State Of Tamil Nadu v. State Of Karnataka And Others

(2016) 10 SCC 624

Order dated 2-9-2016

(Before Dipak Misra and Uday U. Lalit, JJ.)

IA No. 10 of 2016 in Civil Appeal No. 2456 of 2007

1. Heard Mr Shekhar Naphade, Mr Rakesh Dwivedi and Mr Subramonium Prasad, learned Senior Counsel for the State of Tamil Nadu, Mr Nambiar, learned Senior Counsel for the Union Territory of Puducherry and Mr F.S. Nariman, Mr Anil B. Divan and Mr S.S. Javali, learned Senior Counsel for the State of Karnataka.

2. Mr Naphade, learned Senior Counsel, has filed a chart indicating the flow released at Biligundulu during 2016-2017. The said chart reads as under:

“Flow released at Biligundulu during 2016-2017

Month Due as per final order of CWDT Released Deficit in TMC ft (1) (2) (3) (4) June 2016 10.00 2.853 7.147 July 2016 34.00 15.519 18.481 August 2016 50.00 14.623 35.377 Total 94.00 TMC 33 TMC 61 TMC”

3. He has drawn our attention to Clauses VII and IX of the award. They read as under:

“Clause VII:

In case the yield of Cauvery basin is less in a distress year, the allocated shares shall be proportionately reduced among the States of Kerala, Karnataka, Tamil Nadu and Union Territory of Pondicherry.

***

Clause IX:

A. 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 as Biligundulu gauge and discharge station located on the common border as under:

“Month TMC Month TMC June 10 December 8 July 34 January 3 August 50 February 2.5 September 40 March 2.5 October 22 April 2.5 November 15 May 2.5 192 TMC”

B. The above quantum of 192 TMC of water comprises of 18.2 TMC from the allocated share of Tamil Nadu and 10 TMC of water allocated for environmental purposes.

C. The above monthly releases shall be broken in 10 daily intervals by the Regulatory Authority.

D. The Authority shall properly monitor the working of monthly schedule with the help of the States concerned and Central Water 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.”

4. Mr F.S. Nariman, learned Senior Counsel for the State of Karnataka, has drawn our attention to the chart at pp. 214-15 of the counter-affidavit to the IA. The said counter-affidavit is taken on record.

5. In course of hearing, certain suggestions were given to the learned counsel for the parties: what is the formula prescribed by the Tribunal in the award; quantum of deficit of water and how the court shall address the issue, regard being had to the grievances of the inhabitants of both the States.

6. Let the matter be listed on 5-9-2016. The petitioner is at liberty to file additional affidavit.

(2016) 10 SCC 625

Order dated 5-9-2016

(Before Dipak Misra and Uday U. Lalit, JJ.)

IA No. 10 of 2016 in Civil Appeal No. 2456 of 2007

7. On 2-9-2016, this Court had adverted to various clauses in the final order passed by the Cauvery Water Disputes Tribunal (for short “the Tribunal”) and noted the submissions of Mr Shekhar Naphade, learned Senior Counsel appearing for the State of Tamil Nadu and that of Mr F.S. Nariman, learned Senior Counsel appearing for the State of Karnataka.

8. As prayed for on the earlier occasion, additional affidavit has been filed by the State of Tamil Nadu. The same is taken on record.

9. Be it noted, in course of hearing on 2-9-2016, certain suggestions were given to the learned counsel for the parties, regard being had to the formula prescribed by the Tribunal in the order and the quantum of deficit of water; how the court shall address the issue keeping in view the grievances of the inhabitants of both the States.

10. Mr Naphade, learned Senior Counsel appearing for the State of Tamil Nadu contends that the State of Karnataka has not been complying with the directions given by the Tribunal in the final order and there has been flagrant violation of the same. The learned Senior Counsel has taken us through various aspects which need not be adverted to today. According to Mr Naphade, if the water is not released by the State of Karnataka, the “samba” crops will be absolutely damaged, which will lead to an unacceptable plight to be faced by the farmers of the State of Tamil Nadu.

11. Mr Nariman, learned Senior Counsel appearing for the State of Karnataka has drawn our attention to Para ‘D’ of Clause IX of the final order of the Tribunal. It reads as follows:

“D. The Authority shall properly monitor the working of monthly schedule with the help of the States concerned and Central Water 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.”

12. The learned Senior Counsel for the State of Karnataka would submit that it is obligatory on the part of the State of Tamil Nadu to approach the Supervisory Committee that has been constituted vide Notification dated 22-5-2013. The learned Senior Counsel has drawn our attention to Paras 2 and 3 of the notification, which deal with the constitution of the Supervisory Committee and the role of the Committee. For appropriate appreciation, we reproduce the said 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”).

(2) The Committee referred to in sub-rule(1) shall consist of the following, namely:

(a) Secretary, the Ministry of Water Resources, Government of India Chairman, ex officio (b) Chief Secretaries to the State Governments of Karnataka, Tamil Nadu, Kerala and the Union Territory of Puducherry or his duly nominated representative Members, ex officio (c) Chairman, Central Water Commission Members, ex officio (d) Chief Engineer, Central Water Commission Member-Secretary

3. Role of the Committee.—The role of the Committee shall be to give effect to the implementation of the order dated 5-2-2007 of the Tribunal:

Provided that in case of any doubt or difficulty, the Chairman, Supervisory Committee and, if necessary, any of the parties may apply to the Hon'ble Supreme Court for appropriate directions with notice to the other States and the Union Territory.”

13. At this juncture, we must appreciably state what the State of Karnataka has stated. We have been handed over a note by Mr Nariman and Paras 2 and 3 of the same contain certain suggestions. We think it seemly to reproduce the said suggestions. They are as follows:

“2. Meanwhile the Supervisory Committee constituted under Notification dated 22-5-2013 shall meet immediately from day-to-day and take decision on the further releases, if any, to be made by Karnataka in the month of September, but after ascertaining ground realities in the Cauvery Basin in Karnataka and Tamil Nadu. The Supervisory Committee shall meet at least once in a month to monitor the flows till the end of the season in December 2016.

3. In response to the Hon'ble Court's observations made on 2-9-2016, the respondent State of Karnataka as a goodwill gesture will ensure flows at the inter-State border, Biligundlu, at the rate of not less than 10,000 cusecs per day (about 0.86 TMC), as measured by the gauge station of the Central Water Commission as from 7-9-2016 to 12-9-2016.”

14. Mr Naphade, learned Senior Counsel has submitted that the State of Tamil Nadu has no objection to approach the Supervisory Committee, but as far as the sustenance of the crops and interest of the farmers in the State of Tamil Nadu is concerned, instead of 10 cusecs of water per day (about 0.86 TMC), there should be a release of 20 cusecs of water per day.

15. Having heard the learned counsel for the parties, we think it condign to direct as follows:

15.1. The applicant, the State of Tamil Nadu, shall approach the Supervisory Committee within three days from today. Response, if any, by the State of Karnataka be filed within three days therefrom.

15.2. The Supervisory Committee shall pass appropriate direction in this regard within four days from the date of filing of the 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.

15.3. Coming to the immediate arrangement, keeping in view the gesture shown by the State of Karnataka and the plight that has 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.

15.4. The State of Tamil Nadu is directed to release water proportionately to the Union Territory of Puducherry.

16. Let the matter be listed on 16-9-2016.

(2016) 10 SCC 628 (1)

Order dated 6-9-2016

(Before Dipak Misra and Adarsh Kumar Goel, JJ.)

IA No. 10 of 2016 in Civil Appeal No. 2456 of 2007

17. On mentioning, the matter is taken on board. Heard Mr Subramonium Prasad, learned Senior Counsel for the applicant and Mr Fali S. Nariman, learned Senior Counsel for the respondent.

18. Mr Prasad, learned Senior Counsel appearing for the applicant submits that in the order dated 5-9-2016, at p. 5 in para 1 and sub-para (c) of para 2, a typographical error has occurred. It is submitted by him that instead of 10 cusecs and 20 cusecs in para 1 and 15 cusecs in sub-para (c), it has to be read as 10,000 cusecs, 20,000 cusecs and 15,000 cusecs respectively. Mr Fali S. Nariman, learned Senior Counsel appearing for the State of Karnataka does not dispute the said position.

19. Let 10 cusecs and 20 cusecs in para 1 and 15 cusecs in sub-para (c) at p. 5, be read as 10,000 cusecs, 20,000 cusecs and 15,000 cusecs respectively.

20. Let the order dated 5-9-2016, be corrected and read accordingly.

(2016) 10 SCC 628 (2)

Order dated 12-9-2016

(Before Dipak Misra and Uday U. Lalit, JJ.)

IA No. 12 of 2016 in IA No. 10 of 2016 in Civil Appeal No. 2456 of 2007

21. The present interlocutory application, being IA No. 12 of 2016 which was mentioned yesterday viz. 11-9-2016, is taken up today. In the affidavit of urgency in support of taking up of the application for hearing, if we allow ourselves to say so, is absolutely disturbing and to say the least, totally deprecable. Para 3 of the said affidavit reads as follows:

“I submit that this application for modification of the interim order dated 5-9-2016, passed by this Hon'ble Court is necessitated not merely because of the spontaneous agitations in the various parts of Karnataka including Bangalore, Mandya, Mysore and Hassan in the Cauvery basin which has paralysed the normal life besides destroying the public and private properties (in hundreds of crores of rupees) as evident from the newspaper reports from 6-9-2016 to 10-9-2016, but having regard to the ground realities of needs and requirements as stated in the application.”

22. That apart, the application for modification contains certain averments which follow the tenor of similar language which cannot be conceived of to be filed in a court of law, seeking modification of an order. Agitation in spontaneity or propelled by some motivation or galvanised by any kind of catalytic component, can never form the foundation for seeking modification of an order.

23. An order of this Court has to be complied with by all concerned and it is the obligation of the executive to see that the order is complied with in letter and spirit. Concept of deviancy has no room; and disobedience has no space. The citizens cannot become law unto themselves. When a court of law passes an order, it is the sacred duty of the citizens to obey the same. If there is any grievance, they are obligated under the law to take recourse to permissible legal remedies. The tenor of the application filed by the State of Karnataka does not reflect so, but, on the contrary, demonstrates otherwise. We decry it. We must appreciably state what Mr Fali S. Nariman, learned Senior Counsel appearing for the State of Karnataka has submitted without any kind of equivocation that the affidavit has been erroneously drafted, but the prayer, in essence, requires a hearing. The learned Senior Counsel would submit that he will not press any of the grounds which relate to the said assertions or averments, but would solely rely on other grounds and the final order passed by the Tribunal.

24. Keeping in view the aforesaid submission, we proceed to record the proponents of Mr Nariman, learned Senior Counsel for the State of Karnataka in respect of the reliefs sought for in the application. The prayers in the application read as follows:

“(a) Hear this application urgently on Sunday.

