Holding

The Court held that no interim relief could be granted because the dam project is substantially completed with proper approvals and the plaintiff had not made the statutory request required to constitute an Inter‑State River Water Disputes Tribunal.

Summary

The State of Tamil Nadu filed a suit under Article 131 of the Constitution against the State of Karnataka and the Union of India, alleging that Karnataka's construction of a 500 Mcft check‑dam and related pumping schemes on the Markandeyanadhi tributary of the Pennaiyar River violated the 1892 and 1933 inter‑state water agreements and would deprive downstream Tamil Nadu of water. Tamil Nadu sought a permanent injunction and, in an interlocutory application, asked the Court to restrain Karnataka from completing the dam and to preserve natural river flows pending resolution. The Court observed that the dam project is about 75 % complete, has obtained all requisite sanctions and clearances, and therefore no case exists for interim relief. It also noted that Tamil Nadu had not made a statutory request under Section 3 of the Inter‑State River Water Disputes Act, 1956 for the constitution of a tribunal, and such a request is a prerequisite for invoking the Act’s remedial provisions. Consequently, the Court dismissed the interim application, directed Tamil Nadu to file a proper application for a tribunal within four weeks, and ordered the main suit to be listed for further directions. The judgment underscores the primacy of the statutory mechanism under the 1956 Act for inter‑state water disputes and limits the Supreme Court’s jurisdiction to grant interim relief absent a pending tribunal.

Issues considered

The legality of Karnataka's dam and pumping projects under the 1892 and 1933 inter‑state water agreements.
Whether the Supreme Court can grant interim injunctions in an inter‑state water dispute pending a tribunal under the Inter‑State River Water Disputes Act, 1956.
Whether Tamil Nadu complied with the statutory requirement of making a request under Section 3 of the 1956 Act to invoke a water‑disputes tribunal.
The maintainability of the suit under Article 131 in view of Article 262 and Section 11 of the 1956 Act.

Legislation cited

Constitution of Indias. Article 131, s. Article 21, s. Article 262
Inter‑State River Water Disputes Act, 1956s. 11, s. 3, s. 4, s. 9

Subjects

inter‑state river water disputeArticle 131 jurisdictionInter‑State River Water Disputes Acttemporary injunctionriparian rightscheck damtribunal constitutionArticle 262

Judgment

[2019] 14 S.C.R. 599 599

STATE OF TAMIL NADU A
v.
STATE OF KARNATAKA AND ANOTHER
(I.A. No.95384 of 2019)
In B
(Original Suit No.1 of 2018)
NOVEMBER 14, 2019
[UDAY UMESH LALIT AND VINEET SARAN, JJ.]
C
Constitution of India: Article 131 – Original jurisdiction of
Supreme Court –Plaintiff-State of Tamil Nadu, and defendant No.1-
State of Karnataka, two riparian States among the three basin States
and the union territory of Puducherry in which Inter-State River
Pennaiyar flowing – River Markandeyanadhi is a tributary of
Pennaiyar river which originates in Karnataka and enters Tamil D
Nadu – Agreement of 1892 between the States of Tamil Nadu and
Mysore/Karnataka respectively as regards the extent of the rights
of the States, in the use, control and distribution of waters of the
Inter State River – Plaintiff came to know that 1 st defendant was
proposing to construct a check dam across Markandeyanadhi, a E
tributary of Pennaiyar river – Plaintiff filed suit u/Art. 131 against
defendant no. 1 and Union of India seeking that said action of
the 1st Defendant was illegal; and grant of permanent injunction
restraining the 1 st Defendant, from proceeding with the
construction of Check Dam/Anicut across Markandeyanadhi and F
across the Pennaiyar river and its tributaries, and pumping water
from them to the existing tanks in Pennaiyar basin – Subsequently,
interim application by plaintiff to restrain the 1 st Defendant and
its instrumentalities from proceeding further with the construction
of dam across Markandeyanadhi; and to direct the State of G
Karnataka and its instrumentalities not to obstruct the natural flows
to the downstream State of Tamil Nadu pending disposal of the
instant application – Held: The said project was undertaken after
receiving all requisite sanctions and permissions – Construction
work began few years back; and as of now 75% work is complete,
H
599
600 SUPREME COURT REPORTS [2019] 14 S.C.R.

A thus, no case is made out for granting any interim relief –
Furthermore, neither in the plaint, nor in the interim application
any relief in the nature of directions to constitute a tribunal under
the Act is claimed – There was no express communication where
the plaintiff had invoked the power of the Central Government and
B sought constitution of an Inter State River Water Disputes Tribunal
– Second defendant cannot said to be at fault for not constituting
a Tribunal under the Act – In view thereof, plaintiff permitted to
make an appropriate application seeking constitution of an Inter
State River Water Disputes Tribunal – Inter-State River Water
C Disputes Act, 1956.

