PETITIONER:
TAMIL NADU CAUVERY NEERPPASANAVILAIPORULGAL VIVASAYIGAL NALA
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT04/05/1990
BENCH:
MISRA RANGNATH
BENCH:
MISRA RANGNATH
SAWANT, P.B.
RAMASWAMY, K.
CITATION:
1990 AIR 1316 1990 SCR (3) 83
1990 SCC (3) 440 JT 1990 (2) 397
1990 SCALE (1)866
CITATOR INFO :
RF 1992 SC 522 (1)
ACT:
Inter-State Water Disputes Act 1956--Sections 3, 4 & 11
Cauvery Water Dispute--Government directed to constitute
Tribunal.
HEADNOTE:
The appellant is a registered society of agriculturists
of Tamil Nadu, who are entitled to riparian rights of Cauv-
ery river in cultivating their lands over the years. It
seeks from this Court that directions be given to the Union
of India Respondent No. 1 to refer the dispute relating to
the water utilization of the Cauvery river and equitable
distribution thereof in terms of section 4 of the Inter
State Water Disputes Act 1956. Also to issue a mandamus to
the State of Karnataka not to proceed to construct dam
projects, reservoirs across the said river or its tribu-
taries within the state and to restore supply of water to
the State of Tamil Nadu as envisaged in the agreements dated
18th February, 1924. In this petition State of Karnataka,
Tamil Nadu, Kerala and Union Territory of Pondicherry have
also been added as Respondent No. 2 to 5 respectively.
In the year 1970, the State of Tamil Nadu requested
Union of India to set up a Tribunal for settling the ques-
tion of equitable distribution of waters under sec. 3 of the
Act. A suit was filed under Article 131 of the Constitution
in this Court but was withdrawn on political consideration
so as to evolve a mutual and negotiated settlement.
According to the petitioners it is submitted that sever-
al attempts were made through bilateral and multilateral
talks for a negotiated settlement but no solution could be
reached and the problem continued-
84
The State of Karnataka filed several affidavits opposing
the maintainability of the petition and the Union of India
has also opposed the application on the basis of section 11
of the Act.
The petition was filed on November 18, 1983 and on
12.12.83 the Court directed issue of notice. The State of
Tamil Nadu supported and associated itself with the peti-
tioner seeking the same relief on 6.5.87 the State also
filed an affidavit in this Court supporting the contention
of the petitioner and also effectively joined the dispute by
adopting the stand of the petitioner.
The mainstream of the river Cauvery has its origin in
the hills of Coorg. Some tributaries of the river have
origin in the State of Kerala and others in the State of
Karnataka. The river flows for about 300 Kms. in the State
of Karnataka and almost for an equal span within the State
of Tamil Nadu before joining the Bay of Bengal. It is an
inter-state river as per Article 262, Entry 56 of List I of
7th Schedule of the Constitution, so the regulation and
development of the said river is under the control of the
Union of India and is declared by Parliament by law to be
expedient in the public interest.
Article 262 of the constitution provides for adjudica-
tion of disputes (1) with respect to the use, distribution
and control of the waters (2) Parliament may by law provide
that neither the Supreme Court or any other Court shall
exercise jurisdiction in respect of any such dispute as is
referred to in clause (1).
As per section 3 of the Act if it appears to the Govern-
ment of any State that a water dispute with the Government
of another State has arisen or likely to arise and the
interests of the State or of any of the inhabitance, thereof
are likely to be affected prejudicially, the State Govern-
ment in the prescribed manner request the Central Government
to refer the Water dispute to a Tribunal for adjudication.
Allowing the petition, this Court,
HELD: This dispute in question is one over which the
people and the State of Tamil Nadu have been clamouring for
more than 20 years. The matter has been pending in this
Court for the last 6 1/2 years. It is on
85
record that over these years 26 sittings of the Chief Minis-
ters of Karnataka, Tamil Nadu have been there and in some of
these even the Central Ministers of Water Resources have
also participated but have not succeeded in bringing about
negotiated settlement. No serious attempt seems to have been
made to have the dispute resolved. This Court has given
several adjournments to accommodate the attempts for negoti-
ations because of the nature of the subject matter. Ulti-
mately on 26.2.90 order by the Court was given that the Writ
Petition would be listed for final hearing on 24.4.90 since
sufficient opportunity and time to these two states at the
behest of the Central Government or otherwise has been given
to arrive at negotiated settlement. On 26th April 1990 the
Union of India also informed the Court that Central Govern-
ment did not want to undertake any further negotiations and
left the matter for the disposal by this Court. [89G-H;
90B-C; 91D]
There was no reason for the dispute to protrect for such
a long period. Any further delay in taking statutority
mandated action is bound to exasperate the feelings further
and lead to more bitterness. [91H; 92A]
Section 4 of the Act indicates that on the basis of the
request referred to in Section 3, if Central Government is
of the opinion that water dispute cannot be settled by
negotiation, it is mandatory for the Central Government to
constitute a Tribunal for adjudication of the dispute. [92B]
The Central Government to fulfil the statutory obliga-
tion notify in the official Gazette the constitution of an
appropriate tribunal for the adjudication of the Water
Dispute. The same should be done within a period of one
month. [92D]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 13347 of 1983.