(b) Modify the order dated 5-9-2016 (as corrected on 6-9-2016) already passed by this Hon'ble Court, subject to further orders later on, restricting the releases to 10,000 cusecs per day for six days totalling 60,000 cusecs (66,465 cusecs has already been released from Karnataka reservoirs from 5-9-2016 to 10-9-2016 and at the inter-State border Bilingundlu, the release as gauged by the Central Water Commission has been 34,529 cusecs from 5-9-2016 to 10-9-2016); and

(c) Keep in abeyance Clause (c) of the directions of the Hon'ble Court in its order dated 5-9-2016 as corrected on 6-9-2016.”

25. Be it stated, though Prayer (b) of application is couched in a different language, as the quoted portion hereinabove would clearly show, Mr Nariman has emphasised on Clause (c). It is because the principal prayer of the State of Karnataka is to keep the directions contained in the order dated 5-9-2016, in abeyance till the Supervisory Committee takes a decision. In support of the said argument, Mr Nariman has produced a comparative chart indicating storage and flow position of Karnataka reservoirs and Tamil Nadu's reservoirs at Mettur Reservoir and gauged flow at Biligundulu from 1-9-2016 to 12-9-2016. According to him, the total water in the reservoir in the State of Karnataka is less than that of the total water in the reservoir in the State of Tamil Nadu. Additionally, it is submitted by Mr Nariman that outflow from Mettur Reservoir to the systems depending on Mettur is 1250 cusecs per day for “samba” crops and, therefore, the agony expressed by Mr Shekhar Naphade, learned Senior Counsel appearing for the State of Tamil Nadu, on the earlier occasion, possibly was due to some kind of anxiety expressed by the State of Tamil Nadu. Additionally, it is urged by Mr Nariman that the State of Karnataka has released approximately 84,168 cusecs at Biligundulu from 5-9-2016 to 12-9-2016, and by the end of today it may exceed a lakh.

26. It is urged by Mr Nariman that the water cannot be precisely measured because it takes two days to reach the area concerned and depends upon the flow and various other factors. It is also argued that when the Supervisory Committee is meeting today and it is going to decide with regard to the necessity having regard to the plight of both the States, it would be appropriate that the order passed on the earlier occasion should be kept in abeyance, otherwise the State of Karnataka would suffer immensely as there will be shortage of drinking water and water for irrigation. Emphasis has been laid by him that in the final order passed by the Tribunal it had really not adverted to the deficit concept in a month and, hence an arithmetical calculation in this context would not be seemly.

27. The State of Tamil Nadu has filed the counter-affidavit to the interlocutory application. In Para 5 of the said affidavit, it has been asserted as follows:

“I state that the State of Karnataka had an inflow of about 4 TMC in its four major reservoirs from 1-9-2016 to 10-9-2016. The flow realised at Biligundulu due to the release from Karnataka's reservoirs up to 11-9-2016 is about 4.8 TMC. Thus it is evident that Karnataka has released to Tamil Nadu only the inflows received by it and the depletion in storage is due to its own drawal and not on account of release to Tamil Nadu as alleged by Karnataka.”

28. Various grounds have been urged as to how the present application is faulted. Mr Naphade, learned Senior Counsel appearing for the State of Tamil Nadu would contend that the comparative chart filed by the State of Karnataka is a flawed one, inasmuch as the storage of water in the State of Karnataka is computed on the basis of “Live Storage”, whereas the storage of the State of Tamil Nadu at Mettur Reservoir is shown on the basis of “Gross Storage”. The learned Senior Counsel would canvass that for the State of Tamil Nadu 50 TMC water is required to be stored for the purpose of sustained relief for the relevant period. Criticising the application filed by the State of Karnataka, it is put forth by him that when the State of Tamil Nadu had made an internal arrangement for its own protection, the State of Karnataka cannot question the same and in no circumstances think of flouting the final order, for the final order pertains to release of water on the basis of adjudication of Cauvery dispute.

29. Mr Naphade and Mr Rakesh Dwivedi, learned Senior Counsel appearing for the State of Tamil Nadu have submitted that law and order situation can never be a ground for keeping the order of this Court in abeyance or modification of the same. We have, in the beginning, stated that we have not appreciated the grounds stated in the application and decried the same. We reiterate the same. Therefore, the criticism on that score by Mr Naphade need not be adverted to further in detail.

30*. We have noted the two prayers, namely, to keep our earlier order in abeyance and modification of the direction contained therein. Mr Nariman has laid stress on abeyance of the order as the State of Karnataka is facing enormous difficulty with regard to the water situation. The said submission has its limitations. In that context, we are obliged to refer to our order dated 5-9-2016. The relevant part of the said order deserves to be reproduced. It reads as follows:

“Mr Nariman, learned Senior Counsel appearing for the State of Karnataka has drawn our attention to Para ‘D’ of Clause IX of the final order of the Tribunal. It reads as follows:

‘D. The Authority shall properly monitor the working of monthly schedule with the help of the States concerned and Central Water 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.’

The learned Senior Counsel for the State of Karnataka would submit that it is obligatory on the part of the State of Tamil Nadu to approach the Supervisory Committee that has been constituted vide Notification dated 22-5-2013. The learned Senior Counsel has drawn our attention to Paras 2 and 3 of the Notification, which deal with the constitution of the Supervisory Committee and the role of the Committee. For appropriate appreciation, we reproduce the said 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).

(2) The Committee referred to in sub-rule (1) shall consist of the following, namely—

(a) Secretary, the Ministry of Water Resources, Government of India Chairman, ex officio (b) Chief Secretaries to the State Governments of Karnataka, Tamil Nadu, Kerala and the Union Territory of Puducherry or his duly nominated representative Members, ex officio (c) Chairman, Central Water Commission Members, ex officio (d) Chief Engineer, Central Water Commission Member-Secretary

3. Role of the Committee.—The role of the Committee shall be to give effect to the implementation of the order dated 5-2-2007 of the Tribunal:

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.’

At this juncture, we must appreciably state what the State of Karnataka has stated. We have been handed over a note by Mr Nariman and paras 2 and 3 of the same contain certain suggestions. We think it seemly to reproduce the said suggestions. They are as follows:

‘2. Meanwhile the Supervisory Committee constituted under Notification dated 22-5-2013 shall meet immediately from day-to-day and take decision on the further releases, if any, to be made by Karnataka in the month of September, but after ascertaining ground realities in the Cauvery basin in Karnataka and Tamil Nadu. The Supervisory Committee shall meet at least once in a month to monitor the flows till the end of the season in December 2016.

3. In response to the Hon'ble Court's observations made on 2-9-2016, the respondent State of Karnataka as a goodwill gesture will ensure flows at the inter-State border, Biligundlu, at the rate of not less than 10,000 cusecs per day (about 0.86 TMC), as measured by the gauge station of the Central Water Commission as from 7-9-2016 to 12-9-2016.’

Mr Naphade, learned Senior Counsel has submitted that the State of Tamil Nadu has no objection to approach the Supervisory Committee, but as far as the sustenance of the crops and interest of the farmers in the State of Tamil Nadu is concerned, instead of 10.000 cusecs of water per day (about 0.86 TMC), there should be a release of 20,000 cusecs of water per day.

Having heard the learned counsel for the parties, we think it condign to direct as follows:

(a) The applicant, the State of Tamil Nadu, shall approach the 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 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 been projected with agony by Mr Naphade, we think it appropriate to direct that 15,000 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.”

31. On a perusal of the aforesaid order, it is clear as noon day that the State of Karnataka, as a good gesture, had offered 0.86 TMC, that is, 10,000 cusecs of water per day and out of the said water, the State of Tamil Nadu was required to release water proportionally to the Union Territory of Puducherry. Today, the prayer is to keep the entire order in abeyance. The prayer for abeyance does not commend us. We reject the same.

32. As far as the prayer for modification is concerned, we must again, despite the repetition, note the acceptance with anguish and regret by Mr Nariman that pleading in the application and also in the affidavit filed for urgency, are not appropriate. However, as Mr Nariman has expressed regret and we have blamed the State authorities and stated that it is the duty of the executive to maintain law and order and see that the order of the Court is complied with, we do not intend to say anything further on that score. Coming back to the issue of modification, Mr Nariman, learned Senior Counsel has highlighted that there is need of water as there is less of drinking water and the suffering of the farmers are immense. Mr Naphade, on the earlier occasion, as well as today, has highlighted the issue of farmers in Tamil Nadu. The Supervisory Committee is an expert body and it has been constituted vide Notification dated 22-5-2013. It is required to take a decision in conformity with the final order of the Tribunal.

33. Be it noted, though the matter was directed to be listed on 16-9-2016, but as there is difficulty, the matter has to be listed on 20-9-2016 at 2.00 p.m.

34. Regard being had to the facts and circumstances in entirety, we are inclined to modify the order dated 5-9-2016, to the extent that the State of Karnataka shall release 12,000 cusecs of water per day and the said direction, shall remain in force till 20-9-2016.

35. As we have adjourned the matter to be taken on that day, we expect the inhabitants of both the States, namely, the State of Karnataka and the State of Tamil Nadu, shall behave regard being had to the respect for law and order and the executive of both the States are under the constitutional obligation to see that the law and order prevails. Mr Fali S. Nariman, learned Senior Counsel appearing for the State of Karnataka and Mr Shekhar Naphade, learned Senior Counsel appearing for the State of Tamil Nadu undertake to intimate the same to the competent authorities of the States.

36. Call on the date fixed for further hearing.

(2016) 10 SCC 634

Order dated 20-9-2016

(Before Dipak Misra and Uday U. Lalit, JJ.)

IA No. 12 of 2016 in IA No. 10 in Civil Appeal No. 2456 of 2007

IA No. 10 of 2016

37. On 5-9-2016, while dealing with the present interlocutory application, this Court had referred to the submissions of the learned counsel for the parties and Para (D) of Clause IX of the final order of the Cauvery Water Disputes Tribunal (for short “the Tribunal”), the Notification dated 22-5-2013, by which the Supervisory Committee was constituted and the role of the Committee was determined and taking note of the suggestions given by Mr Fali S. Nariman, learned Senior Counsel appearing for the State of Karnataka, proceeded to pass the following directions:

“(a) The applicant, the State of Tamil Nadu, shall approach the 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 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 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.”

38. Be it stated, as it was erroneously mentioned 15 cusecs, the typographical error was rectified on the next day by making it 15,000 cusecs. Needless to say, the rectification of the mistake was the agreed position.

39. An application for modification of the aforesaid order was filed which was taken up on 12-9-2016. This Court modified the order by directing as follows:

“… The Supervisory Committee is an expert body and it has been constituted vide Notification dated 22-5-2013. It is required to take a decision in conformity with the final order of the Tribunal.