State of Karnataka v. State of Tamil Nadu and Others
(2018) 4 SCC 1 ; State of Tamil Nadu v. State of Kerala
and Another (2014) 12 SCC 696 ; State of Orrisa v.
Government of India and Another (2009) 5 SCC
D 492 ; Tamil Nadu Cauvery Neerppasana Vilaiporulgal
Vivasayigal Nala Urimai Padhugappu Sangamv. Union
of India and Others (1990) 3 SCC 440 – referred to.

Case Law Reference

E (2018) 4 SCC 1 referred to Para 10

(2014) 12 SCC 696 referred to Para 10

(2009) 5 SCC 492 referred to Para 10

(1990) 3 SCC 440 referred to Para 10
F
CIVIL ORIGINAL JURISDICTION : Interlocutory Application
No. 95384 of 2019 in Original Suit No. 1 of 2018.
Suit filed on behalf of the inhabitants of the State especially in
the drought prone Krishnagiri, Dharmapuri District and part of
G Thiruvannamalai districts of Pennaiyar Basin.

Shekar Naphade, Shyam Divan, S. Wasim A. Quadri, Sr. Advs.,
G. Umapathy, C. Paramasivam, K. V. Vijayakumar, V. N. Raghupathy,
Ms. Sanam Tripathi, M. P. Gupta, D. L. Chidanand, S. S. Rebello,
H Arvind Kumar Sharma, Advs. for the appearing parties.
STATE OF TAMIL NADU v. STATE OF 601
KARNATAKA AND ANOTHER

The Order of the Court was passed by A
UDAY UMESH LALIT, J.
1. This Suit has been filed on 18.05.2018 by State of Tamil Nadu
under Article 131 of the Constitution of India against State of Karnataka
and Union of India submitting inter alia, B
A] “2.The plaintiff (State of Tamil Nadu), and Defendant No.1
(State of Karnataka) are the two riparian States among the three
basin States and the union territory of Puducherry in which the
Inter-State River Pennaiyar flows. As a riparian State, the
Plaintiff is entitled to and has been using the waters of the river C
Pennaiyar and its tributaries/rivulets, etc., except for the
reasonable beneficial use of the 1st Defendant. The extent of
the rights of the Party States, in the use, control and distribution
of waters of the Inter State River, is recognized in an agreement
of 1892 entered into between the then State of Madras and
Mysore (hereinafter referred to as 1892 Agreement), the D
predecessor States of Tamil Nadu and Mysore/Karnataka
respectively.
3. The 2nd Defendant, Union of India is duty bound to ensure
that, none of the riparian States steal a march over the other by
E
undertaking construction or execution of any works, either small
or big, or construct a Check Dam or diversion structure relating
to the use, control and distribution of waters of an Inter-State
River either in the main river or its tributaries/sub-tributaries
which may defeat the right of one of the riparian States.
F
4. The 1st Defendant has taken up five different works in the
Pennaiyar river Basin of Karnataka, affecting the natural flows
of the river namely,
i) Construction of a pumping scheme to pump the waters of
Pennaiyar river from Thattanur (Tattanur) village, Malur G
taluk, Kolar district to Lakkur Tank, which is at about 65
ft. higher elevation, for distributing the water to about 160
tanks through underground PVC pipeline,
ii) Lift irrigation scheme at Ellamallappa Chetty tank
(Yellamallappa Chetty tank) for pumping 22 MLD (284 H
602 SUPREME COURT REPORTS [2019] 14 S.C.R.

A Mcft.) of water to fill up the Hoskote tank, which is located
upstream, using 3 Nos. of 120 HP motors.
iii) Pump water from the main Pennaiyar river at Belahalli
(Byalhalli) village for irrigation purpose,
iv) Diversion of surplus waters of Varathur Tank (Vartur
B Tank) to Narsapur Tank in Kolar district by pumping
through 2.5 m diameter pipeline and also implementation
of pumping schemes to fill the tanks in Kolar district and
v) Construction of a reservoir of 500 Mcft storage capacity,
across Markandeya river, a tributary of Pennaiyar river,
C near Yargol village, just upstream of Karnataka – Tamil
Nadu border by Karnataka Urban Water Supply and
Drainage Board.
5. The projects undertaken by the 1st Defendant would severely
affect the livelihood of lakhs of farmers in Krishnagiri,
D Dharmapuri, Thiruvannamalai, Villupuram and Cuddalore districts
of Plaintiff State as the flow of the river will be drastically
reduced/hampered besides affecting the drinking water needs of
the Plaintiff state.”
B] The plaint narrates certain works taken up by the first
E defendant as under:-
“12.The river Markandeyanadhi is a tributary of Pennaiyar river
which originates in Karnataka and enters Tamil Nadu near
Sigaralapalli village, in Krishnagiri District and joins with
Pennaiyar after traversing a distance of about 29.4 km in Tamil
F Nadu, upstream of Krishnagiri Reservoir. The sub basin area of
the Markandeyanadhi falling in Karnataka is about 150 sq.km.
The average annual rainfall in that area is about 730 mm. The
lower riparian State is entitled to realization of flow from the
upstream areas. There are four Anicuts across Markandeyanadhi
in Tamil Nadu, viz., Sigaralapalli Anicut, Marasandiram Anicut,
G
Beemandapalli Anicut and Kollapatti Anicut having a total ayacut
of 870.55 ha. (2150 acres). The 1 st Anicut across
Markandeyanadhi is Sigaralapalli Anicut which is at a distance
of about 1.9 km from the Karnataka – Tamil Nadu State border,
near Sigaralapalli village. This anicut is said to have been
H constructed during the Berigai Zameen Regime of Pre-
STATE OF TAMIL NADU v. STATE OF 603
KARNATAKA AND ANOTHER [UDAY UMESH LALIT, J.]

