STATE OF KARNATAKA BY ITS CHIEF SECRETARYversusP. K. SINHA AND ANR.

STATE OF KARNATAKA  [2018]
                       BY5ITS
                           S.C.R. 1127SECRETARY v. STATE 1127
                              CHIEF
  OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

                     STATE OF TAMIL NADU                                 A
                                  v.
                     P. K. SINHA AND ANR.
             (Contempt Petition (Civil) No. 898 of 2018
                                 In                                      B
                   Civil Appeal No. 2453 of 2007)
                           MAY 18, 2018
      [DIPAK MISRA, CJI, A. M. KHANWILKAR AND
             DR. D.Y. CHANDRACHUD, JJ.]                                  C
      Inter-State Water Disputes:
       Supreme Court by judgment dated 16.02.2018, while
modifying the award of the Cauvery Water Disputes Tribunal and
allocating waters of Cauvery river to the States of Tamil Nadu,
Karnataka and Kerala and Union Territory of Puducherry, directed         D
Central Government to frame a scheme u/s. 6A of Inter-State River
Water Disputes Act, 1956 – Central Government with a view to arrive
at a consensus for framing of the proposed Scheme, initiated
consultations with party States/Union Territory – To avoid further
litigation by the States, in respect of constitution and functions of    E
the proposed Board, Central Government filed interlocutory
application seeking certain clarifications – State of Tamil Nadu filed
contempt petition complaining about non-framing of the scheme by
the Central Government within a period of six weeks as granted by
Supreme Court – Another contempt petition was filed by private
party – Interlocutory applications were filed by State of Tamil Nadu     F
and Union Territory of Puducherry – Central Government produced
Draft Scheme before Supreme Court – Appropriateness of Clauses
9(3)(i) and 9(3)(vii) as well as 9(3)(iii) in the Draft Scheme was
questioned by State of Karnataka – State of Kerala contended that
effect of the Scheme would impinge upon the rights of the States in      G
respect of conservation and use of water which was exclusively a
State subject covered by Entry 17 in List II of Seventh Schedule to
the Constitution – Held: The fact that the subject of water forms
part of Entry 17 of List II of the Seventh Schedule, cannot be the
basis to whittle down the efficacy of the Award passed by the
                                                                         H
                                1127
1128            SUPREME COURT REPORTS                      [2018] 5 S.C.R.


 A     Tribunal as modified by Supreme Court and in particular the Scheme
       to ensure smooth, effective and efficient implementation of the Award
       of the Tribunal as modified by Supreme Court – The Draft Scheme
       has been drafted singularly for that purpose and the same will have
       to be taken forward to its logical end in accordance with law with
       promptitude – Award of the Tribunal qualifies the volume of river
 B
       water to be shared and apportioned between the States – The parties
       cannot be allowed to reopen the issues already settled in the Award
       and as modified by Supreme Court, indirectly in the guise of
       questioning the appropriateness of clause 9(3)(iii) in the Draft
       Scheme – The Authority cannot be expected to issue directions
 C     mechanically and that the Authority must have complete power to
       enforce its directions so as to comply with the Award as modified by
       Supreme Court – Draft Scheme is in consonance with the dictum
       and directions in the Award and also in conformity with s. 6A of the
       1956 Act – Draft Scheme to be taken to its logical and in accordance
       with law – Contempt petitions and the IAs disposed of – Inter-State
 D
       Water Disputes Act, 1956.
             CIVIL ORIGINAL JURISDICTION : Contempt Petition (Civil)
       No. 898 of 2018 in Civil Appeal No. 2453 of 2007
             From the Judgment and Order dated 16.02.2018 of this Hon’ble
 E     Court in C. A. No. 2453 of 2007.
                                      WITH
             M.A. No.934/2018 in C.A. No. 2453 OF 2007
             Contempt Petition (Civil) No. 1131 of 2018
 F           M.A. No. 937/2018 in C.A. No. 2453 OF 2007
             I.A. No.47065/2018, I.A. No.50562/2018 and
             I.A. No.68455/2018.
             K.K. Venugopal, AG, M. R. Naik, AG (Karnataka), Shekhar
 G     Naphade, Rakesh Dwivedi, Subramonium Prasad, Shyam Divan, Jaideep
       Gupta, A.S. Nambiar, Sr. Advs., G. Umapathy, C. Paramasivam,
       K.V. Vijayakumar, Imtiaz Ahmed, Mrs. Naghma Imtiaz, Ahmed Zargham,
       Ms. Amra Moosavi, Naresh Kumar (for M/s. Equity Lex Associates),
       Mukesh Kumar Maroria, V. G. Pragasam, S. Wasim A. Qadri,
       Mrs. Madhavi Divan, Rohit Bhat, Mohan V. Katarki, Brijesh Kalappa,
 H
STATESTATE
      OF KARNATAKA
            OF TAMIL NADU
                       BY ITSv. CHIEF
                                P. K. SINHA
                                       SECRETARY v. STATE 1129
                                            AND ANR.
  OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

