State of Andhra Pradesh Vs. State of Karnataka & Ors [2000] INSC 251 (25 April 2000)
R.P.Sethi,U.C.Banerjee,V.N.Khare,G.B.Pattanaik,S.B.Majumdar
PATTANAIK, J.
The State of Andhra Pradesh has filed the suit under Article 131 of the Constitution of India, impleading the State of Karnataka, Union of India and State of Maharashtra as party defendants, seeking relief of declaration and mandatory injunction on the allegation that the State of Karnataka, in particular has made gross violations of the decision of Krishna Water Disputes Tribunal and such violations have adversely affected the residents of the State of Andhra Pradesh. The relief sought for in the suit are as under:
(a) declare that the report /decision dated 24.12.1973 and the further report/deecision dated 27.5.1976 of the Krishna Water Disputes Tribunal (KWDT) in their entirety are binding upon the three riparian States of Maharashtra, Karnataka and Andhra Pradesh and also the Union of India; (b) declare that the riparian States are duty bound to fully disclose to each other and also to the Union of India all particulars of all projects undertaken or proposed after December, 1973 and May, 1976 and to direct the defendants to ensure that execution thereof are in conformity with and do not conflict with or violate the decisions of the KWDT and they do not adversely affect the rights of the other riparian States; (c) declare that the party States are entitled to utilise not more than the quantity of water which is allocated or permitted by the decisions of the KWDT for the respective projects of the respective party States before the Tribunal; and that any variation in either storage or utilisation of the waters by each such state in respect of each of such projects could only be with the prior consent or concurrence of the other riparian States; (d) declare that all the projects executed and/or which are in the process of execution by the State of Karnataka which are not in conformity with and conflict with or violate the decisions of the KWDT, as illegal and unauthorised.
(e) declare that approvals /sanctions/ clearances/ in-principle clearances granted by the Union of India on or after KWDT decisions on 24.12.1973 and on 27.5.1976 in respect of schemes/projects/ undertaken by the Government of Karnataka are invalid and direct the Union Government to review /reconsider all such schemes/ projects proposed / undertaken by Karnataka, afresh, after obtaining the views thereon of the other riparian States;
(f) declare that the State of Karnataka and Maharashtra shall not be entitled to claim any rights preferential or otherwise in respect of storage, control and use of waters of the inter- State river Krishna in respect of the schemes /projects not authorised by the decision of the KWDT; (g) declare that the Union Government is duty bound to consult all the riparian States of Maharashtra, Karnataka and Andhra Pradesh before according any approvals / sanctions / clearances / in-principle clearances to any schemes / projects proposed / undertaken by any of the riparian States on the inter-State river Krishna and direct the Union Government to act in terms of the said declaration; (h) grant a mandatory injunction directing the State of Karnataka to undo all its illegal, unauthorised actions regarding projects/ schemes and in particular the following projects executed by it contrary to the decisions of KWDT so as to bring them in conformity with the said decisions:
Almatti Dam under UKP Construction of Canals/Lifts Schemes on Almatti Reservoir.
Upper Krishna Projects in K-2 Sub-basin.
Hippargi Weir/Irrigation Schemes.
Construction of Indi and Rampur lift schemes on Narayanpur reservoir and the canals.
(i) grant a permanent injunction restraining the State of Karnataka from undertaking, continuing or proceeding with any further construction in respect of the following projects: Almatti Dam under UKP Construction of Canals/Lifts Schemes on Almatti Reservoir Upper Krishna Projects in K-2 Sub-basin.
Hippargi Weir/Irrigation Schemes.
Construction of Indi and Rampur lift Schemes on Narayanpur reservoir and the canals.
(j) appoint a team of experts for making a comprehensive techno-economic evaluation and environmental impact analysis in respect of the following projects and, pending orders of this Honble Court on the report of the team of experts, grant an order of injunction restraining the Defendant No. 1 State of Karnataka from proceeding with any further construction in any of the following projects/schemes: Almatti Dam under UKP Construction of Canals/ Lifts Schemes on Almatti Reservoir Upper Krishna Projects in K-2 Sub-basin.
Hippargi Weir/Irrigation Scheme.
Construction of Indi and Rampur lift schemes on Narayanpur Reservoir and the canals.
(k) to issue a permanent injunction restraining the Defendant No. 1 State of Karnataka from growing or allowing to grow sugarcane or raising other wet crops in the command areas falling under the projects/schemes within the Upper Krishna Project; (l) pass a decree in terms of prayers (a) to (k); and (m) award costs of the present proceeding in favour of the Plaintiff;
(n) pass such further decree or decrees or other orders as this Honble Court may deem fit in the facts and circumstances of the case.
Though there are as many as 14 reliefs sought for as stated above, but essentially the reliefs relate to the construction of Almatti Dam under Upper Krishna Project by the State of Karnataka to a height of 524.256 M. Though the averments of facts in the plaint have been made in 71 paragraphs, shorn of minute details, the same may be stated as under: That the dispute between the three riparian States namely Maharashtra, Karnataka and Andhra Pradesh with respect to use, distribution and control of the water of inter- State river Krishna stood resolved by the decisions of the tribunal, constituted under Section 4 of the Inter-State Water Disputes Act, 1956 (hereinafter referred to as the Act) by the decision rendered in 1973 and the Further decision rendered in 1976. The said decision having been notified by the Central Government under Section 6, became binding on all parties. All the parties-States being constituents of the Federation of Republic of India, the plaintiff expected that each State, while undertaking their projects for utilisation of the quantity of water allocated in their favour by the tribunal would consult with the other concerned States and would so use, which will not be against the decision of the tribunal in any manner. But the State of Karnataka has not been acting in accordance with the letter and spirit of the decision of the tribunal and on the other hand has violated the expressed terms and conditions of the tribunal, which compelled the State of Andhra Pradesh to invoke the jurisdiction of the Supreme Court under Article 131 of the Constitution. After indicating the topography of the river as well as the three riparian States and the disputes which arose between the States that lead the Central Government to constitute the Krishna Water Disputes Tribunal, the plaintiff has stated that the tribunal framed seven main issues and under issue No. II with its eight sub-issues, decided the question of equitable apportionment of the beneficial use of the waters of the river Krishna and the river Valley by evolving Scheme A and making the same as its Final Order or decision, which became binding on all the parties, after the same was notified by the Union Government under Section 6 of the Act.
