- (1.) These petitions under Art.226 of the Constitution of India are moved by one R. Krishnaiah for reliefs inter alia to forthwith implement the Bachawat Commission Award on inter-State water dispute between the States of Karnataka, Maharashtra and Andhra Pradesh and consequential reliefs. Petitioner has claimed that he is having both personal interest and public interest in the Us as like many other small-farmers, he has claimed, his livelihood, existence and right tolife and right to vocation and right to avocation depends upon the sharing of water of river Krishna between the said three riparian States and water's availability for agriculture and other activities. He has brought the historical perspective by stating that the systems of river Krishna and Godavari are sustainers of life for inhabitants of the three States. The rivers are venerated and worshipped as Mother goddess since water they bring to the land sustains bom culture and economy. The history of the flow of Krishna river, according to the petitioner. "is sanctified by tradition venerated by people and used by normal multitudes. Governmental intervention began in 1850 when the British Government even from the days of East India Company created Krishna Ayacut at Bezwada through such benevolent and magnificient builders like Sir Arthur Cotton. This began the tryst with destiny by creating Krishna Anicut at Vijayawada. From 1921 till the third decade of 20th Century control vested with Central Government becauseitwasa Unitary Government and from then onwards "Water" became provincialised. There are administrative understandings in 1944 and again in 1951 after the advent of the Constitution. But they have no legal sanctity but were acted upon with some demur some times but on the whole Krishna River was having the peaceful placid flow. Increased needs of irrigation coupled with advanced technology construction in Projects for irrigation and for Hydro-Power Generation made the citizens and States clamour for more resulting in proprietory claims camouflaged by provincial parochialism." The Constitution of the Indian Republic included in the Union List of the VII Schedule at item 56 "Regulation and Development of inter-State rivers and river flows" to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest and in the State list 'Water' that is to say, Water supplies, irrigation and canals, drainage and embankments water storage and water power subject to the provisions of Entry 58 of List I and thus the law making power in respect of Entry 56 is vested in the Parliament and in respect of Entry 17 in the Legislature of the States. Constitution also envisages a special provision for adjudication of disputes relating to waters of inter-State river or river valleys and has.provided in Art.262, as under: "Adjudication of disputes relating to waters of inter-State river or river valleys - (1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley. (2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other Court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1)." Exercising law making authority under Entry 56 of List I the Parliament has made the River Boards Act, 1956 (Act 49 of 1956) to provide for the establishment of River Boards for the regulation and development of inter-State rivers and river valleys and for adjudication of disputes relating to waters of inter-State river or river valleys as envisaged under clause (2) of Art.262 as above made the Inter-State Water Disputes Act, 1956 (Act 33 of 1956). Act 33 of 1956 has in clause (c) of Section 2 defined 'water dispute' to mean any dispute or difference between two or more State Governments with respect to (i) the use, distribution or control of the waters of, or in, any inter-State river or river valley; or (ii) the interpretation of the terms of any agreement relating to the use, distribution or control of such waters or the implementation of such agreement; or (iii) the levy of any water-rate in contravention of the prohibition contained in Section 7, which provides mat no State Government shall by reason only of the fact that any works for the conservation, regulation or utilisation of water resources of an inter-State river have been constructed within the limits of the State, impose, or authorise the imposition of, any seigniorage or additional rate of fee (by whatever name called) in respect of the use of such water by any other State or the inhabitants thereof and that any dispute or difference between two or more State Governments with respect to the levy of any water-rate in contravention of the prohibition contained in sub-section (1) shall be deemed to be a water dispute. The Act has contemplated that the State Governments may in such form and manner as may be prescribed complain to the Central Government that a water dispute with the Government of another State has arisen or is likely to arise by reason of the fact that the interests of the State or of any of the inhabitants thereof in the waters of an inter-State river or river valley have been or are likely to be affected prejudicially by (a) any executive action or legislation taken or passed or proposed to be taken or passed, by the other State; or (b) the failure of the other State or any authority therein to exercise any of their powers with respect to the use, distribution or control of such waters; or (c) the failure of the other State to implement the terms of any