State of
Tamil nadu Vs. State of Karnataka &
Ors [1991] INSC 117 (26
April 1991)
Kasliwal, N.M. (J) Kasliwal, N.M. (J) Punchhi, M.M. Sahai, R.M. (J)
CITATION:
1991 SCR (2) 501 1991 SCC Supl. (1) 240 JT 1991 (2) 322 1991 SCALE (1)802
ACT:
Inter-State
Water Disputes Act, 1956: ss 3.5.11 Notification dated 2.6.1990 - Cauvery Water
Disputes Tribunal - Applications for interim reliefs - Whether has jurisdiction
to entertain and grant.
Constitution
of India : Article 262 - Adjudication of
disputes relating to inter-State rivers - Law to be made by Parliament-Supreme Court's jurisdiction - Exclusion of -
Whether arises.
Statutory
Interpretation : Supreme Court's power to interpret statute and decide
Parameters, scope, power, and jurisdiction of a statutory tribunal.
HEAD NOTE:
The
Government of Tamil Nadu sent a complaint dated 6.7.1986 to the Central
Government under s.3 of the Inter State Water Disputes Act, 1956 on the ground
that its interests were being prejudiciously and injuriously affected by the
executive action taken by the State of Karnataka, and by failure of that State
to implement the terms of the agreements relating to the use, distribution and
control of the waters of the river Cauvery.
The
Central Government by its notification dated 2.6.1990 consistuted the Cauvery
Water Disputes Tribunal and referred to it for adjudication the water disputes
regarding the Inter-State River Cauvery, and the river valley there of emerging
from the complaint dated 6.7.1986 filed by the State of Tamil Nadu.
During
the pendency of the reference the Government of Tamil Nadu filed an application
before the Tribunal praying that the State of Karnataka be directed not to
impound or utilize waters of Cauvery river beyond the extent impounded or utilised
by it as on 31.5.1972 as was agreed to by the Chief Ministers of Basin States
and the Union Minister for Irrigation and Power ; and that the State of
Karnataka be restrained from undertaking any new projects, dams, reservoirs,
canals etc. and /or proceeding further with any such work in the Cauvery Basin.
502 On
8.9.1990, the Union Territory of Pondicherry filed an application for an
interim order directing the States of Karnataka and Kerala to release, during
the months of September to March 9.355 TMC of water already agreed to.
The
Government of Tamil Nadu filed another emergent petition to direct the State of
Karnataka to release at least 20 TMC of
waters as a first instalment pending final orders on its earlier application as
the Samba crop could not be maintained without additional supplies at Mettur
Reservoir.
The
States of Karnataka and Kerala opposed the applications and raised preliminary
objections that the Tribunal constituted under the Act had limited jurisdiction
having only those powers which had been conferred on it under the Act and there
was no provisions of law which authorised or conferred any jurisdiction on it
to grant any interim relief.
The
Tribunal held that it was authorised to decide only the water dispute or
disputes which had been referred to it, and as from the complaint dated
6.7.1988 made by the State of Tamil Nadu, reference of an interim dispute in
regard to the release of waters by Karnataka Government from year to year
subsequent to the date of request made by State of Tamil Nadu could not be
inferred, it could not entertain the prayer for inter relief unless that
dispute relating to the same was specifically referred to it. The applications
were dismissed as not maintainable.
In the
appeals to his Court by State of Tamil Nadu and Union Territory of Pondicherry,
the respondent State of Karnataka and Kerala raised an objection that this
Court had no jurisdiction to entertain any appeal against the impugned order of
the Tribunal as Article 262 of the Constitution clearly provided for adjudication
of disputes relating to waters of inter-State rivers to be decided by law made
by Parliament in this regard.
The
appellants' case was that they have not come to this Court to get a decision on
merits of any disputes which is already pending before the Tribunal but their
grievance is only to the extend that the Tribunal wrongly decided that it had
no jurisidiction to entertain any application for interim relief because such
dispute was not referred to it in the reference. They contended that this Court
has jurisidiction to decide the scope of powers of the Tribunal under the Act
and in case the 503 Tribunal wrongly refused to exercise the jurisdiction, this
count is competent to set it right and direct the Tribunal to entertain such
application and decide the same on merits.