It is not necessary for us to reiterate all the facts leading to the raising of disputes and constitution of the tribunal, which we have already narrated in judgment in O.S.1 of 1997, filed by the State of Karnataka. The plaintiff then has averred as to how on the basis of agreement between the parties, the 75% dependable flow at Vijayawada was found to be 2060 TMC and while considering the case of each State for allocation of their respective share of water in respect of the aforesaid 75% of dependable flow, several projects in the river basin, already undertaken by the States as well as the quantity of water required for the projects were considered by the tribunal on the basis of which the ultimate figure of allocation were arrived at. According to the plaint, the tribunal, while restraining the States of Maharashtra and Mysore from using more water than allocated in their favour, granted liberty to the plaintiff-State of Andhra Pradesh to use the remaining water with the rider that the State of Andhra Pradesh will not acquire any right to the user of such water except to the extent allocated to it. The plaintiff also averred that while making allocation to the three States, no express provisions were made for sharing of any deficiency and further the tribunal took note of the fact that out of 100 years, deficiency may occur in 25 years. It was also averred that to relieve the State of Andhra Pradesh from the aforesaid difficulty, the tribunal permitted the State of Andhra Pradesh to store water in the Nagarjunasagar Dam and in Srisailam Dam and held that for such storage, there would not be any deduction from its share out of the dependable flow on the ground that if the water is not allowed to be stored by the plaintiff-State, then it would flow down and get submerged in the sea. According to the plaint, the tribunal did consider the different project reports which had been produced before it, in relation to the Upper Krishna Project and allowing the protected utilisation of 103 TMC, it came to the conclusion that the demand of State of Karnataka to the extent of 52 TMC to be utilised by Narayanpur Right Bank Canal is worth consideration. After enumerating the different clauses of the Final Order of the tribunal in its original report of 1973, the plaintiff has averred that though the tribunal has made allocation enbloc in a negative form namely that the State cannot utilise more than the allocable quantity of water in its share in any water year but the said enbloc allocation has to be read in the light of the relevant stand of the parties before the tribunal, the facts and figures produced before the tribunal and the ultimate basis on which the conclusion was arrived at. According to the plaintiff, by taking recourse to the aforesaid method, it would be crystal clear that party- States were restrained from utilising in different sub-basins of river Krishna within their respective territory, beyond what was considered as the protective use and the additional quantity allocated to their share. It has been averred in the plaint that so far as Upper Krishna Project is concerned within the State of Karnataka, the tribunal has allocated only 160 TMC of water for being used and the construction of Almatti Dam to the height of 524 Meters, as indicated by the State of Karnataka, would, therefore, on the face of it, is in violation of the decision of the tribunal. After referring to the different applications for clarifications sought for by different States under Section 5(3) of the Act and the answer of the tribunal on the same, the plaintiff has also averred as to how the tribunal dealt with the contentions raised by the State of Maharashtra before it, in relation to the allocation of 52 TMC of water from Narayanpur Right Bank Canal. According to the plaintiff, though, no doubt in the Final Order of the tribunal, there has been a mass allocation of water in favour of the three riparian States out of the 2060 TMC of water under 75% of dependability at Vijayawada, which figure was arrived at by consent of the parties, but a closer scrutiny of the report in its entirety being examined, it would be apparent that the allocation in respect of different sub-basins had been made on the basis of projects undertaken in those sub-basins and consequently, no State would be entitled to use the entire quantity of water allocated in their favour in any particular sub-basin.
The plaintiff, then has averred that the post award developments undertaken by the State of Karnataka, intending to raise the height of Almatti Dam to 524 Meters is nothing but a gross violation of the decision of the tribunal and, therefore, this Court should injunct the State of Karnataka in going ahead with the Almatti Dam upto the height of 524 Meters, as indicated in its project. The plaintiff then referred to several correspondence made between the State of Karnataka and State of Andhra Pradesh inter se, as well as correspondence between these States and Union Government and Central Water Commission. It has also been averred that allowing the State of Karnataka to construct the dam at Almatti up to a height of 524 Metres would be grossly detrimental to the lower riparian state of Andhra Pradesh inasmuch as for three months in a year from July to September, the State of Andhra Pradesh may go dry and the entire crop in the State would get damaged for paucity of water. The plaintiff also has averred in several paragraphs of the plaint, as to how the plaintiff-State has been demanding from the State of Karnataka to have suitable information in relation to the construction of the dam at Almatti and how the plaintiff-State has been prevented from being favoured with any such information. In paragraph 34 of the plaint, the plaintiff refers to the letter addressed to the Chief Minister of Andhra Pradesh by the then Union Minister for Water Resources, proposing to convene a meeting of Chief Ministers of the Krishna Basin States for discussing Upper Krishna Project Stage-II and along with the said letter, the observation of Central Water Commission, indicating how the project at Almatti creates a physical capability of water utilisation in excess of 173 TMC, which would be possible in view of the proposed top of the radial gate at FRL 521 meters against the required level of 518.7 meters for utilisation of 173 TMC of water. In the subsequent paragraph of the plaint, it has also been indicated as to how the State of Andhra Pradesh has been objecting to the proposals of the State of Karnataka to have the height of Almatti dam at 524 meters under the guise of flood protection measure and then how the plaintiff State requested the Prime Minister of India to intervene in the matter to avoid violation of the award of the Krishna Water Disputes Tribunal. In paragraph 39 of the plaint, it has been averred that the Union Government as well as the Central Water Commission which are responsible for clearance of inter-State Projects, bent upon clearing the Almatti Project up to a dam height of 524 meters without even consulting the State of Andhra Pradesh, though, according to the plaintiff in a Federal Structure of the Government, each constituent State would be entitled to know the progress of any project in relation to inter-State river, since it may have several adverse effects on the other States. The plaintiff also averred that at the behest of the State of Andhra Pradesh, the United Front Government, which was at the Centre, constituted a Committee of four Chief Ministers to examine the issues relating to the construction of Almatti Dam, which committee in turn, decided to constitute an Expert Committee with a representative of the Central Water Commission and Planning Commission, who, however, did not ultimately participate in the proceedings. The said Expert Committee has found that the proposal of the Upper Krishna Project with FRL of 524.256 meters for Almatti Dam is under consideration and has not been approved by the Government of India, though many canals have been designed and constructed for larger capacity meant for future uses and it is not necessary to build a bigger storage of 227 TMC at Almatti dam with top of shutter at 524.256 meters. The said Committee had also observed that the FRL on the top of the shutter be fixed for the present at 519 .6 meters and the gates be manufactured and erected accordingly and this will be adequate to take care of the annual requirements of 173 TMC presently envisaged under the Upper Krishna Project.