R.S. Ravi, V. N. Raghupathy, Ranvir Singh, J.M. Gangadhar, Abdul              A
Azeem Kalebudde, G. Prakash, Jishnu M.L., Mrs. Priyanka Prakash,
Mrs. Beena Prakash, Vijay Shankar V.L., S. Prabu Ramasubramanian,
S. Manuraj, P.K. Manohar, Mrs. Shanta Vasudevan, Advs. for the
appearing parties.
       The Order of the Court was passed by                                   B
                                                         th
        A. M. KHANWILKAR, J. 1. This Court on 16 February, 2018
pronounced its judgment and final order in Civil Appeal Nos.2453/2007,
2454/2007 and 2456/2007 and directed the Central Government to frame
a scheme under Section 6A of the Inter- State River Water Disputes
Act, 1956 (for short, “1956 Act”), for smooth implementation of the           C
Award passed by the Tribunal and as modified by this Court for carrying
out the rights of the States with regard to allocation or sharing of water.
The Central Government with a view to arrive at a consensus for framing
of the proposed scheme, initiated consultations with party States/Union
Territory. The first meeting for that purpose was convened on 9th March,
2018 in which the modalities of the scheme including the composition of       D
the Authority were discussed. The party States then submitted responses
and in view of the divergent views expressed by the party States/U.T., it
was felt that if the Scheme was to be framed by the Central Government
itself, States may again approach this Court. To avoid further litigations
by the States in respect of constitution and functions of the proposed        E
Board, the Central Government felt it necessary to seek clarification of
this Court for which I.A. No.47065/2018 was filed on 31st March, 2018
for the following reliefs:
        “(a) Clarify whether it is open to the Central Government to
        frame the Scheme under 6‘A’ at variance with the                      F
        recommendations contained in the report of CWDT regarding
        Cauvery Management Board.
        (b) Clarify that in case the Cauvery Management Board as
        recommended in the report of CWDT is to be constituted, does
        the Central Government have the following flexibility:                G
          (i) To modify the composition of the Board to a mixture of
          administrative & technical body, and not purely a technical
          body as recommended by CWDT in its report, for effective
          conduct of the business of the Board and considering overall
          sensitivity of the issues involved.
                                                                              H
1130            SUPREME COURT REPORTS                           [2018] 5 S.C.R.


 A               (ii) Clarify whether the Board framed by the Central
                 Government under 6A of ISWRD Act, 1956 can have functions
                 different from the ones recommended for Cauvery
                 Management Board by CWDT in its report.
               (c) Any other guidance or directions that Hon’ble Supreme Court
 B             may like to give in the light of divergent views expressed by
               party States/UT with regard to framing of the Schemes under
               Section 6A of the ISRWD Act, 1956.
               (d) Allow application for extension of time of Three months for
               implementation of Order dated 16.02.2018 in this instant Civil
 C             Appeal.
               (e) Pass such other order/orders as this Hon’ble Court may deem
               fit and proper in the facts and circumstances of the present case.”
               2. On the same day i.e. 31st March, 2018, the State of Tamil
       Nadu filed a contempt petition being Contempt Petition (Civil) No.898
 D     of 2018, complaining about the non-framing of the scheme by the Central
       Government within a period of six weeks as granted by this Court. The
       State of Tamil Nadu also prayed for a direction to the respondents named
       in the said contempt petition to forthwith frame a scheme in accordance
       with the judgment of this Court dated 16th February, 2018 by providing
 E     for Cauvery Management Board and Cauvery Water Regulation
       Committee with all powers to give effect to the decision of the Tribunal
       as well as the judgment of this Court. Besides the contempt petition filed
       by the State of Tamil Nadu, another contempt petition came to be filed
       by a private party, namely, Mr. R.K.R. Anantaraman, Member of
       Legislative Assembly on 3rd April, 2018. On the same date, the matter
 F     was mentioned by the counsel for the Union of India for taking up the
       application filed by Union of India, for hearing. This Court directed the
       said application to be listed on 9th April, 2018. In the meantime, I.A.
       No.50562 of 2018 came to be filed on behalf of the Union Territory of
       Puducherry on 5thApril, 2018 for the following reliefs:
 G             “(i) direct the Respondent/Government of India to take effective
               steps to implement the judgment dated 16.02.2018 passed by
               this Hon’ble Court in C.A. No.2453 of 2007 and other connected
               appeals without further delay;
               (ii) direct the Respondent/Government of India to frame a scheme
 H             under Section 6-A of the Inter State Water Disputes Act
STATESTATE  OF TAMIL NADU
      OF KARNATAKA      BY ITSv. CHIEF
                                 P. K. SINHA  AND ANR.
                                        SECRETARY  v. STATE 1131
  OF T. N. BY ITS[A. M. KHANWILKAR,
                  CHIEF  SECRETARY [DIPAK J.]  MISRA, CJI]

