functional and the rights of the States as determined by us are appositely
carried out. When we say so, we also categorically convey that the
B
need based monthly release has to be respected. It is hereby made clear
that no extension shall be granted for framing of the scheme on any
ground.
Z. The conclusions in seriatim
C 404. In view of our aforesaid analysis we record our conclusions
in seriatim:-
(i) After coming into force of the 1947 Act, the doctrine of
paramountcy has no room for application as the Government
of India became the full sovereign authority. The two
D agreements of 1892 and 1924 had neither any political
arrangement nor touched any facet of sovereignty of India.
Per contra, the agreements cover the areas of larger public
interest which do not have any political element and in this
backdrop, the agreements are neither inoperative nor
completely extinct.
E
(ii) The issues in this case have no connection, whatsoever,
with the concepts of sovereignty and integrity of India and,
therefore, the bar under Article 363 of the Constitution of
India is not attracted.

F (iii) Even if we accept the contention that the State of
Karnataka did not have any bargaining power at the time
of entering into the agreements, but, the State of Karnataka
acquired the said bargaining power after the 1947 Act, and
definitely after coming into force the Constitution of India.
Regardless of the same, the State of Karnataka chose not
G to denounce the said agreements. Therefore, the said
agreements cannot be said to be unconscionable.
(iv) The newly formed States never belied the agreements of
1892 and 1924 after the Reorganization Act, 1956. Ergo,
both the agreements remained in force despite coming into
H effect of the Reorganization Act, 1956.
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1121
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

(v) A scrutinized perusal of the 1924 Agreement reveals that A
the said Agreement was never intended to be of permanent
character. On the contrary, it contemplated a fixed term of
50 years. Therefore, the said agreement expired after 50
years in the year 1974.
(vi) The Tribunal in its approach primarily referred to Helsinki B
Rules, 1966 which rejected the Harmon doctrine and laid
stress on equitable utilization of international rivers. We
are of the opinion that the Tribunal was correct in its
approach. For determining reasonable and equitable shares,
relevant factors have to be considered together, in reaching
a conclusion. Keeping in view the various intricacies involved C
in the case at hand and the duty ordained upon this Court
by the Constitution of India, the matter deserved to be
adjudicated on the bedrock of equal status of the states and
doctrine of equitability. Resultantly, the submission that the
complaint of the State of Tamil Nadu did not warrant any D
adjudication, does not commend any acceptation.
(vii) This Court in In Re: Presidential Reference (Cauvery
Water Disputes Tribunal) has held that waters of an inter-
state river passing through corridors of the riparian states
constitute a national asset and no single State can claim E
exclusive ownership of its water. In this context, the principle
of equitable apportionment internationally recognized by the
Helsinki Rules, Compione Rules and Berlin Rules which
have also been incorporated in the 1987 to 2002 National
Water Policies, have been regarded to be the guiding factor
for resolving disputes qua apportionment of water of an F
inter-state river.
(viii) After considering all relevant materials brought on record,
we are of the view that having regard to imperative of
economy of consumption of water, the final determination
of irrigated area arrived at by the Tribunal for Tamil Nadu, G
cannot be declared incorrect or fallacious.
(ix) We do not find any perversity of approach in the Tribunal’s
findings with regard to the allocation of water for domestic
and industrial purposes in the State of Tamil Nadu. Hence,
the same requires no interference. H
1122 SUPREME COURT REPORTS [2018] 5 S.C.R.

A (x) Drinking water requirement of the overall population of all
the States has to be placed on a higher pedestal as we treat
it as a hierarchically fundamental principle of equitable
distribution
(xi) The rejection of the stand of Kerala seeking trans-basin
B diversion for hydro-power projects by the Tribunal is justified.
The Tribunal has allocated a total of 30 TMC of water
towards the overall needs of the State of Kerala and we
concur with the said conclusion of the Tribunal.
(xii) We concur with the Tribunal’s findings that the Union
C Territory of Puducherry is entitled for a “second crop”,
having regard to its unique geographical position and its
irrigated area being approximately 43,000 acres.
(xiii) The allocation of water in favour of Union Territory of
Puducherry does not require any further enhancement.
D (xiv) The admission of facts along with the confirmatory empirical
data suggests that around 20 TMC of groundwater is
available beneath the surface in Tamil Nadu which the
Tribunal has not taken into account citing it as a conjecture.
We, while keeping in mind the risks associated with over
E extraction of underground water, deem it fit that 10 TMC
of the said available groundwater in Tamil Nadu can, in the
facts and circumstances of the present case, be accounted
for in the final determination of its share.
(xv) The Tribunal had drastically reduced the share of Karnataka
F towards Domestic and Industrial purpose for the reason
being that only 1/3rd of the city of Bangaluru falls within the
river basin and also on the presumption that 50% of the
drinking water requirement would be met from ground water
supply. The said view taken by the Tribunal ignores the
basic principle pertaining to drinking water and is, thus
G unsustainable. Keeping in mind the global status that the
city has attained, an addition of 4.75 TMC is awarded to
Karnataka.
(xvi) The perspective of the Tribunal to assign 10 TMC of water
for environmental protection does not require to be revisited,
H
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE 1123
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

for such a revisit may result in unwarranted pollution and A
defeat the conception of sustained environmental purity.
(xvii) In totality, we deem it appropriate to award to the State of
Karnataka an additional 14.75 TMC of water, i.e., 10 TMC
(on account of availability of ground water in Tamil Nadu)
+ 4.75 TMC (for drinking and domestic purposes including B
such need for the whole city of Bengaluru).
(xviii) In view of the allocation of additional 14.75 TMC of water
to Karnataka, the State of Karnataka would now be required
to release 177.25 TMC of water at the inter-state border
with Tamil Nadu, i.e., at Billigundulu. C
(xix)The argument of the Union of India that Section 6A of the
1956 Act by employing the word “may” has left room for
discretion to the Central Government for the purpose of
framing a scheme does not stand to reason and further it
does not meet the substance test. Accordingly, the said D
submission stands repelled. That apart, the framing of the
scheme is exclusively meant for implementation of the
award or as the same gets modified by this Court.
(xx) It is made clear that subject to the scheme to be formulated
under Section 6A of the 1956 Act, in terms of the present E
adjudication, the recommendations/directives of the Tribunal
with regard to the monthly releases and not inconsistent
with anything decided herein, are hereby endorsed for the
present for a period of 15 (fifteen) years hence.
405. It is obligatory to clearly state that in view of the acute scarcity F
of the water resources and the intensely contested claims of the States,
it is expected that the allocations hereby made would be utilized for the
purposes earmarked and accepted and no deviancy is shown in carrying
out the verdict of this Court.
406. Before parting with the case, we record our unreserved and
G
uninhibited appreciation for Mr. Fali S. Nariman, Mr. S.S. Javali,
Mr. A.S. Nambiar, Mr. Rakesh Dwivedi, Mr. Shekhar Naphade,
Mr. Shyam Divan, Mr. Jaideep Gupta, learned senior counsel, Mr. Ranjit
Kumar, learned Solicitor General of India, Mr. Mohan V. Katarki,
Mr. G. Umapathy, Mr. M.R. Naik and Mr. S.C. Sharma learned counsel
H
1124 SUPREME COURT REPORTS [2018] 5 S.C.R.

A for their able assistance without which it would have been extremely
difficult on our part to write this judgment.
407. In the ultimate analysis, Civil Appeal No. 2453 of 2007 filed
by the State of Karnataka is partly allowed and all others Appeals stand
disposed of accordingly. There shall be no order as to costs.
B

Kalpana K. Tripathi Appeals disposed of.

C

D

E

F

G

H