The said Committee, therefore, suggested the restriction of the height of the dam at 519.6 meters. The plaintiff however does not accept of the entitlement of the first defendant to use 173 TMC under UKP and the height of the dam at 519.6 meters. From paragraph 52 onwards, the plaintiff then has made averments indicating the negotiations and further developments in the matter and then states that the Ministry of Power, Government of India having indicated that in principle clearance of construction of Upper Krishna Hydro- electric power project at Almatti, contemplating the height of the dam at 524.256 meters was contrary to the award of the tribunal, and therefore, the plaintiff-State lodged its objections by letter dated 18th of October, 1996, to which the reply came that in principle clearance is not a techno- economic clearance and it is purely an administrative action to facilitate developmental activities. The plaintiff, thereafter by its letter dated 18th of December, 1996, requested the Secretary, Ministry of Water Resources, Govt. of India to ensure forthwith the publication in the Gazette of India the decision of the Krishna Water Disputes Tribunal i.e. the report dated 24.12.1973 and the further report dated 27.5.1976 in its entirety. But since it became apparent that the Defendant No. 1 State of Karnataka was not at all inclined to resolve the problem by any amicable discussion nor did it desire any effort for mediation being undertaken by anyone whatsoever, the plaintiff had no other alternative but to approach this Court under Article 131 of the Constitution for declarations and injunctions against the Defendants for protection of the rights of the plaintiff State as well as the rights of its inhabitants flowing from the decision of the Krishna Water Disputes Tribunal. From paragraph 65 onwards, the plaintiff has narrated several facts constituting violations of the decision of the tribunal by the State of Karnataka and from paragraph 69 onwards, the plaintiff has indicated the role played by the Central Government in the matter of allowing the State of Karnataka to raise the height of the dam, which would ultimately lead to violation of the terms and conditions as well as the restrictions in the award of the tribunal and which would infringe the rights of the State of Andhra Pradesh and its inhabitants. The cause of action for filing the suit has been indicated in paragraph 73 of the plaint, namely indulgence of the State of Karnataka in going ahead with the Upper Krishna Project Stage I and II with the construction of the Almatti Dam which is in violation of the decision of the tribunal in letter and spirit.
Defendant No. 1- State of Karnataka in its written statement, took the stand that the tribunal had not made any project-wise allocation and on the other hand, the allocation is enbloc and as such the question of interpreting the decision of the tribunal to the effect that there is restriction in the user of water in any particular Basin is not correct. It has been further averred that the State of Karnataka had contemplated the height of the Dam at Almatti as 524.256 m in the Project Report of 1970 itself and that Report had been filed before the tribunal and had been marked as document MYPK-3. Neither the State of Andhra Pradesh nor any other State had raised any objection to the said Project Report and there was no issue before the tribunal on that score and in fact the height of the Almatti Dam was not a matter of adjudication before the tribunal.
In this view of the matter, the plaintiff-State is not entitled to raise that issue on the purported allegation that it amounts to violation of the decision of the tribunal. It is also contented that an identical issue having been raised by an individual by filing a writ petition in the Andhra Pradesh and after dismissal of the same, the matter having been brought to this Court and the order of the Andhra Pradesh High Court has been affirmed, the same question cannot be re-agitated by filing a suit by the State under Article 131 of the Constitution of India.
In respect of the decision of the Committee, which stated about the FRL 519.6 m, it has been averred in the written statement that the said Committee considered the height at 519.6 meters to be sufficient, taking into account the storage capacity of the dam which will take care of the annual requirement of 173 TMC in a water year but it did not take into account the further water that may be needed for generation of power and the project at Almatti with the height of the dam beyond 519.6 meters and up to 524.256 meters being only for power generation and the water thus used for power generation being non-consumptive, there is no question of violation of any direction of the tribunal when the State of Karnataka has decided to have the height of the dam at Almatti at 524.256 meters. It has been specifically averred in the written statement that the decision of the tribunal which has been Gazetted under Section 6 of the Act has not imposed any restriction on any State for construction of any Project and on the other hand Clause XV expressly mentioned that : Nothing in the order of the tribunal shall impair the right or power or authority of any State to regulate within its boundaries the use of water, or to enjoy the benefit of water within that State in a manner not inconsistent with the order of this tribunal and in view of such specific provision, it is futile for the State of Andhra Pradesh to contend that the height of the dam at Almatti should not be raised to 524.256 meters. The defendant has further averred that the Project at Almatti has been undertaken at huge cost exceeding Rs.6000 crores and it is not in national interest to stop the project at this advance stage and the suit has been filed with the design to cause delay in the completion of the projects undertaken by the State of Karnataka. It has been reiterated that the utilisation of water would be entirely within the allocated quantity made by the tribunal.