(Under Article 32 of the Constitution of India).
K.K. Venugopal, C.S. Vaidyanathan and K.V. Viswana-
than for the Petitioner.
P.K. Goswami,Additional Solicitor General, P.S. Poti, K.
Parasaran, S.S. Javalai, and F.S. Nariman, B.V. Acharya,
Advocate General, P.R. Ramasesh, Ms. A. Subhashini, T.T.
Kunhikanan, V. Krishnamurthy, K. Ramkumar and R. Karuppan,
in-person the Respondents.
86
The Judgment of the Court was delivered by
RANGANATH MISRA, J. This is an application under Article
32 of the Constitution filed by the Tamil Nadu Cauvery
Neerppasana Vilaiporulgal Vivasayigal Nala Urimal Padhugappu
Sangam which is said to be a society registered under the
Tamil Nadu Societies Registration Act asking this Court for
direction to the Union of India, respondent No. 1, to refer
the dispute relating to the water utilisation of the Cauvery
river and equitable distribution thereof in terms of section
4 of the Inter-State Water Disputes Act, 1956, and for a
mandamus to the State of Karnataka not to proceed with the
construction of dams, projects and reservoirs across the
said river and/or on any of its tributaries within the State
and to restore supply of water to the State of Tamil Nadu as
envisaged in the agreements dated 18th of February, 1924. To
the petition States of Karnataka, Tamil Nadu and Kerala and
the Union Territory of Pondicherry have been added as re-
spondents 2 to 5 respectively.
In the petition it has been alleged that the petition-
er’s society is an organisation of agriculturists of Tamil
Nadu and they are entitled to the lower reparian rights of
Cauvery river for cultivating their lands over the years.
The petitioner alleges that inflow into the Cauvery at the
Mettur dam point as also down the stream has considerably
diminished due to construction of new dams, projects and
reservoirs across river Cauvery and its tributaries by the
State of Karnataka within its own boundaries. In the year
1970 the State of Tamil Nadu had requested the Union of
India to set up a tribunal and refer the question of equita-
ble distribution of Cauvery waters under section 3 of the
Act. A suit filed under Article 131 of the Constitution by
the Tamil Nadu State in this Court was withdrawn on politi-
cal consideration and in anticipation of the evolving of a
mutual and negotiated settlement. Petitions of the present
type had also been filed in this Court being writ petitions
Nos. 303 and 304 of 1971 but on 24.7.75 they were withdrawn
on account of suspension of the Fundamental Rights during
the period of Emergency. Petitioner has further alleged that
the sharing of the Cauvery waters between the then Madras
State and the then princely State of Mysore was covered by a
set of agreements reached in 1892 and 1924. According to the
petitioner several attempts were made through bilateral and
multilateral talks for a negotiated settlement for equitable
distribution of the Cauvery waters but no solution could be
reached and the problem continued. Since we are not on the
merits of the matter relating to distribution of waters it
is unnecessary to give any details of the further pleadings.
87
The State of Karnataka by filing several affidavits has
opposed the maintainability of the petition as also the
tenability of the plea for relief. The Union of India in the
Ministry of Water Resources has also opposed the maintain-
ability of the application. Reliance has been placed on s.
11 of the Act to which we shall presently made a reference.
At the hearing, Mr. Nariman on behalf of the State of
Karnataka along with the Advocate General of the State and
the Solicitor General appearing for the Union of India have
reiterated the aforesaid stands.
The State of Tamil Nadu filed an affidavit in this Court
on 6th of May, 1987, wherein it not only supported the
contention of the petitioner but effectively joined the
dispute by adopting the stand of the petitioner. The State
of Kerala has left the matter to the good sense of Union of
India to bring about an amicable settlement. At the hearing
of the matter the Union Territory of Pondicherry was not
represented though we were told that their stand was common
with that of the State of Tamil Nadu.
