S.B.MAJMUDAR - (1.) I had the privilege of going through the draft judgment prepared by brother G.B. Pattanaik, J. in the aforesaid suit. I respectfully agree with the same. However, looking to the importance of two pivotal issues, being issue Nos. 2 and 9 (a), (b) and (c), I have thought it fit to supplement the reasoning in the aforesaid judgment by my concurring observations on these issues as under: ISSUE NO. 2 :
(2.) HAS this Hon'ble court jurisdiction to entertain and try this Suit? (MAH). Article 131 provides as under: "131. Original jurisdiction of the Supreme court-Subject to the provisions of this Constitution, the Supreme court shall, to the exclusion of any other court, have original jurisdiction in any dispute (a) XXX XXX XXX (b) xxx xxx xxx (c) between two or more States. If and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: We are not concerned with the Proviso which deals with treaties and agreements entered into or executed before the commencement of the Constitution. As Article 131 itself is subject to the other provisions of the Constitution, we have to turn to Article 262 which deals with disputes relating to waters. Sub-article (1) thereof provides that: "262. Adjudication of disputes relating to waters of inter-State rivers 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." Sub-article (2) thereof lays down that: "(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)". It is not in dispute between the parties that the Inter-State Water Disputes Act, 1956 (hereinafter referred to as 'the Disputes Act) is a legislation passed under Article 262 of the Constitution. It is equally not in dispute that Section 11 thereof excludes the jurisdiction of this court in respect of water disputes referred to the Tribunal. It will therefore, have to be seen whether the State of Andhra Pradesh, as plaintiff, having invoked the jurisdiction of this court under Article 131 has, in substance, raised 'water dispute' which will exclude the jurisdiction of this court as per Section 11 of the Disputes Act read with Article 262 Sub-article (2). In other words, if in substance, the plaintiff wants adjudication of any 'water dispute' between it and the other contesting States, namely, the State of Karnataka or the State of Maharastra which are upper riparian States located in the Krishna basin through which the river Krishna, which is admittedly an inter-State river, flows. The expression 'water dispute' has been defined by the Disputes Act as per Section 2(c) as under: "water dispute" means 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." Keeping in view the aforesaid salient features of the Constitutional scheme and the relevant provisions of the Disputes Act, we may turn to the plaint of the State of Andhra Pradesh in the present suit. While deciding the question of jurisdiction of this court, the averments in the plaint on demurrer will have to be kept in view. Paragraph 4 of the plaint recites that: "After the Krishna Water Disputes Tribunal rendered its decision, first on 24/12/1973 and a further decision on 27/5/1976, the plaintiff understood that all the riparian States, being constitutional units of the Federation of the Republic of India, would not only accept the said decisions but would give full effect to the same in letter and in spirit as is expected of constitutional Governments established by and under the Constitution of India. The Plaintiff had expected all the party States to consult each other for the projects that they may undertake on the inter-State river Krishna so as to make it apparent to the other States that the projects are in consonance with the decisions of the Tribunal and that their implementation would not, in any manner, affect the rights of the other States. However, in the recent past, to the utter surprise of the Plaintiff, it has come to light that Karnataka, far Irom acting in accordance with the letter and the spirit of the decisions of the KWDT, has grossly violated the terms of the said decisions while executing various projects on the inter-State river Krishna. Karnataka has "of only suppressed from the plaintiff information regarding execution of a number of projects unauthorisedly undertaken by it, but also suppressed crucial informations even from Defendant No. 2 Union of India while seeking its approval to these projects. It is rather unfortunate that Defendant No.1 also misled the Central Government and its agencies while seeking financial and other approvals of its projects. The Plaintiff, with a view to amicably settle the matters between the party States, appealed, not only to the Defendant No.1 to desist from such illegal execution of projects, but also to the Union Government to intervene in the matter and to ensure that Karnataka does not contravene the terms of the decisions of the KWDT and does not take undue advantage of it being placed as an upper riparian