Be it noted, though the matter was directed to be listed on 16-9-2016, but as there is difficulty, the matter has to be listed on 20-9-2016 at 2.00 p.m.

Regard being had to the facts and circumstances in entirety, we are inclined to modify the order dated 5-9-2016, to the extent that the State of Karnataka shall release 12,000 cusecs of water per day and the said direction, shall remain in force till 20-9-2016.”

40. At this juncture, we must note with profit that the ground that was urged for modification, was not appreciated by this Court and, in fact, maintenance of law and order situation in both the States was stressed upon and the role of the executive in implementing the order passed by this Court was emphasised. Thereafter, the matter was adjourned to be taken up today.

41. Ms Pinky Anand, learned Additional Solicitor General has produced the decision dated 19-9-2016 of the Supervisory Committee. The relevant part of the said decision is to the following effect:

“2. As per the information furnished by IMD, while the rainfall during the South-West monsoon in the intermediate catchment (up to Biligundulu except Kabini and KRS catchment) is above normal, the rainfall in the catchments of Kabini and KR Sagar reservoirs is deficient. During the period 1-6-2016 to 31-8-2016, departure of total actual rainfall from normal value in Kabini catchment is (-) 46%, in KR Sagar catchment is (-) 24%, in the intermediate catchment is (+) 38%, in Cauvery catchment below Biligundulu is (+) 1.6%, and the whole Cauvery basin is (-) 18%. The Committee also noted that during the period 1-6-2015 to 31-8-2015 departure of total actual rainfall from normal value in Kabini catchment was (-) 25%, in KR Sagar catchment was (-) 12% in the intermediate catchment was (+) 12%. Moreover, during the period 1-6-2015 to 31-5-2016, departure of total actual rainfall from normal value in Kabini catchment was (-) 20%, in KR Sagar catchment was (-) 11%, in the intermediate catchment was (+) 5%.

3. The inflow in the four reservoirs of Karnataka in Cauvery basin during the period 1-6-2016 to 31-8-2016 is 114.66 TMC against the normal (29 year average 1974-1975 to 2002-2003) inflow of 219.33 TMC. The inflow is 52.28% of normal.

The outflow from four reservoirs of Karnataka in Cauvery basin during the period 1-6-2016 to 31-8-2016 is 45.28 TMC against the normal (29 year average 1974-1975 to 2002-2003) outflow of 115.29 TMC. The average flows observed at Biligundulu site of CWC for the water year 2016-2017 for the same period is 33.02 TMC. As mentioned above, during the period 1-6-2016 to 31-8-2016, departure of total actual rainfall from normal value in the intermediate catchment is (+) 38%.

4. Quantum of flows to be made available by the State of Karnataka at the inter-State contact point presently identified as Biligundulu G&D station located on the common border of Karnataka and Tamil Nadu as per Clause IX of order of Cauvery Water Disputes Tribunal in a normal year is 94 TMC for the period from June to August 2016 but the average flows observed at Biligundulu site of CWC for the water year 2016-2017 for the same period is 33.02 TMC. Taking into account the significant deficiency in rainfall in Cauvery basin as informed by IMD and inflow position of the four reservoirs in Karnataka in Cauvery basin, there is a distress situation and thus flows at Biligundulu could not be ensured as per normal deliveries prescribed in Clause IX of the order of Cauvery Water Disputes Tribunal for the period from June to August 2016. As per Clause VII of the order of Cauvery Water Disputes Tribunal, in case the yield of Cauvery basin is less in a distress year, the allocated shares shall be proportionately reduced among the States.

5. In accordance with the Hon'ble Tribunal order, quantum of deficit can be assessed only when the yield figures of the basin are available. In order to assess yield up to Biligundulu for the three months, data of abstractions for the current year as well as average abstractions by the State of Karnataka through minor irrigation, anicut channels and small reservoir projects, etc. is required.

6. Thus during the 6th meeting of the Committee, the State of Karnataka was asked to furnish the following data to the Member-Secretary of the Committee as well as to other basin States by 15-9-2016.

(A) Abstractions (withdrawals + change in storage + evaporation) from reservoirs in Cauvery basin other than four major reservoirs u/s and d/s of KRS and Kabini separately and any other abstractions including withdrawals from Lift Irrigation Schemes and other domestic/industrial schemes. The data should pertain to year 2016 (from June to August).

(B) Average withdrawals/abstractions during June to August for 29-year period (1974-1975 to 2002-2003) for minor irrigation, anicut channels, Bangalore water supply diversions, reservoirs in Cauvery basin other than four major reservoirs, Lift Irrigation Schemes and other domestic/industrial schemes u/s and d/s of KRS and Kabini separately, to the Member-Secretary of the Committee as well as to other basin States by 15-9-2016.

(C) In addition, all the basin States were also to provide data related to storage and withdrawal between February-May for 29-year period (1974-1975 to 2002-2003) as well as for the year 2015-2016 to the Member-Secretary of the Committee as well as to other basin States by 15-9-2016.

7. On receipt of the data mentioned at (A), (B) above from the State of Karnataka and data at (C) provided by the States of Tamil Nadu and Karnataka, the same was analysed. On the basis of the data, the claims of basin States were discussed, Chief Secretary, Government of Karnataka on the basis of ground realities vehemently opposed any further release of water from the reservoirs as this would seriously impinge their drinking water needs in the coming months up to May 2017. The Chief Secretary, Government of Tamil Nadu, on the other hand, demanded the release as per the order of the Hon'ble Tribunal, Chief Secretary, Union Territory of Puducherry demanded their proportionate share.

8. As there was no consensus, the Chairman of the Supervisory Committee on Cauvery having taken into account the daily inflows into the reservoirs of Karnataka, drinking water requirement of the people of Karnataka and the requirement of Samba crop in Tamil Nadu and also the significant deficit in rainfall from June onwards as brought out by IMD during the current and previous year, ordered the State of Karnataka to release water at the rate of 3000 cusecs per day for 10 days from 21-9-2016 till 30-9-2016. The Chairman of the Committee also asked the State of Tamil Nadu to release water proportionately to Union Territory of Puducherry.

9. Further, in order to resolve the problem of sharing of available water on long-term basis, as discussed during the sixth meeting of the Supervisory Committee, it was decided that a Technical Committee under Chairman, CWC with members from basin States should meet within ten days to finalise data acquisition protocol, methodology, mechanism and instrumentation. In 7th meeting, this issue was further discussed and it was unanimously agreed that online real time data acquisition protocol, methodology, mechanism and instrumentation shall be developed by the Technical Committee in respect of inflows, outflows, withdrawals and water levels at seven major reservoirs sites. Besides, the small reservoirs, anicuts and minor irrigation schemes shall also be covered under the online data acquisition system. The Committee directed that the Technical Committee should finalise within 10 days and to finalise the protocol at the earliest and bring it before the next Supervisory Committee meeting for necessary approval. The cost of the online data acquisition system shall be borne by the party States of Kerala, Karnataka, Tamil Nadu and UT of Puducherry in the ratio of 15:40:40:5.”

42. We have reproduced the said order in extenso as the said Committee was constituted by virtue of the direction given by this Court and notified vide Notification dated 22-5-2013.

43. Mr Nariman, learned Senior Counsel appearing for the State of Karnataka and Mr Shekhar Naphade, learned Senior Counsel appearing for the State of Tamil Nadu, expressed their grievances with regard to the view expressed by the Supervisory Committee. They intend to file objections to the same. In all possibility, the matter would have been straightaway adjourned to some other day to enable the learned counsel for the parties to file objections and to hear the interlocutory applications. But in the present case such course cannot be immediately taken recourse to.

44. In course of hearing of this application today, Mr Nariman has taken us through various paragraphs of the decision/final order of the Tribunal. Chapter VII of the same deals with final determination of the share of the water of River Cauvery among the States of Kerala, Karnataka and Tamil Nadu and the Union Territory of Puducherry and monthly schedule of releases. The learned Senior Counsel has drawn our attention to paras 11, 13, 15, 17, 18, 19, 20, 23, 25, 26, 28 and 29 of the decision of the Tribunal. They read as follows:

“11. It may be mentioned that in the Cauvery basin, the major shareholders are two States, namely, Karnataka and Tamil Nadu which have been allocated 270 and 419 TMC respectively, whereas, the State of Kerala has been allocated a total of 30 TMC of water for the three sub-basins viz. Kabini sub-basin — 21 TMC, Bhavani sub-basin — 6 TMC and Pambar sub-basin — 3 TMC. Since, full use of allocated waters by the State of Kerala may take some years until the proposed irrigation projects of the State come into existence, till then, the unutilised water will be flowing to the lower States, namely, Karnataka and Tamil Nadu, and that water will be flowing into the existing reservoirs of Kabini, Bhavani and Amarvathy from which the distribution is to be monitored by the Cauvery Management Board, keeping in view the decision of the Tribunal.

***

13. In view of the above position, we find that specifying monthly schedule of flows which would be required to be delivered by Karnataka to Tamil Nadu at inter-State contact point during a normal year would suffice.

***

15. The allocated share of Tamil Nadu is 419 TMC. Thus, the balance 182 TMC (419-237) is to be made available at the inter-State contact point. In addition, an allocation of 10 TMC for environmental protection is also to be made available at that point. Thus, the total delivery which the Karnataka State is to make available at the inter-State border would be (182 + 10) 192 TMC.

***

17. It may be mentioned that the extent of uncontrolled catchment from below KRS and Kabini reservoirs up to Biligundulu — is of the order of over 22,000 sq km (Source: Karnataka Pl-I, pp. 21 & 22 and E-68. P. 3) in a normal year (yield with 740 TMC). It has been estimated by our assessors that this uncontrolled catchment can contribute about 80 TMC. As regards the Kabini reservoir, its annual yield is about 98 TMC (yield accepted by the parties), the bulk of which comes during the South-West monsoon season. The Kabini reservoir has a small storage capacity of about 16 TMC i.e. about 1/6th of its annual yield. After meeting the requirements of Kerala, the reservoir can be filled four times mostly during the southwest monsoon season. It has also been estimated by our assessors that the Kabini arm during a normal year after meeting the Karnataka requirements would contribute about 60 TMC to meet the downstream requirements at Biligundulu. As far the Krishnarajasagara reservoir is concerned, the bulk of the requirements of Karnataka are to be met from Hemavathy, Harangi and Krishnarajasagara reservoirs, as such, about 52 TMC of water would have to be made available by the State of Karnataka through regulated releases from Krishnarajasagara to reach the inter-State contact point.

18. It may be mentioned that at inter-State contact point 192 TMC is to be maintained in a normal year and if there is any deficiency in the quantum of inflows mentioned above, it will be open to the Cauvery Management Board/Regulatory Authority to suitably adjust the flows.