According to Defendant No. 1, the plaintiff has not made out any case of breach of its legal rights and, therefore the suit under Article 131 of the Constitution is not maintainable. The defendant also narrated the background under which the Central Government set up the tribunal for adjudication of the disputes between the riparian States and how ultimately the tribunal gave its report, stating therein the facts found as well as the decision thereon. The defendant State has also stated in the written statement that the Almatti Dam has been designed for utilisation of 173 TMC for Upper Krishna Project in two stages and the State had indicated that height, right from the inception before the tribunal itself, though neither any party raised any objection nor any issue was struck, nor any decision thereon has been given by the tribunal itself and in this view of the matter any grievance with regard to the height of the dam at Almatti would be a fresh water dispute and would not come within the adjudicated dispute and decision thereon by the tribunal itself and, therefore, the suit filed under Article 131 is not maintainable. It has been specifically averred that the storage level at Almatti Dam from 519.6 meters to 524.256 meters is not at all an increase, particularly, when the tribunal itself expressly noted the contemplated completion of the Almatti Dam to the full height that is the height in Exhibit MYPK-3. The defendant also referred to the report of the Central Water Commission dated January 30, 1994, whereunder it has been indicated that since the power generation is contemplated under the project at Almatti by way of utilising the extra storage of water between 519.60 meters and 521 meters, the project may be treated as a multi-purpose project (the level required to utilise 173 TMC of water for irrigation is 519.60 meters). The Defendant-State of Karnataka has specifically averred that even though the dam height is raised to this final level of 524.256 meters, the quantity of water that could be utilised for irrigation is only 173 TMC as per allocation made in the Award and any additional quantity over and above 173 TMC will be let out into the river after generating power. It has also been contended that the dispute raised being a water dispute in respect of an inter-State river, the same is governed by Article 262 of the Constitution read with Section 11 of the Inter-State Water Disputes Act, and therefore, suit under Article 131 is not maintainable. All allegations made by the plaintiff about the misuse of position have been denied. It has also been denied that neither there is any requirement of the decision of the tribunal nor any liability which compels any State to consult another State in the matter of planning of the projects for utilisation of its water resources and the contention raised by the State of Andhra Pradesh in this regard is wholly mis-conceived. The defendant further contends that the State of Andhra Pradesh not having utilised the opportunity to seek clarification under Section 5(3) of the Act with regard to the height of or any other specification of the Almatti Dam is not entitled to raise this dispute in this Court by filing a suit under Article 131 of the Constitution. The defendant-State of Karnataka reiterated that the utilisation of water under the U.K.P.first at Almatti and later at Narayanpur downstream, is entirely within the scope of 173 TMC and in any event within the aggregate share of 734 TMC allocated to the defendant Karnataka and the construction of the Upper Krishna Project at Almatti and at Narayanpur is all consistent with the work specifications prescribed by the Expert technical bodies in all respect including the provision for river sluices. In respect of Clause XV of the Final Order of the tribunal, the defendant averred that the quantity of 155 TMC considered in respect of Upper Krishna Project does not restrict the defendant Karnataka from planning increased utilisations by taking into account quantities of 34 TMC regeneration, 23 TMC of water by diversion of Godavari waters and of 50% of the surplus flows becoming available after the adoption of Scheme B devised by the tribunal. It is contended that the tribunal having not provided for allocation or utilisation project-wise, so long as there has been no contravention of the mass allocation made, the plaintiff has no grievance and is not entitled to file the suit. It has been stated in the written statement that in the re- submitted modified proposal dated 21st of April, 1996 for Upper Krishna Project Stage II as multi-purpose project, incorporating compliance of the various comments of CWC and also then again proposing a FRL of 524.256 meters, clearly stating that even though the dam was to be raised to its final level of 524.256 m, the utilisation for irrigation would be only 173 TMC as per the readjustment of the project-wise allocations in the Master Plan within the scope of the Scheme A allocation of 729 TMC and as such, there has been no deviation, so far as the height of the dam at Almatti is concerned. With regard to the allegations made in the plaint, concerning development seeking a political solution to the dispute, the defendant-Karnataka denies all the averments made in that respect and asserts that execution of projects is within its entitlement and limits permitted by the decision of the tribunal. With regard to the initiative taken by the Prime Minister of India by holding a meeting on 10.8.1996, it has been stated that such initiative was frustrated by the uncompromising and unreasonable attitude of political leaders of Andhra Pradesh. So far as the Committee of four Chief Ministers are concerned, it has been averred that the Committee of Experts, constituted by the four Chief Ministers even did not frame any terms of reference for consideration, though requested by the State of Karnataka and it conducted the proceedings in a summary manner. The Chief Minister of Karnataka in fact had apprised the Chief Minister of West Bengal about the same by letter dated 19.12.1996 and after receipt of the so-called report of the Expert Committee, the Chief Minister of Karnataka had conveyed its reaction to the findings by his letter dated 25.2.1997 to which the Chief Minister of West Bengal had replied that the points are being examined and according to the State of Karnataka, the matter remained inconclusive and as such cannot have any binding effect. In the written statement, the defendant No.1 also averred that the findings of the said Expert Committee are erroneous. With regard to the allegations in the plaint that storage of huge quantity of water by construction of Almatti Dam would affect the interest of Andhra Pradesh and its inhabitants, the defendant Karnataka denies the same and also stated that the dam is intended to utilise about 173 TMC of water for irrigation and the remaining storage water will be used for non-consumptive purpose i.e., production of power and, therefore, the water will flow down to Andhra Pradesh and the said State will not be affected in any manner. With respect to allegations in the plaint regarding incorporation of Chamundi Power Corporation Ltd., the State of Karnataka has averred that the State is pursuing the matter before the Central Electricity Authority in accordance with law and the question of getting the consent of the plaintiff does not arise. So far as the assertions made in the plaint about the cascading and far-reaching effect on the environment is concerned, the State of Karnataka denies the same. On the question of alleged submergence, it has been averred that the State of Karnataka would take all adequate steps to provide compensation in accordance with law and rehabilitate the displaced population, if any. The assertions that Almatti Dam would render the major projects in Andhra Pradesh redundant, has been denied. So far as the allegation regarding violation of environmental law is concerned, it has been averred in the written statement that the applications for environmental clearance are under process by the Government of India and the State of Karnataka has not done anything without the appropriate clearance from the Appropriate Authorities. According to the defendant-State of Karnataka, the averments in the plaint are mis-leading and lacking of bona fides and all allegations and insinuations against the Chief Minister of Karnataka are denied. All other allegations of illegality being perpetuated by the State of Karnataka have been denied. So far as creation of Jal Nigam is concerned for effective execution of the Upper Krishna Project, the State of Karnataka contends that the said Nigam is wholly Government owned company and all its activities are controlled by the Department of Irrigation, Govt. of Karnataka and, therefore, the allegation of the plaintiff that the State is abdicating its responsibility for the execution of the project is incorrect and is denied. It has been categorically averred that the Karnataka State would be subjected to irreparable loss if the works at Almatti are stopped and the State of Andhra Pradesh wants to reap the benefit of the liberty to use the surplus water flowing in the river in view of the mass allocation made in favour of the three States. It has been specifically averred that the storage of additional water between the height of 519.6 to 524.256 meters will be used for power production only and not for irrigation till the augmentation of waters by Godavari diversion and surplus waters under Scheme B is made available. It has been specifically averred as to how the Government of Karnataka has sought for approval for taking up the cluster of hydel projects at Upper Krishna Project in phases and how the Central Electricity Authority has accorded in-principle clearance. At the cost of repetition, the State of Karnataka has averred that there has been no deviation of the decision of the tribunal and the Almatti Dam has been planned for utilisation of the allocated water by the tribunal in favour of the State of Karnataka. According to this defendant, the State of Andhra Pradesh being the last riparian State is receipient of abundant waters comprising the un-utilised share of upper riparian States in addition to its allocations made in its own favour and, therefore, no case has been made out establishing any injurious hardships so as to entitle the State to get a discretionary relief of injunction. The defendant also averred that the plaintiff has not placed an iota of evidence based of any acceptable material establishing the alleged loss of drinking water, food grains or unemployment and all such allegations are falacious.