State with regard to the inter-State river Krishna. However, all such persuasions and negotiations failed. The Plaintiff is thus constrained to approach this Hon'ble court invoking the jurisdiction under Article 131 of the Constitution in public interest and in the interest of the inhabitants of the plaintiffState seeking immediate reliefs of protection o? their 'interests t}y Ws Hon'ble court." After mentioning the history of the earlier water disputes between the riparian States which were adjudicated upon by the Krishna Waters Disputes Tribunal (hereinafter referred to as 'the KWDT) constituted under Section 4 of the Disputes Act by the Central Government and also after reciting the substance of the decision rendered by the said Tribunal, the grievances voiced in that suit in the light of the post-award developments are highlighted in paragraphs 65 to 68 of the plaint under the caption 'Violation of KWDT decisions by Karnataka-defendant no. 1, in the suit' and it is in the light of these grievances that prayers and reliefs have been put forward after paragraph 75 of the plaint. The main prayers on the basis of which relief is sought for are prayers (a), (c), (d) and (f) which read as under: "(a) declare that the report/decision dated 24/12/1973 and the further report/ decision dated 27/5/1976 of the Krishna Water Disputes Tribunal (KWDT) in their entirety are binding upon the three riparian States OF MAHARASTRA, Karnataka and Andhra Pradesh and also the Union of India. (b) xxx xxx (c) declare that the party States are entitled to utilise not more than the quantity of water which is allocated or permitted by the decisions of the KWDT for the respective projects of the respective party States before the Tribunal; and that any variation in either storage or utilisation of the waters by each such state in respect of each of such projects could only be with the prior consent or concurrence of the other riparian States; (d) declare that all the projects executed and/or which are in the process of execution by the State of Karnataka which are not in conformity with and conflict with or violate the decisions of the KWDT, as illegal and unauthorised. (e) XXX XXX (f) declare that the States of Karnataka and MAHARASTRA shall not be entitled to claim any rights preferential or otherwise in respect of storage, control and use of waters of the inter-State river Krishna in respect of the schemes/projects not authorised by the decision of the KWDT. The aforesaid averments in the suit highlighting the grievances of the plaintiff State of Andhra Pradesh when read in the light of the prayers put forward for consideration and the reliefs claimed thereby leave no room for doubt that the entire suit is based on the ground that defendant no. 1-State of Karnataka has violated the binding decision of the Tribunal which pertains to Scheme "A" which was duly notified under Section 6 of the Disputes Act by the Central Government. It is this plaint which is sought to be resisted by the first defendant State of Karnataka by filing its written statement. In the light of these pleadings of main contesting States, issues are framed in the suit. The relevant issues highlighting the grievances of the plaintiff State are issue nos.1, 3, 5, 9(a), (b) and (c), 10 and 20, which read as under: "1. Whether the State of Karnataka has violated the binding decisions dated 24/12/1973 and 27/05/1976 rendered by the KWDT by executing the projects mentioned in para 66, 68 and 69 of the Plaint? (A.P./KAR) 3. Does the Plaintiff prove that the allocation of Krishna Waters by the KWDT in its Final Order are specific for projects and not enable as contended by the Defendant?(MAH). 5. Whether the Plaintiff is entitled to a declaration that all the projects executed and/or which are in the process of execution by the State of Karnataka, and not in conformity with or in conflict with the Decisions of the KWDT are illegal and unauthorised?(A.P.). 9. (a) Whether the construction of the Almatti Dam with a FRL of 524.256 m. together with all other projects executed, in progress and contemplated by Karnataka would enable it to utilise more water than allocated by the Tribunal? (A.P.). (b) Whether Karnataka could be permitted to proceed with construction of such a dam without the consent of other riparian States, and without the approval of the Central Government? (A.P.). (c) Whether Karnataka can be permitted to raise the storage level at Almatti Dam above RL 509.16 m. in view of the likely submergence of territories in MAHARASTRA. 10. Whether the Plaintiff proves that the reservoir and irrigation canals as alleged in paragraph 68 of the Plaint are oversized. If so, are they contrary to the decision of the Tribunal? (A.P.). 20. Whether the State of Karnataka has violated the KWDT award by proceeding with several new projects in the sub basin such as K-6, K-8 and K-9 in respect of which restrictions in quantum of utilisations have been imposed in the final decision of the Tribunal? (A.P.)