         constituting Cauvery Management Board (CMB) and Cauvery               A
         Water Regulation Committee (CWRC) for effective
         implementation of the directions of this Hon’ble Court without
         further delay; and
         (iii) to pass such other order or orders as may be deemed fit and
         proper in the interests of justice.”                                  B
     3. The aforementioned applications/contempt petition were listed
    th
on 9 April, 2018 when this Court passed the following order:
         “We have heard Mr. K.K. Venugopal, learned Attorney General
         for the Union of India appearing in M.A. No. 934/2018, Mr.
         Shekhar Naphade and Mr. Rakesh Dwivedi, learned senior                C
         counsel alongwith Mr. G. Umapathy, learned counsel appearing
         for the State of Tamil Nadu, Mr. Shyam Divan, learned senior
         counsel alongwith Mr. Mohan V. Katarki, learned counsel for
         the State of Karnataka, Mr. Jaideep Gupta, learned senior counsel
         for the State of Kerala and Mr. A.S. Nambiar, learned senior          D
         counsel for the Union Territory of Puducherry.
         Regard being had to our judgment, we direct the Union of India
         to file a Draft Scheme before this Court CONMT.PET.(C) 898/
         2018 etc. 3 on or before 3.5.2018. We have so directed as we do
         not want the controversy to continue before this Court. We request
         learned senior counsel for the parties to convey to the competent     E
         authorities of the respective States to maintain peace at this
         juncture, so that this Court can put the final stamp on the Scheme
         after due deliberation.
         Let the matter be listed on 3.5.2018.”
      4. Again the matters were listed on 3rd May, 2018 when the Court         F
passed the following order:
         “Let the matter be listed on 8.5.2018 to enable learned counsel
         for the State of Karnataka to obtain instructions. Mr. K.K.
         Venugopal, learned Attorney General for India alongwith Mr.
         Tushar Mehta, learned Additional Solicitor General of India and       G
         Mr. S. Wasim A. Qadri, learned counsel appearing for the Union
         of India shall obtain instructions as to what steps have been taken
         to frame the scheme, and the same shall be put forth by way of
         an affidavit by the next date of hearing after serving a copy on
         both sides. Call on date fixed.”                                      H
1132            SUPREME COURT REPORTS                          [2018] 5 S.C.R.


 A           5. On 8th May, 2018, a request was made by Mr. K.K. Venugopal,
       learned Attorney General for India for some more time as the draft
       scheme was ready but it was yet to be placed before the Cabinet of
       Ministers. This Court after hearing the parties for some time, passed the
       following order:
 B            “It is submitted by Mr. K.K. Venugopal, learned Attorney General
              for India that the draft Scheme is ready, but it shall be placed
              before the Cabinet as expeditiously as possible. The same is
              seriously opposed to by Mr. Shekhar Naphade, learned senior
              counsel appearing for the State of Tamil Nadu on many a ground.
              Regard being had to delay, we direct the Secretary, Ministry of
 C            Water Resources, River Development & Ganga Rejuvenation,
              Government of India, to remain personally present with the draft
              Scheme, as directed by this Court in the judgment, before this
              Court at 10.30 a.m. on 14th May, 2018. We have directed for
              personal appearance of the aforesaid Secretary so that the
 D            authorities under the Scheme can implement the judgment passed
              by this Court as the same has the status of the decree. Call on
              the date fixed.”
              6. In the meantime, the State of Karnataka filed I.A. No.68455
       of 2018 to place on record an affidavit showing the status of the total
 E     water in the Water Year 2017-18 and in particular, during the months of
       March and April, 2018. All the I.As. and the contempt petitions were
       again taken up on 14th May, 2018 in terms of the order dated 8th May,
       2018. The draft scheme framed by the Central Government was
       produced before this Court. The counsel appearing for the States
       requested the Court for a copy of the draft scheme so that they would
 F     be able to make submissions as to whether the scheme was in
       consonance with the judgment of this Court. This Court passed the
       following order on 14th May, 2018:
              “In pursuance of our earlier order, Mr. U.P. Singh, Secretary,
              Ministry of Water Resources, River Development and Ganga
 G            Rejuvenation is personally present. He has filed the draft Scheme
              framed by the Central Government. Mr. Shekhar Naphade, Mr.
              Jaideep Gupta and Mr. A.S. Nambiar, learned senior counsel
              appearing for the States of Tamil Nadu, Kerala and Union
              Territory of Puducherry respectively, would submit that they may
              be given copies of the draft Scheme only to examine whether
 H            the said Scheme is in consonance with the judgment of this Court.
STATESTATE
      OF KARNATAKA
            OF TAMIL NADU
                        BY ITSv. CHIEF
                                 P. K. SINHA
                                        SECRETARY  v. STATE 1133
                                              AND ANR.
  OF T. N. BY ITS[A.
                  CHIEF
                     M. KHANWILKAR,
                         SECRETARY [DIPAK J.]  MISRA, CJI]

