In the Matter of Cauvery Water Disputes Tribunal [1991] INSC 303 (22 November 1991)
Sawant, P.B. Sawant, P.B. Misra, Rangnath (Cj) Singh, K.N. (J) Ahmadi, A.M. (J) Kuldip Singh (J)
CITATION: 1992 AIR 522 1991 SCR Supl. (2) 497 1993 SCC Supl. (1) 96 JT 1991 (4) 361 1991 SCALE (2)1049
ACT:
Constitution Of India, 1950:
Articles 131 and 262--Original Jurisdiction of Supreme Court--Inter State river water dispute--Adjudication of--Excluded from purview of Court and vested in Water Tribunal under the Inter-State Water Disputes Act, 1956--Question of grant of interim relief--Whether could he agitated before Court.
Article 143--Advisory Jurisdiction--Whether Court can review its opinion--Whether President can refer a question of law already decided by the Court--Advisory opinion on Presidential Reference--Nature and effect of.
Articles 245,246,248,262, Seventh Schedule, List I--Entries 56 and 97, List II--Entries 14,17 and 18--Inter-State river water---Karnataka Cauvery Basin Irri- gation Protection Ordinance, 1991/Act No.27 of 1991---Con- stitutional validity of--Legislative competence of State Legislature--Whether denuded by Parliamentary legisla- tion--Whether State Legislature can change the law declared by Court--Whether can set aside decision of inter-parties and affect their rights and liabilities alone---Whether Inter-State Disputes Act enacted under Article 262 or Entry 56--Distinction inter se between Article 262. Entry 56 of List I and Entry 17 of List II---Executive Order or legisla- tive enactment of State Legislature interfering with adjudi- catory process of Water Tribunal--Whether interference with judicial power of State.
Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991/ Act No.27 of 1991: Constitutional validity of.
Inter-State Water Disputes Act. 1956:
Sections 5(2) and 6--Inter-State river water dispute--Order of Tribunal granting interim relief--Whether a report and decision--Whether requires to be published in the official gazette.
498 Section II-Exclusion of jurisdiction of Courts, includ- ing Supreme Court---Question of grant of interim relief--Whether falls outside purview of the Section.
Practice and Procedure:
Supreme Court Rules--Order XL, Rule I--Advisory opinion of Supreme Court under Article 143 of the Constitution--Whether could be reviewed.
HEAD NOTE:
In pursuance of the directions given by this Court in a Writ Petition filed by the Tamil Nadu Ryots' Association, the Union Government, by its notification dated June 2, 1990, constituted the Cauvery Water Disputes Tribunal under Section 4 of the Inter-State Water Disputes Act, 1956 for adjudication of the dispute regarding sharing of water of the inter-State river Cauvery between the States of Karnata- ka, the upper riparian State, Tamil Nadu, the lower riparian State, and Kerala and the Union Territory of Pondicherry. By another notification of the same date, it also referred the water dispute emerging from the Letter of Request lodged by the State of Tamil Nadu under Section 3 of the Inter State Water Disputes Act with the Central Government on the fail- ure of the negotiations between the parties in this regard, for reference of the dispute to a Tribunal for adjudication.
In the Letter of Request the State had made a grievance against construction of works in Karnataka area and the appropriation of water upstream so as to prejudice the interests downstream in the State of Tamil Nadu, and also sought the implementation of the agreements of 1892 and 1924, which had been entered into when most of the areas in these States comprised in the then Presidency of Madras and the then State of Mysore. The last of the agreements had expired in 1974 and though the understanding of 1976 had been reached, further negotiations in the matter had failed and hence the State of Tamil Nadu had lodged the aforesaid Letter of Request.
Before the Tribunal, the State of Tamil Nadu submitted an application for interim relief praying that 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 the concerned Union Minister and an order restraining Karnataka from undertak- 499 ing any new projects, dams, reservoirs, canals and/or from proceeding further with the construction of those already commenced in the Cauvery basin. The Union Territory of Pondicherry also sought a direction both to Karnataka and Tamil Nadu to release the water already agreed to during the months of September to March.
Meanwhile, Tamil Nadu filed an urgent petition to direct Karnataka, as an emergent measure, to release at least 20 TMC of water as the first instalment, pending final orders on their interim application.
Besides contesting the application on merits, both Karnataka and Kerala raised a preliminary objection that the Tribunal constituted under the Act had a limited jurisdic- tion, and had no inherent powers as an ordinary Civil Court has, and there was no provision of law which authorised or conferred jurisdiction on the Tribunal to grant any interim relief. The Tribunal held that since the question of grant- ing interim relief was not referred to it, the applications interim relief were not maintainable.
On appeal by the State of Tamil Nadu and the Union Territory of Pondicherry, this Court held that reliefs prayed for in the applications for interim relief and direc- tions, were covered in the reference and fell within the purview of the dispute referred to it by the Central Govern- ment under Section 5 of the later-State Water Disputes Act.
Accordingly, the Court directed the Tribunal to decide the applications for interim relief and directions on merits.
Rejecting the objections once again raised by the State of Karnataka, as regards the maintainability of the applica- tions for interim relief, the Tribunal passed an order directing the State of Karnataka, to ensure that 205 TMC water was available in Tamil Nadu's Mettur reservoir every year. Tamil Nadu was also directed to deliver to Pondicherry 6 TMC water. The Tribunal also directed Karnataka not to increase its area under irrigation by the waters of Cauvery, beyond the existing area. The order was to remain operative till the final adjudication of the dispute referred to it.
The Tribunal's order thus gave rise to the issuance of the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 by the State of Karnataka nullifying the Tribunal's order. The ordinance was subsequently replaced by Act No. 27 of 1991.
500 The State of Karnataka also instituted a suit under Article 131 against the State of Tamil Nadu and others for a declaration that the Tribunal's order granting interim relief was without jurisdiction and, therefore, null and void, etc.
Under these circumstances, the President of India made a Reference to this Court under Article 143(1) of the Consti- tution seeking advisory opinion on:
(a) whether the Ordi- nance and the provisions thereof were in accordance with the provisions of the Constitution,
(b) whether the Tribunal's order constituted a report and a decision within the meaning of Section 5(2) of the Inter-State Water Disputes Act, and whether the same was required to be published by the Govern- ment of India in order to make it effective, and
(c) whether a Water Disputes Tribunal constituted under the Inter-State Water Disputes. Act was competent to grant any relief to the parties to the dispute.