On the
question whether : (1) this Court has jurisdiction, to decide the power and
jurisdiction of the Tribunal under the Act , (2) the prayes in the applications
for interim relief was covered under the dispute referred to the Tribunal , and
(3) the Tribunal has jurisdiction to entertain the applications for interim reliefs.
Allowing
the appeals, this Court, HELD : (By the Court, Per Kasliwal, J.) 1.
Notwithstanding
anything in the Constitution, Parliament is authorised by law to provide that
neither the Supreme Court nor any other Court shall exercise jurisdiction in
respect of any dispute or complaint relating to the use, distribution or
control of the waters of, or in, any inter State river or river valley. The
dispute referred by the Central Government to the Cauvery Water Dispute
Tribunal under the Inter State Water Disputes Act related to the above
controversy and as such this Court had no jurisdiction to decide the merits of
the dispute raised by the appellants and pending before the Tribunal. [509 C-D]
2. It
is the judiciary alone to have the function of determining authoritatively the
meaning of a statutory enactment and to lay down the frontiers of jurisdiction
of any body or tribunal constituted under a statute. The Cauvery Water Dispute
Tribunal was a statutory authority constitued under the Inter State Water
Disputes Act, 1956, and this Court being the ultimate interpreter of the
provisions of the said Act, had an authority and jurisdiction to decide the
parameters, scope, power and the jurisdiction of the Tribunal. This Court had
not only the power but obligation to decide as to whether or not the Tribunal
had any jurisdiction under the Act to entertain any application for interim
relief till it finally decides the dispute referred to it. [509E-F; 511E-F].
Sanjeev
Coke Manufacturing Company v. Bharat Coking Coal Ltd. & Anr. [1983] 1 SCR
1000 at p. 1029 and Kehar Singh and Anr. v Union of India & Anr., [1989] 1
SCC 204 at p. 214, followed.
3. By
the order of reference dated 2.6.1990, the Central Government had referred to
the Tribunal the water disputes regarding the inter, State river Cauvery
emerging from the letter dated 6.7.1986 sent by the Government of Tamil Nadu.
Thus all the disputes emerging from letter dated 6.7.1986 had been referred to
the Tribunal. The Tribunal 504 committed a serious error in omitting to read
the passage of the complaint wherein the State of Tamil Nadu was claiming for an immediate
relief as, year after year, the realisation at Mettur was falling fast and
thousands of acres in their ayacut in the basin were forced to remain fallow.
It was specifically mentioned that the inordinate delay in solving the dispute
was being taken advantage of by the Government of Karnataka in extending their
canal systems and their ayacut in the new projects and every day of delay was
adding to the injury caused to their existing irrigation. The Tribunal was thus
clearly wrong in holding that the Central Government had not made any reference
for granting any interim relief. [514D-E; 515C-D].
4.
Irrespective of appellants' case for any interim relief on merits, the reliefs
prayed by them in their applications before the Tribunal clearly come within
the purview of the dispute referred to it by the Central Government under s. 5
of the Act, and the Tribunal is directed to decide the same on merits. [515E ;
516B].
5. The
Tribunal did not hold that it had no incidental and ancillary powers for
granting an interim relief, but it refused to entertain the petitions on the
ground that the reliefs prayed therein had not been referred by the Central
Government. In that view, it is not necessary to decide in the instant case the
larger questions whether a Tribunal constituted under the Inter State Water
Disputes Act, 1956 has any power or not to grant any interim relief . [515E-F].
Tamil Nadu
Cauvery Neerppasana Vilaiporulgal Vivasayigal Nalaurimal Padhugappu Sangam v. Union of India & Ors. , [1990] 3 SCC 440, referred to.
Statutory
Interpretation by Francis Bennions, (page 53 and 548, referred to .
Per Sahai,
J.:
Under
the Constitutional set up it is one of the primary responsibility of this Court
to determine jurisdiction, power and limits of any tribunal or authority
created under a statute. [516C].
There
are reservations on other issues including the construction of the letter dated
6th July 1986. However, it is not necessary to
express any opinion on it since what started as an issue of profound
constitutional and legal importance fizzled out when the State of Karnataka 505
and Kerala stated through their Counsel that they were agreeable for
determination of the applications for interim directions on merits. [516C-D].
CIVIL
APPELLATE JURISDICTION : Civil Appeal Nos. 303 304, 2036 of 1991.