agreement relating to the use, distribution or control of such waters, and when any request is received from any State Government in respect of any water dispute and the Central Government is of the opinion that the water dispute cannot be settled by negotiations it shall by notification in the official Gazette constitute a Water Disputes Tribunal for the adjudication of the water dispute. The Act .has contemplated the composition of the Tribunal to consist of a Chairrnan and two other members nominated in this behalf by the Chief Justice of India from among persons who at the time of such nomination are Judges of the Supreme Court or of a High Court and for appointment of two or more persons as assessors to advise it in the proceeding before it. The Tribunal is given the power to investigate the matters referred to it and forward to the Central Government a report setting out the facts as found by it and giving its decision on the matters referred to it. The Central Government or any State Government if upon consideration of the decision of the Tribunal is of opinion that anything therein contained requires explanation or thatguidance is needed upon any point not originallyreferred to theTribunal,may with in three mon ths from the date of the decision again refer the matter to the Tribunal for further consideration and on such reference/ the Tribunal may forward to the Central Government a further report giving such explanation or guidance as it deems fit and in such a case the decision of the Tribunal shall be deemed to be modified accordingly. Section 6 of the Act provides for the publication of the decision of the Tribunal in these words: "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." The Act, however, was silent and it contemplated no schemes for implementation of the decision of the Tribunal. By the Inter-State Water Disputes (Amendment) Act, 1980, Section 6-A has been introduced which empowers me Central Government without prejudice to the provisions of Section 6 to frame a scheme or schemes, by notification in the Official Gazette, whereby provision may be made for all matters necessary to give effect to the decision of a Tribunal. This provision reads as follows: "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 implemention 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 the 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 benecessaryorproper 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 decisions 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. (4) a scheme may empower the authority to make, with the previous approval of the Central Government, regulations for giving effect to the purposes of the scheme, (5) The Central Government may, by notification in the Official Gazette, and to, amend, or vary, any scheme framed under sub-section (1). (6) Every Scheme framed under this Section shall have effect notwithstanding anything contained in any law for the time being in force (other man this Act) or any instrument having effect by virtue of any law other than this Act. (7) Every scheme and every regulation made under a scheme shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session of the successive sessions aforesaid, both Houses agree in making any modification in the scheme or the regulation or both Houses agree that the scheme or the regulation should not be made, the scheme or the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that scheme or regulation," As envisaged in clause (2) of Art. 262 of the Constitution this Act also provides, " notwithstanding anything contained in any other law, neither the Supreme Court npr any other Court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act."
(2.) The petitioner has stated that use and sharing of Krishna water which at one time was subject matter of a dispute between the States of Andhra Pradesh, Maharashtra and Karnataka was referred to a Tribunal constituted under Sec5 (3) of the Inter-State Water Disputes Act, 1956. The Tribunal investigated the matter as contemplated under the Act and forwarded its unanimous decision and report to the Governentof India on the 24th December, 1973. The Government of India and the States of Andhra Pradesh, Karnataka and Maharashtra filed references under Section 5 (3) of the Act and replies to the reference and the Tribunal heard elaborate arguments of the counsel for the parties and answered the references and finally the Central Government published the decision of the Tribunal in the official Gazette on31-5-1976. Since there was no provision like one under Section 5- A of the Act at the time of the publication of the award there was some attempt to evolve a mechanism for the implementation of the decision of the Tribunal by creating an authority for the said purpose. This attempt, however, could not receive the finality. Parties, however, generally accepted the decision of the Tribunal and appropriated water allocated to their respective share in accordance with the provisions in this behalf as specified in the decision of the Tribunal. Petitioner, however, has stated that in the State of Karnataka in execution of Upper Krishna Project Almatty Dam is being constructed which has the effect of impounding 400 T.M.C. of water whereas as per the allocated quota of Karnataka 540 T.M.C. are to be used for approved small medium and lift irrigation projects and 160 T.M.C. for major projects. According to the petitioner