        The copies of the Scheme be given in the course of the day. Let      A
        the matter be listed on 16.5.2018. The personal appearance of
        the Secretary, Ministry of Water Resources, River Development
        and Ganga Rejuvenation is dispensed with.”
       7. On 16th May, 2018, Mr. Shekhar Naphade, learned senior
counsel appearing for the State of Tamil Nadu, Mr. Jaideep Gupta, learned    B
senior counsel appearing for the State of Kerala and Mr. A.S. Nambiar,
learned senior counsel appearing for the Union Territory of Puducherry
made submissions regarding the appropriateness of some of the clauses
in the said draft scheme. Mr. Shyam Divan, learned senior counsel
appearing for the State of Karnataka expressed his inability to offer any
comments for want of instructions. He submitted that due to the recent       C
developments due to elections to the Karnataka Legislative Assembly, it
was not possible for the Advocate on Record for the State, who was
instructing him, to take instructions from the State Government. This
Court made it clear that as long as the Advocate on Record for the State
of Karnataka was not discharged, it was open to him to assist the Court      D
as an officer of the Court and offer his comments on the draft scheme,
if so advised.
       8. After due deliberations, Mr. K.K. Venugopal, learned Attorney
General for India requested this Court to defer the matter till 17th May,
2018, so as to make necessary changes in the draft scheme in deference       E
to the observations made by this Court. Accordingly, the matter was
deferred till 17th May, 2018. On 17th May, 2018, the learned Attorney
General produced the corrected copy of the draft scheme after duly
incorporating necessary changes in the concerned clauses of the draft
scheme to bring it in line with the observations made by this Court on the
previous date of hearing.                                                    F
        9. With reference to the corrected copy of the draft scheme, Mr.
Shyam Divan, learned senior counsel appearing for the State of
Karnataka submitted his objections in writing. Mr. Jaideep Gupta, learned
senior counsel appearing for the State of Kerala maintained his objections
taken on the earlier occasion that the effect of the scheme would impinge    G
upon the rights of the States in respect of the conservation and use of
water which was exclusively a State subject, covered by Entry 17 in
List II of the Seventh Schedule to the Constitution. In addition, he also
supported the objections raised by the State of Karnataka in respect of
clauses 9(3)(i) and 9(3)(vii) as well as 9(3)(iii).
                                                                             H
1134            SUPREME COURT REPORTS                         [2018] 5 S.C.R.


 A            10. Mr. Venugopal, learned Attorney General countered the
       objections raised by the State of Karnataka and State of Kerala. He
       submits that the dispensation envisioned in the concerned clauses is
       essentially to ensure smooth and effective implementation of the scheme.
       He submits that the implementation of the scheme will be strictly in
       accordance with the distribution of water to the respective States/U.T.
 B
       in consonance with the Award of the Tribunal as modified by this Court.
              11. Mr. A.S. Nambiar, learned senior counsel appearing for the
       Union Territory of Puducherry emphasized that the authority constituted
       for implementation of the scheme must be invested with complete power
       for ensuring smooth implementation of the scheme in accordance with
 C     the Award passed by the Tribunal and as modified by this Court.
              12. For completion of record, we deem it apposite to reproduce
       the draft corrected scheme produced by the learned Attorney General
       before this Court. The same reads thus:
 D                                                                  “DRAFT
                   CAUVERY WATER MANAGEMENT SCHEME
                  (MINISTRY OF WATER RESOURCES, RIVER
                 DEVELOPMENT AND GANGA REJUVENATION)
              New Delhi, the May, 2018
 E
              S. O. ………..Whereas the Central Government, in exercise of
              the powers conferred upon it by Section 4 of the Inter-State
              River Water Disputes Act, 1956 (33 of 1956) (hereinafter referred
              to as ‘the Act’;) had constituted by notification number S.O.
              437(E), dated 2nd June, 1990, the Cauvery Water Disputes
 F
              Tribunal (CWDT) (hereinafter referred to as ‘the Tribunal’) to
              adjudicate upon the water dispute regarding the Inter-State river
              Cauvery and the river valley thereof among the States of
              Karnataka, Kerala, Tamil Nadu and Union Territory Puducherry
              (then Pondicherry;
 G            And whereas the Tribunal investigated the matters referred to it
              and forwarded to the Central Government a Report under Sub-
              Section (2) of Section 5 of the said Act, on 05.02.2007. The
              party States filed Special Leave Petitions (SLPs) in the Supreme
              Court against the 5(2) Report of the Tribunal. The Supreme Court
 H            converted the SLPs filed by the party States into Civil Appeals.
STATESTATE
      OF KARNATAKA
            OF TAMIL NADU
                        BY ITSv. CHIEF
                                 P. K. SINHA
                                        SECRETARY  v. STATE 1135
                                              AND ANR.
  OF T. N. BY ITS[A.
                  CHIEF
                     M. KHANWILKAR,
                         SECRETARY [DIPAK J.]  MISRA, CJI]