According to the State of Karnataka, all the revised schemes at all relevant times had been submitted before the Appropriate Authorities of the Central Government and projects are being taken up only after getting clearance from the competent authorities. It has been averred at the end that the basis of the suit being that the allocation made by the tribunal is project-wise and the said basis being in-correct, the plaintiff is not entitled to the reliefs prayed for by filing the suit under Article 131 of the Constitution.
Union of India defendant no. 2 in its written statement raised the preliminary objection about the maintainability of the suit on the ground that the suit as framed is not maintainable in view of Article 262 of the Constitution of India read with Section 11 of Inter-State Water Disputes Act, 1956. Generally denying the allegations made in the plaint the Union of India took the positive stand that Karnataka multipurpose project Stage II which envisages generation of Hydropower is still under examination and the project report provides for Hydropower generation by storing water at the addition of storage space from 519.6 M to 524.256 M and it has been indicated that after generating the Hydropower the tail race water after power generation will be let into the river Krishna and the utilisation of river Krishna water under UKP will be within 173 TMC. With regard to the plaint allegation that under the Award Tribunal has allocated water projectwise, the Union of India submitted that the allocation of water is gross allocation and not the project wise allocation. It has been further stated that the State is entitled to utilise the gross amount of water for any such projects and so long as utilisation by Karnataka is within 173TMC in upper Krishna project, there is no violation of Krishna Water Disputes Tribunal Award. It has also been indicated that Stage I of UKP has been approved and Stage II is under various examination and not yet been approved. So far as the plaint case that Central Government is required to consult other States while clearing projects of one State, it has been averred that there is no obligation on the Central Government to consult said party State while clearing projects of other party State of Krishna basin when they are within the framework of KWDT Award. The financial assistance by Central Government is being given to the State in the shape of grants and loans. So far as Almatti project in particular is concerned the stand of the Union Government in its written statement is that UKP stage I has already been approved and it was approved by the Planning Commission on 22nd April, 1978 under which the construction of Almatti Dam to a partial height corresponding to FRL 512.2 m with solid spillway crest level at EL 500 m and with 12.2 m high gates. But in view of the technical difficulty of dismentaling and reerecting the radial gates of such height in Stage II, the Government of Karnataka desired to do construction of Almatti dam with full section as required for ultimate stage and solid crest upto 512 m in UKP Stage I itself. The revised proposal of Government of Karnataka was examined by the Central Water Commission and considered by Technical Appraisal Committee in its 20th Meeting held on 12.5.1982. The TAC recommended that the clearance of the Government of India for raising Almatti Dam in full width upto EL 500 m may be accorded subject to the observation that revised estimate be submitted by the State Government.
Subsequently, the State Government came up with modified proposals with Almatti spillway crest at EL 509 m and 15.2 high radial gates with a view to reduce submergence under Stage I of the project. This revised stage I estimate got the approval of the Planning Commission on 24.4.1990.
According to the written statement of the Central Government, Stage I of UKP was duly approved by the Central Water Commission as well as by the Planning Commission with certain modifications enabling the State Government to take upto Stage II at later stage. It has further been averred that the Karnataka Government has revised Upper Krishna project Stage II (1993) as UKP Stage II Multipurpose project (1996) and that project is under examination. The State of Andhra Pradesh has sent their comments to the said project and various appraising agencies are checking the design of gates from the structural aspect. But no final approval has been given. The allegation of State of Andhra Pradesh that Central Government adopted partisan attitude has been denied and on the other hand it has been stated that the State of Andhra Pradesh has not been able to prove that by constructing Almatti Dam the State of Karnataka will be utilising more water than allocated by KWDT. It is in this context the Central Government has also averred that the State of Andhra Pradesh is constructing Telugu Ganga Project which is an unapproved Project. So far as the allegation in the plaint that State of Andhra Pradesh had not been consulted before the Department of Environment and Forest cleared the Upper Krishna Project, it has been averred that there is no obligation on the part of Department of Environment and Forest, Government of India to obtain the views of State of Andhra Pradesh while clearing of the Upper Krishna Project of State of Karnataka. According to the Central Government the Award of the Tribunal is binding on the parties and the plaintiff has not been able to show any violation of the decision of the Tribunal.
On behalf of Ministry of Power who is Defendant No. 2 (C) a separate written statement has been filed giving reply to the averments made in paragraphs 56 and 57 of the plaint and it has been indicated that the expression In Principle clearance given by the Central Electricity Authority to Upper Krishna Project at Almatti does not tantamount to sanction of the project by the competent authority.
According to the said defendant while appraising various proposals for power project received from the States due care is taken by the Ministry of Power for proper evaluation.
The State of Maharashtra Defendant No.3 filed a written statement fully supporting the stand taken by the State of Karnataka and it has been averred in the written statement that the complaint of State of A.P. proceeds on certain assumptions which are not correct. With regard to the main question, namely, whether there was enbloc allocation or project wise allocation the defendant State of Maharashtra categorically avers that the Tribunal equitably allocated the waters of the river Krishna by allocating the quantities enbloc or in mass quantities. Though it has discussed individual projects of each State only for the limited purpose of assessing the needs of each State in accordance with the principles of equitable distribution.