It was contended on behalf of the State of Karnataka that the legislation clearly fell within the competence of the State Legislature under Entry 17 as well as Entries 14 and 18 of List II in the Seventh Schedule of the Constitu- tion and the State Legislature had every right to legislate on the subject and this legislative power was subject only to Entry 56 of List I which, however, did not denude the States of the power to legislate under Entry 17, and, in the absence of the constitution of a River Board for Cauvery, as envis aged under Entry 56, the State retained full legisla- tive power to make laws as if Entry 17 had remained un- touched; that the executive power of the Union under Article 73 could not extend to any State with respect to matters on which the State alone could legislate, in view of the field having been covered by Article 162 of the Constitution; that since the Inter-State River Disputes Act enacted under Article 262 of the Constitution did not attract any Entry in List I, it was law essentially meant to provide for the adjudication of a dispute with respect to the use, distribu- tion or control of waters of, or in, any inter-State river or river valley and did not, therefore, step on the toe of Entry 17, that the Ordinance, which became Act subsequently, only sought to impose by section 3, a duty on the State Government to protect, preserve and maintain irrigation from Cauvery waters in the irrigable areas failing within the various projects specified in the Schedule to the said legislation, and, therefore, the legislation was clearly within the scope of the State's power to legislate and was intra vires the Constitution. A fortiori, the power to legislate conferred on the State Legislature by Entries 14, 17 and 18 of List 501 II, could not be inhibited by an interim order of the Tribu- nal, since the scheme of the Act envisaged only one final report or decision of the Tribunal under section 5(2) which would have to be gazetted under section 6 thereof, and therefore, it was open to the Karnataka Legislature to make a law ignoring or overriding the interim order of the Tribu- nal; that the scheme of the Act did not envisage the making of an interim order by the Tribunal; once a water dispute was referred to the Tribunal, it must 'investigate' the matters referred to it and forward a report to the Central Government setting out the facts found by it and giving its decision on the matters referred to it, and the Central Government must publish this decision in the official ga- zette to make it final and binding on the parties to the dispute, and since the interim order was not preceded by such an investigation, the said order could not be described as 'a decision' under section 5(2) of the Act, and conse- quently, the Central Government was under no obligation to publish the interim order, that the words 'any matter ap- pearing to be connected with or relevant to water dispute' employed in section 5(1) of the Act did not contemplate reference of an interim relief matter, nor could the same empower the Tribunal to make an interim order pendente lite, and, therefore, having regard to the purpose, scope and intendment of the Act, the Tribunal constituted thereunder had no power or authority to grant any interim relief which would have the effect of adversely interfering with its existing rights, although while finally adjudicating the dispute it could override any executive or legislative action taken by the State, and since the allocation of flow of waters between the concerned States was generally based on the principle of 'equitable apportionment', it was incum- bent on the Tribunal to investigate the facts and all rele- vant materials before deciding on the shares of the con- cerned States which was not possible at the interim stage and hence the legislature had advisedly not conferred any power on the Tribunal to make an interim order affecting the existing rights of the concerned parties, and that the President could refer any question of law under Article 143 and therefore, also ask the Supreme Court to reconsider any of its decisions.
In its written statement, the State of Kerala, by and large, supported the stand of the State of Kerala. However, subsequently it was submitted that since neither the scheme of the Act conferred any power on the Tribunal to make an interim order nor the scope of Article 262 read with the scheme of Act contemplated making of a Reference in that regard, the only remedy available to a State 502 which apprehended any action by the upper riparian State likely to adversely affect the rights of its people, was to move the Supreme Court under Article 131 of the Constitu- tion, notwithstanding the provisions of Article 262 and section 11 of the Act; and accordingly, this Court's view that there was a Reference to the Tribunal for grant of interim relief was not consistent with the true meaning and scope of Article 262 and the provisions of the Act and this Court should not feel bound by it.
The State of Tamil Nadu contended that ordinarily a dispute between two or more States would be governed by Article 131 of the Constitution and, subject to the provi- sions of the Constitution, the Supreme Court alone would have jurisdiction if and in so far as the dispute involved any question whether of law or fact on which the existence or extent of a legal right depended, that the Tribunal was required to perform a purely judicial function which, but for Article 262 and section 11 of the Inter-State Water Disputes Act, would have been performed by a court of law, that since the Tribunal was a substitute for the Supreme Court, it was reasonable to infer that all the powers exer- cised by the Supreme Court under Article 131 could be exer- cised by the Tribunal while adjudicating a water dispute and, therefore, the ancillary and incidental power to grant interim relief inhered in such a Tribunal without the need for an express provision or any specific reference to it in that behalf; that apart, the decision of this Court dated 26th April, 1991 that the reference to the Tribunal included the question of grant of interim relief operated as res judicata and was binding on the contesting parties regard- less of the view that this Court might take on the generali- ty of the question referred for decision; if the question of granting of interim relief formed part of the Reference, the Tribunal was duty bound to decide the same and even other- wise, it had inherent jurisdiction to grant interim relief, whether or not the question regarding grant of interim relief was specifically referred, and therefore, its deci- sion would constitute a report under section 5(2) of the Act and was liable to be published in the official Gazette as required by section 6; that if there was any ambiguity in the interim order the same could be taken care of under section 5(3) of the Act; that the Ordinance in question was ultra rites the Constitution for diverse reasons; the real object and purpose was to unilaterally nullify the Tribu- nal's interim order after having failed in the first round of litigation; the State of Karnataka had no right to uni- laterally decide the quantum of water it would appropriate or the extent to which it would diminish the flow of Cauvery waters to 503 the State of Tamil Nadu and thereby deny to the people of Tamil Nadu their rightful share in the Cauvery waters; the right to just and reasonable use of water being a matter for adjudication by the Tribunal, no single State could, by the use of its legislative power arrogate unto itself the judi- cial function of equitable