      On 04.02.2013, the Supreme Court directed the Government of          A
      India to notify the 5(2) Award of the Tribunal. In pursuance of
      which, the Government of India notified the 5(2) Award of CWDT
      dated 05.02.2007 vide S.O.404 (E) dated 19.02.2013.
      And whereas Supreme Court pronounced its judgment and final
      order in Civil Appeals 2453/2007, 2454/2007 & 2456/2007 on           B
      16.02.2018 and directed the Central Government to frame a
      “scheme” under Section 6 A of the Act to implement the Tribunal
      Award further modified by the Supreme Court order dated
      16.02.2018.
      Now, therefore, in exercise of the powers conferred by Section       C
      6A of the said Act, the Central Government hereby frames the
      scheme, inter-alia, constituting the Cauvery Water
      Management Authority (hereinafter referred to as the
      “Authority”) and the Cauvery Water Regulation Committee
      (hereinafter referred to as ‘the Committee’) to give effect to the
      decision of the Cauvery Water Dispute Tribunal as modified by        D
      the Supreme Court in its order dated 16.02.2018, namely:-
      (1) This Scheme may be called the Cauvery Water Management
      Scheme, 2018,
      (2) It shall come into force on the date of its publication in the   E
      Official Gazette.
      I. Establishment of Cauvery Water Management Authority
      1. Name of the Authority: It shall be called as Cauvery
      Water Management Authority
                                                                           F
      2. Status and Constitution of the Authority:
           1. The Authority shall be a body corporate having perpetual
      succession and a common seal and shall sue and be sued.
           2. Composition of the Authority : The Authority shall
      consist of the following members:                                    G
          (a) Chairman- To be appointed by the Central Government
      amongst serving officers:
      (i) Who is a senior and eminent engineer with wide experience
      in water resource management; handling of inter-State water
                                                                           H
1136    SUPREME COURT REPORTS                          [2018] 5 S.C.R.


 A     sharing issues; construction, operation and maintenance of
       irrigation projects; or
       (ii) an All India Service Officer, in the rank of Secretary or
       Additional Secretary to the Government of India with experience
       in wate resources and inter-State water sharing issues.
 B     Chairman shall have tenure of 5 years or till 65 years of age,
       whichever is earlier.
           (b) Two whole time Members- To be appointed by Central
       Government for a term of three years extendable to five years.

 C     (i) One Member (Water Resources) – an engineer not below
       the rank of Chief Engineer from the Central Water Engineering
       Services (CWES) cadre.
       (ii) One Member (Agriculture) – not below the rank of a
       Commissioner from the Ministry of Agriculture & Farmers’
 D     Welfare.
            (c) Two Part Time Members – Representatives of the
       Central Government of the rank of Joint Secretary to be
       nominated by Ministry of Water Resources,
            River Development & Ganga Rejuvenation and Ministry of
       Agriculture and Farmers’ Welfare respectively.
 E
           (d) Four Part Time Members from States –
       Administrative Secretaries in charge of Water Resource
       Departments of each State Government of Kerala,
           Karnataka, Tamil Nadu and Union Territory of Puducherry
       who shall be nominated by their respective State Governments.
 F
       3. Secretary of the Authority:
            The Authority shall have a Secretary who shall be an
       engineer to be appointed by the Central Government for a term
       of three years extendable to five years not below the rank of
 G     Chief Engineer from the CWES cadre. He shall not have any
       voting rights.
       4. Quorum and Voting: Six Members shall form a Quorum
       and the concurrence of the majority shall be necessary for
       transaction of the business of the Authority except such business
 H
STATESTATE
      OF KARNATAKA
            OF TAMIL NADU
                        BY ITSv. CHIEF
                                 P. K. SINHA
                                        SECRETARY  v. STATE 1137
                                              AND ANR.
  OF T. N. BY ITS[A.
                  CHIEF
                     M. KHANWILKAR,
                         SECRETARY [DIPAK J.]  MISRA, CJI]

      as the Authority may from time to time prescribe as routine. The        A
      Members shall have equal powers.
           The next meeting will be held within three days if the meeting
      is postponed for want of quorum and for that meeting quorum
      will not be necessary.
      5. Disposal of Business by the Authority:                               B

      (a) On the following matters, the Authority shall record its decision
      by a resolution at a meeting in which the Chairman and all the
      Members from the party States are present:-
           (i) Framing of Rules of Business;                                  C
           (ii) Delegation of functions to a Member or Secretary or
      any official of the Authority;
            (iii) Categorizing any part of the business of the Authority
      as of a formal or routine nature;
                                                                              D
           (iv) Any other matter which any of the four party States
      require that it shall be decided at a meeting of the Authority.
      (b) Chairman of the Authority can invite representatives from
      Central Water Commission, National Institute of Hydrology,
      Indian Agricultural Research Institute (IARI) and/or any other
      agency including universities as special invitees to attend the         E
      Authority meetings or otherwise, in carrying out the functions
      specified under this scheme.
      (c) Subject to the foregoing provisions, the Authority shall frame
      its own rules for the conduct of its business.
                                                                              F
      6. Indemnity of Members:
      No Member, officer or employee of the Authority shall be liable
      for loss, injury or damages resulting from:
           (a) action taken by such Member, officer or employee in
      good faith and without malice under the apparent authority of           G
      the orders, even though such action is later determined to be
      unauthorised, or
           (b) the negligent or wrongful act of omission of any other
      person employed by the Authority and serving under such
                                                                              H
1138    SUPREME COURT REPORTS                          [2018] 5 S.C.R.


