In The Supreme Court of India Civil Appeal Jurisdiction Case No. Civil Appeal No. 2453 of 2007 Appellant The State of Karnataka Respondent State of Tamilnadu & Ors. Date of the Judgment Decided on 16th Februrary, 2018 Bench Justice Amitava Roy, Justice C J D Misra, Justice A. M. Khanwilkar
Background
Political Facts
The geographic location of Tamil Nadu means that historically it has been dependent on other states for its water needs. And Cauvery is one of its lifelines from Karnataka. The dispute between the two states over sharing of water dates back to the British era.
In 1924 the British broked an agreement to be operative for 50 years. The Madras presidency and Mysore signed an agreement and the Mysore state the right to use surplus water from river cauvery. As per this agreement, Tamilnadu and Puducherry would get 75% of the surplus water, while Karnataka would get 23%. The remaining would go to Kerala. There were no restrictions on how much land could be irrigated.
International Background
At International Level the concept of water treaties is not new. It is recognised that the history of international water treaties dates are far back as 2500 BC, when two Sumerian city states of Lagash and Umma crafted an agreement ending a water dispute along the Tiger River – often said to be the first treaty of any kind. Since then a large body of water treaties has emerged. According to the Food and Agriculture Organization more than 3,600 treaties related to international water resources have been drawn up since 805AD and various other till now.
The Convention on the Protection and Use of Transboundary International Lakes was adopted in Helsinki in 1992 and entered into force in 1996. Almost all the countries sharing transboundary waters in the region of the United Nations Economic Commission for Europe are parties to the convention. These water conventions are basically requires the parties to prevent, control and reduce transboundary impact, use transboundary water in a reasonable and equitable way and ensure their sustainable management. Parties bordering the same transboundary waters have to cooperate by entering into specific agreement and establishing joint bodies. In 2003, the Water Convention was amended to allow accession by countries outside the UNECE region. The amendment entered into force on 6 February 2013, turning the Water Convention into a legal framework for trans boundary water cooperation worldwide. As of 1st March 2016, all United Nations Member States can accede to the Convention.
Judicial Background
In India, there were various inter-water disputes like Godawari Water Dispute, Krishna Water Dispute Tribunal, Narmada Water Dispute Tribunal, Ravi & Beas Water Dispute Tribunal but the Hon’ble Court tried its best to strike down a balance between the need of states. Water is something which is a basic necessity for anyone and restriction on any state for water is not right. The Hon’ble Court always considers the importance of water for both the parties and tried to provide it to both the parties.
Facts
1. In 1924 the British booked an agreement to be operative for 50 years. The Madras presidency and Mysore signed an agreement and the Mysore state the right to use surplus water from river Cauvery. As per this agreement, Tamilnadu and Puducherry would get 75% of the surplus water, while Karnataka would get 23%. The remaining would go to Kerala. There were no restrictions on how much land could be irrigated.
2. 1970– The Cauvery Fact Finding Committee found that Tamilnadu’s irrigated lands had grown from 1,440,000 acres to 2,580,000 acres while karnataka’s irrigated area stood at 680.000 acres, resulting in an increased need of water for TamilNadu. Karnataka has opposed this proposal. Sparse rains has forces the Tamilnadu to block water supply to tamilnadu, which retaliated disrupting power supply form Neyveli. This continued till 2016.
3. On 5 2007– The Cauvery Water Disputes Tribunal holds as valid the two agreements of 1892 and 1924 executed between the Governments of Madras and Mysore on the apportionment of water to Tamil Nadu. The final award makes an annual allocation of 419 tmcft to Tamil Nadu in the entire Cauvery basin, 270 tmcft to Karnataka, 30 tmcft to Kerala and 7 tmcft to Puducherry out of the total 740 TMC available in the Cauvery basin in a normal year.
4. Tmailnadu and Karnataka states were unhappy with the decision of this tribunal filed a revision petition in before the tribunal seeking review.
5. 19, 2012– Prime Minister Manmohan Singh directs Karnataka to release 9,000 cusecs of Cauvery water to Tamil Nadu at Biligundlu.
6. 28, 2012: Supreme Court slams the Karnataka government for not complying with PM’s direction at the CRA.
7. On 2nd 2016, Supreme Court asked Karnataka to consider Tamil Nadu’s plea on humanitarian grounds and release water and advised both the states to maintain harmony. Both the states were claiming different amount of water supply and Supreme Court order to release 15,000 cases to Tamil nadu for next days.
8. September 20, 2017: The Supreme Court reserved its judgment on the appeals filed by Tamil Nadu, Karnataka and Kerala.
Issues Raised
1. Whether in view of the provisions contained in Article 262 of the Constitution and Section 11 of the Inter state water dispute Act, 1956, the suit is maintainable?
2. Are pre-independence agreement or conditions on water supply still applicable ?
3. Whether the suit for the enforcement od and interim order of the inter-state water disputes tribunal is a suit relating to a water dispute?
4. Whether is it open to the state of Karnataka to unilaterally reduce the monthly release of water release of water required to made as per the order dated 25.6.1991 read with order dated 3.4.1992 .
Arguments
Petitioner’s Argument
- That the Court should exercise the wide powers bestowed in it under Article 136 of the constitution in case of this nature and exercise its discretion.
- It is also submitted that the matter to the Tribunal for fresh consideration would be an exercise in futility and a drain on the resources of all the parties concerned which must be eschewed.