Independence days, which is evidenced by way of dilapidated A
brick masonry and stone masonry which are still available. It
was rehabilitated in the year 2008. The ayacut irrigated by this
Anicut in the Plaintiff State is 115.60 ha. (or 286 acres). It is
submitted that if any check dam or diversion structure is taken
upstream of these Anicuts by the 1st Defendant, the ayacut
B
irrigated by the above referred four Anicuts will be affected.
13. The Secretary of the Plaintiff State, vide, letter dated
09.03.2012 to the 1st Defendant, stated, inter-alia, that it has
planned to divert Pennaiyar waters at Orathur through Mindchalli
tank and to distribute the water to about 160 tanks in Malur taluk,
and that the Pennaiyar, an inter-State river is one of the 15 rivers C
named in the Schedule – A of the Madras-Mysore Agreement
of 1892 and as per Clauses II and III of the Agreement, the 1st
Defendant shall not without the previous consent of the Plaintiff
State take up any new irrigation works etc., for execution and
requested to furnish the full details of the proposal. D
14. It is stated that a news item appeared in Indian Express,
Chennai Edition dated 23.02.2012 wherein it was reported that
1st Defendant planned to block the flow of water to the Pennaiyar
river altogether. The water thus blocked is sought to be diverted
to replenish some 160 tanks in the Malur taluk in Karnataka, E
which is emerging as a ‘vegetable basket’ in the region.”
C] The plaint then refers to various communications between the
parties and recites:-
“22. The Plaintiff came to know that the 1st Defendant was
proposing to construct a check dam across Markandeyanadhi, a F
tributary of Pennaiyar river, near Yargol village which is stated
to provide drinking water supply to the villages nearby. The
concerned Executive Engineer, WRD, of the Plaintiff State,
visited the site on 22.05.2013 and found the preliminary works
for the Anicut were going on. The display board put up at the G
site revealed that the Anicut work is being undertaken across
Markandeyanadhi near Yargol village in Bangarapettai Taluk to
supply drinking water to Kolar, Bangarapettai, Malur towns and
45 enroute villages by Karnataka State Water Supply and
Sanitary Board, Bangalore. The details of the proposed Anicut
found in the display board was that the length of Anicut is H
604 SUPREME COURT REPORTS [2019] 14 S.C.R.

A 414 m, with a water storing capacity of 500 Mcft, with project
cost is Rs.87.18 Crore. The location of the Anicut is at a distance
of approximately, 9.0 km from the Inter State border which
includes a distance of 2.5 km in the forest area and the location
of the site is in the forest area. If 1st Defendant constructs the
Anicut across Markandeyanadhi with a capacity of 500 Mcft,
B
the flows in the Markandeyanadhi at the entry point in the border
of Tamil Nadu, will get seriously affected.”
D] Under the caption “Jurisdiction”, the plaint states:-
“46.This Hon’ble Court has original jurisdiction under Article 131
C of the Constitution to entertain the present Suit. The inter-State
Agreement of 1892 is binding on the party States and the rule
of law forbid the 1st Defendant form taking any action in violation
of the said Agreement. Thus, there exists a dispute between
the Plaintiff and the Defendants, which involves a question of
law and fact with regard to the common law rights pertaining to
D
construction of various works executed or being taken up by the
1st Defendant to the detriment of Plaintiff State. The 1 st
Defendant notwithstanding the request of the Plaintiff State failed
to even share the details of the schemes/works undertaken by it
is proceeding with construction activities. Further, the 2 nd
E Defendant has failed to take action on the request of the Plaintiff
State.”
E] Finally, it is prayed:-
“a) Declare that the unilateral action of the 1st Defendant,
in proceeding to construct/having proceeded to
F
construct new Check Dams/Dams and diversion
structures across the Pennaiyar river its tributaries,
Streams etc to divert the water by gravity or pumping,
and pumping from tanks surplusing into the Pennaiyar
river or its tributaries without obtaining the prior
G consent of the Plaintiff State is illegal and violates the
fundamental rights of the inhabitants of the Plaintiff
State;
b) Grant permanent injunction restraining the 1 st
Defendant, from proceeding with the construction of
H Check Dam/Anicut across Markandeyanadhi near
STATE OF TAMIL NADU v. STATE OF 605
KARNATAKA AND ANOTHER [UDAY UMESH LALIT, J.]