." Keeping in view the aforesaid salient features of the plaint of the State of Andhra Pradesh, the nature of controversies raised therein, reliefs claimed and the issues which fall for consideration of the court, it is difficult to agree with the contentions of contesting defendants, especially, State of Maharastra that the plaintiff's case does not fall within the fore corners of Article 131 of the Constitution. It is obvious that the disputes raised by the plaintiff-State of Andhra Pradesh pertain to the alleged non-implementation of the binding award of the KWDT by defendant no. 1 State. It has nothing to do with raising of a fresh water dispute. According to the plaintiff State, whatever was the earlier water dispute between the plaintiff and the defendant no. 1 State or for that matter defendant no.3 State, was already adjudicated upon by the Tribunal constituted under Section 4 of the Disputes Act and which decision was duly published under Section 6 thereof being the decision pertaining to Scheme "A". The grievance of the plaintiff State is that though the decision is binding on the upper riparian States namely, defendant nos.1 and 3, the executive action of the concerned States amount to flouting and violation of the binding decision of the Tribunal. This clearly raises a question of execution and implementation of an already adjudicated water dispute. Once that conclusion is reached, it becomes obvious that Article 262 would be out of picture and only Article 131 will remain operative for being invoked by the disputant State against the defendant States as it would certainly raise a dispute regarding execution and implementation of binding award of the Tribunal and, therefore, a contest does arise between two or more States in this score. Accordingly, Issue no.2 will have to be answered in favour of the plaintiff and against the defendants. ISSUE NOS. 9(a), (b) and (c) : So far as these issues are concerned, it has to be kept in view that the main contention of the plaintiff State of Andhra Pradesh is that in the binding award of the KWDT pertaining to Scheme "A", the Tribunal has gone into the question of project-wise allocation of quantity of water available for each of the projects of the contesting States located in the Krishna river basin in so far as they are within the territorial limits of each of the contesting riparian States. However, when we turn to the award of the Tribunal (Exh.PK-1) and as the further award of the Tribunal under Section 5(3) of the Disputes Act (Exh.PK-11) which ultimately got gazetted at pages 102 and 114 of the Exhibit PK II, we find that, nowhere it is held by the Tribunal that out of the total quantity of water, namely, 2096 TMC per water year on the basis of 75% dependability any fixed quota of water for utilising, was earmarked for Upper Krishna Project (hereinafter referred to as 'UKP') which consisted of three dams namely, Hippargi Weir, Almatti Dam and Narayanpur Dam. Clause III of the final order of the Tribunal as gazetted under Section 6 of the Disputes Act clearly provides that "the Tribunal hereby determines that, for the purpose of this case, the 75 per cent dependable flow of the river Krishna up to Vijayawada is 2,060 TMC" and this entire quantity is available to the States of Maharasthra, Karnataka and Andhra Pradesh. Out of the total quantity thus found available for distribution, the State of Maharastra as per clause V is enjoined not to use in any water year more than 560 TMC up to the water year 1982-83 and further additional quantities in future as laid down therein. Similarly, the State of Karnataka is enjoined not to use in any water year more than 700 TMC to start with, up to the water year 1982-83 and further permitted quantities thereafter as laid down therein. While plaintiff-State of Andhra Pradesh is given approval to use in any water year the remaining water that may be flowing in the river Krishna but thereby it shall not acquire any right whatsoever to use in any water year nor be deemed to have been allocated in any water year, water of the river Krishna of more than 800 TMC up to water year 1982-83 and the additional percentage as provided for subsequent water years. When this final order is read with the Report of the Tribunal comprised of volumes 1 and 2, Exh.PK-1 and Exh.PK-11, it is difficult to hold as contended by the plaintiff-State that the Tribunal has awarded fixed quantity of water to be utilised for each of the projects, especially the UKP. This conclusion gets highlighted, when we turn to clause IX of the final order of the Tribunal pertaining to Scheme "A" wherein out of the water allocated to each of the States certain projects are mentioned for which given quantity of water is allocated. Now in the entire list of projects wherein allotment of