19. The monthly schedule of deliveries has been prepared in consultation and on the basis of advice given by our assessors at the present identified site, namely, Biligundulu, would be as under:

Month TMC Month TMC June 10 December 8 July 34 January 3 August 50 February 2.5 September 40 March 2.5 October 22 April 2.5 November 15 May 2.5 Total 192 TMC

Note: (i) The annual total of 192 TMC comprises of 182 TMC from the allocated share of Tamil Nadu and 10 TMC of water allocated for environmental purposes.

(ii) The monthly releases shall be broken in 10 daily intervals by the suggested Regulatory Authority while implementing the schedule.

20. It may be mentioned that irrigation requirements of the parties have been worked out for the crops to be raised during the whole year in all their projects and water has accordingly been provided for them in various reservoirs.

***

23. The Regulatory Authority shall also monitor flows from KRS reservoir as also from Kabini and other tributaries meeting Cauvery below KRS up to Biligundulu site.

***

25. The question of distress was being raised during the arguments by the party States, specially, Karnataka and Tamil Nadu. Karnataka's argument was based on the apprehension that if occurrence of South-West monsoon is below normal and the North-East monsoon is above normal, the waters cannot be brought upstream to Karnataka area and as such, the crops in the upper region of basin will suffer. It may be clarified that the crops of the upper basin areas, mostly receive support of artificial irrigation from the South-West monsoon and as mentioned above, while working out the crop water requirement, provision has already been made from the availability of South-West monsoon water in the reservoirs to meet the annual requirements of those areas. Further, there would also be some good years, bringing in more than 740 TMC of water. We have suggested mechanism for implementation of the order of the Tribunal and that suggested authority will take care of conserving water during good years in the designated reservoirs and also devise conservation of water by the party States in the remaining reservoirs (capacity — 3 TMC and above), and during a deficit year permit withdrawals keeping in view the shortfall in total availability. Similarly, if the North-East monsoon happens to be below normal, it would be feasible, as also justified to provide some water from the storages in the upper regions for saving the crops of the lower region of the basin. This task has to be carried out by the Cauvery Management Board after assessing the extent of distress.

26. It may be made clear that the above schedule of deliveries relates to a normal year which has been considered as an year giving total annual yield of 740 TMC at 50% dependability, but it is very important to note that the above schedule is a theoretical computation based on the crop water requirement of different projects and the computed withdrawals therefor, along with the data of inflows into the various reservoirs as furnished by the party States in the common format. It is common knowledge that rainfall during any monsoon season varies in space and time, besides variation in its intensity, duration, number of rainy days, etc. Further, since the total catchment area of Cauvery basin is over 81,000 sq km, the occurrence of rainfall and its pattern in different sub-basins cannot be predicted. For example, during a month, there may be heavy rainfall in the Hemavathy sub-basin and deficit rainfall in Kabini sub-basin and vice versa. As such, it would be a rare year in which the pattern of flows in different sub-basins would tally with the flows considered for working out the above schedule, due to this variation, the contribution of each and every tributary cannot be precisely predicted and there would certainly be some variations from year to year. We have, therefore, separately suggested a mechanism — Cauvery Management Board/Regulatory Authority which would monitor with the help of 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 deliveries suggested above.

***

28. In case the yield is less in a distress year, the allocated shares shall be proportionately reduced amongst the States of Kerala, Karnataka, Tamil Nadu and Union Territory of Pondicherry by the Regulatory Authority.

29. It may also be mentioned that the month of June, specially, would be crucial because the irrigation season starts from 1st of June, as also normal date of onset of South-West monsoon in Kerala is 1st of June, as such, any delay in the onset of South-West monsoon would affect the inflows, and consequently schedule of releases from Krishnarajasagara and Kabini reservoirs. It would, therefore, be advisable that at the end of May each year, as much storage as is possible during a good year, should be consciously conserved, as that will help in adhering to the schedule of monthly deliveries. However, if there are two consecutive bad years, it would cause distress which shall have to be apportionately tackled by the Cauvery Management Board/Regulatory Authority by relaxing the schedule of deliveries and getting the reservoirs operated in an integrated manner through the States concerned to minimise any harsh effect of a bad monsoon year. In view of such practical difficulties, the Cauvery Management Board/Regulatory Authority shall have the liberty to alter monthly and/or ten daily schedule of releases while making effort to meet the seasonal allocations for the crop as far as possible, in consultation with the party States.”

45. Be it stated, Mr Naphade has also relied upon some of the paragraphs reproduced hereinabove. These paragraphs have been referred to by both the sides to highlight their respective contentions. According to Mr Nariman, learned Senior Counsel appearing for the State of Karnataka, the Tribunal has not determined in absolute terms with regard to the distribution of water, for the language employed is tentative in character. Per contra, Mr Naphade, learned Senior Counsel appearing for the State of Tamil Nadu would submit that it is not tentative and, in fact, the Tribunal in various parts which have been reproduced hereinabove, has referred to the concept of proportionality in case of the distress year and left it to be monitored by the competent authority as mentioned in the final order of the Tribunal. In essence, the submission of the State of Tamil Nadu is that as mentioned in the final order of the Tribunal, even if it is assumed that the order has any characteristic of tentativeness, the State of Karnataka cannot take the position that it will not release any water.

46. At this juncture, we are obliged to state, as Mr Nariman has brought to our notice, that Chapter VIII of the award deals with machinery for implementation of final decision/order of the Tribunal. The Tribunal thought it appropriate to refer to various provisions of the Inter-State River Water Disputes Act, 1956 (for brevity “the Act”) and conceived that there should be an independent mechanism to achieve the objectives of distribution of water as per equitable shares determined by the Tribunal. The Tribunal has categorically stated about the constitution of the “Cauvery Management Board”. It has also provided for the composition of the Cauvery Management Board. The said passages, being pertinent, read as follows:

“1. The Cauvery Management Board shall consist of a whole-time Chairman and two whole-time members to be appointed by the Central Government. The post of whole-time Chairman shall be held by an Irrigation Engineer of repute of the rank of Chief Engineer having not less than 20 years' experience in the field of water resources management.

2. One whole-time member shall be an Irrigation Engineer of not below the rank of Chief Engineer having sufficient field experience in the operation of reservoirs and management, maintenance and operation of large irrigation projects for a period not less than 15 years.

3. The second whole-time member shall be an agricultural expert of repute specially in Agronomy with a field experience of not less than 15 years.

The tenure of the Chairman and the two whole-time members shall be for a period of three years extendable to five years.

4. Two representatives of the Central Government shall be of the rank of Chief Engineer/Commissioner to be nominated by the Ministry of Water Resources and Ministry of Agriculture respectively. They shall be part-time members of the Board.

5. A representative each of the State Governments of Kerala, Karnataka, Tamil Nadu and Union Territory of Pondicherry shall be nominated by the respective Governments, they shall be part-time members of the Board. The State representatives shall again be an Irrigation Engineer of the rank of Chief Engineer. Irrigation/Water resources/Public Works Department as the case may be, nominated by the respective State Governments.

6. Vacancies of members: On any vacancy occurring in the offices of the members, the appropriate appointing authority shall appoint a person to such vacant office.

7. Secretary of the Board: An Irrigation Engineer not belonging to any party State, and not below the rank of a Director/Superintending Engineer shall be appointed by the Board. He shall not have voting right.

8. Quorum and voting: Six members shall form a quorum and the concurrence of the majority shall be necessary for the transaction of the business of the Board except such business as the Board may from time to time prescribe as routine. The Members shall have equal powers.

The next meeting will be held within three days if the meeting is postponed for want of quorum and for that meeting quorum will not be necessary.”

47. The Tribunal also referred to the Cauvery Water Regulation Committee. It reads as follows:

“The Board shall constitute a committee known as the Cauvery Water Regulation Committee with the following composition:

(1) Full-time Member Irrigation of the Board Chairman (2) One representative each of the State of Kerala, Karnataka, Tamil Nadu and Union Territory of Pondicherry not below the rank of a Sr. Superintending Engineer Member (3) One representative of IMD of the rank of Director Member (4) One representative of Central Water Commission dealing with river gauging not below the rank of Superintending Engineer Member (5) One representative of the Central Ministry of Agriculture not below the rank of Superintending Engineer. Member (6) Secretary to Cauvery Management Board Member-Secretary”

48. Chapter VIII also articulates the functions of the Regulatory Committee and also postulates guidelines for the Cauvery Management Board. We are not reproducing the guidelines for the Cauvery Management Board at present.

49. On a perusal of the final order of the Tribunal, we find that it has taken pains to arrive at a solution by considering all the aspects and also thought of appropriate distribution in future keeping in view the unpredictability of the monsoon. Additionally, it has also provided for resolution mechanism so that if any problem emerges, the same can be solved. It is submitted by Mr Nariman that the order passed by the Supervisory Committee is absolutely based on no reason and, in fact, the tenor of the language would reflect that it is a view expressed by the Chairperson alone and there is no justification to direct the State of Karnataka to release the water at the rate of 3000 cusecs per day for ten days. According to Mr Nariman, the Supervisory Committee could not have determined in this manner.

50. Mr Naphade, in his turn, would criticise the direction of the Committee with regard to the quantum. However, without prejudice to his final argument, he has placed reliance on the deficit facet that finds mention in it. It is appropriate to state here that Mr Nariman has seriously opposed the percentage of deficit, that is, 48%. According to him, it cannot be determined at this stage because the deficit can be only determined at the end of the season, but not midway. As mentioned earlier, the learned counsel for the parties wanted to file objections to the decision of the Supervisory Committee. Let the applicant, as well as the respondent in this interlocutory application, file their objection to the same within three days hence.

51. On the earlier occasion, we had directed the State of Karnataka to release 12,000 cusecs of water per day. Initially, we had directed for 15,000 cusecs as the State of Karnataka, by good gesture, had offered for 10,000 cusecs only for a week. Today, it is argued by Mr Nariman with all the vehemence at his command that any kind of pro tem arrangement made by this Court would be absolutely erroneous being not permissible. The issue does not require to be deferred. In our considered opinion, when an issue is raised that this Court cannot make an interim arrangement in case of this nature, procrastination would not be apt. We have reasons to say so. In the appeal, both the States are challenging the decision of the Tribunal. The Tribunal, as our aforestated paragraphs would show, had fixed 192 TMC for normal year in favour of the State of Tamil Nadu and the Tribunal has also carved out monthly allocation from the month of June to May, which is called the “water year”.

52. On the last occasion, we had noticed that the State of Karnataka had not provided the requisite water as per the allocation. It is urged by Mr Nariman that it was not a normal year and, therefore, there has to be adjustment in monthly allocation. The learned Senior Counsel would also submit that if there is a deficit year and not a normal year, the yearly allocation has to reduce proportionally. That apart, it is also urged that when the State of Karnataka is in a great misery as far as the supply of water is concerned, it is not possible to release any water in favour of the State of Tamil Nadu. Additionally, it is urged by Mr Nariman that the State of Karnataka has to part with drinking water if it is compelled to supply the water to the State of Tamil Nadu.