apportionment and decide for itself the quantum of water it would use from the inter- State river regardless of the prejudice it would cause to the other State by its unilateral action; such a power could not be read in Entry 17 as it would be destructive of the principle that such water disputes were justiciable and must be left for adjudication by an independent and impartial special forum to which it was referred, namely, the Tribunal constituted for resolving the dispute, and not by unilateral executive or legislative interference, and, therefore, the object of the legislation not being bona fide, the same could not be allowed to stand as it had the effect of over- ruling a judicial order passed by a Tribunal specially appointed to adjudicate on the water dispute between the parties thereto; it sought to override or neutralize the law enacted by Parliament in exercise of power conferred by Article 262 and not Article 246 read with the relevant entry in the Seventh Schedule) of the Constitution; a State Legislature could have no power to legislate with regard to a water dispute as it would be incongruous to confer or infer such power in a State Legislature to destroy what a judicial body has done under a Central law; it had extra- territorial operation, in that, it directly impinged on the rights of the people of Tamil Nadu to the use of Cauvery waters; it was also contrary to the Rule of Law, and a power not comprehended even by Article 262 could not be read into the legislative power of the State for it would pervert the basic concept of justice; and was also violative of the fundamental rights of the inhabitants of Tamil Nadu guaran- teed by Articles 14 and 21 of the Constitution, in that, the action of Karnataka was wholly arbitrary and in total disre- gard of the right to life of those inhabitants in Tamil Nadu who survived on Cauvery waters; it was further contended that in a civilised society governed by the Rule of Law, a party to a 'lis' -water dispute- could not be allowed to arrogate to itself the right to decide on the dispute or to nullify an interim order made by a Tribunal in obedience to the decision of the apex court, by abusing the legislative power under Entry 17 under which the legislation purported to be; moreover, the jurisdiction of this Court under Arti- cle 143 of the Constitution was discretionary and this Court should refrain from answering a Reference which was in general terms without background facts and was likely to entail a roving inquiry which may ultimately prove academic only; secondly, 504 the State of Karnataka had immediately after the interim order instituted a suit in this Court in which it had prayed for a declaration that the interim order of the Tribunal dated 25th June, 1991 was without jurisdiction, null and void, and for setting aside the said order; while on the one hand, the decision of this Court had become final and was res judicata between the parties thereto, on the other hand, the State of Karnataka was raking up the same question of jurisdiction before this Court in a substantive suit with a view to over-reaching this Court's earlier order; the Presidential Reference in terms referred to disputes and differences having arisen out of the Tribunal's interim order which was said to have given rise to a public contro- versy likely to result in undesirable consequences; such matters could be effectively countered by the concerned Government and did not call for a Presidential Reference; if there was any doubt or difficulty in the implementation of the order in question, recourse could always be had to section 5(3) of the Act and hence, this Court should refuse to answer the Reference.
The Union Territory of Pondicherry, contended that the promulgation of the Ordinance (now Act) was intended to further protract the long standing water dispute which came to be referred to the Tribunal only after this Court issued a mandamus in that behalf and was likely to prejudicially affect the interest of the State as well as the farmers and other inhabitants who utilised the water from river Cauvery, that the said legislation was unconstitutional and was a piece of colourable legislation, that in the case of flowing water the riparian States had no ownership or proprietary right therein except in the usufruct thereof and, therefore, the power to legislate therein under Entry 17 of List II could extend to only the usufructuary right subject to the right of a riparian State to get the customary quantity of water; that the Ordinance was also void for repugnancy, being in conflict with the Central legislation, and also violative of Article 21 of the Constitution as it was in- tended to diminish the supply of water to Tamil Nadu and Pondicherry, which was also against the spirit of Articles 38 and 39 of the Constitution,that since the water dispute referred to the Tribunal comprised the issue regarding the grant of interim relief, as held by this Court, the interim order made by the Tribunal constituted a report within the meaning of section 5(2) of the Act and, consequently, the Central Government was obliged to publish it, as required by section 6 of the Act: and when so published it would operate as a decision in rem: but even without publication it was binding, on Karnataka as a decision in personam since the jurisdiction of all courts including 505 the Supreme Court was taken away by virtue Of section 11 of the Act read with Article 262(2) of the Constitution, and the Tribunal had all attributes of a Court; it was required to discharge the judicial function of adjudicating a water dispute between two or more States and must be deemed to possess the inherent incidental and ancillary power to grant interim relief which inhered in all such judicial bodies, and absence of an express provision in that behalf did not detract from the view that such power inhered in a Tribunal.
Six intervention applications were also filed by differ- ent persons and bodies from Karnataka, including the Advo- cate General of the State in support of the case of Karnata- ka.
An intervention application raising the contentions similar to those of State of Tamil Nadu was also filed by the Tamil Nadu Ryots' Association which had preferred the original Writ Petition on which a mandate to constitute the Tribunal was given.
Answering the Reference, this Court,
HELD: 1.1 The Karnataka Cauvery Basin Irrigation Protection Ordinance 1991 promulgated by Governor of Karna- taka on 25th July, 1991 (subsequently enacted by the State Legislature as Act No. 27 of 1991) is beyond the legislative competence of the State and, is therefore, ultra vires the Constitution. [565 E]
1.2 The object of the provisions of the Ordinance is obvious coming close on the Order of the Tribunal and in the context of the stand taken by the State of Karnataka that the Tribunal has no power or jurisdiction to pass any inter- im relief, it is to override the said decision of the Tribu- nal and its implementation. The Ordinance has thus the effect of defying and nullifying any interim order of the Tribunal appointed under a law of the Parliament. The other effect of the Ordinance is to reserve to the State of Karna- taka exclusively the right to appropriate as much of the water of river Cauvery and its tributaries as it deems requisite and in a manner and at periods it deems fit and proper, although pending final adjudication by the Tribunal. [546 F-G]
1.3 The Ordinance affects the jurisdiction of the Tribu- nal appointed under the Central Act, viz., the inter-State Water Disputes Act, which has been made under Article 262 of the Constitution.