water is made project-wise as mentioned in clause IX, UKP is conspicuously absent. It must, therefore, be held that even though the allocation of dependable flow of water per each water year is made for the State of Karnataka with a ceiling as found in clause V of the decision as aforesaid and even while the Tribunal in this connection as referred to UKP the ultimate allotment of total quantity of water has not resulted in indicating any earmarked quantity of water to be stored and utilised in UKP situated in the Krishna river basin within the territorial limits of defendant no. 1 State. It is, therefore, difficult to accept the contention of learned senior counsel for the plaintiff State of Andhra Pradesh that any project-wise allocation of available water is decided upon by the Tribunal while framing Scheme "A", so far as UKP is concerned. Once that conclusion is reached, it becomes obvious that at what height the Almatti Dam should be constructed, was not on the anvil of scrutiny of the Tribunal nor was any decision rendered by the Tribunal in that connection which could be made subject matter of the challenge in the present suit of the State of Andhra Pradesh on the ground that any such express direction of the Tribunal in this connection is violated by defendant no.1 State.
(3.) EVEN if this conclusion is reached a moot question survives whether the construction of the Almatti Dam with FRL of 524.256 would ultimately result in utilisation of more water by defendant no.1 State than what is allotted by the Tribunal. This grievance, which is made subject matter of issue no.9(a) at the instance of the plaintiff State of Andhra Pradesh, has a clear nexus with the grievance of the said State about the violation of the decision of the Tribunal. Thus, even if it is held that the decision of the Tribunal regarding Scheme "A" has not expressly mentioned any permissible height to which the Almatti Dam could be constructed with appropriate storage capacity of water if it is held on evidence that the height of 524.256 FRL would result in utilisation of more water per water year than as allowed, as per clause V of the decision of the Tribunal, then the question of violation of injunction of clause V by defendant No.1 State would clearly fall for consideration. It is in that light that we have to consider the grievance of the plaintiff-State. For deciding this question we may usefully refer to UKP Stage-II Multi Purpose Project detailed Report submitted by defendant no.1 State before the Tribunal (Exh.PAP-46). In the said Report, we find at serial no. 2 salient features of the project. It is no doubt mentioned as UKP Stage-II Multi Purpose Project, irrigation and power. At paragraph 2.3.1 we find mentioned irrigation for Stage-II schemes and cultivable command area is shown to be 1,97,120 hectares. While dealing with power at 2.3.2, we find total annual energy to be generated as 672 million units. Chapter IV of the said report PAP46 deals with Hydrology covering water budget gate height at Almatti Dam and Flood routing studies for PMF for Back Water Effect. In para 4.4.3 it has been mentioned that according to the studies made by IISc., the minimum FRL required at Almatti reservoir to utilise 173 TMC of water to meet the mandatory release for RTPS, domestic and industrial and irrigation requirements is EL 519.60m. Considering the prospects of power generation at Almatti Dam, which is crucial for the State, the Government of Karnataka has decided to maintain water level at FRL at EL 524.256 m. during monsoon months to utilise the storage above EL 519.60 m. for power generation only. It is not in dispute between the parties that according to the defendant no.1 State, it seeks to store 173 TMC of water at Almatti Dam for the purpose of irrigation. If that is so the said water can irrigate cultural command area as per paragraph 2,3.1 mentioned earlier and can also generate electricity of 672 million units, as seen from paragraph 2.3.2. mentioned earlier. We may refer to an affidavit of Prof. D.K.Subramanian on the impact of increasing the FRL of the Almatti Dam in Karnataka on power in the State of Andhra Pradesh at page 109 on compilation II filed by plaintiff State of Andhra Pradesh and which affidavit has been relied upon by defendant no.1 State itself in support of its case. The said affidavit makes an interesting reading. At page 110 of compilation II at para 38, the following relevant averments have been made by the deponent in support of defendant no.1 State's case: "If the FRL of Almatti Dam is restricted to 519.60 m., then the power generation will be only 250 MW leading to an energy generation of about 672 million kilowatt hours. If the FRL is increased to 524.256 m. then it is both possible and feasible to set up the four cascade power plants downstream of Narayanpur also in addition to increasing the capacity of Almatti Power Plant.";