From
the Judgement and Order dated 5.1.1991 of the Cauvery Water Disputes Tribunal
in C.M.P nos. 4, 9 and 5 of 1990.
M. Chander
Shekharan, Additional Solicitor General, K. Parasaran, F.S. Nariman, Dr. Y.S. Chitale,
S.S. Javali, A.S. Nambiar, P.S. Poti, C. Shivappa, M.S. Ganesh, V. Krishnamurthy,
P.K. Manohar, Smt. S. Vasudevan, M.Veerappa, Mohan Katarki, Atul Chitale, K.H. Nobin
Singh, T.T. Kunhikannan, Mrs. Sushma Suri and A.K,. Srivasatava for the
appearing parties.
The Judgement
of the Court was delivered by KASLIWAL, J., Special Leave granted in S.L.P (C)
No. 4991 of 1991.
These
appeals by grant of special leave are directed against the order of the Cauvery
Water Disputes Tribunal dated January 5, 1991.
The above appeals have been filed by the Governments of Tamil Nadu and Union Territory
of Pondicherry in respect of Civil Misc. Petition (in short C.M.P) Nos. 4 and 9
of 1990 by the Government of Tamil Nadu and CMP No. 5 of 1990 filed by the
Union Territory of Pondicherry and dismissed by the Tribunal by a common order
dated January 5, 1991.
As
identical questions of law arise in these cases, we would state the facts of
C.M.P filed by the Government of Tamil Nadu. The Government of Tamil Nadu filed
a complaint dated 6th July 1986 on the ground that the interests of the State
of Tamil Nadu and of its inhabitants (particularly the farmers in the Cauvery
Delta) had been and is prejudiciously and injuriously affected by the executive
action taken and proposed to be taken by the upper riparian State of Karnataka
and by the failure of that State to implement the terms of the agreements
relating to the use, distribution and control of the waters of river Cauvery.
The said complaint was made to the Central Government under Section 3 of the
Inter State Water Dispute Act, 1956 (hereinafter referred to as the Act).
506
The Central Government by Notification dated 2.6.1990 constituted the Cauvery
Water Disputes Tribunal and passed the following order of reference:
No.21/1/90-WD
Government of India (Bharat Sarkar) Ministry of Water
Resources (Jal Sansadhan Mantralaya) New Delhi, 2nd June, 1990.
REFERENCE
In the exercise of the powers conferred by sub- section (1) of Section 5, of
the Inter-State Water Disputes Act, 1956 (33 of 1956),the Central Government
hereby refers to the Cauvery Water Disputes Tribunal for adjudication, the
water disputes regarding the inter-State river Cauvery and the river valley
thereof, emerging from letter No. 17527/K2/82-110 dated the 6th July, 1986 from
the Government of Tamilnadu(copy enclosed).
By
order and in the name of The President of India (M.A. CHITALE) SECRETARY,
(WATER RESOURCES) Chairman, The Cauvery Water Disputes Tribunal, New Delhi.
During
the pendency of above reference the Government of Tamilnadu filed C.M.P. No. 4
of 1990 praying that the State of Karnataka be directed not to impound or utilise
water of Cauvery river beyond the extent impounded or utilised by them as on
31.5.1972, as agreed to by the Chief Ministers of the Basin States and Union
Minister for Irrigation and Power. It was further prayed that an order be
passed restraining the State of Karnatake from undertaking any new 507 projects, dams, reservoirs, canals etc.,
and/or from proceeding further with the construction of projects, dams,
reservoirs, canals etc. in the Cauvery Basin.
On
8.9.1990 C.M.P. No.5 of 1990 was filed by the Union Territory of Pondicherry
seeking an interim order directing the States of Karnataka and Kerala to
release the water already agreed to, that is, 9.355 T.M.C. during the months
September to March.
The
Government of Tamilnadu filed another emergent petition C.M.P. No.9 of 1990 to
direct the State of karnataka to release at least 20 T.M.C. of waters as a
first instalment pending final orders on C.M.P. No. 4 of 1990.
This
petition was submitted on the ground that the Samba crop cannot be maintained
without additional supplies at Mettur Reservoir.
All
the above C.M.Ps. were opposed by the State of Karnataka and the State of Kerala both on merits as well as on a preliminary objection that the Tribunal
had no power or jurisdiction to entertain these petitions to grant any interim
relief. The preliminary objection was based on the ground that the Tribunal
constituted under the Act had limited jurisdiction. It had no inherent power
like an ordinary civil court. It was having only those powers which have been
conferred on it under the Act and there was no provision of law which authorised
or conferred any jurisdiction on the Tribunal to grant any interim relief.