506 The State of Karnataka has arrogated to itself the power to decide unilaterally whether the Tribunal has jurisdiction to pass the interim order or not and whether the order is binding on it or not. The State has presumed that till a final order is passed by the Tribunal, the State has the power to appropriate the waters of the river Cauvery to itself unmindful of and unconcerned with the consequences of such action on the lower riparian States, that it has supe- rior rights over the said waters and it can deal with them in any manner, and the lower riparian States have no equita- ble rights and that it is the sole judge as to the share of the other riparian States in the said waters. Moreover, it has assumed the role of a judge in its own cause. [552 C, F-G]
1.4 Apart from the fact that the Ordinance directly nullifies the decision of the Tribunal, it also challenges the decision of this Court, which has ruled that the Tribu- nal had power to consider the question of granting interim relief since it was specifically referred to it. The Ordi- nance further has an extra-territorial operation inasmuch as it interferes with the equitable rights of Tamil Nadu and Pondicherry to the waters of the Cauvery river. To the extent that the Ordinance interferes with the decision of this Court and of the Tribunal appointed under the Central legislation, it is clearly unconstitutional being not only in direct conflict with the provisions of Article 262 of the Constitution under which the said enactment is made, but being also in conflict with the judicial power of the State. 1552 H, 553 A]
1.5 The legislature can change the basis on which a decision is given by the Court and thus change the law in general, which will affect a class of persons and events at large but it cannot set aside an individual decision inter- parties and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or Tribunal. [554 H, 555 A] Municipal Corporation of the City of Ahmedabad etc. v. New Shorock Spg. & Wvg. Co.. Ltd. etc. [1971] 1 SCR 288; Madan Mohan Pathak v. Union of India & Ors. etc., [1978] 3 SCR 334 and P. Sambamurthy & Ors. etc. etc. v. State of Andhra Pradesh & Anr., [1987] 1 SCR 879, referred to.
1.6 Any executive order or a legislative enactment of a State which interferes with the adjudicatory process and adjudication by such Tribunal is an interference with the judicial power of the State. In view of the fact that the Ordinance in question seeks directly to 507 nullify the order of the Tribunal, it impinges upon the judicial power of the State. [555 C-D]
1.7 Further, admittedly, the effect of the Ordinance is to affect the flow of the waters of the river Cauvery into the territory of Tamil Nadu and Pondicherry which are the lower riparian States. The Ordinance has, therefore, an extra-territorial operation, and is thus beyond the legisla- tive competence of the State and is ultra vires the provi- sions of Article 245(1) of the Constitution. [555 E]
1.8 The Ordinance is also against the basic tenets of the rule of law inasmuch as the State of Karnataka by issu- ing the Ordinance has sought to take law in its own hand and to be above the law. Such an act is an invitation to law- lessness and anarchy, inasmuch as the Ordinance is a mani- festation of a desire on the part of the State to be a judge in its own cause and to defy the decisions of the judicial authorities. The action forebodes evil consequences to the federal structure under the Constitution and opens doors for each State to act in the way it desires disregarding not only the rights of the other States, the orders passed by instrumentalities constituted under an Act of Parliament but also the provisions of the Constitution. If the power of a State to issue such an Ordinance is upheld it will lead to the break down of the Constitutional mechanism and affect the unity and integrity of the nation. [555 F-G]
2.1 Under Article 131, this Court has original jurisdic- tion, among other things, in any dispute between two or more States where the dispute involves any question whether of law or fact on the existence and extent of which a legal right depends except those matters which are specifically excluded from the said jurisdiction by the proviso. However, the Parliament has also been given power by Article 262 of the Constitution to provide by law that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any dispute or complaint with respect to the use, distribution or control of the water of, or in, any inter- State river or river valley. Section 11 of the Inter-State Water Disputes Act, 1956, has in terms provided for such exclusion of the jurisdiction of the Courts. Thus, Section 11 of the Act read with Article 262 excludes original juris- diction of the inter-State water dispute which may be re- ferred to the Tribunal established under the Act from the purview of any Court including the Supreme Court under Article 131. 1544 H, 545 A-B]
2.2 The Inter-State Water Disputes Act, 1956 has been enacted only under Article 262 of the Constitution, and not under Entry 56, 508 as it relates to the adjudication of the disputes and with no other aspect either of the inter-State river as a whole or of the waters in it. [550 G]
2.3 Entry 56 speaks of regulation and development of interState rivers and river valleys and does not relate to the disputes between the riparian States with regard to the same and adjudication thereof. Even assuming that the ex- pression "regulation and development" would in its width, include resolution of disputes arising out therefrom and a provision for adjudicating them, the Act does not make the declaration required under Entry 56. This is obviously not an accidental omission, but a deliberate disregard of the Entry since it is not applicable to the subject-matter of the legislation. Further no Entry in either of the three Lists refers specifically to the adjudication of disputes with regard to inter-State river waters, the reason being that Article 262 of the Constitution specifically provides for such adjudication. [547 A-C]
2.4 An analysis of Article 262 shows that an exclusive power is given to the Parliament to enact a law providing for the adjudication of disputes or complaints relating to "use, distribution or control" of the waters of, or in any inter-State river or river valley. The words "use", "distri- bution" and "control" are of wide import and may include regulation and development of the said waters. The provi- sions clearly indicate the amplitude of the scope of adjudi- cation, inasmuch as it would take within its sweep the determination of the extent, and the manner, of the use of the said waters, and the power to give directions in respect of the same. [508 F-G]
2.5 The language of the Article has, further to be distinguished from that of Entry 56 and Entry 17. Whereas Article 262(1) speaks of adjudication of any dispute or complaint and that too with respect to the use, distribution or control of the waters of or in any inter-State river or river valley, Entry 56 speaks of regulation and development of inter-State rivers and river valleys.Thus, the distinc- tion between Article 262 and Entry 56 is that whereas former speaks of adjudication of disputes with respect to use, distribution or control of the waters of any inter-State river or river valley, Entry 56 speaks of regulation and development of inter-State rivers and river valleys. Entry 17 likewise speaks of water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry
56. It does not speak either of adjudication of disputes or of an 509 inter-State river as a whole and State can only deal with water within its territory. [547 H, 548 A-C]