53. Mr Naphade, learned Senior Counsel appearing for the State of Tamil Nadu would contend that the monthly allocation by the Tribunal is rational, inasmuch as it has taken into consideration various crops that are grown in the State of Tamil Nadu and seasonal requirement. The learned Senior Counsel would further submit that both the States have to embrace the principle of adjustment in deficit year. The argument relating to dwindling water is seriously controverted by Mr Naphade on the ground that the Tribunal has not really referred to the decision pertaining to drinking water for 2/3rd of the city of Bengaluru covered by the water basin.

54. Another aspect needs to be noted is that as far as the month of September is concerned, the State of Karnataka is to release 40 TMC water in a normal year. The deficit, though disputed by both sides, is approximately 48% as stated by the Committee.

55. Mr Naphade has filed a chart, stating about the quantum of water that has been released in favour of the State of Tamil Nadu in pursuance of direction by this Court. According to the calculation, the State of Karnataka has yet to give 2.56 TMC.

56. At this stage, we may also take note of another objection raised by Mr Nariman that at Mettur, the State of Tamil Nadu has stored more than 50 TMC water. Mr Naphade, as has been stated on the last occasion, has contended that this arrangement by the State of Tamil Nadu is to provide water for irrigation.

57. Having heard the learned counsel for the parties and appreciating the arrangement made in the order of the Tribunal and noting the submissions of the learned counsel for the parties, we are inclined to pass the following order:

57.1. The Union of India shall constitute the Cauvery Management Board within four weeks hence, regard being had to the directions issued by the Tribunal.

57.2. The Union of India shall produce after four weeks the notification indicating that the Cauvery Management Board has been constituted so that, if required, appropriate directions can be issued to the Board.

57.3. The applicant and the respondent shall file their respective objections to the decision of the Supervisory Committee within three days hence.

57.4. Let the matter be listed at 2.00 p.m. on 27-9-2016.

57.5. As an interim measure, regard being had to the subsequent developments and the problems that have been highlighted by Mr Nariman, we direct the State of Karnataka to release 6000 cusecs of water from tomorrow till the next date of hearing.

58. Call the matter on the date fixed.

(2016) 10 SCC 645

Order dated 27-9-2016

(Before Dipak Misra and Uday U. Lalit, JJ.)

IA No. 12 of 2016 in IA No. 10 in Civil Appeal No. 2456 of 2007

IAs Nos. 15 and 16 of 2016

59. The present interlocutory applications contain different prayers, one put forth by the State of Tamil Nadu and the other by the State of Karnataka. As advised at present, we do not intend to advert to the assertions made in the applications or the prayers made therein.

60. Having heard Mr Shekhar Naphade, learned Senior Counsel appearing for the State of Tamil Nadu and Mr Fali S. Nariman, learned Senior Counsel appearing for the State of Karnataka and deliberating further, we inquired from Mr Mukul Rohatgi, learned Attorney General for India what could be the possible solution in such a situation. We have asked for this not because this Court cannot adjudicate or pass appropriate orders in accordance with law to maintain and sustain the rule of law and majesty of law which are élan vital of our constitutional law, but prior to that we have thought it appropriate that there has to be discussion regard being had to the conceptual federalism prevalent in our democratic body polity.

61. Mr Mukul Rohatgi, learned Attorney General has submitted that the Union of India is prepared to facilitate so that the impasse between the two States can appositely melt. Mr Fali S. Nariman, learned Senior Counsel appearing for the State of Karnataka has submitted that the executive head of the State of Karnataka, as suggested by Mr Rohatgi, shall be available for discussion with the competent authority of the Union of India to be suggested by the Attorney General for India. Mr Shekhar Naphade, learned Senior Counsel for the State of Tamil Nadu also expressed his consent. As Mr Mukul Rohatgi, learned Attorney General prays for some time to have the discussion and facilitation of process, we are inclined to adjourn the matter to 2.00 p.m. on 30-9-2016.

62. Be it noted, though there is some grievance with regard to non-compliance with the earlier orders passed by this Court, we are not entering into the said facet today. However, we direct the State of Karnataka to release 6000 cusecs of water from tomorrow i.e. 28-9-2016. We are sure that the State of Karnataka shall obey the order without any kind of impediment, obstruction or any other attitude till we take up the matter on 30-9-2016. Needless to say, the water that has been released will be adjusted in the eventual adjudication. Mr Nariman has submitted that there will be difficulty on the part of the State of Karnataka because of the resolution passed. The water shall be released despite the resolution that has been brought on record vide Annexure IV to IA No. 16 of 2016. We have issued this direction keeping in mind the deliberation that has taken place and, therefore, we think it appropriate that the State of Karnataka shall follow the order passed by us. We ingeminate and repeat at the cost of repetition that the direction for release of water has been passed for the coming three days despite the resolution passed.

63. Call the matter on 30-9-2016 at 2.00 p.m.

(2016) 10 SCC 646

Order dated 30-9-2016

(Before Dipak Misra and Uday U. Lalit, JJ.)

IA No. 15 in IA No. 16 in IA No. 12 in IA No. 10 in Civil Appeal No. 2456 of 2007 with IAs Nos. 2, 4, 7-9, 11, 13, 14 & 17 with Contempt Petition (C) No. 225 of 2013 in CA No. 2456 of 2007

IAs Nos. 10, 12, 15 and 16 of 2016 in CA No. 2456 of 2007

64. When these interlocutory applications were taken up on 27-9-2016, the Court sought assistance of Mr Mukul Rohatgi, learned Attorney General for India to facilitate so that the impasse between the two States can appositely melt and a solution can be arrived at. It was agreed by the State of Karnataka as well as by the State of Tamil Nadu that their competent authorities from the executive would be available for discussion with the authority to be nominated by the Union of India. Mr Rohatgi had asked for some time to have the discussion and facilitation of the process and, accordingly, the matter was adjourned to today.

65. On the previous occasion, a direction was issued to the State of Karnataka to release 6000 cusecs of water commencing from 28-9-2016. At that juncture, this Court had stated, “we are sure that the State of Karnataka shall obey the order without any kind of impediment, obstruction or any other attitude till we take up the mater on 30-9-2016”.

66. When the matter was taken up today, Mr Rohatgi, learned Attorney General for India filed the minutes of the meeting of Chief Ministers of Karnataka and Tamil Nadu on Cauvery Water Disputes held under the Chairmanship of Union Minister of Water Resources, River Development and Ganga Rejuvenation, on 29-9-2016 in New Delhi. We think it appropriate to reproduce the said minutes:

“The Hon'ble Supreme Court order dated 27-9-2016, inter alia mentions ‘the learned Attorney General of India has submitted that the Union of India is prepared to facilitate so that the impasse between the two States can appositely melt. The learned Senior Counsel appearing for the State of Karnataka, has submitted that the executive head of the State of Karnataka, as suggested by the Attorney General of India, shall be available for discussion with the competent authority of the Union of India to be suggested by the Attorney General for India. The learned Senior Counsel for the State of Tamil Nadu also expressed his consent’.

The Attorney General of India has stated vide letter dated 27-9-2016: ‘it would be appropriate that the Union Minister for Water Resources call for a meeting of both the States. The States could be represented by their Chief Ministers, Minister for Water Resources, State Principal Secretary for Water Resources and others.’

Accordingly, a meeting was convened by the Hon'ble Union Minister of Water Resources, River Development and Ganga Rejuvenation on 29-9-2016 in New Delhi. The meeting was attended by the Hon'ble Chief Minister of Karnataka and the Hon'ble PWD Minister of Tamil Nadu (representative of the Hon'ble Chief Minister of Tamil Nadu) and other ministers and officers of both the States and Union Government.

The Hon'ble Minister (WR, RD&GR) while welcoming the Hon'ble Chief Minister of Karnataka, Hon'ble PWD Minister of Tamil Nadu and ministers, officials from both the States and officers of MoWR, RD&GR for this meeting, stated that the Hon'ble Supreme Court had given an opportunity to the Union Government and both the States to discuss, facilitate and resolve the current Cauvery water impasse in a cordial atmosphere. On that premise, she hoped that both the States would show empathy to each others' need for arriving at a mutually acceptable solution.

Thereafter, the Minister (WR, RD&GR) requested both the States to present their views in the matter.

The Chief Minister of Karnataka read out his speech, which is attached as Annexure I. He concluded his speech by stating that the ground reality at present stares at the face that no further release from Karnataka can be possible without destroying the standing crops of farmers and causing shortages in the drinking water supplies in Karnataka. He also requested the Union Government to depute a team of experts to the Cauvery basin in Karnataka and Tamil Nadu to verify the ground realities, storage positions, inflows and outflows for taking informed decision.

In absence of the Chief Minister of Tamil Nadu, her speech was read out by Shri P. Ram Mohan Rao, the Chief Secretary of Tamil Nadu. A copy of the speech is attached as Annexure II. He stated that Tamil Nadu is in dire need of water. In the spirit of orders of the Hon'ble Supreme Court, the Government of India was urged to ensure that Karnataka complies with the Hon'ble Supreme Court orders dated 5-9-2016/6-9-2016, 12-9-2016, 20-9-2016 and 27-9-2016 and releases water to Tamil Nadu. Further, Karnataka should release the stipulated quantity of water as per the final order of the Cauvery Water Disputes Tribunal including the backlog of 76.042 TMC ft as on 26-9-2016, which is absolutely vital for the survival of at least a single samba crop in the Cauvery delta. The representative of Tamil Nadu did not agree to the suggestions of deputing a team of experts to Cauvery basin on the ground that it was outside the purview of this meeting.

The Hon'ble Union Minister (WR, RD&GR) while making best efforts to make both the States converge to a consensus on release of Cauvery water, finally concluded the meeting by stating that the views of both the States on the current impasse on release of Cauvery water would be communicated to the Hon'ble Supreme Court of India, through learned Attorney General of India, in its sitting scheduled for 30-9-2016.”