The
Tribunal upheld the objection raised on behalf of the State of Karnataka, and
State of Kerala and as a result of which by its order dated January 5, 1991
ordered that the Tribunal cannot entertain the applications for the grant
interim reliefs and the C.M.P. Nos. 4,5 and 9 were held to be not maintainable
in law and as such dismissed. Aggrieved against the aforesaid order of the
Tribunal these appeals have been filed by the State of Tamilnadu and the Union Territory of Pondicherry.
Dr.
Y.S. Chitale, appearing on behalf of the respondent, State of Karnataka raised an objection that this Court
had no jurisdiction to entertain any appeal against the impugned order of the
Tribunal. It was submitted that Article 262 of the Constitution clearly
provided that in respect of adjudication of disputes relating to waters of Inter State rivers has to be decided by law made by Parliament in this
regard. Clause (2) of Article 262 further provided that 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 508 as is referred to
in Clause (1), notwithstanding anything contained in this Constitution. It was
submitted that the Inter-State Water Disputes Act, 1956 was enacted by the
Parliament, to provide for the adjudication of disputes relating to waters of
Inter-State river, and river valleys. Section 11 of this Act provided as under:
"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 was thus contended that
the above Section 11 clearly took away not only jurisdiction of any other Court
but also of the Supreme Court in express terms.
On the
other hand Mr. K. Parasaran, learned counsel appearing on behalf of the State
of Tamilnadu contended that the provisions contained in Section 11 of the Act
read with Article 262 of the Constitution only excluded the jurisdiction of the
Supreme Court or any other Court to decide 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. It was submitted that the appellants have not come
before this Hon'ble
Court to get a
decision on merits of any dispute which is already pending before the Tribunal.
The grievance of the appellants is only to the extent that the Tribunal wrongly
decided that it had no jurisdiction to entertain any interim application, as
such dispute was not referred to it in the reference made by the Central
Government. It was submitted that this Court has the jurisdiction to decide the
scope of the powers of the Tribunal under the Act and in case the Tribunal has
wrongly refused to exercise jurisdiction under the Act, then this Court is
competent to set it right and direct the Tribunal to entertain such application
and to decide the same on merits.
In
order to appreciate the above controversy it would be proper to refer to
Article 262 of the Constitution and Section II of the Act which read as under:
Article
262-Adjudication of disputes relating to waters of inter-state rivers or rivers
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.
509
(2) Notwithstanding 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).
Section
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." A perusal of the above
provisions leaves no manner of doubt that notwithstanding anything in the
Constitution, Parliament is authorised by law to provide that neither the
Supreme Court nor any other Court shall exercise jurisdiction in respect of any
dispute or complaint relating to the use, distribution or control of the waters
of, or in, any inter-State river or river valley. The dispute referred by the
Central Government to the Tribunal under the Act relates to the above
controversy and as such this Court has no jurisdiction to decide the merits of
the dispute raised by the appellants and pending before the Tribunal. The
controversy, however raised by the appellants in these appeals is that they had
submitted the applications before the Tribunal for granting interim relief on
the ground of emergency till the final disposal of the dispute and the Tribunal
wrongly held that it had no jurisdiction to entertain the same. The Tribunal is
a Statutory authority constituted under an Act made by the Parliament and this
Court has jurisdiction to decide the parameters, scope, authority and
jurisdiction of the Tribunal. It is the judiciary i.e. the courts alone have
the function of determining authoritatively the meaning of a statutory
enactment and to lay down the frontiers of jurisdiction of any body or Tribunal
constituted under the Statute. Francis Bennion in his book 'Statutory
Interpretation' on pages 53 and 548 has dealt the matter as under:
"Under
the British Constitution, the function of determining authoritatively the
meaning of a parliamentary enactment is entrusted to the judiciary. In the
words of Richard Burn they have the exposition of Acts, which must not be
expounded 'in any other sense than is truly and properly the exposition of
them'. This is but one aspect of the Court's general function of applying the
relevant law to the 510 facts of the case before it. The starting point is,
therefore, to consider this function." "It is the function of the
court alone to declare the legal meaning of an enactment. If anyone else (such
as the draftsman of the provision) purports to lay down what the legal meaning
is the court will tend to react adversely, regarding this as an encroachment
upon its constitutional sphere".