Yargol village in Bangarapettai Taluk and construction A
of check dam/diversion structure across the Pennaiyar
river and its tributaries, and pumping water from them
to the existing tanks in the Pennaiyar basin by the 1st
Defendant;
c) Direct the 1st Defendant to ensure the natural flows B
in the Pennaiyar river and its tributaries to the Plaintiff
State:
d) Grant mandatory injunction directing the 2nd Defendant
to take action on the Plaintiff’s letter dated 16.03.2018
with reference to construction of Dams and diversion C
structures and pumping schemes undertaken by the 1st
Defendant in the Pennaiyar river; and
e) Pass such further decree or decrees or order or orders
as this Hon’ble Court may deem fit and proper in the
facts and circumstances of the case.”
D
2. In its Written Statement filed on 05.12.2018, the second
defendant-Union of India submitted:-
“It is pertinent to mention that no request for appointment of
Arbitrator under Rule-IV of Agreement 1892 has been received
from either State Government in this regard and action as per E
the agreement could not be taken so far by the Central
Government.
…
…..Under Section 3 of Inter-State River Dispute Act, 1956, the
State Government may send a request to Central Government F
stating that water dispute has arisen or is likely to arise by reason
of the fact that the interests of the State, or of any of the
inhabitants thereof, in the waters of an Inter-state river or river
valley have been, or are likely to be, affected prejudicially. This
Act provides for setting up of Water Disputes Tribunal for
adjudication of disputes relating to Inter-State Rivers when G
negotiations do not lead o fruitful results. However, no request
from any of the State Governments has been received under the
provision of the ISWD Act, 1956.”
3. In its Written Statement filed in March 2019, the first defendant
has submitted interalia:- H
606 SUPREME COURT REPORTS [2019] 14 S.C.R.

A “2.Article 262 of the Constitution of India specifies that
Parliament may by law provide for the adjudication of any dispute
or complaint with respect to the use, distribution or control of
the waters or in any inter State river or river valley and that,
Parliament may by law provide that neither the Supreme Court
nor any other court shall exercise jurisdiction in respect of any
B such dispute or complaint. Pursuant to Art. 262, Parliament has
promulgated the Inter State River Water Disputes Act, 1956 (ACT
for short) for adjudication of disputes relating to waters of Inter
State rivers and river valleys. Section 11 of the Act specifies
that notwithstanding anything contained in any other law neither
C the Supreme Court nor any other court shall have or exercise
jurisdiction in respect of any water dispute which may be referred
to the Tribunal under the Act.
3. The dispute sought to be raised by the State of Tamil Nadu
relates to distribution of water of South Pennaiyar river, which
is an inter-state river originating in the State of Karnataka and
D
running through the States of Tamil Nadu and Union Territory
of Puducherry. In fact, the Pennaiyar river, which is also known
as South Pennar river also receives water from some of the
tributaries originating in the State of Andhra Pradesh. The entire
dispute is an interstate water dispute. Therefore the suit is not
E at all maintainable and is liable to be dismissed in limine.
…
6. The main grievance of the State of Tamil Nadu is that the
State of Karnataka has violated the terms and conditions of the
Agreement of the year 1892. It is submitted that the Agreement
F of the year 1892 has been further modified and amended as per
the Agreement of the year 1933. The State of Karnataka has
not violated any of the terms and conditions either of the 1892
Agreement or the 1933 Agreement. It is further submitted that
under the 1933 Agreement, there is no necessity for the State
of Karnataka to inform the State of Tamil Nadu or any other
G riparian States to utilize the waters of South Pennaiyar river basin
for the purpose of drinking water. The relevant portion of the
agreement of 1933 reads as under:
“An anicut will include any construction of rough stone (dry)
or masonry across a river either in part or full and in any
H direction, which will have the effect of diverting water from
STATE OF TAMIL NADU v. STATE OF 607
KARNATAKA AND ANOTHER [UDAY UMESH LALIT, J.]

the river, but the consent of the Madras Government will not A
be required under the agreement of 1892 for the construction
of any anicut if there is to be no irrigation under it.”
…
37. Regarding the Construction of a reservoir of 500 Mcft storage
capacity across Markandeya river referred to in para 4(v), it is B
submitted that the Urban Water Supply and Drainage Board has
taken up the project for meeting drinking water supply to Malur,
Bangarpet Kolar towns and 45 en-route village.
38.The Markandeya Project was constructed near Yargol village
at an estimated cost of 240 crores. The justification for project C
was that drinking water is supplied from bore wells which are
completely dried up. The Sate Water Quality Atlas prepared in
2002 has declared that the ground water exploitation in Malur
town is about 85% classifying it as dark areas and Kolar city
and Bangarpet towns where ground water exploitation as 50%
to 85% which have been classified as grey area. The present D
project is constructed to alleviate the drinking water problems
arising out of non-availability of potable ground water in bore
wells. The population and the demand of water for the
population at different points of time is as follows:
Sl. Name of Population Per Demand in Demand in Mcft E
No the town Capita MLD (for 9 months)
Supply
2001 2011 2038 2058 2038 2058 2038 2058
1. Kolar 113299 138462 204147 280653 100 28.16 38.73 294.93 405.64
lpcd
2. Bangarpet 38684 44849 69703 95824 70 6.73 9.26 70.50 97.01
lpcd
3 Malur 27791 42000 50075 68841 70 4.85 6.65 50.77 69.62
lpcd F
4 Enroute 29773 53546 73751 40 4.07 5.60 42.60 58.68
Villages lpcd