This petition was filed on November 18, 1983; on
12.12.83 this Court directed issue of notice and as already
pointed out the State of Tamil Nadu by its affidavit of 6th
of May, 1987, came to the support the petitioner in toto.
The adoption by the State of Tamil Nadu of the petitioner’s
stand by associating itself with the petitioner is perhaps
total. Before this Court, societies like the petitioner as
also the State of Tamil Nadu and earlier applied for the
same relief as the petitioner seeks. In view of the fact
that the State of Tamil Nadu has now supported the
petitioner entirely and without any reservation and the
Court has kept the matter before it for about 7 years, now
to throw out the petition at this stage by accepting the
objection raised on behalf of the State of Karnataka that a
petition of a society like the petitioner for the relief
indicated is not maintainable would be ignoring the actual
state of affairs, would be too technical an approach and in
our view would be wholly unfair and unjust. Accordingly, we
treat this petition as one in which the State of Tamil Nadu
is indeed the petitioner though we have not made a formal
order of transposition in the absence of a specific request.
The main stream of river Cauvery has its origin in the
hills of Coorg. Some tributaries have their origin in the
State of Kerala while some having their origin in Karnataka
have joined the river. The
88
river flows for a distance of about 300 Kms. within the
State of Karnataka and almost an equal span within the State
of Tamil Nadu before it ultimately joins the Bay of Bengal.
It has not been disputed that Cauvery is an inter-State.
river within the meaning of Article 262 of the Constitution.
Entry 56 of List I of the Seventh Schedule to the Constitu-
tion runs thus:
“56. Regulation and development of inter-State rivers and
river valleys 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.”
Article 262 provides:
“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 re-
spect 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, Parlia-
ment 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 disputed before us that the Inter-State Water
Disputes Act, 1956 (33 of 1956) is a legislation within the
meaning of this Article.
Section 3 of the Act provides:
“3. If it appears to the Government of any State 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 inhabitance there-
of, in the waters of an inter-State river or river valley
have 1Seen, or are likely to be, affected prejudicially by–
(a)…………………
(b)…………………
(c)…………………
89
the State Government may, in such form and manner as may be
prescribed, request the Central Government to refer the
water dispute to a tribunal for adjudication.”
Section 11 of the Act provides:
“11. Notwithstanding anything contained in any other law,
neither the Supreme Court nor any other court shall have or
exercise jurisdiction in respect of any water dispute which
may be referred to a Tribunal under this Act.
It is thus clear that s. 11 of the Act bars the juris-
diction of all courts including this Court to entertain
adjudication of disputes which are referable to a tribunal
under s. 3 of the Act. Therefore, this Court has no juris-
diction to enter upon the factual aspects raised in the writ
petition.
No serious dispute, however, has been raised before us
challenging our jurisdiction to consider the claim in the
writ petition confined to the question of a reference of the
dispute to a tribunal within the meaning of s. 3 of the Act.
Section 4 of the Act provides:
“4. (1) When any request under section 3 is received from
any State Government in respect of any water dispute and the
Central Government is of opinion that the water dispute
cannot be settled by negotiations, the Central Government
shall, by notification in the official Gazette, constitute a
Water Disputes Tribunal for the adjudication of the water
dispute.
(2)…………………
(3)…………………
Undoubtedly s. 4 while vesting power in the Central
Government for setting up a Tribunal has made it conditional
upon the forming of the requisite opinion by the Central
Government. The dispute in question is one over which the
people and the State of Tamil Nadu have been clamouring for
more than 20 years now. The matter has been pending in this
Court for more than 6 1/2 years. It is on record that during
this period as many as 26 sittings spread over many years
have been held in which the Chief Ministers of the Karnataka
and Tamil Nadu have unsuccessfully tried to bring about
settlement; some of
90
these have been at the instance of the Central Government in
which the Union Minister for Water Resources and others have
participated.
There was a time, after the dispute arose, when the
Governments in the States of Karnataka and Tamil Nadu as
also at the Centre were run by one common political party.
Perhaps if the Centre had intervened in an effective way
during that period there was considerable chance of settle-
ment by negotiation. No serious attempt seems to have been
made at that time to have the dispute resolved and it has
been shelved and allowed to catch up momentum and give rise
to issues of sensitivity. This case after a number of ad-
journments freely granted by this Court in view of the
nature of the subject-matter, was called on 26.2.1990 when
the following order was made:
“The writ petition is adjourned to 24.4.1990 for final
hearing and is to be listed at the top of the board. No
further adjournment shall be granted.