 A     Member, officer or employee unless such member, officer, or
       employee failed to exercise due care in the appointment of such
       other person or the supervision of his work.
       7. Officers and Servants of the Authority:
       The Authority may from time to time appoint or employ such
 B     and so many officers and employees as it thinks fit and remove
       or dismiss them, under the rules and regulations applicable to the
       appointment, removal and dismissal of the Central Government
       officers and employees. All such officers and employees shall
       be subject to the sole control of the Authority. The Authority
 C     may, with the previous approval of the Central Government, make
       regulations to regulate conditions of service of all such officers
       and employees in respect of the residential accommodation, house
       rent allowance, travelling allowance, daily allowance, conveyance
       allowance and medical reimbursement. The scales of pay and
       the other service conditions shall be as applicable to Central
 D     Government employees.
       Persons employed in the services of the three States and the
       Union Territory of Puducherry may be appointed or employed
       by the Authority in such proportions as the Authority may deem
       fit. The Authority shall arrange with the State Government/Union
 E     Territory to spare the services of the persons employed in the
       State Government/Union Territory for whole time employment
       with the Authority, or for the performance of any work or services
       for the Authority. The Authority may also make direct recruitment
       of any personnel or obtain the same from the Centre or other
 F     sources as considered appropriate.
       8. Administrative and Field Organisation Costs:
       (i) All expenses of the Authority (including salary and other
       expenses of the Chairman and independent Members) shall be
       borne by the State Governments, in the ratio of Kerala – 15%
 G     Karnataka – 40%, Tamil Nadu – 40%; and Union Territory of
       Pondicherry – 5%. The expenses pertaining to Member
       representing a State shall be borne by the State concerned.
       (ii) The cost of maintaining, operation and controlling of gauging
       and other hydrological systems for communicating data shall be
 H     borne by the State concerned. The cost of construction and
STATESTATE
      OF KARNATAKA
            OF TAMIL NADU
                        BY ITSv. CHIEF
                                 P. K. SINHA
                                        SECRETARY  v. STATE 1139
                                              AND ANR.
  OF T. N. BY ITS[A.
                  CHIEF
                     M. KHANWILKAR,
                         SECRETARY [DIPAK J.]  MISRA, CJI]

      maintenance of the storages, power installations, diversion works,     A
      head-works and canal networks shall be borne wholly by the
      State Government in whose territory the works are located.
      9. Powers, Functions and Duties of the Authority:
      1. The Authority shall be charged with the power and shall be
      under a duty to do any or all things necessary, sufficient and         B
      expedient for securing compliance and implementation of the
      final decision and directions of the Tribunal further modified by
      Supreme Court Order dated 16.02.2018 including:
          (i) Storage, apportionment, regulation and control of
      Cauvery waters.                                                        C

           (ii) Supervision of operation of reservoirs and with
      regulation of water releases therefrom with the assistance of
      Regulation Committee.
           (iii)Regulated release by Karnataka, at the inter-State           D
      contact point presently identified as Billigundulu gauge and
      discharge station, located on the common border of Karnataka
      and Tamil Nadu.
      2. The Authority may constitute one or more sub-committees
      and assign to them such of its functions and delegate such of its
                                                                             E
      powers as it thinks fit.
      3. In particular and without prejudice to the generality of the
      foregoing functions, the Authority shall perform inter-alia, the
      following functions:
      (i) The Authority at the beginning of the water year, i.e. first       F
           June each year would determine the total residual storage
           in the specified reservoirs. As, it is not possible to know the
           amount of season-wise river flows which will be available
           during a season; it will be assumed that the inflows will be
           according to 50% dependable year (yield 740 TMC). The
           share of each State will be determined on the basis of the        G
           flows so assumed together with the available carry over
           storage in the reservoirs. The withdrawals will be allowed
           during the first time interval of ten days of the season on
           the basis of the share worked out for each party State,
           limited to the water requirements during the same period          H
1140    SUPREME COURT REPORTS                           [2018] 5 S.C.R.