2.6 The Inter-State Disputes Act, 19S6 is made pursuant to the provisions of Article 262 specifically for adjudica- tion of the disputes between the riparian States with regard to the use, distribution or control of the waters of the inter-State rivers or river valleys, and is not relatable to Entry 56 and, therefore, does not cover either the field occupied by Entry $6 or by Entry 17. Since the subject of adjudication of the said disputes is taken care of specifi- cally and exclusively by Article 262, by necessary implica- tion the subject stands excluded from the field covered by Entries 56 and 17. It is not, therefore, permissible either for the Parliament under Entry $6 or for a State legislature under Entry 17 to enact a legislation providing for adjudi- cation of the said disputes or in any manner affecting or interfering with the adjudication established by law under Article 262. This is apart from the fact that the State legislature would even otherwise be incompetent to provide for adjudication or to affect in any manner the adjudicatory process or the adjudication made in respect of the inter- State river waters beyond its territory or with regard to disputes between itself and another State relating to the use, distribution or control of such waters. Any such act on its part will be extra-territorial in nature and, therefore, beyond its competence. [549 C-F]
2.7 It is not correct to say that it is Entry 97 of the Union List,which deals with the topic of use, distribution and control of the waters of an inter-State river. This is so because the expression "regulation and development of inter-State rivers and river valleys" in Entry 56 would include the use, distribution and allocation of the waters of the inter-State rivers and river valleys between differ- ent riparian States. Otherwise, the intention of the Con- stituent Assembly to provide for the Union to take over the regulation and development under its control makes no sense and serves no purpose. Further, the River Boards Act, 1956, which is admittedly enacted under Entry 56 for the regula- tion and development of inter-State rivers and river val- leys, does cover the field of the use, distribution and allocation of the waters of the inter-State rivers and river valleys, indicating that the expression "regulation and development" in Entry 56 has legislatively also been con- strued to include the use, distribution or allocation of the waters of the inter-State rivers and river valleys between riparian States. To contain the operation of Entry 17 to the waters of an inter-State river and river valleys 510 within the boundaries of a State and to deny the competence to the State legislature to interfere with or to affect or to extend to the use, distribution and allocation of the waters of such river or river valley beyond its territory, directly or indirectly, it is not necessary to fail back on the residuary Entry 97, as an appropriate declaration under Entry 56 would suffice. The very basis of a federal Consti- tution mandates such interpretation and would not bear an interpretation to the contrary which will destroy the con- stitutional scheme and the Constitution itself. Although, therefore, it is possible technically to separate the "regulation and development" of the interState river and river valley from the "use, distribution and allocation" of its waters, it is neither warranted nor necessary to do so. [549 G, 550, B-F]
2.8 Though the waters of an inter-State river pass through the territories of the riparian States such waters cannot be said to be located in any one State. They are in a state of flow and no State can claim exclusive ownership of such waters so as to deprive the other States of their equitable share. Hence in respect of such waters, no State can effectively legislate for the use of such waters since its legislative power does not extend beyond its territo- ries. It is further an acknowledged principle of distribu- tion and allocation of waters between the riparian States that the same has to be done on the basis of the equitable share of each State. What the equitable share will be will depend upon the facts of each case. [551 H, 552 A-B]
3.1 The order of the Tribunal dated 25th June, 1991 granting interim relief constitutes a report and a decision within the meaning of Section 5(2) of the Inter-State Water Disputes Act, 1956. The said order is, therefore, required to be published by the Central Government in the Official Gazette under Section 6 of the Act in order to make it effective. [565 F-G]
3.2 Sub-section (1) of Section 5 expressly empowers the Central Government to refer to the Tribunal not only the main water dispute, but any matter appearing to be connected with or relevant to it. A request for an interim relief, whether in the nature of mandatory direction or prohibitory order, whether for the maintenance of status quo or for the grant of urgent relief or to prevent the final relief being rendered infructuous, would be a matter connected with or relevant to the main dispute. In fact, this Court, by its decision of April 26, 1991, has in terms held that the request of the State of Tamil Nadu for granting interim relief had been referred by the Central Government to the Tribunal and directed the Tribunal to 511 consider the request on merits, the same being a part of the Reference. Hence the order of the Tribunal will be a report and decision within the meaning of Section 5(2) and would have, therefore, to be published under Section 6 of the Act in order to make it effective. [562 A-C]
3.3 It is not correct to say that since the Order does not say that it is a report and decision it is not so under Section 5(2) of the Act. Either the Order is such a report and decision because of its contents or not so at all. If the contents do not show that it is such a report, it will not become one because the Order states so. The contents of the order clearly show that it is a report and a decision within the meaning of Section 5(2). [563 B]
3.4 The scope of the investigation that a Tribunal or a Court makes at the stage of passing an interim order is limited compared to that made before making the final adju- dication. The extent and the nature of the investigation and the degree of satisfaction required for granting or reject- ing the application for interim relief would depend upon the nature of the dispute, and the circumstances in each case.
No hard and fast rule can be laid down in this respect.
However, no Tribunal or court is prevented or prohibited from passing interim orders on the ground that it does not have at that stage all the material required to take the final decision. To read such an inhibition in the power of the Tribunal or a court is to deny to it the power to grant interim relief when Reference for such relief is made.
Hence, the Tribunal constituted under the Act is not pre- vented from passing an interim order or direction, or grant- ing an interim relief pursuant to the reference merely because at the interim stage it has not carried out a com- plete investigation which is required to be done before it makes its final report and gives its final decision. It can pass interim orders on such material as according to it is appropriate to the nature of the interim order. [563 E-H]
3.5 The interim orders passed or reliefs granted by the Tribunal when they are not of purely procedural nature and have to be implemented by the parties to make them effec- tive, are deemed to be a report and a decision within the meaning of Sections 5(2) and 6 of the Act. [564 A]
3.6 In the instant case, Order of the Tribunal discusses the material on the basis of which it is made and gives a direction to the State of Karnataka to release water from its reservoirs in Karnataka so as to ensure that 205 TMC of water is available in Tamil Nadu's 512 Mettur reservoir in a year from June to May. It makes the order effective from 1st July, 1991 and also lays down a time-table to regulate the release of water from month to month. It also provides for adjustment of the supply of water during the said period. It further directs the State of Tamil Nadu to deliver 6 TMC of water for the Karaikal region of the Union Territory of Pondicherry. In addition, it directs the State of Karnataka not to increase its area under irrigation by the waters of the river Cauvery beyond the existing 11.2 lakh acres. It further declares that it will remain operative till the final adjudication of the dispute. Thus, the order is not meant to be merely declara- tory in nature but is meant to be implemented and given effect to by the parties. Hence, the order in question constitutes a report and a decision within the meaning of Section 5(2) and is required to be published by the Central Government under Section 6 of the Act in order to be binding on the parties and to make it effective. 1564 B-D]