It has further been stated in the said written statement that apart from the restrictions expressly stated in the final order of the Tribunal which has been notified by the Central Government no other restrictions have been imposed on the method of use by each State within the allocated share of the State concerned and Tribunal has not put any restriction on the storage by each State and according to Clause VII of the final order the storage of water by each State would not be considered as use of water by the State concerned. In the very written statement several paragraphs of the Report of the Tribunal have been quoted to indicate that the ultimate allocation was enbloc and not projectwise and further there has been no restriction or restraint placed by the Tribunal with regard to storage, size and height of dams in the Krishna Basin. The State has also referred to the subsequent conduct, that after the submission of original report and the decision of the Tribunal the State of Andhra Pradesh infact filed clarification note 9 and 10 on 7.5.1975 and 8.5.1975 raising objection to the storage but ultimately withdrew those notes and did not want any clarification on the subject of storage which fortifies stand of the State of Maharashtra that there is no restriction on any State in respect of storage of water within the Krishna Basin so long as it does not exceed the enbloc allocation given by the Tribunal. According to this defendant the relief sought for in the plaint would tantamount to a complete re-writing of the decision of the Tribunal which would be outside the scope of a suit under Article 131 of the Constitution. After refuting the stand taken by the State of Andhra Pradesh in the plaint in paragraph 16 of the written statement the State of Maharashtra submitted , that the plaintiff does not deserve to be granted any of the prayers prayed for in this para and the Suit should be dismissed with costs. Having filed the aforesaid written statement on 7th July, 1997 fully supporting the stand taken by the State of Karnataka and seeking relief of the dismissal of the suit filed by the State of Andhra Pradesh an additional written statement was filed by the said State on 9th April, 1999 giving a clear go bye to the earlier wirtten statement and taking a new stand in relation to the alleged construction of Almatti Dam with FRL RL 524.56 m. by the State of Karnataka. In this additional written statement it has been averred that by raising the dam height at Almatti, there is likelihood of enormous damage to private and public properties and works and structures including archeological structures and pilgrimage places in the State of Maharashtra. There would also be disruption of communications, enhanced distress and damages during floods each year due to sedimentation. It has been further averred that the details of the magnitude, duration and extent of submergence were not clear to the State of Maharashtra as the said submergence has not been discussed by the Tribunal itself but on getting subsequent documents from the State of Karnataka and on ascertaining the effect of the proposed Almatti Dam at 524.256 m it appears that there would be large scale submergence of area in the State of Maharashtra and no State should be allowed to have its project which will have deleterious and adverse effect on the other State. It is in this connection in the additional written statement it has been further averred that the said State of Karnataka has not obtained the relevant clearance from different environment authorities and forest authorities and even the Central Water Commission has not given the clearance and, therefore, the State of Karnataka should be injuncted from raising the dam height from 519.00 m. to 524.256 m. until and unless the actual area likely to be submerged is made known after due survey.
In the written statement the adverse effect of submergence have been indicated in different paragraphs and ultimately it has been prayed that the prayer h, i & j sought for by the plaintiff so far as it relates to Almatti Dam under UKP should be allowed, namely, the State of Karnataka should be injuncted. Though the State of Maharashtra filed the aforesaid additional written statement taking the stand totally contrary to the stand taken earlier but no order had been passed on the same and it is only when the hearing of this suit began the Court passed an order that without prejudice to the contention of the State of Karnataka the said additional written statement be taken into consideration on the basis of which an additional issue is also required to be framed.
On the pleadings of the parties, 22 issues were framed which are extracted hereinbelow:- 1.Whether the State of Karnataka has violated the binding decisions dated 24.12.1973 and 27.05.1976 rendered by the KWDT by executing the projects mentioned in para 66, 68n & 69 of the Plaint? (A.P./KAR) 2.Has this Honble Court jurisdiction to entertain and try this suit? (MAH.) 3.
Does the Plaintiff prove that the allocation of Krishna Waters by the KWDT in its Final Order are specific for projects and not enbloc as contended by the Defendant? (MAH.) 4.Does the Plaintiff prove that the upper States are not entitled to construct project without reference to and consent of the other States? (MAH.) 5.Whether the Plaintiff is entitled to a declaration that all the projects executed and/or which are in the process of execution by the State of Karnataka, and not in conformity with or in conflict with the Decisions of the KWDT are illegal and unauthorised? (A.P.) 6.Is not the Union Government duty bound to consult all the riparian States before according any approval/sanction/clearance in principle clearances to any schemes, projects proposed/undertaken, by any of the riparian States on the Inter-State river Krishna? (A.P.) 7.Whether the sanctions and the approvals granted by the 2nd Defendant to the State of Karnataka for the projects referred to in Issue I, without the prior concurrence of State of Andhra Pradesh are valid and binding upon the Plaintiff?(A.P.) 8.Whether sanctions and the approvals granted by the 2nd defendant are liable to be reviewed, reconsidered afresh, after obtaining the views thereon of the other riparian States?(A.P.). 9.(a) Whether the construction of the Almatti dam with a FRL of 524.256 m together with all other projects executed, in progress and contemplated by Karnataka would enable it to utilise more water than allocated by the Tribunal? (A.P.) (b) Whether Karnataka could be permitted to proceed with construction of such a dam without the consent of other riparian States, and without the approval of the Central Government? (A.P.) 10.Whether the Plaintiff proves that the reservoir and irrigation canals as alleged in paragraph 68 of the Plaint are oversized. If so, are they contrary to the Decision of the Tribunal? (A.P.) 11.Whether the Plaintiff State of Andhra Pradesh proves specific allocation/utilisation for UKP and canals as alleged? (A.P.) 12.Whether State of Karnataka is entitled to provide for any irrigation under Almatti canals and other new projects, when no allocation is made under the decisions of the KWDT? (A.P.) 13.Whether the Defendant State of Karnataka is entitled unilaterally to reallocate/readjust the allocation/utilisation under the UKP or any other project? Is concurrence of other riparian States necessary? (A.P.) 14.Whether the Union of India can permit and/or is justified in permitting the State of Karnataka to proceed with various projects which are in violation of the decisions rendered by KWDT? (A.P.) 15.Whether Upper Krishna Stage-II Multipurpose Project could be executed without the environmental clearance under the Environment (Protection)Act,1986 and the Notification issued by the Central Government in 1994 in exercise of its power under the said Act and the Rules made thereunder which mandatorily requires various analysis including dam break analysis?(A.P.) 16.Whether the acts of the State of Karnataka adversely effect or would adversely effect the State of Andhra Pradesh, and if so, with what consequences?(KAR) 17.Whether Hippargi was always part of the UKP and on that basis the KWDT awarded 5 TMC utilisation thereunder ?(A.P.) 18.Whether the utilisation of water under Chikkapada Salagi, Heggur and 5 other barrages is not 33 TMC as assessed by the Plaintiff State?(A.P.) 19.Whether the cumulative utilisations in the K2 sub-basin is 173 TMC as claimed by the State of Karnataka or 428.75 TMC as assessed by the Plaintiff State?(A.P.) 20.Whether the State of Karnataka has violated the KWDT award by proceeding with several new projects in the sub-basin such as K-6, K-8 and K- 9 in respect of which restrictions in quantum of utilisation have been imposed in the final decision of the Tribunal? (A.P.) 21.Whether utilisation under Almatti would be of the order of 91 TMC as claimed in para 66(iii) of the plaint?(A.P.) 22.To what reliefs if any, the plaintiff is entitled to?(A.P.) The additional issue framed as 9(C), because of the additional written statement filed on behalf of defendant no.3 is to the effect, Whether Karnataka can be permitted to raise the storage level at Almatti dam, above RL 509.16 meters in view of the likely submergence of territories in Maharashtra.