A
Constitution Bench of this Court in Sanjeev Coke Manufacturing Company v. Bharat
Coking Coal Ltd. & Anr., [1983] 1 SCR 1000 at P. 1029 observed as under:
"No
one may speak for the Parliament and Parliament is never before the Court.
After Parliament has said what it intends to say what the Parliament meant to say.
None else. Once a statute leaves Parliament House, the Court's is the only
authentic voice which may echo (interpret) the Parliament. This the Court will
do with reference to the language of the statute and other permissible aids.
The executive Government may place before the Court their understanding of what
Parliament has said or intended to say or what they think was Parliament's
object and all the facts and circumstances which in their view led to the
legislation. When they do so, they do not speak for parliament. No act of
Parliament may be struck down because of the understanding or misunderstanding
of Parliamentary intention by the executive government or because their (the
Government's) spokesmen do not bring out relevant circumstances but indulge in
empty and selfdefeating affidavits. They do not and they cannot bind
Parliament. Validity of legislation is not to be judged merely by affidavits
filed on behalf of the State, but by all the relevant circumstances which the
Court may ultimately find and more especially by what may be gathered from what
the legislature has itself said. We have mentioned the facts as found by us and
we do not think that there has been any infringement of the right guaranteed by
Art. 14".
In Kehar
Singh and Anr. v. Union of India and Anr., [1989] 1 SCC 204 at p. 214, this
Court observed as under:
511
"In the course of argument, the further question raised was whether
judicial review extends to an examination of the order passed by President
under Art. 72 of the Constitution. At the outset we think it should be clearly
understood that we are confined to the question as to the area and scope of the
President's power and not with the question whether it has been truly exercised
on the merits. Indeed, we think that the order of the President cannot be
subjected to judicial review on its merits except within the strict limitations
defined in Maru Ram v. Union of India. The function of determining whether the
act of a constitutional or statutory functionary falls within the
constitutional or legislative conferment of power, or is vitiated by
self-denial on an erroneous appreciation of the full amplitude of the power is
a matter for the Court." In the dispute relating to river Cauvery itself
an application under Article 32 of the Constitution was filed by the Tamil Nadu
Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimal Padhugappu Sangam
which was said to be a society registered under the Tamilnadu Societies
Registration Act asking this Court for direction to the Union of India to refer
the dispute under Section 4 of the Act and this Court in Tamil Nadu Cauvery Neerppassna
Vilaiporulgal Vivasayigal Nalaurimal Padhugappu Sangam v. Union of India &
Ors. [1990] 3 SCC 440 allowed the petition and directed 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.
Thus,
we hold that this Court is the ultimate interpreter of the provisions of the
inter-State Water Disputes Act, 1956 and has an authority to decide the limits,
powers and the jurisdiction of the Tribunal constituted under the Act. This
Court has not only the power but obligation to decide as to whether the
Tribunal has any jurisdiction or not under the Act, to entertain any interim
application till it finally decides the dispute referred to it. There is thus
no force in the above argument raised by Dr. Y.S. Chitale.
We
would now examine the controversies raised on merits in these appeals. It was
contended on behalf of the appellants before the Tribunal that it had
jurisdiction to entertain these miscellaneous petitions for interim relief.
Firstly,
for the reason that when the Tribunal while exercising powers of granting
interim relief it will be only exer- 512 cising 'incidental and ancillary
power', as the interim reliefs prayed for arise out of the water dispute which
has been referred to the Tribunal. Secondly, under Article 262 of the
Constitution of India, once the Parliament has enacted the Act providing for
adjudication of a dispute in regard to sharing of water of Cauvery Basin, no
other Court in the country has the jurisdiction to grant an interim relief and,
as such, the Tribunal has the inherent powers to grant the interim relief,
otherwise petitioners shall be left with no remedy for the enforcement of their
rights.