67. Mr Fali S. Nariman, learned Senior Counsel appearing for the State of Karnataka has submitted that he has circulated two letters and he intends to bring the same on record. We have thought it appropriate to take the two letters on record. The letter dated 29-9-2016, has been written by the Chief Minister of Karnataka to Mr Fali S. Nariman. The letter in entirety reads as follows:

“29-9-2016 Dear Mr Nariman, Since there are various versions as to what transpired after the Hon'ble Supreme Court's last order passed on 27-9-20165, I hasten to write to you the correct position. Immediately after the order dated 27-9-20165, in the late evening I convened an all-party meeting at Vidhan Soudha at Bangalore for the morning of 28-9-2016, since the order passed by the Hon'ble Supreme Court was imperative. At the meeting at which to the knowledge of all an audio recording was made—it was the unanimous view of all party members who attended including three Union Ministers of the Central Government, and Ministers from the State of Karnataka all of whom exhorted me, as the Head of Government, that the will of the people of Karnataka as reflected in the unanimous Resolution passed on 23-9-2016, by both the Houses of the Legislature in the State must be honoured. As such, although the direction of their Lordships to release water for three days “despite the Resolution passed”, my Government is not in a position at this juncture to release water. At the inter-State meeting called by the Union Minister for Water Resources on 29-9-2016, at 11.30 a.m., I attended and so did the representative of the Chief Minister of Tamil Nadu where we both explained our positions in writing. I pleaded that the Hon'ble Union Minister appoint an expert team to forthwith visit all the relevant areas in the basin and verify the ground realities including the acute shortage of drinking water and make recommendations. The team representing the Chief Minister of Tamil Nadu vigorously opposed this. In view of the impasse, the Union Minister preferred not to take any unilateral decision. My earnest request to you is to bring all these facts to the knowledge of the Hon'ble Supreme Court. Yours sincerely, sd/- (Siddaramaiah)”

68. The second letter dated 30-9-2016, is the communication made by Mr Fali S. Nariman to the Chief Minister. The said letter reads as follows:

“I am in receipt of your letter of 29-9-2016. Representing the State of Karnataka I will certainly read out (if permitted) your letter to the Hon'ble Court. But you must realise that all of us appearing for the State are officers of the Court and since the Court has issued a direction for release of water ‘despite the Resolution passed’, we must honour the order of the Court, I must therefore inform you that apart from reading your letter and my reply we will not be able to make any submission on behalf of the State to the Hon'ble Court. Yours sincerely, (Fali S. Nariman)”

69. We must appreciate the stand taken by Mr Nariman. We must unhesitatingly state that this behoves the officer of the Court in the highest tradition of the “Bar”.

70. Mr Shekhar Naphade, learned Senior Counsel appearing for the State of Tamil Nadu, in his turn, has submitted that he does not intend to argue further, for any order that is passed by this Court is possibly not going to be obeyed by the State of Karnataka.

71. Mr Rohatgi, learned Attorney General for India, on being asked with regard to the constitution of the “Cauvery Management Board” in respect of which directions were issued on 20-9-2016, has responded that the Board can be constituted on or before 4-10-2016. Submission of Mr Rohatgi is that three States, namely, Karnataka, Tamil Nadu, and Kerala and the Union Territory of Puducherry, have to nominate their respective representatives as per the final order passed by the Cauvery Water Disputes Tribunal.

72. Regard being had to the aforesaid submission, we direct the aforementioned States and the Union Territory to nominate their members as per the final order of the Tribunal on or before 4.00 p.m. tomorrow (1-10-2016). The necessary communication shall be sent by the Union Ministry concerned to the competent authority of the States and the Union Territory concerned in course of today.

73. Mr Rohatgi has submitted that after the Cauvery Management Board is constituted, it can proceed to the site forthwith to take a prima facie view of the ground reality.

74. At this juncture, we may refer to Article 144 of the Constitution of India. It reads as follows:

“144. Civil and judicial authorities to act in aid of the Supreme Court.—All authorities, civil and judicial, in the territory of India, shall act in aid of the Supreme Court.”

75. On a plain reading of the said Article 144, it is clear as crystal that all authorities in the territory of India are bound to act in aid of the Supreme Court. Needless to say, they are bound to obey the orders of the Supreme Court and also, if required, render assistance and aid for implementation of the order(s) of this Court, but, unfortunately, the State of Karnataka is flouting the order and, in fact, creating a situation where the majesty of law is dented. We would have proceeded to have taken steps for strict compliance with our order, but as we are directing the Cauvery Management Board to study the ground reality and give us a report forthwith, we reiterate our earlier direction that the State of Karnataka shall release 6000 cusecs of water from 1-10-2016 till 6-10-2016. We are granting this opportunity as the last chance and we repeat at the cost of repetition that we are passing this order despite the resolution passed by the Joint Houses of State Legislature of the State of Karnataka. We had clearly mentioned so in our earlier order, while we stated Annexure IV to IA No. 16 of 2016. We are sure that the State of Karnataka being a part of the federal structure of this country will rise to the occasion and not show any kind of deviancy and follow the direction till the report on the ground reality is made available to this Court.

76. The State of Karnataka should not bend upon maintaining an obstinate stand of defiance, for one knows not when the wrath of law shall fall on one.

77. Call on 6-10-2016 at 2.00 p.m.

(2016) 10 SCC 650

Order dated 4-10-2016

(Before Dipak Misra and Uday U. Lalit, JJ.)

IA No. 12 of 2016 in Civil Appeal No. 2456 of 2007 with IAs Nos. 15, 16 and 18 of 2016 in CA No. 2456 of 2007

78. On 27-9-2016, while dealing with IAs Nos. 15 and 16 of 2016, this Court has directed as follows:

“Having heard Mr Shekhar Naphade, learned Senior Counsel appearing for the State of Tamil Nadu and Mr Fali S. Nariman, learned Senior Counsel appearing for the State of Karnataka and deliberating further, we inquired from Mr Mukul Rohatgi, learned Attorney General for India what could be the possible solution in such a situation. We have asked for this not because this Court cannot adjudicate or pass appropriate orders in accordance with law to maintain and sustain the rule of law and majesty of law which are élan vital of our constitutional law, but prior to that we have thought it appropriate that there has to be a discussion regard being had to the conceptual federalism prevalent in our democratic body polity.

Mr Mukul Rohatgi, learned Attorney General has submitted that the Union of India is prepared to facilitate so that the impasse between the two States can appositely melt. Mr Fali S. Nariman, learned Senior Counsel appearing for the State of Karnataka has submitted that the executive head of the State of Karnataka, as suggested by Mr Rohatgi, shall be available for discussion with the competent authority of Union of India to be suggested by the Attorney General for India. Mr Shekhar Naphade, learned Senior Counsel for the State of Tamil Nadu also expressed his consent. As Mr Mukul Rohatgi, learned Attorney General prays for some time to have the discussion and facilitation of process, we are inclined to adjourn the matter to 2.00 p.m. on 30-9-2016.

Be it noted, though there is some grievance with regard to non-compliance with the earlier orders passed by this Court, we are not entering into the said facet today. However, we direct the State of Karnataka to release 6000 cusecs of water from tomorrow i.e. 28-9-2016. We are sure that the State of Karnataka shall obey the order without any kind of impediment, obstruction or any other attitude till we take up the matter on 30-9-2016. Needless to say, the water that has been released will be adjusted in the eventual adjudication. Mr Nariman has submitted that there will be difficulty on the part of the State of Karnataka because of the resolution passed. The water shall be released despite the resolution that has been brought on record vide Annexure IV to IA No. 16 of 2016. We have issued this direction keeping in mind the deliberation that has taken place and, therefore, we think it appropriate that the State of Karnataka shall follow the order passed by us. We ingeminate and repeat at the cost of repetition that the direction for release of water has been passed for the coming three days despite the resolution passed.”

79. The matter was adjourned to 30-9-2016 on which day, the following order came to be passed:

“When these interlocutory applications were taken up on 27-9-2016, the Court sought assistance of Mr Mukul Rohatgi, learned Attorney General for India to facilitate so that the impasse between the two States can appositely melt and a solution can be arrived at. It was agreed by the State of Karnataka as well as by the State of Tamil Nadu that their competent authorities from the Executive would be available for discussion with the authority to be nominated by the Union of India. Mr Rohatgi had asked for some time to have the discussion and facilitation of the process and, accordingly, the matter was adjourned to today.

On the previous occasion, a direction was issued to the State of Karnataka to release 6000 cusecs of water commencing 28-9-2016. At that juncture, this Court had stated “we are sure that the State of Karnataka shall obey the order without any kind of impediment, obstruction or any other attitude till we take up the matter on 30-9-2016”.

When the matter was taken up today, Mr Rohatgi, learned Attorney General for India filed the minutes of the meeting of Chief Ministers of Karnataka and Tamil Nadu on Cauvery Water Disputes held under the Chairmanship of Union Minister of Water Resources, River Development and Ganga Rejuvenation, on 29-9-2016 in New Delhi. We think it appropriate to reproduce the said minutes:

‘The Hon'ble Supreme Court order dated 27-9-2016, inter alia mentions “the learned Attorney General of India has submitted that the Union of India is prepared to facilitate so that the impasse between the two States can appositely melt”. The learned Senior Counsel appearing for the State of Karnataka, has submitted that the executive head of the State of Karnataka, as suggested by the Attorney General of India, shall be available for discussion with the competent authority of Union of India to be suggested by the Attorney General for India. The learned Senior Counsel for the State of Tamil Nadu also expressed his consent.’

The Attorney General of India has stated vide letter dated 27-9-2016:

‘it would be appropriate that the Union Minister for Water Resources call for a meeting of both the States. The States could be represented by their Chief Ministers, Minister for Water Resources, State Principal Secretary for Water Resources and others.’

Accordingly, a meeting was convened by Hon'ble Union Minister of Water Resources, River Development & Ganga Rejuvenation on 29-9-2016 in New Delhi. The meeting was attended by Hon'ble Chief Minister of Karnataka and Hon'ble PWD Minister of Tamil Nadu (representative of Hon'ble Chief Minister of Tamil Nadu) and other Ministers and officers of both the States and Union Government.

Hon'ble Minister (WR, RD&GR) while welcoming the Hon'ble Chief Minister of Karnataka, Hon'ble PWD Minister of Tamil Nadu and Ministers, officials from both the States and officers of MoWR, RD&GR for this meeting, stated that the Hon'ble Supreme Court had given an opportunity to the Union Government and both the States to discuss, facilitate and resolve the current Cauvery water impasse in a cordial atmosphere. On that premise, she hoped that both the States would show empathy to each others' need for arriving at a mutually acceptable solution.

Thereafter, the Minister (WR, RD&GR) requested both the States to present their views in the matter.

The Chief Minister of Karnataka read out his speech, which is attached as Annexure I. He concluded his speech by stating that the ground reality at present stares at the face that no further release from Karnataka can be possible without destroying the standing crops of farmers and causing shortages in the drinking water supplies in Karnataka. He also requested the Union Government to depute a team of experts to the Cauvery basin in Karnataka and Tamil Nadu to verify the ground realities, storage positions, inflows and outflows for taking informed decision.