- According to Karnataka State, they don’t have sufficient amount of water to make a supply in any other state.
Respondent Argument
- The state of Karnataka has violated the inter-state water agreement.
- If the state of Karnataka will not release the water amount then the crops of Tamilnadu state will be destroyed.
- They have also submitted that the state of Karnatak should not utilize of Cauvery beyond the limit as per order dated 13 May, 1972.
- It was also submitted that State of Karnatak should be restrained from making any further construction of dams, projects, reservoirs on Cauvery basins.
- State of Karnatak is taking advantage of delay in resolving the dispute and extending its canal area.
Judgment
The Supreme Court has observed that the state of Karnataka has claiming this relief to resolve this dispute as soon as possible. After coming into force of the 1947 Act, the doctrine of paramountcy has no room for application as the Government of India became the full sovereign authority. The two agreement of 1892 and 1924 had neither any political agreement and nor touched any facet of sovereignty of India. Per contra, the agreement cover the areas of area public interest which do not have any political element and in this backdrop, the agreement are neither inoperative nor completely extinct.
The issues in this case have no connection, whatsoever, with the concept of sovereignty and integrity of India and, therefore, the bar under Article 363 of the constitution of India is not attracted.
Even if we accept the connection that the state of Karnataka did not have any bargaining power at the time of entering into the agreements, but, the state of Karnataka acquired the said bargaining power after the 1947 Act, and definitely after coming into force the Constitution of India. Regardless of the same, the state of Karnataka acquired the said bargaining power after the 1947 Act, and definitely after coming into force the Constitution of India. Regardless of the same, the state of Karnataka chose not do denounce the said agreements. Therefore, the said agreements can not be said to be unconscionable.
The newly formed states never belied the agreements of 1892 and 1924 after the Reorganization Act, 1956, Ergo, both the agreements remained in force despite coming into effect of the Reorganization Act, 1956.
A scrutinized perusal of the 1924 Agreement reveals that the said Agreement was never intended to be of permanent character. On the contrary, it contemplated a fixed term of 50 years. Therefore, the said agreement expired after 50 years in the year 1974.
The Tribunal in its approach primarily referred to Helsinki Rules, 1966 which rejected the Harmon doctrine and laid stress on equitable utilization of international rivers. We are of the opinion that the Tribunal was correct in its approach. For determining reasonable and equitable shares, relevant factors have to be considered together, in reaching a conclusion. Keeping in view the various intricacies involved in the case at hand and the duly ordained upon this court by the Constitution of India, the matter deserved to be adjudicated on the bedrock of equal status of the states and doctrine of equitability. Resultantly, the submission that the complaint of the state of Tamil Nadu did not warrant any adjudication, does not commend any acceptation.
The Court held that water of an inter-state river passing through corridors of the riparian states constitutes a national asset and no single state can claim exclusive ownership of its water. In this context, the principle of equitable apportionment internationally recognized by the Helsinki Rules, Compiegne Rules and Berlin Rules which have also been incorporated in the 1987 to 2002 National Water Policies, have been regarded to be the guiding factor for resolving dispute qua apportionment of water of an interstate river.
After considering all relevant materials brought on record, we are of the view that having regard to imperative of economy of consumption of water, the final determination of irrigated areas arrived at by the Tribunal for Tamil Nadu, can not be declared incorrect or fallacious.
We do not find any perversity of approach in the Tribunal’s finding with regard to the allocation of water for domestic and industrial purposes in the State of Tamil Nadu.
Drinking water requirement of overall population of all the states has to be placed on higher pedestal as we treat it as a hierarchically fundamental principles of equitable distribution.
The rejection of the stand of Kerala seeking trans-basin diversion for hydro-power projects by the Tribunal is justified. The Tribunal has allocated a total of 30 TMC of water towards the overall needs of the state of Kerala and we concur with the said conclusion of the Tribunal.
We concur with the Tribunal’s finding that the Union Territory of Pondicherry is entitled for a second cropl, having regard to its unique geographical positions and its irrigated area being approximately 43,000acres.
The allocation of water in favour of Union Territory of Pondicherry does not require any further enhancement.
In view of the allocation of additional 14.75 TMC of water to Karnataka, the State of Karnataka would now be required to release 177.25 TMC of water at the inter-state border with Tamil Nadu, i.e., at Billigundulu. The argument of the Union of India that Section 6A of the 1956 Act by employing the word “may” has left room for discretion to the Central Government for the purpose of framing a scheme does not stand to reason and further it does not meet the substance test. Accordingly, the said submission stands repelled. That apart, the framing of the scheme is exclusively meant for implementation of the award or as the same gets modified by this Court.
Case Comment
I think, water is an essential element for everyone. No one can survive without water. The State of Karnataka is not releasing the water to the State of Tamil Nadu which is very unfair. The state of Tamil Nadu doesn’t have any other source of water but the state of Karnataka is not understanding the problem of Karnataka. We are one nation as a whole and it is important to understand the problems of each other like a family. In a family, we do understand problems of others and help them. The same principle should be applied in our nation and selflessly think about other states as well. If the state of Karnataka doesn’t have the claimed capacity then they should release as much as they can. In the same manner, state of TamilNadu should not think of their own necessity but also about state of Karnataka. This is how we can set great example of ” Unity in Diversity “.
Edited by Shuvneek Hayer
Quality check – Ankita Jha
Approved & Published – Sakshi Raje