The
Tribunal examined the scheme of the Act after adverting to the provisions of
Sections 3 to 6-A of the Act held that this Act was a complete code in so far
as the reference of a dispute is concerned. The Tribunal was authorised to
decide only the 'water dispute' or disputes which have been referred to it. If
the Central Government was of the opinion that there was any other matter
connected with or relevant to the water dispute which had already been referred
to the Tribunal, it was always open to the Central Government to refer also the
said matter as a dispute to the Tribunal constituted under Section 4 of the
Act. The Tribunal further held as under:
"The
interim reliefs which had been sought for even if the same are connected with
or relevant to the water dispute already referred cannot be considered because
the disputes in respect of the said matters have not been referred by the
Central Government to the Tribunal.
Further,
neither there is any averment in these petitions that the dispute related to
interim relief cannot be settled by negotiations and that the Central
Government has already formed the opinion that it shall be referred to the
Tribunal.
In
case the petitioners of C.M.P. Nos.4,5 and 9 of 1990 are aggrieved by the
conduct of the State of Karnataka and an emergent situation has arisen, as
claimed, they could have raised a dispute before the Central Government and in
case the central Government was of the opinion that the said dispute could not
be settled by negotiations, the said dispute could also have been referred by
the Central Government to the Tribunal." The Tribunal then referred to the
reference order dated 2.6.1990 and observed that in the letter dated 6.7.86,
from the Government of Tamilnadu, which is the basis of the reference, the
State of Tamilnadu sought reference of the following dispute to the Tribunal:
513
(a) The executive action taken by the Karnataka State in constructing Kabini, Hemavathi,
Harangi Swarnavathi and other projects and expanding any ayacuts:
(i) which
executive action has resulted in materially diminishing the supply of water to Tamilnadu;
(ii) which
executive action has materially affected the predescriptive rights of the ayacutdars
already acquired and existing; and
(iii) which
executive action is also in violation of the 1892 and 1924 Agreements; and (b)
the failure of the Karnataka Government to implement the terms of the 1892 and
1924 Agreements relating to the use, distribution and control of the Cauvery
waters."
The
Tribunal from the above letter dated 6.7.86 inferred that no interim dispute in
regard to the release of waters by the Karnataka Government from year to year
subsequent to the date of the request made by the State of Tamilnadu was at all
referred to the Tribunal. The Tribunal thus held that in their opinion the
Tribunal cannot entertain the prayer for interim relief unless the dispute
relating to the same was specifically referred to the Tribunal. The Tribunal
then considered the question as to whether the granting of an interim relief by
the Tribunal will be in exercise of incidental or ancillary powers. After
referring to certain decisions of this Court, the Tribunal observed that the incidental
and ancillary powers must relate to the actual dispute referred and not to any
other matter including granting of interim reliefs which are not at all subject
matter of reference. The Tribunal further held that the Tribunal will have the
power to pass such consequential order as are required to be made while
deciding the said dispute and will also have incidental and ancillary powers
which will make the decision of the reference effective but these power are to
be exercised only to enable it to decide the reference effectively but not to
decide disputes not referred including a dispute in regard to grant of interim
relief/interim reliefs. The Tribunal also adverted to the provisions of
Sections 9 and 13 of the Act as well as inter- State Water Disputes Rules, 1959
and held that these provisions were also indicative of the fact that the
Tribunal had no power to grant any interim relief of the nature asked for. It
was observed in this regard that in case intention of Parliament was that the
Tribunal may be able to grant any 514 interim relief without the dispute being
referred to the Tribunal, it would have either provided such powers in the Act
itself or in the rules framed under the Act, but this has not been done.
As
regards the second submission the Tribunal held that it was wrong to contend
that the State of Tamilnadu was left with no remedy available to it, because it
was open for the State of Tamilnadu to approach the Central Government and if
the Central Government found that the dispute was connected with or related to
the water dispute already referred to the tribunal, it was open to it to refer
the said dispute also to the Tribunal in regard to the granting of an interim
relief. In the view taken above, the Tribunal was of the opinion that it cannot
entertain the applications for the grant of interim reliefs.
We
have considered the arguments made by Mr. K. Parasaran on behalf of the
appellants and Dr. Chitale and Mr. Nariman for the respondents. Learned counsel
for the Union Territory of Pondicherry adopted the arguments of Mr. K. Parasaran
and learned counsel for the State of Kerala adopted the arguments of Dr. Chitale.
A
perusal of the order of reference dated 2.6.90 as already extracted above
clearly goes to show that the Central Government had referred the water
disputes regarding the inter-State river Cauvery and the river valley thereof,
emerging from letter dated 6th July, 1986
from the Government of Tamilnadu. Thus all the disputes emerging from letter
dated 6th July, 1986 had been referred to the Tribunal.