3.7 It is not correct to say that Section 5(3) of the Act cannot apply to the interim orders as it is only the final decision which is meant to undergo the second refer- ence to the Tribunal provided in it. If the Tribunal has power to make an interim decision when a reference for the same is made, that decision will also attract the said provisions. The Central Government or any State Government alter considering even such decision may require an explana- tion or guidance from the Tribunal as stated in the said provisions and such explanation and guidance may be sought within three months from the date of such decision. The Tribunal may then reconsider the decision and forward to the Central Government a further report giving such explanation or guidance as it deems fit. In such cases it is the interim decision thus reconsidered which has to be published by the Central Government under Section 6 of the Act and becomes binding and effective. Therefore, there is no reason why the provisions of Section 5(3) should prevent or incapacitate the Tribunal from passing the interim order. Once a deci- sion, whether interim or final, is made under Section 5(2) it attracts the provisions both of sub-section (3) of that Section as well as the provisions of Section 6 of the Act. [564 E-G]
4.1 A Water Disputes Tribunal constituted under the InterState Water Disputes Act is competent to grant any interim relief to the parties to the dispute when a refer- ence is made by the Central Government. Whether the Tribunal has power to grant relief when no reference is made for such relief is a question which does not 513 arise in the facts and circumstances under which the Refer- ence is made. 1565 H, 566 A]
4.2 This Court has held by its order dated 26th April, 1991 that the Central Government had made a reference to the Tribunal for the consideration of the claim for interim relief prayed for by the State of Tamil Nadu and hence the Tribunal had jurisdiction to consider the said request being a part of the Reference itself. Implicit in the said deci- sion is the finding that the subject of interim relief is a matter connected with or relevant to the water dispute within the meaning of Section 5(1) of the Act. Hence the Central Government could refer the matter of granting inter- im relief to the Tribunal for adjudication. Although this Court has kept open the question, viz., whether the Tribunal has incidental, ancillary. inherent or implied power to grant the interim relief when no reference for grant of such relief is made to it, it has in terms concluded second part of the question. [557 A-C]
4.3 It is impermissible for this Court to sit in appeal even in adjudicatory jurisdiction, nor is it competent for the President to invest this Court with an appellate juris- diction, over the said decision through a Reference under Article 143 of the Constitution. [557 D]
4.4 It is not correct to say that the question of grant of interim relief falls outside the purview of the provi- sions of Section II of the Inter-State Water Dispute Act and can be agitated under Article 131 of the Constitution. The effect of the provisions of Section I 1 of the Act read with Article 262 of the Constitution is that the entire judicial power of the State, and, therefore, of the courts including that of the Supreme Court to adjudicate upon original dis- pute or complaint with respect to the use, distribution or control of the water of, or in any inter State river or river valleys has been vested in the Tribunal appointed under Section 4 of the said Act. 1555 B-D]
5. It is not correct to say that the President can refer any question of law under Article 143 and, therefore, also ask this Court to reconsider any of its decisions. In the first instance, the language Of clause (1) of Article 143 is opposed to such a proposition. The clause empowers the President to refer or this Court's opinion a question of law or fact which has arisen or is likely to arise. When this Court in its adjudicatory jurisdiction pronounces its authoritative opinion on a question of law, it cannot be said that there is any doubt about the question of law or the same is res integra so as to 514 require the President to know what the true position of law on the question is. The decision of this Court on a question of law is binding on all courts and authorities. Hence, under the said clause the President can refer a question of law only when this court has not decided it. Secondly, a decision given by this Court can be reviewed only under article 137 read with Rule I of Order XL of the the Supreme Court Rules 1966 and on the conditions mentioned therein.
When, further, this Court overrules the view of law ex- pressed by it in an earlier case, it does not do so sitting in appeal and exercising an appellate jurisdiction over the earlier decision. It does so in exercise of its inherent power and only in exceptional circumstances such as when the earlier decision is per incuriam or is delivered in the absence of relevant or material facts or if it is manifestly wrong and productive of public mischief. [557 E-H, 558 A-C] The Delhi Laws Act, 1912, The Ajmer-Merwara (Extension of Laws) Act, 1947 and the Part C States (Laws) Act, 1950 (1951) SCR 747, distinguished.
The Bengal Immunity Company Ltd. v. The State of Bihar & Ors., [1955] 2 SCR 603, relied on.
Jatindra Nath Gupta v. The Province of Bihar & Ors., [1949] FCR 595; Hari Vishnu Kamath v.Syed Ahmad Ishaque & Ors., [1955] 1 SCR 1104; Delhi Judicial Service Association.
Tis Hazari Court, Delhi etc. v. State of Gujarat & Ors. etc., JT (1991) 3 SC 617and State of Bombay v. Gajanan Mahadev Badley, AIR 1954 Bombay 351, referred to.
5.2 Under the Constitution appellate jurisdiction over the earlier decision does not vest in this Court; nor can it be vested in it the President under Article 143. If it is accepted that the President can ask this Court to reconsider any of its decisions it would mean that the advisory juris- diction under Article 143 is also an appellate jurisdiction of this Court over its own decision between the same par- ties and the executive has a power to ask this Court to revise its decision. If such power is read in Article 143 it would be a serious inroad into the independence of judi- ciary. [558 D]
5.3 The facts in A.R.Antulay's case arc peculiar and the decision therein has to be confined to those special facts.
Further the decision being inter-parties operates as res judicata and cannot be reopened. [560G, 561 E] 515 A.R.Antulay v. K.S. Nayak & Anr., [1988] Suppt. 1 SCR 1 and R. S.Nayak v.A R. Antulay, [1984] 2 SCR 495, referred to.
6. No opinion is expressed on the question whether the opinion given by this Court on a Presidential Reference under Article 143 of the Constitution, such as the present one, is binding on all courts, firstly, because the question does not form part of the Reference, and, secondly, any opinion expressed on it would again be advisory. However, adjudicatively it has been held by this Court that the advisory opinion is entitled to due weight and respect and normally, it will be followed. The said view holds the field today and may usefully continue to do so till a more oppor- tune time. [565 C-D]
ADVISORY JURISDICTION: Special Reference No. 1 of 1991.
(Under Article 143 of the Constitution of India).
G. Ramaswamy, Attorney General, V.R. Reddy, Addl. Solic- itor General, F.S. Nariman, T.R. Andhyarujina, Dr. Y.S. Chitale, S.S. Javali, K. Parasaran, A.K. Ganguli, K.K. Venugopal, A.S. Nambiar, Shanti Bhushan, P.P. Rao, P.P. Muthanna, K. Subramanian, Curiae Joseph, N.N.Gangadeb, Ms. A. Subhashini, Ms. Niranjana Singh, M.Veerappa, Subhash Sharma. Mohan Katarki, Atul Chitale, K.H. Nobin Singh, Subbanna, A. Subba Rao, G. Umapathy, E.C. Agarwala, P.N. Ramalingam, Smt. Shante Vasudevan, P. Krishnamurthy, P.K. Manohar, K.V. Viswanathan, Shalid Rizvi, Ashok Mukhoty, Mrs. Sangeeta Garg, Jayant Bhushan, T.T. Kunhikanan, M.D.B. Raju, G. Prabhakar, N. Ganpathi, S.R. Bhat, P. Mahale and P.R. Pamasesh for the appearing parties.