Before we take up the different issues framed by the Court and answer the same in the light of the contentions raised as well as with reference to the documents filed in support of the same it would be appropriate for us to notice the order of this Court dated 30th September, 1997 and its effect on the ultimate decision of the suit itself On 30th of September, 1997, this Court passed the following Order:
Sh. F.S. Nariman, learned Senior counsel for the State of Karnataka-defendant No. 1 and Sh. T.R.
Andhyarjuna, learned Solicitor General appearing for the State of Maharashtra- defendant No. 3 referred to the prayer (a) (at page 72 of the Paper book) and submits that both these States namely, Karnataka and Maharashtra accept this claim of the plaint of the State of Andhra Pradesh and agree to the grant of relief in the suit in terms of prayer in clause (a) as under: (a) declare that the report/decision dated 24.12.1973 and the further report/decision dated 27.5.1976 of the Krishna Waters Dispute Tribunal (KWDT) in their entirety are binding upon the three riparian States of Maharashtra, Karnataka and Andhra Pradesh and also the Union of India. In other words, there is no controversy in the Suit between the plaintiff and Defendants 1 and 3 i.e. Andhra Pradesh, Karnataka and Maharashtra and that the report/decision dated 24.12.1973 and the further report/decision dated 27.5.1976 of the Krishna Water Disputes Tribunal (KWDT) in their entirety are binding upon the three riparian States of Maharashtra, Karnataka and Andhra Pradesh. There is thus no controversy between the three riparian States to this extent. The learned Attorney General appearing for the Union of India submits that he is unable to make any statement today in this behalf as he has to seek instructions in the matter.
This statement made by the learned counsel for the three riparian States is placed on record to indicate that a partial decree to this extent on the basis of admission of the defendants (1 and 3, Karnataka and Maharashtra) can be passed and therefore, there is no need to frame any issue to cover this aspect of the Suit.
In course of hearing of the suit arguments had been advanced on behalf of the State of Karnataka by Mr. Nariman that the aforesaid partial decree in terms of prayer a of OS No. 2 of 1997 unequivocally indicates that the entire report i.e. 24.12.1973 and the further report dated 27.5.1976 in entirety must be held to be binding upon three riparian States, and that being the position, there is no logic on the part of the State of Andhra Pradesh to resist the prayer of Plaintiff No. 1 in OS No. 1 of 1997 to make Scheme B binding on parties which Scheme obviously form a part of the report and the further report. Mr. Ganguli, learned senior counsel appearing for the State of Andhra Pradesh on the other hand contended, that a prayer made by the plaintiff has to be understood in the context of the averments made in the plaint itself and not bereft of the same. According to Mr. Ganguli prayer a in the case in hand, if read in the light of the averments made in the plaint itself it would only mean that the plaintiff State having averred in the plaint that the Tribunal had made projectwise allocation which should be read into the final decision of the Tribunal which has been notified in the Official Gazette by the Government of India and, therefore, the State of Karnataka is not entitled to raise the height of the Dam at Almatti to 524.256 meters whereby it would be able to store more than 200 TMC of water with the utilisation capacity of about 400 TMC. It is in this context Mr. Ganguli placed before us paragraphs 3.1, 3.2 and 3.3 of the written statement to indicate to us as to how the said defendant understood the prayer a in the plaint.
Mr. Ganguli ultimately urged that the final order of the Tribunal can be equated with a decree in a civil suit and decree must be consistent with the judgment and, therefore, applying the said analogy the final order requires to be read in the light of the adjudication made by the Tribunal in the final report. The learned counsel placed reliance on the following decisions in support of the aforesaid contentions:- (i) Kalikrishna Tagore vs. The Secretary of State LR 15 Indian Appeals 186 at 192.3 (ii) Law Report 25 Indian Appeals at 107-08 (iii) 1913 Vol. 25 Madras Law Journal 24.
At the outset we are unable to accept the contention of Mr. Ganguli that the decision of the Tribunal which is ultimately notified under Section 6 of the Act can be held to be a decree of a suit and the report being the judgment and, therefore, the decided case laws on which reliance has been placed has no application at all. The inter-State Water Disputes Act having been framed by the Parliament under Article 262 of the Constitution is a complete Act by itself and the nature and character of a decision made thereunder has to be understood in the light of the provisions of the very Act itself. A dispute or difference between two or more State Governments having arisen which is a water dispute under Section 2(C) of the Act and complaint to that effect being made to the Union Government under Section 3 of the said Act the Central Government constitutes a Water Disputes Tribunal for the adjudication of the dispute in question, once it forms the opinion that the dispute cannot be settled by negotiations. The Tribunal thus constituted, is required to investigate the matters referred to it and then forward to the Central Government a report setting out the facts as found by him and giving its decision on it as provided under Sub-Section (2) of Section 5 of the Act. On consideration of such decision of the Tribunal if the Central Government or any State Government is of the opinion that the decision in question requires explanation or that guidance is needed upon any point not originally referred to the Tribunal then within three months from the date of the decision, reference can be made to the Tribunal for further consideration and the said Tribunal then forwards to the Central Government a further report giving such explanation or guidance as it deems fit.