In absence of Chief Minister of Tamil Nadu, her speech was read out by Shri P. Ram Mohan Rao, the Chief Secretary of Tamil Nadu. A copy of the speech is attached as Annexure II. He stated that Tamil Nadu is in dire need of water. In the spirit of orders of the Hon'ble Supreme Court, the Government of India was urged to ensure that Karnataka complies with the Hon'ble Supreme Court orders dated 5-9-2016/6-9-2016, 12-9-2016, 20-9-2016 and 27-9-2016 and releases water to Tamil Nadu. Further, Karnataka should release the stipulated quantity of water as per the final order of the Cauvery Water Disputes Tribunal including the backlog of 76.042 TMC ft as on 26-9-2016, which is absolutely vital for the survival of at least a single samba crop in the Cauvery delta. The representative of Tamil Nadu did not agree to the suggestions of deputing a team of experts to Cauvery basin on the ground that it was outside the purview of this meeting.

Hon'ble Union Minister (WR, RD&GR) while making best efforts to make both the States converge to a consensus on release of Cauvery water, finally concluded the meeting by stating that the views of both the States on the current impasse on release of Cauvery water would be communicated to Hon'ble Supreme Court of India, through the learned Attorney General of India, in its sitting scheduled for 30-9-2016.

Mr Fali S. Nariman, learned Senior Counsel appearing for the State of Karnataka has submitted that he has circulated two letters and he intends to bring the same on record. We have thought it appropriate to take the two letters on record. The Letter dated 29-9-2016, has been written by the Chief Minister of Karnataka to Mr Fali S. Nariman. The letter in entirety reads as follows:

“29-9-2016

Dear Mr Nariman,

Since there are various versions as to what transpired after the Hon'ble Supreme Court's last order passed on 27-9-2016, I hasten to write to you the correct position.

Immediately after the order dated 27-9-2016, in the late evening I convened an all-party meeting at Vidhan Soudha at Bangalore for the morning of 28-9-2016, since the order passed by the Hon'ble Supreme Court was imperative.

At the meeting at which to the knowledge of all an audio recording was made — it was the unanimous view of all Party Members who attended including three Union Ministers of the Central Government, and Ministers from the State of Karnataka all of whom exhorted me, as the Head of Government, that the will of the people of Karnataka as reflected in the unanimous Resolution passed on 23-9-2016, by both Houses of Legislatures in the State must be honoured. As such although the direction of their Lordships to release water for three days “despite the Resolution passed”, my Government is not in a position at this juncture to release water.

At the inter-State meeting called by the Union Minister for Water Resources on 29-9-2016, at 11.30 a.m., I attended and so did the representative of the Chief Minister of Tamil Nadu where we both explained our positions in writing. I pleaded that the Hon'ble Union Minister appoint an expert team to forthwith visit all the relevant areas in the basin and verify the ground realities including the acute shortage of drinking water and make recommendations. The team representing the Chief Minister of Tamil Nadu vigorously opposed this.

In view of the impasse, the Union Minister preferred not to take any unilateral decision.

My earnest request to you is to bring all these facts to the knowledge of the Hon'ble Supreme Court.

Yours sincerely,

sd/-

(Siddaramaiah)”

The second letter dated 30-9-2016, is the communication made by Mr Fali S. Nariman to the Chief Minister. The said letter reads as follows:

“I am in receipt of your letter of 29-9-2016.

Representing the State of Karnataka I will certainly read out (if permitted) your letter to the Hon'ble Court. But you must realise that all of us appearing for the State are officers of the Court and since the Court has issued a direction for release of water “despite the Resolution passed”, we must honour the order of the Court, I must therefore inform you that apart from reading your letter and my reply we will not be able to make any submission on behalf of the State to the Hon'ble Court.

Yours sincerely,

(Fali S. Nariman)”

We must appreciate the stand taken by Mr Nariman. We must unhesitatingly state that this behoves the officer of the Court in the highest tradition of the “Bar”.

Mr Shekhar Naphade, learned Senior Counsel appearing for the State of Tamil Nadu, in his turn, has submitted that he does not intend to argue further, for any order that is passed by this Court is possibly not going to be obeyed by the State of Karnataka.

Mr Rohatgi, learned Attorney General for India, on being asked with regard to the constitution of the “Cauvery Management Board” in respect of which directions were issued on 20-9-2016, has responded that the Board can be constituted on or before 4-10-2016. Submission of Mr Rohatgi is that three States, namely, Karnataka, Tamil Nadu, and Kerala and the Union Territory of Puducherry, have to nominate their respective representatives as per the final order passed by the Cauvery Water Disputes Tribunal.

Regard being had to the aforesaid submission, we direct the aforementioned States and the Union Territory to nominate their members as per the final order of the Tribunal on or before 4.00 p.m. tomorrow (1-10-2016). The necessary communication shall be sent by the Union Ministry concerned to the competent authority of the States and the Union Territory concerned in course of today.

Mr Rohatgi has submitted that after the Cauvery Management Board is constituted, it can proceed to the site forthwith to take a prima facie view of the ground reality.

At this juncture, we may refer to Article 144 of the Constitution of India. It reads as follows:

‘144. Civil and judicial authorities to act in aid of the Supreme Court.—All authorities, civil and judicial, in the territory of India, shall act in aid of the Supreme Court.’

On a plain reading of the said Article 144, it is clear as crystal that all authorities in the territory of India are bound to act in aid of the Supreme Court. Needless to say, they are bound to obey the orders of the Supreme Court and also, if required, render assistance and aid for implementation of the order(s) of this Court, but, unfortunately, the State of Karnataka is flouting the order and, in fact, creating a situation where the majesty of law is dented. We would have proceeded to have taken steps for strict compliance of our order, but as we are directing the Cauvery Management Board to study the ground reality and give us a report forthwith, we reiterate our earlier direction that the State of Karnataka shall release 6000 cusecs of water from 1-10-2016 till 6-10-2016. We are granting this opportunity as the last chance and we repeat at the cost of repetition that we are passing this order despite the resolution passed by the Joint Houses of State Legislature of the State of Karnataka. We had clearly mentioned so in our earlier order, while we stated Annexure IV to IA No. 16 of 2016. We are sure that the State of Karnataka being a part of the federal structure of this country will rise to the occasion and not show any kind of deviancy and follow the direction till the report on the ground reality is made available to this Court.

The State of Karnataka should not bent upon maintaining an obstinate stand of defiance, for one knows not when the wrath of law shall fall on one.

Call on 6-10-2016 at 2.00 p.m.”

80. Before the matter could be listed, on the date fixed i.e. 6-10-2016, Mr Rohatgi, learned Attorney General for India mentioned the matter on 3-10-2016 and in view of the mentioning, the following order came to be passed:

“On being mentioned by Mr Mukul Rohatgi, learned Attorney General for India, the matter is taken on record.

It is submitted by Mr Rohatgi, learned Attorney General that he has filed an application for modification of the orders passed in relation to constitution of the Cauvery Management Board.

At this juncture, we asked Mr V.N. Raghupathy, learned Standing Counsel for the State of Karnataka to apprise us with regard to the position relating to supply of water to the State of Tamil Nadu. He prays for some time to obtain instructions.

Let the matter be listed at 2.00 p.m. on 4-10-2016.”

81. Today, when the matter was called, Mr F.S. Nariman, learned Senior Counsel being assisted by Mr Mohan V. Katarki and Mr V.N. Raghupathy, learned counsel for the State of Karnataka submitted that possibly the occasion has come where he will be in a position to argue the matter. To sustain his stand and withdraw his recusal from arguing on the earlier occasion, he has filed a note, being instructed, which reads as follows:

“Your Lordship had directed (on 30-9-2016) the State of Karnataka to release 6000 cusecs of water from 1-10-2016 to 6-10-2016.

It is regretted that the State of Karnataka did not release 6000 cusecs of water on 1-10-2016 or on 2-10-2016.

But I am now instructed to state that in the late evening of 3-10-2016, it was decided to honour the directions of this Hon'ble Court and accordingly at 9.00 p.m. on 3-10-2016, as a first step, 12,000 cusecs of water was released from Karnataka reservoirs for Biligundlu.

I am further instructed to state that:

(a) today i.e. 4-10-2016 before the day is out an additional 12,000 cusecs of water will stand released; and

(b) by tomorrow (5-10-2016) a further 12,000 cusecs of water will get released.

I am now in a position to submit on behalf of the State of Karnataka that by 11.00 p.m. on 6-10-2016 an aggregate quantity of 36,000 cusecs of water will stand released.”

82. It is urged by Mr F.S. Nariman, learned Senior Counsel appearing for the State of Karnataka that as there has been compliance with the order and there is a commitment to comply till 6-10-2016, he should be allowed to argue the matter. Mr Shekhar Naphade, learned Senior Counsel for the State of Tamil Nadu submitted that the flow of supply should be maintained and the deficit should be made good within a definite period of time.

83. At this juncture, it is necessary to note that the Union of India has filed an application forming the subject-matter of IA No. 18 of 2016 wherein, it has been prayed as follows:

“(A) Pass an order modifying the orders dated 20-9-2016 and 30-9-2016 of this Hon'ble Court in the following manner:

(i) The direction to set up a Cauvery Management Board be reviewed and recalled;

(ii) A high-power technical team headed by Shri G.S. Jha, Chairman, Central Water Commission (CWC) Government of India, Shri Masood Hussain, member, Shri R.K. Gupta, Chief Engineer, CWC and such other experts as may be necessary to be decided by the Secretary, Ministry of Water Resources in consultation with Chairman, CWC be directed to proceed to the site so that an inspection of the entire Basin is done for assessing the ground realities and prepare a report forthwith for being placed before the Hon'ble Court.”

84. It is submitted by Mr Rohatgi, learned Attorney General for India that directions to set up a Cauvery Management Board should be recalled inasmuch as the Tribunal had recommended it and there cannot be a direction for constitution of the Board in view of the language used in the provisions contained in Sections 6 and 6-A of the Inter-State River Water Disputes Act, 1956 (for short “the 1956 Act”). Mr Naphade, learned Senior Counsel seriously criticised the said submission on the foundation that the Tribunal has recommended regard being had to the necessity for having a mechanism and Sections 6 and 6-A of the 1956 Act do not prohibit any Tribunal or a court of law to issue direction for constitution of a Board. He has referred to Sections 6(1), 6(2), 6-A(1) to 6-A(3). We think it appropriate to reproduce the said provisions. They read as under:

“6. Publication of decision of Tribunal.—(1) The Central Government shall publish the decision of the Tribunal in the Official Gazette and the decision shall be final and binding on the parties to the dispute and shall be given effect to by them.

(2) The decision of the Tribunal, after its publication in the Official Gazette by the Central Government under sub-section (1), shall have the same force as an order or decree of the Supreme Court.

6-A. Power to make schemes to implement decision of Tribunal.—(1) Without prejudice to the provisions of Section 6, the Central 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 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 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 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;

(f) the constitution of a fund by the authority, the amounts that 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 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

(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 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 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.”