A.K. Sen, Venkataraman and C.S. Vaidyanathan for the Inter- vener.
The Report of the Court was delivered by SAWANT, J. On July 27, 1991 the President, under Article 143 of the Constitution, referred to this Court three ques- tions for its opinion. The Reference reads'as follows.:
"Whereas, in exercise of the powers conferred by Section 4 of the Inter-State Water Disputes Act, 1956 (hereinafter referred to as "the Act"). the Central Government constituted a Water Disputes Tribunal Called "the Cauvery Water Disputes Tribunal" (hereinafter called "the Tribunal") by a notification dated 2 June, 1990, a copy where of is annexed here- to, for the adjudi- 516 cation of the Water Dispute regarding the Inter-State River Cauvery;
WHEREAS on 25 June 1991, the Tribunal passed an interim Order (hereinafter referred to as "the Order"), a copy whereof is annexed here- to;
WHEREAS, differences have arisen with regard to certain aspects of the Order;
WHEREAS, on 25 July 1991, the Governor of Karnataka promulgated the Kamataka Cauvery Basin Irrigation Protection Ordinance, 1991 (hereinafter referred to as "the Ordinance"), a copy whereof is annexed hereto;
WHEREAS, doubts have been expressed with regard to the constitutional validity of the Ordinance and its provisions;
WHEREAS, there is likelihood of the constitu- tional validity of the provisions of the Ordinance, and any action taken thereunder, being challenged in Courts of law involving protracted and avoidable litigation;
WHEREAS, the said differences and doubts have given rise to a public controversy which may lead to undesirable consequences;
AND WHEREAS, in view of what is hereinbefore stated, it appears to me that the following questions of law have arisen and are of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court of India thereon;
NOW, THEREFORE, in exercise of the powers conferred upon me by clause (1) of Article 143 of the Constitution of India, I, Ramaswamy Venkataraman, President of India, hereby refer the following question to the Supreme Court of India for consideration and report thereon, namely:
(1) Whether the Ordinance and the provi- sions thereof are in accordance with the provisions of the Constitution;
(2) (i) Whether the Order of the Tribunal constitutes a report and a decision within the meaning of section 5 (2) of the Act; and (ii) Whether the Order of the Tribunal is required to be published by the Central Gov- ernment in order to make it effective;
517 (3) Whether the Water Disputes Tribunal constituted under the Act is competent to grant any interim relief to the parties to the dispute." To appreciate the significance of the questions referred and our answers to them, it is necessary to understand the factual background which has led to the Reference.
The river Cauvery is an inter-State river and is one of the major rivers of the Southern Peninsula. The basin area of the river and its tributaries has substantial spread-over within the territories of the two States, namely. Karnataka and Tamil Nadu, Karnataka being the upper riparian State and Tamil Nadu being the lower riparian State. The other areas which are the beneficiaries of the river water are the territories comprised in the State of Kerala and in the Union Territory of Pondicherry. The total length of the river from its head to its outflow into the Bay of Bengal is about 802 kms. It travels about 381 kms. in Southern-East- ernly direction before it reaches the border of Karnataka and Tamil Nadu. It also constitutes boundary between the said two States to an extent about 64 kms. and then tra- verses a distance of about 357 kms. in Tamil Nadu before joining the sea.
There were two agreements of 1892 and 1924 for sharing the water of the river between the areas which are predomi- nantly today comprised in the State of Karnataka and Tamil Nadu, and which were at the time of the agreements comprised in the then Presidency of Madras on the one hand and the State of Mysore on the other. The last agreement expired in 1974. The river presently covers three States of Karnataka, Tamil Nadu and Kerala and the Union Territory of Pondicher- ry. The present State of Tamil Nadu has an area of about 43,868 sq. kms. of the Cauvery River basin, reducing the basin area which at the time of the agreement was about 49,136 sq. kms. As against this the basin area of the said river which was about 28,887 sq. kms. in the State of Mysore has increased to about 34,273 sq. kms. in the present State of Karnataka.
The contributions made to the flows of the Cauvery River by Karnataka. Tamil Nadu and Kerala, according to the State of Karnataka is 425 TMC, 252 TMC and 113 TMC respectively together amounting to 790 TMC According to the State of Tamil Nadu, the contributions of the three States respec- tively are 392 TMC, 222 TMC and 126 TMC respectively togeth- er amounting to 740 TMC. The Study Team appointed by the Central Government in 1974 worked out the appropriations of the respective States as follows: Karnataka--177 TMC, Tamil Nadu including Pondicherry--489 TMC and Kerala--5 TMC.
518 In 1956 the Parliament enacted the River Boards Act, 1956 for the purpose of regulation and development of inter-State rivers and river valleys find also the Inter- State Water Disputes Act, 1956 for adjudication of disputes with regard to the use, distribution or control etc. of the said waters. In 1970 Tamil Nadu invoked the provisions of Section 3 of the Inter-State Water Disputes Act. 1956 and requested the Central Government for reference of the dis- pute between the two States, viz. Tamil Nadu and Karnataka to a Tribunal under the Act. The Central Government initiat- ed negotiations between the two States. Simultaneously, Tamil Nadu moved this Court by means of a suit under Article 131 of the Constitution being Suit No.1 of 1971 seeking a direction to the Union Government to constitute a Tribunal and to refer the dispute to it. In the said suit, Tamil Nadu applied for an interim order to restrain the S;ate of Karna- taka from proceeding with and executing the projects men- tioned therein. This Court by its Order of 25th January, 1971 dismissed the application for interim relief.
It appears that the negotiations between the two states which were going on in the meanwhile, resulted in the con- stitution of a Fact Finding Committee in June 1972 which was set up to ascertain facts, amongst others as to the avail- ability of water resources, the extent of utilisation and the nature of the areas in the respective States within the river basin, and their requirements. In view of the consti- tution of the Committee, Tamil Nadu withdrew its suit.