The Tribunal committed a serious error in omitting to read the following
important paragraph contained in the aforesaid letter dated 6.7.86:
REQUEST
FOR EXPEDITIOUS ACTION IN REFERRING THE DISPUTE TO TRIBUNAL:
"From
1974-75 onwards, the Government of Karnataka has been impounding all the flows
in their reservoirs. Only after their reservoirs are filled up, the surplus
flows are let down. The injury inflicted on this State in the past decade due
to the unilateral action of Karnataka and the suffering we had in running
around for a few TMC of water every time and crops reached the withering stage
has been briefly stated in note (Enclosure- XXVIII). It is patent that the
Government of Karnataka have badly violated the interstate agreements and
caused irrepairable harm to the age old irrigation in this State. Year after
year, the realisation 515 at Mettur is falling fast and thousands of acres in
our ayacut in the basin are forced to remain fallow. The bulk of the existing ayacut
in Tamilnadu concentrated mainly in Thanjavur and Thiruchirappalli districts is
already gravely affected in that the cultivation operations are getting long
delayed, traditional double crop lands are getting reduced to single crop lands
and crops even in the single crop lands are withering and falling for want of
adequate wettings at crucial times. We are convinced that the inordinate delay
in solving the dispute is taken advantage of by the Government of Karnataka in
extending their canal systems and their ayacut in the new projects and every
day of delay in adding to the injury caused to our existing irrigation."
The above passage clearly goes to show that the State of Tamilnadu was claiming
for an immediate relief as year after year, the realisations at Mettur was falling
fast and thousands of acres in their ayacut in the basin were forced to remain
fallow. It was specifically mentioned that the inordinate delay in solving the
dispute is taken advantage of by the Government of Karnataka in extending their
canal systems and their ayacut in the new projects and every day of delay is
adding to the injury caused to their existing irrigation. The Tribunal was thus
clearly wrong in holding that the Central Government had not made any reference
for granting any interim relief. We are not concerned, whether the appellants
are entitled or not, for any interim relief on merits, but we are clearly of
the view that the reliefs prayed by the appellants in their C.M.P. Nos. 4,5 and
9 of 1990 clearly come within the purview of the dispute referred by the
Central Government under Section 5 of the Act. The Tribunal has not held that
it had no incidental and ancillary power for granting an interim relief, but it
has refused to entertain the C.M.P. Nos . 4,5 and 9 on the ground that the reliefs
prayed in these applications had not been referred by the Central Government.
In view of the above circumstances we think it is not necessary for us to
decide in this case, the larger question whether a Tribunal constituted under
the Water Disputes Act has any power or not to grant any interim relief. In the
present case the appellants become entitled to succeed on the basis of the
finding recorded by us in therir favour that the reliefs prayed by them in
their C.M.P. Nos. 4,5 and 9 of 1990 are covered in the reference made by the
Central Government. It may also be noted that at the fag end of the arguments
it was submitted before us on behalf of the State of Kanataka that they were
agreeable to proceed with the C.M.Ps. on merits before the Tribunal on the
terms that all party States agreed that all questions 516 arising out of or
connected with or relevant to the water dispute (set out in the respective
pleadings of the respective parties), including all applications for interim
directions/reliefs by party States be determined by the Tribunal on merits.
However, the above terms were not agreeable to the State of Tamilnadu as such
we have decided the appeals on merits.
In the
result the appeals, are allowed, the Judgment of the Cauvery Water Disputes Tribunal
dated 5.1.1991 is set aside and the Tribunal is directed to decide the C.M.P.
Nos. 4,5 and 9 of 1990 on merits. In the facts and circumstances of the case we
direct the parties to bear their own costs.
SAHAI,J.
I agree with brother Kasliwal, J. that under the constitutional set up it is
one of the primary responsibilities of this Court to determine jurisdiction
power and limits of any tribunal or authority created under a statute. But I
have reservations on other issues including the construction of the letter
dated 6th July, 1986.
However,
it is not necessary for me to express any opinion on it since what started as
an issue of profound constitutional and legal importance fizzled out when the
States of Karnataka and Kerala stated through their counsel that they were
agreeable for determination of the applications for interim directions on
merits.
R.P.
Appeals allowed.
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