39. So far as construction of Markandeya reservoir with a
capacity of 500 mcft is concerned, it is only to supply drinking
water to Kolar, Bangarpet and Malur towns. This project is taken
G
up by the State of Karnataka through KUWS & DB. In regard
to this project, 70 to 75% of the work is completed. Since, it is
a project to supply drinking water, no permission or consent is
required from the State of Tamil Nadu either under the 1892
Agreement or under the Agreement of 1933. Therefore, there
is no basis for Tamil Nadu in instituting this suit. H
608 SUPREME COURT REPORTS [2019] 14 S.C.R.

A 40. An approval has been granted to construct a reservoir with
a capacity of 500 Mcft in order to supply water to drought prone
towns of Kolar, Bangarpet and Malur and 45 enroute villages.
This project has been approved in the year 2007. The estimated
cost of the project is about 240 crores, out of which 160 crores
is the budgetary allocation of the State of Karnataka and the
B
remaining 79.92 crores is from the Government of India. The
project is taken up under a scheme known as UIDSSMT.
Clearances have also been obtained from Government of India,
Ministry of Urban Development and also from Ministry of
Environment and Forest. For the purpose of this project, 375.37
C acres of land has been acquired, out of which 127.10 acres is
the lands of the farmers, 153.15 acres of land is forest, for which
clearance has also been obtained from the Ministry of Forest and
Environment. The remaining 95.12 acres of land is the
government gomala (grazing land). As of now, more than 70%
of the work has been complete. Since, it is a drinking water
D
project, there is no need to obtain the consent or intimate the
State of Tamil Nadu in view of the Agreement of 1933.
…
84. The allegation in paragraph 46 that this Hon’ble Court has
E original jurisdiction under Article 121 of the Constitution to
entertain the present suit is not true. The allegation that the
Agreement of the year 1892 binds the party States is not
admitted to be true and correct. The allegation that dispute exist
between the plaintiff and the defendant, which involves question
of law and fact with regard to common law rights pertaining to
F construction of various works executed or undertaken by the 1st
defendant are not admitted to be true and correct. This Hon’ble
Court has no jurisdiction to entertain the present suit.”
4. In its Replication filed on 30.04.2019 to the Written Statement
of the second defendant, the Plaintiff stated:-
G
“i. The averment of the 2nd Defendant that as no request for
appointment of Arbitrator was received from State
Government, under Rule-IV of the 1892 Agreement, is the
reason for the Central Government not being able to take
action is wholly untenable. It is stated that whether
H Markandeyanadhi, which is a tributary of Pennaiyar river,
STATE OF TAMIL NADU v. STATE OF 609
KARNATAKA AND ANOTHER [UDAY UMESH LALIT, J.]

is specifically mentioned in the 1892 Agreement or not is A
not relevant. Moreover, the principles envisaged in the
Agreement is important, i.e., no new structure should be
constructed without the concurrence of lower riparian State
or without affecting the existing utilization (drinking &
irrigation) in the downstream areas. The construction of
B
a large dam across Markandeyanadhi would prejudicially
affect the downstream areas in Tamil Nadu and no drop
of water would flow downstream of the dam under
construction. If such constructions are encouraged, the
existing utilizaiton would be seriously affected.
ii. The 2nd Defendant has stated that no request has been C
received from any State Government for constitution of
Board under the provisions of River Boards Act, 1956 and
for setting up of Tribunals under Act, 1956. The said
contention is denied. Regulation of water of an inter-State
river, is covered under Entry 56 of List I (Union List). The D
Defendant No.2 has failed to initiate action to stop the
unilateral action of 1st Defendant from going ahead with
such un-authorized diversions. The 2nd Defendant has not
taken any effective action even after the representations
made by the Plaintiff State were received except sending
an inspection team and conducting one meeting in 2018, E
while the issue has cropped up in 2012 itself.
iii. With regard to the contention of 2nd Defendant that no
request was received from any State Government for
setting up of Tribunal for adjudication of disputes relating
to Inter-State river Pennaiyar under the provisions of Act, F
1956, it is stated that the issue is not related to allocation
of waters amongst the basin States but related to un-
authorized diversions from the inter-State river and its
tributary, which is a violation. However, 2nd Defendant
has not considered the representations made by the Plaintiff
from 2012 onwards to protect and safeguard the interest G
of the lower riparian State as envisaged in Clause II of
Agreement, 1892 and the rights guaranteed under Article
21 of the Constitution.”
5. Replication was also filed on 07.05.2019 to the Written
Statement filed by the first defendant submitting inter alia:- H
610 SUPREME COURT REPORTS [2019] 14 S.C.R.