quota for major projects of Karnataka is 160 T.M.C. Almatty alone being one of the major projects of the State of Karnataka is meant for using 400 T.M.C. of water. Karnataka according to the petitioner, has already appropriated under Ipparagi Barriage and Narayanpur project 42 T.M.C. and only 118 T.M.C. of water is available which can be used for major projects. Petitioner has further stated as follows: "Actually Almatty Dam was designed in the beginning in keeping with the legal and constitutional requirements of Commission Award. Now lately the Karnataka State changed the design to store 220 T.M.C., of water apart from making a further provision of utilising and storing 358 T.M.C. Originally the Almatty Project Dam height was 1680 feet giving a storage capacity of Reservoir upto 102 T.M.C. Now the masonary Dam height is planned, raised and completed more than 1720 feet and with the provision and addition of installation of Crust Gates taking the Dam beyond 1740 feet. Actually the masonary Dam is now complete upto 1734 feet and spillway gates are being installed at 1720 feet. This contract is being executed with remarkable accelerated rapidity. This project is going to be completed by 1998 as per the reported statement of the Hon"ble Irrigation Minister of Karnataka Sri K.N.Naga Gouda recently. Actually Almatty Dam which is part of Upper Krishna Project was originally estimated at a cost of Rs346 Crores. Now the revised estimate is Rs.1800 Crores with Rs.564 Crores and 1236 Crores for both the Phases. Even though the World Bank agreed to assist this Project as originally planned and released a token sum of Rs.30 Crores, it stopped the aid since it has no Central clearance in view of the Commission award, But the Karnataka State to our utter appreciation and to our total disadvantage and in significant contra-distinction to the State of Andhra Pradesh's failure to raise resources for right causes, our fellow countrymen in Karnataka mobilised large sums of money by way of Bonds to avoid anyldelay in completing the Project for paucity of funds caused by the discontinuance of assistances by World Bank, Unfortunately the raising of the Dam height and storing of water beyond 118 T.M.C. is utterly illegal, contrary to Award of Commission and devoid of any clearance from the Central Government, Planning Commission and Central Water . and Power Commission." According to the petitioner when actually 155 T.M.C. should be stored by Upper Krishna Project as per the decision of the Tribunal the height of Almatty should be restricted to 1690 feet only. By using the present full capacity of 400 T.M.C. of Krishna water at Almatty Reservoir 34 lakhs of acres of land under Srisailam, Nagarjuna and Prakasam Barriages would become fallow and useless. Even release of water to the first crop would be dependant on the willingness of the Karnataka Government thereby jeopardising the interest of the people of the State and added. "The Srisailam Left and Right banks and Telugu Ganga Projects would be in utter confusion and no water can be released except with the consent of Karnataka Government in each water year even by September-October resulting in huge holocause for Andhra Pradesh. The Karnataka State's exercise on Almatty Dam results in loss and reduction of 282 to 300 T.M.C. in the supply of water to Andhra Pradesh apart from the concept of the "remaining waters" which means that water may be released to the lower riparian users after the needs of upper riparian users are fulfilled. This leads to a further dangerous situation of Andhra Pradesh being starved for water till September/October in each water year (i.e. 1st June to 30th of succeeding year) till all the reservoirs of Karnataka are filled up. There is a risk of Andhra Pradesh not getting of any water by which time even the Planting season for the first crop may be over. The Almatty present Dam is reportedly capable of cultivating 20 lakhs of acres while Karnataka Government stand as reported in the Press by the statement of the Hon'ble Sri K.N.Naga Gouda, the Irrigation Minister is to the effect that it wants to store more water for generation of Hydro Electric Power." Petitioner has stated about the procedure involved in getting clearances as follows: "As water including irrigation and water power isa State subject (Entry 17. List II) it is the State Governments which investigate and formulate schemes for, development of water resources and ultimately accord administrative approval to them. However, as economic and social planning is a Concurrent subject (Entry 20, List III), the Union Government as well as the State Governments prepare five year and annual Plans for developing the country's resources. The Union Government has the discretionary power under Article 282 of the Constitution to make grants for any public purpose including grants to. State Governments for financing the State Plans. For obtaining these grants, the State Governments are required to obtain clearance of their projects from the Planning Commissioner. When a scheme has been fully investigated and a project report is prepared, the report is submitted by the State Government to the Central Water and Power Commission. After scrutiny of the technical and economic feasibility of the project the latter makes a report to the Technical Advisory Committee on Irrigation, Flood Control and Power Projects of the Government of India. This Committee advises