The Fact Finding Committee submitted its Reports in December, 1972, and August 1973. A Central Study Team headed by Shri CC. Patel, then Addl. Secretary to Government of India, in the Ministry of Irrigation was also set up to examine the question of assessing the savings of water in the existing and planned projects of the three States in the Cauvery basin. The recommendation of the Study Team on improvement and modernisation of the irrigation system including the strengthening of the works and the lining of channels, integrated operations of the reservoirs within the Cauvery basin, scientific assessment of water requirement in the command area and for monitoring the releases from the reservoirs for an efficient tie up between the rain fall and command, water requirement and release were announced at the Inter-State Conference of June 1974.
Further negotiations resulted in what is known as "the 1976 Understanding". This Understanding envisaged the appor- tionment of the surplus water in the ratio of 30:53:17 amongest the States of Tamil Nadu, Karnataka and Kerala respectively. In the case of savings, the Study Team pro- posed the apportionment in the ratio of 87 TMC to Karnataka, 4 TMC to Tamil Nadu and 34 TMC to Kerala.
519 It appears that in spite of the information gathered through the Fact Finding Committee and the Study Team set up by the Union Government, the negotiations were not fruitful.
In 1983, Tamil Nadu Ryots Association presented a petition to this Court under Article 32 of the Constitution being Writ Petition No. 13347 of 1983. The petition sought issue of a writ of mandamus to the Central Government requiring it to refer the dispute to a Tribunal under the Act. The peti- tion was also accompanied by an application seeking interim relief. The State of Tamil Nadu supported the Writ Petition.
Notices were issued to the respondents including the Union Government and the State of Karanataka. The petition re- mained pending in this Court for nearly seven years. No application for interim relief was moved during this period.
Although the inter-State meetings continued to be held during this period, nothing worthwhile emerged out of them.
Hence, in June 1986, the State of Tamii Nadu lodged a Letter of Request under Section 3 of the Act with the Central Government for the Constitution of a Tribunal and for refer- ence of the water dispute for adjudication to it. In the said letter, Tamil Nadu primarily made a grievance against the construction of works in the Karnataka area and the appropriaion of water upstream so as to prejudice the inter- ests down-stream in the State of Tamil Nadu. It also sought the implementation of the agreements of 1892 and 1924 which had expired in 1974.
At the hearing of the Writ Petition filed by the Tamil Nadu Ryots Association, the Central Government left the matter to the Court. This Court taking into consideration the course of negotiations and the length of time which had passed, by its judgment dated May 4, 1990 held that the negotiations between the two States had failed and directed the Union Government to constitute a Tribunal under Section 4 of the Act. In pursuance of the directions given by this Court, the Union Government by its notification dated June 2, 1990, constituted the Cauvery Water Disputes Tribunal and by another Notification of the even date referred to it the water dispute emerging from Tamil Nadu's Letter of Request dated July 6, 1986.
2. The Cauvery Water Disputes Tribunal (hereinafter re- ferred to as the "Tribunal") commenced its first sitting on 20th July, 1990. On that day, Tamil Nadu submitted a letter before the Tribunal seeking interim reliefs. The Tribunal directed Tamil Nadu to submit a proper application. There- upon Tamil Nadu and the Union Territory of Pondicherry submitted two separate applications for interim reliefs being CMP Nos. 4 and 5 of 1990.
520 The interim relief claimed by Tamii Nadu was that Karna- taka 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 the Union Minister for Irrigation and Powers. It further sought passing of an order restraining Karnataka from undertaking any new projects, dams, reservoirs, canals and/or from proceeding further with the construction of projects, dams, reservoirs. canals etc. in the Cauvery basin.
In its application for interim relief Pondicharry sought a direction from the Tribunal both to Karnataka and Tamil Nadu to release the water already agreed to i.e., 9.355 TMC during the months of September to March.
The Tribunal considered simultaneously both the applica- tions for interim reliefs as well as the procedure governing the trial of the main dispute. It directed the disputant States to file their pleading by way of statements of cases and also required the States of Karnataka and Kerala to submit their replies to the applications for interim reliefs made by Tamil Nadu and Pondicherry. By September 1990, all the disputant States submitted their first round of plead- ings or statements of cases. By November 1990, Karnataka and Kerala also submitted their replies to the applications for interim reliefs. The Tribunal gave time to the States to submit their respective counter statements in reply to the Statements of cases filed earlier in the main dispute.
It appears that before the disputant states submitted their counter statements in the main dispute, the Tribunal heard the applications for interim reliefs since Tamil Nadu had, in the meanwhile, filed an application being CMP No.9 of 1990 as an urgent petition to direct Karnataka as an emergent measure to release at least 20 TMC of water as the first instalment, pending final orders on their interim application CMP No.4/ 90.it appears that this application was filed on the ground that the samba crop could not he sustained without additional supplies at Mettur reservoir in the Tamil Nadu State" Besides contesting the application on merits, both Karnataka and Kerala raised a preliminary' objection to the jurisdiction of the Tribunal to entertain the said application and to grant any interim relief. The preliminary objection was that the Tribunal constituted under Act, had a limited jurisdiction. It had no inherent powers as'an ordinary Civil Court has, and there was no provision of law which authorised or conferred jurisdiction on the Tribunal to grant any interim relief. The Tribunal heard the parties both on the preliminary objection as well 521 as on merits, and by its Order of January 5, 1991. held.
among other things, as follows :- "...... This Act is a complete code in so far as the reference of a dispute is concerned. In the circumstances. in our opinion, the Tribu- nal is authorised to decide only the 'water dispute' or disputes which have been referred to it. If the Central Government is of the opinion that there is any other matter con- nected with or relevant to the 'water dispute' which h,ks already been referred to the Tribu- nal. it is always open to the Central Govern- ment to refer also the said matter as a dis- pute to the Tribunal constituted under Section 4 of the Act. Further, no water dispute can be referred by the Central Government unless the Central Government is of the opinion that the said dispute cannot be settled by negotia- tions. In fact, no water dispute can be adju- dicated without its reference to the Tribunal.
The interim reliefs which have been sought for even if the same are connected with or rele- vant 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 aver- ment 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 CMP Nos. 4,5 and 9 of 1990 are aggrieved by the conduct of the State of Karnataka and an emergent situation had ari- sen, 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 Tribuna