A “6. It is reiterated that the Suit is maintainable as the Defendant
State is a party to the Agreement. The 1 st Defendant by its
suo-motu action of diverting the Pennaiyar river water directly
by pumping in number of places, and also pumping the surplus
waters from the tanks draining into the river to other tanks, which
were not fed by the river and thereby preventing surplus flows
B
from the tanks flowing to the river, has deprived the flows due
to the lower riparian State. Thus, the action of the 1 st Defendant
in interfering with the rights of the Plaintiff State and the Suit is
maintainable under Article 131, the redressal of the grievance.”
6. Thereafter, IA No.95384 of 2019 has been filed by the Plaintiff
C
seeking following directions:-
“a) restrain the 1st Defendant and its instrumentalities from
proceeding further with the construction of dam across
Markandeyanadhi near Yargol Village;
D b) direct the State of Karnataka and its instrumentalities not
to obstruct the natural flows to the downstream State of
Tamil Nadu pending disposal of the present application;
and”
The application states:-
E “2. It is stated that the officials of the Applicant State made a
visit to the site on 16.05.2019 and found the following activities
across Markandeyanadhi to divert water by State of Karnataka
for its use which would completely impound the natural flows
due to downstream State of Tamil Nadu.
F i. A massive dam construction work is going on across
Markandeyanadhi at Yargol (Karnataka State) and it is not
a check dam.
ii. As per local enquiry, the height of the dam is about 50m.
At present concrete dam is constructed to a height of about
G 35m and the work is in progress, the length of the dam
seems to be around 400m. The left flank bund has been
raised and it has almost reached the top bund level. The
upstream bund revetment work is also progressing.
iii. A large amount of materials collections are seen in the
H upstream of the dam.
STATE OF TAMIL NADU v. STATE OF 611
KARNATAKA AND ANOTHER [UDAY UMESH LALIT, J.]

iv. Pumping station works are progressing.” A
7. Statement of objection filed by the first defendant to the
aforementioned interim application, states as under:-
“8. So far as construction of Markandeya reservoir with a
capacity of 500 mcft is concerned, it is only to supply drinking
B
water to Kolar, Bangarpet, Malur towns and en-route 45 villages.
This project is taken up by the State of Karnataka through
Karnataka Urban Water Supply & Drainage Board (KUWS &
DB), Bangalore. In regard to this project, 70 to 75% of the work
is completed. Since, it is a project to supply drinking water, no
permission or consent is required from the State of Tamil Nadu C
either under the 1892 Agreement or under the Agreement of
1933. Therefore, there is no basis for Tamil Nadu in instituting
this suit.
9. An approval has been granted to construct a reservoir with a
capacity of 500 Mcft in order to supply water to drought prone D
towns of Kolar, Bangarpet, Malur and 45 en-route villages. This
project has been approved in the year 2007 and subsequently
modified Government Order was issued in 2008. The estimated
cost of the project is about Rs.240 crores, out of which Rs.160
crores is the budgetary allocation of the State of Karnataka and E
the remaining Rs.79.92 crores is from the Government of India.
The project is taken up from financial assistance of Rs.79.92
crores under Urban Infrastructure Development Scheme for
Small and Medium Tanks (UIDSSMT) of Government of India,
known as UIDSSMT. For the purpose of this project, 375.37
acres of land has been acquired, out of which 127.10 acres is F
the lands of the farmers, 153.15 acres of land is forest, for which
clearance has also been obtained from the Ministry of Forest and
Environment, Government of India. The remaining 95.12 acres
of land is the government gomala (grazing land). As of now,
more than 75% of the work has been completed. Since, it is a G
drinking water project, there is no need to obtain the consent or
intimate the State of Tamil Nadu in view of the Agreement of
1933.”
8. In the rejoinder to the statement of objection and in sur-
rejoinder thereto, the parties reiterated their respective stands. H
612 SUPREME COURT REPORTS [2019] 14 S.C.R.

A 9. We heard Mr. Shekhar Naphade, learned Senior Advocate for
the Plaintiff, Mr. Shyam Divan, learned Senior Advocate for the first
defendant and Mr. S. Wasim A. Quadri, learned Senior Advocate for
the second defendant.
10. It was submitted by Mr. Naphade, learned Senior Advocate:-
B
A) As laid down by this Court in State of Karnataka v. State
of Tamil Nadu and Others1, an Inter State River passing
through corridors of riparian States constitutes a national
asset and no single State can claim exclusive ownership
of its water. However, the attempts on part of first
C defendant were to appropriate the water exclusively to
itself.
B) Though river Markandeyanadhi was not referred to in the
Agreement of 1933 entered into between the erstwhile
States of Madras and Mysore, going by the law laid down
D
by this Court in State of Tamil Nadu v. State of Kerala
and Another2 a tributary would be part of the Inter State
River and as such would be covered by said agreement.
C) Clause 1(3) of the Agreement of 1933 permitted creation
E of anicuts i.e. smaller canals if no irrigation was involved.
However, such provision would not apply to irrigation
projects where a dam is being constructed with 36 metres
of height.
D) Documents at page 215-216 of the paper book show that
F grievance was raised by the plaintiff and request was made
for full information about all the schemes in Pennaiyar basin
but no requisite information was supplied. Though
representations and complaints were made by the plaintiff
to the second defendant, no action was taken.
G E) Since the Agreement of 1933 was violated by the first
defendant, the second defendant ought to have interfered
in the matter but there was total inaction on part of the
second defendant.
1
(2018) 4 SCC 1 (Para 446.7)
2
H (2014) 12 SCC 696
STATE OF TAMIL NADU v. STATE OF 613
KARNATAKA AND ANOTHER [UDAY UMESH LALIT, J.]