The Advocate Generals of the States of Karnataka
and Tamil Nadu are present in Court. Learned Solicitor
General is also present. Counsel in W.P. No. 13347/83 in-
sists that the matter should not be further adjourned as
several adjournments on the same plea of reconciliation
between the two States have not borne any fruit. Learned
Solicitor General has told us that in course of the month of
March, the Chief Ministers of the two States shall meet. He
has also told that in the month of February a meeting of
Chief Ministers of Kerala, Karnataka, Tamil Nadu and Pondi-
cherry had been called but that could not be held on account
of the air crash at Bangalore. In these circumstances,
leaving the parties to negotiate, we have decided that the
matter shall now be heard on merits in the event no settle-
ment takes place by then.”
A long adjournment of about two months was then granted to
provide a further opportunity of negotiation. We have now
been told that the two Chief Ministers met on the 19th of
April, 1990, and a further meeting was stipulated to be held
on the following day when the Minister of Water Resources of
the Central’ Government was also to participate. The meeting
of the two Chief Ministers failed to bring about any result
and the meeting stipulated for the following day for some
reason or the other did not take place. When we heard the
matter on the 24th of April, 1990, the counsel for the State
of Tamil
91
Nadu in clearest terms indicated that the Chief Minister of
the State was not further prepared to join the negotiating
table. An affidavit along with the telex message received
from Madras supporting its stand has now been made a part of
the record.
26 attempts within a period of four to five years and
several more adjournments by this Court to accommodate these
attempts for negotiation were certainly sufficient opportu-
nity and time to these two States at the behest of the
Centre or otherwise to negotiate the settlement. Since these
attempts have failed, it would be reasonable undoubtedly to
hold that the dispute cannot be settled by negotiations.
Yet, since the requisite opinion to be formed is of the
Central Government as required by s 4 of the Act when we
reserved judgment on the 24th of April, 1990, we allowed two
days’ time to the learned Additional Solicitor General for
the Central Government to report to the Court the reaction
of the Central Government. Mr. Goswami, learned Additional
Solicitor General appearing for the Union of India informed
us on the 26th April, 1990, in the presence of the counsel
for the other parties that the Central Government did not
want to undertake any further negotiation and left the
matter for disposal by the Court. In these circumstances, we
have no option but to conclude that a clear picture has
emerged that settlement by negotiation cannot be arrived at
and taking the developments in the matter as indicated above
it must be held that the Central Government is also of that
opinion particularly when the Chief Minister of Tamil Nadu
has indicated that he is no more prepared to loin the nego-
tiations.
We are cognizant of the fact that the matter is a very
sensitive one. Judicial notice can be taken of the fact that
the Government at the Centre is by one political party while
the respective Governments in the two States are run by
different political parties. The dispute involved is, howev-
er, one which affects the southern States of Kerala, Karna-
taka and Tamil Nadu and the Union Territory of Pondicherry.
The disputes of this nature have the potentiality of creat-
ing avoidable feelings of bitterness among _the peoples of
the States concerned. The longer the disputes linger, more
the bitterness. The Central Government as the guardian of
the interests of the people in all the States must, there-
fore, on all such occasions take prompt steps to set the
Constitutional machinery in motion. Fortunately, the Parlia-
ment has by enacting the law vested the Central Government
with the power to resolve such disputes effectively by
referring the matter to an impartial Tribunal. There was no
reason, therefore, for the dispute to protract for such a
long time. Any further delay in taking the statutorily
92
mandate action is bound to exasperate the feelings further
and lead to more bitterness. It is, therefore, necessary
that the legal machinery provided by the statute is set in
motion before the dispute escalates. A stitch in time saves
nine. What is true for an individual is perhaps more true
for the nation.
Section 4 indicates that on the basis of the request
referred to in s. 3 of the Act, if Central Government is of
the opinion that the water dispute cannot be settled by
negotiation, it is mandatory for the’ Central Government to
constitute a Tribunal for adjudication of the dispute. We
were shown the Bill where in s. 4 the word ‘may’ was used.
Parliament, however, substituted that word by ‘shall’ in the
Act. Once we come to the conclusion that a stage has reached
when the Central Government must be held to be of the opin-
ion that the water dispute can no longer be settled by
negotiation, it thus becomes its obligation to constitute a
Tribunal and refer the dispute to it as stipulated under s.
4 of the Act. We therefore, direct the Central Government to
fulfil its statutory obligation and notify in the official
gazette the constitution of an appropriate tribunal for the
adjudication of the water dispute referred to in earlier
part of this judgment. We further direct that the same
should be done within a period of one month from today. The
writ petition is accordingly allowed. There shall, however,
be no order as to costs.
S.B. Petition
allowed.
93