Dipak Misra, J. -
(1.) - In these Civil Appeals the assail by the States of Karnataka, Kerala and Tamil Nadu is to the final order dated 05.02.2007 passed by the Cauvery Water Disputes Tribunal (for short, "the tribunal") constituted under the Inter-State River Water Disputes Act, 1956 (for short, "the 1956 Act"). It is apt to note here that certain interlocutory applications were filed by the State of Tamil Nadu for release of water highlighting the scarcity of water faced by it and further laying stress on the predicament of the farmers. This Court had passed certain interim directions on 27th of September, 2016 while dealing with I.A. Nos. 15 and 16 of 2016. The Court sought the assistance of the learned Attorney General for India to find out the view of the Union of India, whether it would facilitate a discussion so that the impasse between the two States would appositely melt. The matter was adjourned to 30th of September, 2016 and on that day, Mr. Mukul Rohatgi, learned Attorney General for India apprised this Court that the meeting had been held under the Chairmanship of Union Minister of Water Resources, River Development and Ganga Rejuvenation and the Minutes of the said meeting were produced before the Court. The Minutes indicated that despite best efforts to make both the States to arrive at a consensus on release of Cauvery water, they took such divergent stands as a consequence of which nothing could be resolved. After noting various aspects, the Court enquired from the learned Attorney General with regard to constitution of the Cauvery Management Board to which he responded that the Board would be constituted on or before 4th of October, 2016. Keeping in view the submissions, the Court directed the States, namely, Tamil Nadu, Karnataka and Kerala and Union Territory of Puducherry to nominate their respective representatives as per the final order passed by the tribunal. The earlier order to release 6000 cusecs of water was reiterated. The matter was adjourned to 6th of October, 2016.
(2.) Before the matter could be listed on the date fixed, the learned Attorney General for India mentioned the matter on 03.10.2016 that Union of India had sought for some modification of the earlier order. The matter was taken up on 4th of October, 2016. On that day, the Court noted that the order passed by it relating to release of water had been complied with. Thereafter, it adverted to the I.A. 18 of 2016 which had been filed on behalf of the Union of India seeking modification of the orders dated 20th of September, 2016 and 30th of September, 2016. After reproducing the prayer, the Court dwelled upon the submissions of Mr. Rohatgi, learned Attorney General for India, Mr. F.S. Nariman and Mr. Shekhar Naphade, learned senior counsel appearing for the States of Karnataka and Tamil Nadu respectively and thereafter passed the following order:-
"It is the submission of Mr. Rohtagi that as it is a debateable 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.
At this stage, we are obliged to state that in 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.
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 18th October, 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 7th October, to 16th October, 2016."
Mr. Naik and Mr. Mohan submitted that from 5.09.2016 to 30.09.2016, 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. Learned senior counsel for the State of Tamil Nadu would submit that the State of Karnataka is in deficit of 4.6 TMC of water for the month of September and 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 faced by the inhabitants of State of Karnataka.
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. Rohtagi, learned Attorney General submitted that in paragraph 15 of the IA No.18 of 2016, he has given certain suggestions. Paragraph 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 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 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:
(iii) Krishan Raj Sagar
The State of Tamil nadu has the following two reservoirs:
(ii) Lower Bhavani Dam
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 Hussin, Member, CWC, Shri R.K. Gupta, Chief Engineer, CWC and a Chief Engineer or any competent authority nominated by the State of Karnataka and 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.
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.
Let the I.As. and appeals be listed on 18.10.2016. Needless to say, the I.As., 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."
(3.) On 18th of October, 2016, the learned Attorney General being assisted by learned Additional Solicitor General filed the report of the Committee which pertained to social aspects and technical aspects. It is worthy to note that the Committee had not suggested anything with regard to quantity of water that could be released by the State of Karnataka. At that point of time, learned Attorney General submitted that the appeals, by special leave, preferred by the States, namely, Tamil Nadu, Karnataka and Kerala are not maintainable. The submission of Mr. Rohatgi was echoed by Mr. A.S. Nambiar, learned senior counsel appearing for the Union Territory of Puducherry. In view of the aforesaid submission, it was decided to hear the maintainability of the appeals and the interim order passed on earlier occasion was directed to be continued until further orders. The issue of maintainability of appeals was heard and ultimately the order was reserved.;