 A          indicated by each State by placing an indent of water
            demand with Cauvery Water Regulation Committee.
       (ii) The Authority will take stock of the actual yield in the basin
            at the end of the previous time interval as well as the
            utilization/releases and storage built up during the interval
 B          and assess the trend of inflows and authorize withdrawals
            to the States for the subsequent time interval accordingly.
            For giving effect to the aforesaid provision, the Authority
            may have to repeat this exercise for two or more time
            intervals.
 C     (iii) The Authority shall ensure the implementation of the Award
             of the Tribunal modified by the Supreme Court order dated
             16.02.2018 including the carry -over storage during good
             year and the water releases for environmental purposes.
             The Authority through the Regulation Committee and with
             the help of CWC, and other Central/State organizations as
 D           necessary will identify situations of distress in the basin.
             Distress caused by diminution of water flows during the
             period will be shared by the party States after the distress
             conditions and their extent is determined by the Authority,
             keeping in view water shares allotted to parties.
 E     (iv) The following important reservoirs in the basin namely:
            Banasurasagar in Kerala, Hemavathy, Harangi, Kabini and
            Krishnarajasagara in Karnataka and Lower Bhavani,
            Amaravathy and Mettur in Tamil Nadu shall be operated in
            an integrated manner by the concerned State under the
 F          overall guidance of the Authority for each ten day period
            throughout the year to meet the seasonal water
            requirements of the various States for irrigation, hydro-
            power generation, domestic and industrial uses etc. The
            remaining quantities of the surplus water shall be conserved
            as far as possible and spillage of water shall be reduced to
 G          the minimum.
       (v) The Authority shall maintain an account of cropping pattern,
           area cropped and area irrigated for each party State. The
           Authority shall also maintain an account of domestic and
           industrial water usage by each party State.
 H
STATESTATE
      OF KARNATAKA
            OF TAMIL NADU
                        BY ITSv. CHIEF
                                 P. K. SINHA
                                        SECRETARY  v. STATE 1141
                                              AND ANR.
  OF T. N. BY ITS[A.
                  CHIEF
                     M. KHANWILKAR,
                         SECRETARY [DIPAK J.]  MISRA, CJI]

      (vi) The Authority is to set up a well-designed communication          A
           network in the Cauvery basin for transmission of data and
           a computer based control room for data processing to
           determine the hydrological conditions including distress, if
           any. For this purpose, it may utilize the latest technology.
           For operational purposes, this work may be entrusted by
                                                                             B
           the Authority to CWC or any other Central/State
           Government organization.
      (vii) At the start of irrigation season i.e. 1st June of every year,
            all the party States through their representatives in the
            Authority shall submit an indent for the supplies required
            by them at each reservoir site (capacity 3 TMC and above)        C
            for the month of June broken in 10 daily intervals. The
            Authority will examine reasonableness of the indents
            keeping in view the cropping pattern and extent of area to
            be irrigated and order releases keeping in view the overall
            ceiling prescribed by the Tribunal and modified by the           D
            Supreme Court Order dated 16.02.2018 for the month after
            determining the available carry-over storage and taking into
            consideration the likely inflows during the month. The
            Regulation Committee shall release water on ten daily bases
            as ordered by the Authority.
                                                                             E
           In case of deficiency in the water availability during any
           month as reported by the Regulation Committee, the
           Authority will consider reduction in the indent of the parties
           in proportion to the quantities allocated to each State by the
           Tribunal as modified by the Supreme Court order dated
           16.02.2018 for the designated crops.                              F

           The Regulation Committee shall keep a watch on the actual
           performance of the monsoon during each ten daily interval
           and report position to the Authority indicating therein the
           extent of variation from the normal. The Authority on receipt
           of such information will consider any change in the release       G
           ordered by them earlier. Similar exercise will continue as
           the monsoon progresses during the succeeding months till
           the end of the water year i.e. 31st May of every year.
      (viii) The Authority has to ensure that the State Governments
             should construct proper hydraulic structures at all important   H
1142    SUPREME COURT REPORTS                           [2018] 5 S.C.R.


 A           anicut sites in the basin with provision of appropriate
             regulation mechanism. Besides, regular monitoring of the
             withdrawals at such diversion structures on the part of the
             State would be necessary.
       (ix) The Authority may direct party States to furnish data in
 B          respect of carry-over storage in reservoirs, including inflows
            and outflows, rainfall data, the area irrigated and water
            utilized.
       (x)    The Authority shall arrange collection of data for important
             rain gauge stations maintained by Indian Metrological
 C           Department (IMD)/ Central Water Commission (CWC)/
             States in the Cauvery basin; as also inflow data measured
             at important nodal points on the Cauvery river system
             through the Cauvery Regulation Committee which will
             suitably compile the rainfall data for different monsoon
             seasons along with the inflows measured at different sites.
 D
       (xi) the Authority or any Member or any representative thereof
            shall have power to enter upon any land or property upon
            which any hydraulic structure or any work of gauging or
            measuring device has been or is being constructed, operated
            or maintained by any agency in the Cauvery basin
 E
       (xii) To hold and dispose of property, enter into contracts, sue
             and be sued and do all such acts as may be necessary for
             the proper exercise and discharge of its jurisdiction, powers
             and functions.