It is the submission of Mr Rohatgi that as it is a debatable issue, the Court may not advert to the issue of review or recall but defer it to be considered at the time of the final disposal of the appeal. As advised, at present, we think it appropriate to defer the same.

85. At this stage, we are obliged to state that in the course of hearing, we asked Mr Nariman, learned Senior Counsel that the note he has filed (which we have reproduced hereinabove) covers the time till 6-10-2016 and the appeals can be heard as directed earlier on 18-10-2016 and, therefore, what should be the arrangement for the said period. Mr Nariman submitted that he has no instructions in the matter and he does not intend to make any statement in that regard. Thereafter, we enquired who would be in a position to obtain instructions from the State of Karnataka and Mr Mohan and Mr Raghupathy, appearing for the State sought some time to obtain instructions. As suggested by us, the matter was adjourned by half-an-hour and we took up the matter at 3.20 p.m.

86. At 3.20 p.m., Mr M.R. Naik, learned Advocate General for the State of Karnataka has filed a note which reads as follows:

“In response to the Hon'ble Court's query and in view of the Hon'ble Court suggesting that the pending IAs and objections to the Supervisory Committee's recommendations cannot be heard before 18-10-2016 and taking into account the drinking water requirement in the State, it will not be possible to release water at the inter-State border Biligundlu, of a quantity not more than 1500 cusecs per day on an average limited for a period of 10 days from 7-10-2016 to 16-10-2016.”

87. Mr Naik and Mr Mohan submitted that from 5-9-2016 to 30-9-2016, the State of Karnataka has released 17.5 TMC of water. The said aspect has been disputed by Mr Naphade after obtaining instructions. According to him, the State of Karnataka has released 16.9 TMC of water. The learned Senior Counsel for the State of Tamil Nadu would submit that the State of Tamil Nadu is in deficit of 4.6 TMC of water for the month of September and the State of Karnataka under the final order of the Tribunal is required to give 22 TMC of water for the month of October. If the note of the State of Karnataka is taken into consideration, 3.1 TMC of water will be released between 1-10-2016 to 6-10-2016. The learned Advocate General submitted that he has filed the note after obtaining instructions. Mr Nariman would contend that this Court should confine the release to the instructions obtained by the learned Advocate General as a real plight is faced by the inhabitants of the State of Karnataka.

88. Before we enter into the said arena, we think it appropriate to dwell upon the facet relating to have a report pertaining to the ground reality in both the States relating to the Cauvery basin. Mr Rohatgi, learned Attorney General submitted that in para 15 of IA No. 18 of 2016, he has given certain suggestions. Para 15 reads as follows:

“15. It is submitted that it would be in the fitness of things that a high-powered technical team is appointed by the Chairman of the Supervisory Committee who is the Secretary of the Ministry of Water Resources. The composition of the technical team would be Shri G.S. Jha, Chairman/Member, Central Water Commission (CWC), Government of India (who would be the Chairman of the said team), Shri Syed Masood Hussain, Member (CWC), Shri R.K. Gupta, Chief Engineer (CWC) and such other experts as decided by the Secretary, Ministry of Water Resources in consultation with Chairman, CWC to proceed immediately to the site so that an inspection of the entire basin is done for assessing the ground realities and prepare a report forthwith for being placed before this Hon'ble Court.

This technical team will inspect the entire basin, make an assessment of the entire issue, prepare a report forthwith within 30 days thereof.

It is found that Karnataka has the following reservoirs:

(i) Hemavathi

(ii) Harangi

(iii) Krishna Raja Sagara

(iv) Kabini

The State of Tamil Nadu has the following two reservoirs:

(i) Mettur

(ii) Lower Bhavani Dam

(iii) Amaravati”

89. Mr Naphade, learned Senior Counsel appearing for the State of Tamil Nadu submitted that he has no objection for the same but it should include a technical person from each of the State and the Chief Secretary of the States. Mr Naik, learned Advocate General for the State of Karnataka also acceded to the same. In view of the aforesaid, we direct the technical team headed by Mr G.S. Jha, Chairman, Central Water Commission (CWC), Government of India shall be constituted. It shall have, Shri Syed Masood Hussain, Member, CWC, Shri R.K. Gupta, Chief Engineer, CWC and a Chief Engineer or any competent authority nominated by the State of Karnataka and the State of Tamil Nadu and the Chief Secretaries or their nominee of both the States. Mr G. Prakash, learned Standing Counsel for the State of Kerala submitted that a Chief Engineer shall also be included in the team. Mr Nambiar, learned Senior Counsel appearing for the Union Territory of Puducherry also submitted that a Chief Engineer from Puducherry shall also be included in the team. It is so directed. They shall also be included in the team.

90. The said team shall go to the area in question and submit a report relating to the ground reality before this Court on 17-10-2016. Needless to say, the report shall be served on the learned counsel for the parties prior to that.

91. Let the IAs and appeals be listed on 18-10-2016. Needless to say, the IAs, objections thereto and the report shall be considered on 18-10-2016. Registry is also directed to list the appeals on that day. As far as the interim arrangement is concerned till 18-10-2016, we direct that the State of Karnataka shall release 2000 cusecs of water from 7-10-2016 till 18-10-2016.

92. Call on the date fixed.

(2016) 10 SCC 660

Order dated 18-10-2016

(Before Dipak Misra, Amitava Roy and A.M. Khanwilkar, JJ.)

Civil Appeals No. 2453 of 2007 with Nos. 2454, 2456 of 2007

93. Mr Mukul Rohatgi, learned Attorney General for India being assisted by Ms Pinky Anand, learned Additional Solicitor General has filed the Report of the Committee. The conclusion of the Report reads as under:

“Social aspects

1. The plights of farmers in both the States have been witnessed. In the absence of required water the labour employment for farming and fishing is also limited creating a scenario of unemployment and financial hardship to them.

2. There has been large number of suicides reported in Mandya District of Karnataka.

3. The Government of Karnataka has declared 42 out of 48 talukas under Cauvery basin as drought-affected talukas based on the Central Government guidelines.

4. Both the States of Karnataka and Tamil Nadu need to appreciate interest of Tamil Nadu and Puducherry in protection of their established irrigation and Karnataka's aspirations for development respectively and should educate their people accordingly.

Technical aspects

1. The deficit impact on account of water allocation at 50% dependability can be neutralised to some extent by optimal, dynamic and resilient planning of the cropped area considering the flow pattern and forecast. This can address the issue of unemployment and financial hardship in the basin States.

2. The water application techniques are outdated and unscientific and the value of water is not realised. The water applied to the field is on the concept of flooding from one field to another adjacent field and as such the water consumption is on the higher side and during period of distress this becomes very significant depending upon the soil condition. The infrastructure to deliver water to the farmers is century old and has very low conveyance efficiency. This needs to be modernised for optimal use of scarce water. The conveyance efficiency can be further improved by piped distribution network and application efficiency by micro irrigation (sprinkler and drip) and precision irrigation. In addition, on-farm development (OFD) works may be provided to ensure equitable distribution of water to individual farmer's field.

3. At places near the coast the groundwater cannot be utilised for the reason that water is saline due to ingress from seawater. The only source of irrigation in such areas is surface water from Mettur reservoir.

4. The efforts made by the Government of Tamil Nadu by way of providing subsidised agricultural inputs can bear fruits only when sufficient water is made available for the full crop period.

5. The drinking water demands needs to be optimised and efficient delivery mechanism needs to be put in place.

6. Automated water measuring instrumentation needs to be provided for transparent recording of flows and water diversion along with system for online transmission and retrieval of data through dashboard.

7. Crop alignment and crop diversification need to be practised.

8. Participatory Irrigation Management is to be encouraged for optimal, efficient and equitable distribution of water amongst the farmers.”

94. As we find from the Report, the Committee has not suggested with regard to any quantity of water. Mr Rohatgi, learned Attorney General has, when the matter was taken up at forenoon session, submitted that the appeals by special leave filed by all the States, namely, Karnataka, Tamil Nadu and Kerala are not maintainable. Mr A.S. Nambiar, learned Senior Counsel appearing for the Union Territory of Puducherry echoed the same argument.

95. Mr Rohatgi addressed at length with regard to the maintainability of the appeals and after he has finished, Mr Fali S. Nariman, learned Senior Counsel appearing for the State of Karnataka commenced his submission. The stand of Mr Nariman is that the appeal by special leave is maintainable. We intend to adjudicate the maintainability of the appeals which have been preferred by special leave under Article 136 of the Constitution first.

96. At this juncture, the issue that arises for consideration is what should be the nature of interim order. On 4-10-2016, we had directed the State of Karnataka to release 2000 cusecs of water from 7-10-2016 till 18-10-2016. It is submitted by Mr M.R. Naik, learned Advocate General appearing for the State of Karnataka that the order has been complied with.

97. Mr Shekhar Naphade, learned Senior Counsel appearing for the State of Tamil Nadu submits that the State is in dire need of water. We take note of it. Mr Nariman, learned Senior Counsel appearing for the State of Karnataka submitted with quite promptitude that Karnataka is also not in a better stage. Mr Rohatgi, learned Attorney General referred to the Report to highlight the issue that both the States are in the state of dire need of water. We have been apprised that north-east monsoon has not yet set in and the prediction is that it is likely to set in from 25-10-2016. We have so recorded as the learned counsel at the Bar have apprised us so.

98. Let the matter be listed on 19-10-2016 for further hearing. The interim order passed on the earlier occasion shall continue until further orders.

99. At this stage, we are compelled to reiterate our earlier order in which we had expressed with certitude that the Executive of both the States shall see to it that the peace and harmony be maintained in both the States and citizens do not become law unto themselves. It will be the obligation of the Executive to see that when the matter is heard and the interim order has been passed and the State of Karnataka is complying with the order and is bound to comply, mutuality of respect between both the States and the citizens should be maintained. Maintenance of law and order and care for public property is a sign of elevated democracy.

(2016) 10 SCC 662

Order dated 19-10-2016

(Before Dipak Misra, Amitava Roy and A.M. Khanwilkar, JJ.)

Civil Appeals No. 2453 of 2007 with Nos. 2454, 2456 of 2007

100. Heard Mr Mukul Rohatgi, learned Attorney General for India appearing for the Ministry of Water Resources, Government of India, Mr F.S. Nariman, learned Senior Counsel appearing for the State of Karnataka, Mr Shekhar Naphade, learned Senior Counsel appearing for the State of Tamil Nadu, Mr A.S. Nambiar, learned Senior Counsel appearing for the Union Territory of Puducherry and Mr Jaideep Gupta, learned Senior Counsel appearing for the State of Kerala.

101. Hearing on the issue of maintainability was resumed and stands closed. Judgment reserved. The interim order passed on earlier occasion shall continue. Written notes of submissions shall be filed by 24-10-2016.

Court Masters