Thereby the original decision of the Tribunal is modified to the extent indicated in the further decision as provided under Section 5(3) of the Act. Under Section 6 of the Act the Central Government is duty bound to publish the decision of the Tribunal in the Official Gazette where after the said decision becomes final and binding on the parties to the dispute and has to be given effect to, by them. The language of the provisions of Section 6 is clear and unambiguous and unequivocally indicates that it is only the decision of the Tribunal which is required to be published in the Official Gazette and on such publication that decision becomes final and binding on the parties. It is not required that the report containing the arguments or basis for the ultimate decision is also required to be notified so as to make that binding on the parties. This being the position, it is difficult to appreciate the contention of Mr. Ganguli that the decision of the Tribunal as notified, is in fact a decree of a civil suit and that decree has to be understood in the light of the judgment of the suit. We accordingly are not persuaded to accept the submission of Mr. Ganguli on this point but, at the same time we cannot accept the argument of Mr. Nariman that the order of this Court dated 30th September, 1997 passed in the suit in terms of prayer a must be held to mean that a decree is to be drawn up in OS 2 of 1997 making the entire report and the further report binding on the parties. When a prayer is made in the plaint the said prayer has to be understood in the light of the assertion of facts on which the prayer has been made. The defendant State of Karnataka understood the prayer on that basis as would appear from the averments made in the written statement of defendant no. 1 in paragraphs 3.1, 3.2 and 3.3. The aforesaid prayer had been made for the relief that notwithstanding enbloc allocation made in the final order of the Tribunal which is the decision of the Tribunal but the very basis to arrive at that decision being the projectwise allocation contained in the report the said projectwise allocation must be read into the enbloc allocation and, therefore, there must be restriction on the part of the State of Karnataka not to use more water in Upper Krishna Project than the allocated quantity of 160 TMC. Thus read the order of this Court dated 30th September, 1997, cannot be construed to mean that a decree has to be passed making the entire report as well as the further report of the Tribunal binding on the parties. So far as the question whether allocation made enbloc or projectwise the same has been answered while discussing issues nos. 1, 3 and 5 and in this view of the matter the earlier order dated 30th September, 1997 is of no consequence in disposing of the suit in question.
ISSUE Nos. 1, 3 and 5: Though, there are as many as 22 issues, which have been framed and necessarily to be answered in the suit, but in course of arguments advanced by Mr. Ganguli, the learned senior counsel, appearing for the State of Andhra Pradesh, the entire emphasis was on the height of Almatti Dam Stage-II at 524.256 meters, as proposed by the State of Karnataka and as it appears from various project reports. In view of the arguments advanced by the counsel for the parties, these three issues essentially form the bone of contention. It is necessary to be stated that too many issues have been framed by the three different States and Court has also permitted such issues to be struck and most of the issues over-lap one another and in fact have no bearing in relation to the prayer made by the plaintiff. But instead of re-framing the issues, arguments having been advanced by the counsel for the parties, we would deal with each of them, but with specific emphasis on the vital issues. So far as the three issues with which we are concerned at the moment, when read with the paragraphs of the plaint, dealing with the same, it appears that the plaintiff Andhra Pradesh has made out a case in the plaint that under Scheme A which is the decision of the tribunal and which has been notified by the Central Government under Section 6 of the Inter-State Water Disputes Act, though there has been allocation of water enbloc but on going through the report itself and the very basis on which the mass allocation has been quantified, it would indicate that project-wise allocation must be read into the so-called mass allocation. This being the position, in Upper Krishna Project, the tribunal having allocated only 160 TMC of water, construction of Almatti Dam to a height of 524.256 meters itself constitutes an infraction of the decision of the tribunal, and, therefore, the Court should injunct the State of Karnataka from constructing a dam at Almatti up to the height of 524.256 meters. The stand of the State of Karnataka in the written statement filed as well as the stand of Union Government and State of Maharashtra in its original written statement filed however is that, there has been an enbloc allocation by the tribunal and consequently, there has been no fetter on any State to utilise water up to a limited quantity in any of its project, except those mentioned in the order of the tribunal itself and that being the position, the plaintiff would not be entitled to an order of injunction in relation to the construction of Almatti Dam to a height of 524.256 meters. Before we focus our attention to the evidence on record in answering these three issues, in the light of arguments advanced by the counsel for the parties, it must be borne in mind that injunction being a discretionary remedy, a Court may not grant an order of injunction, even if all the three necessary ingredients are established and those ingredients are prima facie case of infraction of legal rights, such infraction causes irreparable loss and injury to the plaintiff and the injury is of such nature that it cannot be compensated by way of damages. In the case in hand, when the plaintiff has prayed for an order of mandatory injunction to injunct the State of Karnataka from constructing the dam at Almatti to a height of 524.256 meters and makes out a case of infringement of legal rights of the State of Andhra Pradesh, flowing from the decision of the Krishna Water Disputes Tribunal, which decision has become final and binding on being notified by the Union Government under Section 6, what is required to be established is that in fact in the said decision of the tribunal, there has been a project-wise allocation in respect of Upper Krishna Project and if this is established, then the further fact required to be established is whether by construction of Almatti Dam up to a height of 524.256 meters, there has been any infraction of the said decision of the tribunal which has caused irreparable injury and damage to the lower riparian State of Andhra Pradesh and the said damage cannot be compensated by way of damages. Since the plaintiff-State has to establish all the aforesaid requirements, so that an order of injunction, as prayed for, can be granted, let us examine the very first ingredient namely whether under the decision of the tribunal, there has at all been a project-wise allocation as contended by Mr.Ganguli, appearing for the State of Andhra Pradesh or the allocation was enbloc, as contended by Mr. Nariman, appearing for the State of Karnataka and reiterated by Mr.Salve, the learned Solicitor General and Mr. Andhyarujina, appearing for the State of Maharashtra. While deciding the Original Suit No. 1 of 1997, filed by the State of Karnataka, negativing the contention of the said State to the effect that Scheme B evolved by the tribunal, whether forms a decision of the tribunal or not, we have already recorded the finding that Scheme B cannot be held to be the decision of the tribunal inasmuch as it is only that order of the tribunal which conclusively decides the dispute referred to, and is capable of being implemented on its own, can be held to be a decision of the tribunal under Section 5(2) of the Act. In fact the plaintiff in the present suit also bases its case on the Scheme A and contends that there has been an infraction of the said Scheme A by the defendant-State of Karnataka. If we examine the Final Order of the tribunal contained in Chapter XVI of the Original Report Exhibit PK1 as well as the modified order after answering the application for clarifications made by different States, in the Further Report of December, 1976 in Chapter VII of Exh. PK2, which has been notified by the Central Government under Section 6 of the Act in the Gazette of India dated 31st of May, 1976, it is crystal clear that the allocation made, has been enbloc and not project-wise and, therefore, there is no fetter on any of the States in utilising water in any project to a limited extent, excepting t