F) Dealing with the issue whether the matter ought to go A
before a Tribunal under the Indian State River Water
Disputes Act, 1956 (‘the Act’, for short) reliance was
placed on the decisions of this Court in State of Orrisa v.
Government of India and Another3 and Tamil Nadu
Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala B
Urimai Padhugappu Sangam v. Union of India and
Others4 and it was submitted in the alternative that interim
relief as prayed for be granted till the appropriate steps
were taken by the second defendant to constitute such
Tribunal.
C
11. On the other hand, Mr. Divan, learned Senior Advocate
appearing for the first defendant submitted:-
a) The instant suit itself was not maintainable in view of the
express mandate under Article 262 of the Constitution of
India read with Section 11 of the Act.
D
b) Agreement of 1933 would apply only in respect of irrigation
projects and would not cover drinking water projects. The
report of Central Water Commission (CWC) was also
relied upon in support of the submission.
c) The projects for supply of drinking water have been given E
highest priority under the National Water Policy and in any
case 80% of the water supplied for drinking purposes
would normally come back by return flows into the basin.
d) About 75% to 80% of construction work was already
completed which was undertaken after due sanctions and F
permissions from the concerned authorities. The steps in
that behalf were undertaken from the year 2013 onwards
and the instant application preferred by the plaintiff
suffered from delay and laches.
e) Considering the length of the Inter State River, 75% of the G
basin including the catchment area is in the State of Tamil
Nadu and the projects undertaken by the first defendant
would not cause any prejudice to the plaintiff.
3
(2009) 5 SCC 492
4
(1990) 3 SCC 440 H
614 SUPREME COURT REPORTS [2019] 14 S.C.R.

A 12. Mr. S. Wasim A. Quadri, learned Senior Advocate for the
second defendant submitted that though various communications were
addressed by the plaintiff, at no stage any request was made in the
prescribed form invoking the powers of the second defendant in terms
of the provisions of the Act to constitute a Tribunal to consider the
disputes in question.
B
13. The rival contentions advanced by the parties touching upon
merits of the matter including maintainability of the suit will certainly
be gone into after the parties are allowed opportunity to lead evidence
in accordance with law and to make appropriate submissions. At this
juncture we are called upon to consider whether pending consideration
C
of the present suit, any interim directions are required to be passed.
14. From the record it is prima facie evident that the project in
question was undertaken after receiving all requisite sanctions and
permissions. The issue was engaging the attention of the authorities for
a while; the construction work began few years back; and as of now
D
75% work is complete. Therefore, in our prima facie view, no case is
made out for granting any interim relief.
15. We now consider the alternative submission of Mr. Naphade,
learned Senior Advocate and the decisions of this Court in State of
Orrisa3 and Tamil Nadu Cauvery4 case relied upon by him. In the
E
first case the State had approached this Court under Article 32 of the
Constitution submitting inter alia that despite several requests made
by it for constituting an Inter State River Water Disputes Tribunal, there
was complete inaction on part of the Central Government. The principal
relief claimed in the petition was for appropriate direction to the Central
F Government to constitute an Inter State River Water Disputes Tribunal
and pending such decision by the Central Government, interim relief
was prayed for. This is clear from paragraphs 1, 2, 47, 49, 50, 51, 52
and 53 of the decision of Kabir, J. (as the learned Chief Justice then
was), with whom Katju, J. concurred:-
G “1. The State of Orissa has filed this writ petition under Article
32 of the Constitution of India, wherein the Government of India
has been made Respondent 1 and the State of Andhra Pradesh
has been made Respondent 2, inter alia, for the following reliefs:
“(a) direct the Government of India to constitute an
H appropriate Tribunal under Section 4 of the Inter-State
STATE OF TAMIL NADU v. STATE OF 615
KARNATAKA AND ANOTHER [UDAY UMESH LALIT, J.]