the Planning Commission and the Ministry of Irrigation and Power on the suitability of the scheme for inclusion in the Plan. The schemes are included in the Plan by the Planning Commission, keeping in view the country's resources and the best method for their effective and balanced utilisation." and added. "The hightened Almatty Dam has no such clearances." The petitioner has adverted to the basic findings of the Commission to state as follows: "(A) The Commission found "we are satisfied prima facie that the reasonable requirements of all Projects in operation or under construction as on September, 1960 should be preferred to the contemplated uses and should be protected." (B) The Commission found that 2060 T.M.C. of water is available for distribution between the States of Maharashtra, Andhra Pradesh and Karnataka. (C) The Commission found that Karnataka should use about 695 T.M,C. while Andhra Pradesh is entitled to 800 T.M.C. and State of Maharashtra is entitled to 565 T.M.C, (D) The Commission found that the excess water available may be utilised by Andhra Pradesh subject to review by 2000 A.D. (E) The Commission found that the entire water is 2060 T.M.C. available for distribution between the States of Maharashtra, Karnataka and Andhra Pradesh basing on 75% dependability Rule." and added mat in the statement filed by Karnataka Government regarding Upper Krishna Project before the Tribunal it was proposed to utilise a demand of 165 T.M.C. for medium and minor projects. 65 T.M.C., for Bhima Project 80 T.M.C,, for lower Krishna 240 T.M.C., making a total demand of 550 T.M.C. According to the petitioner Bachawat Award has permitted Upper Krishna Project upto a storage capacity of 150 to 160 T.M.C. , only. The Central Government and Water Commission have cleared the Almatty Project only upto that limit for storing 102 T.M.C. and height of 1680 feet for the dam. According to the petitioner the Karnataka Government's act of creating the Dam upto a height of 1720 feet and the spillway gates to 1740 feet will give to it an opportunity to store water upto 400 T.M.C, which is contrary to the decision of the Tribunal.
(3.) The State of Andhra Pradesh (the second respondent) has filed more than one returns to the petition and maintained; "The Government is taking all possible steps and as recently as on 22-3-1996 and 17-7-1996 the Legislative Assembly of the State has passed unanimous resolutions condemning the action of the third respondent (the State of Karnataka) in raising the height of the Almatty Dam in violation of the decision of the Tribunal and forwarded the same to the Central Government for necessary action." The Andhra Pradesh Government's stand is that the decision of the Tribunal as notified by the Central Government on 31-5-1976 under Section 6 of the Inter- State Water Disputes Act 1956 has proceeded on the basis of the 75% dependable flow of the river Krishna upto Vijayawada and that 2060 T.M.C. of water was available for distribution between the States of Maharashtra., Karnataka and Andhra Pradesh. Additional quantities of water, the Tribunal has mentioned, will be added to the 75% dependable flow of the river Krishna upto Vijayawada on account of return flow and will be available for distribution between the States of Maharashtra, Kamataka and Andhra Pradesh. After giving how shares are being allotted for utilisation of water for various purposes by the three riparian States, the affidavit filed on behalf of the Government has alleged that it has been reliably learnt that Government of Karnataka is planning to raise the height of Almatty Dam upto + 1720 feet (524.26 M) providing an enormous storage capacity of 227 T.M.C. and added. "This capacity along with the available capacity at Narayanpur (38 T.M.C) would enable Karnataka to utilise as much as 400 T.M.C. against the allocation of 155 T.M.C. This will vitally affect flow of river water downstream to Andhra Pradesh which is the terminal State, during the mansoon period. In terms of the award all beneficial uses of water including uses for production of Hydro Power are permitted to the extent of allocation only." It is also alleged in this affidavit. "On the specific question being raised by the Government of India for clarification; the Tribunal made a clarification in I (b) of Chapter II of the Tribunal Report as follows: 'At page 447 of Vol.n of the Report we have observed that where the tail-race water after generation of electricity is returned to the river, the hydro-electric use is non-consumptive, except for losses in the water conductor system and storages. All beneficial uses of water including uses for production of hydro-power are permitted to the extent specified in Clause V and subject to the conditions and restrictions mentioned in the Final Order. No State is entitled to use water in excess of the limits specified in the Final order. Consequently the explanation asked for in mis clarification does not arise." The State Government has maintained mat what is being done in respect of the Dam by the Karnataka Government will have disastrous consequences and devastating effect upon the water that Andhra has to receive under the decision of the Tribunal. The State Government has given quite a few informations about the steps taken by it objecting to the conduct of the Karnataka Government at several Forums like the Central Government and its Agencies as well as political platforms.;