Water Disputes Act, 1956 and thereafter, refer to it the A
dispute relating to the construction of Side Channel
Weir and Flood Flow Canal Project at Katragada on
River Vansadhara by the State of Andhra Pradesh;
(b) issue a writ of mandamus commanding the State of
Andhra Pradesh to forbear from carrying on any B
works of the proposed project;”
2. As indicated in the very opening paragraph, the writ petition
was filed by the State of Orissa for a direction to the Central
Government to constitute a Water Disputes Tribunal under the
Inter-State Water Disputes Act, 1956 and to refer to the Tribunal C
the dispute contained in the complaint made by the State of Orissa
on 13-2-2006, as to whether the State of Andhra Pradesh was
justified in constructing a Side Channel Weir and Flood Flow
Canal Project on River Vansadhara at Katragada, which would
adversely affect the supply of water from the river to the State
of Orissa and adversely affect the livelihood of thousands of D
people of Orissa in glaring violation of Article 21 of the
Constitution of India.
…
47. It is now almost three years since the complaint was made E
by the State of Orissa but the Central Government has not taken
any action in the matter. In this scenario, the prayer made by
the State of Orissa does not appear to be unreasonable since
the dispute between the two States does not confine itself to the
construction of the side channel weir and the flood flow canal,
but primarily it involves the unilateral decision taken by the State F
of Andhra Pradesh to divert the river waters to the State of
Andhra Pradesh, which could possibly disturb the agreement to
share the waters of the river equally.
…
G
49. Coming to the question of grant of interim order during the
interregnum, I am satisfied that unless some interim protection
is given till the constitution of the Water Disputes Tribunal by
the Central Government, the objection raised by the State of
Orissa will be rendered infructuous, which certainly is not the
intention of the 1956 Act. H
616 SUPREME COURT REPORTS [2019] 14 S.C.R.

A 50. Notwithstanding the powers vested by Section 9 of the Act
in the Water Disputes Tribunal to be constituted by the Central
Government under Section 4, which includes the power to grant
the interim order, this Court under Article 32 of the Constitution
has ample jurisdiction to pass interim orders preserving the status
quo till a Tribunal is constituted which can then exercise its
B
powers under Section 9.
51. The bar under Section 11 of the Act will come into play once
the Tribunal is constituted and the water dispute is referred to
the said Tribunal. Till then, the bar of Section 11 cannot operate,
as that would leave a party without any remedy till such time as
C the Tribunal is formed, which may be delayed.
52. I, accordingly, allow the writ petition and direct the Central
Government to constitute a Water Disputes Tribunal within a
period of six months from the date and to refer to it the dispute
relating to the construction of the Side Channel Weir and Flood
D Flow Canal Project at Katragada on River Vansadhara by the
State of Andhra Pradesh for diversion of the waters of the said
river which could adversely affect the supply of water from the
said river to the State of Orissa.
53. I also direct that pending constitution of the Water Disputes
E Tribunal and reference of the above dispute to it, the State of
Andhra Pradesh will maintain status quo as of date with regard
to the construction of the side channel weir and the flood flow
canal at Katragada. Once the Tribunal is constituted the parties
will be free to apply for further interim orders before the
F Tribunal.”
The second case dealt with the maintainability of a Writ Petition
by the concerned Writ Petitioners.
16. In the present case neither in the plaint, nor in the interim
application any relief in the nature of directions to constitute a Tribunal
G under the Act is claimed.
17. We repeatedly asked Mr. Naphade, learned Senior Advocate
to show any communication where the plaintiff had invoked the power
of the Central Government and sought constitution of an Inter State
River Water Disputes Tribunal to consider the present controversy. Mr.
H Naphade accepted that there was no such express communication but
STATE OF TAMIL NADU v. STATE OF 617
KARNATAKA AND ANOTHER [UDAY UMESH LALIT, J.]

submitted that the request ought to be inferred from various A
communications addressed by the plaintiff to the Central Government.
18. It must be stated that Section 3 of the Act postulates that a
request be made in such form and manner as may be prescribed,
whereafter the requisite power can be exercised by the Central
Government. The rules framed pursuant to rule making power conferred B
upon the Central Government under Section 13 of the Act also prescribe
a particular form. It is not as if that there was lack of proper legal
opinion in the matter. The State would normally be guided by expert
legal advice in such matters. It is also possible to say that in a given
case, a State may not be inclined to have any Inter State River Water
Disputes Tribunal to be constituted and would therefore consciously C
avoid any direct request asking for such constitution of the Tribunal.
There could be variety of reasons. It will not therefore be correct on
our part to infer such an idea from the communications addressed by
the plaintiff to the second defendant and then find second defendant to
be at fault for not constituting a Tribunal under the Act. D
19. In the circumstances all we can do at this stage is to permit
the plaintiff to make an appropriate application invoking the powers of
the Central Government in terms of the provisions of the Act and seek
constitution of an Inter State River Water Disputes Tribunal. If the
plaintiff is so advised, such request may be made within four weeks E
from the date of this order.
20. Subject to the aforesaid, we see no reason to entertain the
present application. I.A. No.95384 of 2019 is therefore dismissed. Let
the Suit be listed for further directions on 10th January, 2020.
F
Nidhi Jain I.A. dismissed.

G

H