 F     (xiii) To construct or make direction to construct additional
              gauging stations to the States concerned with the assistance
              of Central Government and CWC for implementing the
              decision of the Tribunal.
       (xiv) If the Authority finds that any Government of the party
             States namely Tamil Nadu, Kerala, Karnataka and Union
 G
             Territory of Pondicherry do not co-operate in implementing
             the decision/direction of the Tribunal, it can seek the help
             of the Central Government for implementation of the
             Award of the Tribunal as modified by the Hon’ble
             Supreme Court order of 16.02.2018.
 H
STATESTATE
      OF KARNATAKA
            OF TAMIL NADU
                        BY ITSv. CHIEF
                                 P. K. SINHA
                                        SECRETARY  v. STATE 1143
                                              AND ANR.
  OF T. N. BY ITS[A.
                  CHIEF
                     M. KHANWILKAR,
                         SECRETARY [DIPAK J.]  MISRA, CJI]

      (xv) If any delay/shortfall is caused in release of water on          A
           account of default of any party State, the Authority shall
           take appropriate action to make good the deficiency by
           subsequently deducting indented releases of that party State.
      (xvi) The Authority will advice the party States to take suitable
            measures to improve water use efficiency, by way of             B
            promoting micro-irrigation (drip and sprinkler), change in
            cropping pattern, improved agronomic practices, system
            deficiency correction, command area development etc.
      (xvii)The Authority will advice the party States to adopt efficient
            technologies for water conservation and preservation.           C
      (xviii)The Authority shall comply with directions with respect
            to composition, establishment and administration that
            the Central Government may provide time to time.
      (xix) The Authority may delegate such of its power, as it thinks
            fit to Cauvery Water Regulation Committee.                      D
      10. Annual Report of the Authority:
            The Authority shall prepare and transmit to each of the
      four parties as early as possible in any case before 30 th
      September of each year, an Annual Report covering the activities
                                                                            E
      of the Authority for the preceding year. The Authority shall make
      available to each State on its request any information within its
      possession any time and always provide access to its records to
      the States and their authorized representatives.
      11. Records of the Authority and their Location:
                                                                            F
            The Authority shall keep a record of all meetings and
      proceedings, maintain regular accounts, and have a suitable office
      where documents, records, accounts and gauging data shall be
      kept open for inspection by the Central Government and
      Government of each of the party States and Union Territory or
      their representatives at such time and under such regulations as      G
      the Authority may determine.
      The headquarters of the Authority shall be at New Delhi.


                                                                            H
1144     SUPREME COURT REPORTS                          [2018] 5 S.C.R.


 A     12. Contracts and Agreements:
              The Authority shall enter into such contracts and agreements
       as may be necessary and essential for the full and proper
       performance of the functions and duties conferred or imposed
       on it.
 B     13. Financial Provision:
       (i)   The Government of India shall initially contribute a sum of
             Rs. 2 crores (two crores only) for the functioning of the
             Authority.

 C     (ii) All the capital and revenue expenditure required to be
            incurred by the Authority shall be borne by the State
            Governments of Kerala, Karnataka, Tamil Nadu and
            Union Territory of Pondicherry in the ratio of 15:40:40:5
            respectively.

 D     (iii) On the constitution of the Authority, the Governments of
             the State of Kerala, Karnataka, Tamil Nadu and Union
             Territory of Puducherry shall contribute Rupees two crores
             in the ratio indicated in (ii) above, towards the fund of the
             Authority in the first instance; and later on make advance
             payments on a quarterly basis as demanded by the Authority
 E           keeping in view the Annual Budget of the Authority.
       (iv) The Authority shall maintain detailed and accurate accounts
            of all receipts and disbursements and shall after the closing
            of each financial year, prepare an annual Statement of
            Accounts and send copies thereof to the Accountant
 F          General and concerned basin States.
       (v) The accounts maintained by the Authority shall be audited
           by the Comptroller and Auditor General of India or his
           nominee, who shall certify, subject to such observation as
           he may wish to make on the annual accounts of the
 G         Authority. The Authority shall forward to the Accountant
           General, the Central Government and the concerned basin
           States – the copies of the Report of the Comptroller and
           Auditor General of India and shall include the same in its
           Annual Report.
 H
STATESTATE
      OF KARNATAKA
            OF TAMIL NADU
                        BY ITSv. CHIEF
                                 P. K. SINHA
                                        SECRETARY  v. STATE 1145
                                              AND ANR.
  OF T. N. BY ITS[A.
                  CHIEF
                     M. KHANWILKAR,
                         SECRETARY [DIPAK J.]  MISRA, CJI]

      (vi) To perform any other function which is supplemental,            A
           incidental or consequential to all or any of the functions
           specified in sub-paragraphs (i) to (v) above.
      14. Decision of the Authority:
           The decision of the Authority on all matters for the purposes
      of implementing the award of the Tribunal as modified by the         B
      Supreme Court order dated 16.02.2018 including but not limited
      to the matters covered under paragraph 9, shall be final and
      binding on all the party States/UT.
      15. Constructions outside jurisdiction of the Authority:
                                                                           C
           Save and except to the extent otherwise prescribed in the
      order of the Tribunal and judgment of the Supreme Court, the
      planning, construction and maintenance of the projects will be
      carried out by each State/UT Government through its own
      agencies.
                                                                           D
               II Cauvery water Regulation Committee
      1. Composition of the Cauvery Water Regulation
      Committee:
      There shall be a Cauvery Water Regulation Committee with the
      following composition:                                               E
      1) Full-Time Member (Water Resources) of : Chairman
           the Authority
      2) One representative each of the States of : Member
           Kerala, Karnataka, Tamil Nadu and Union
           Territory of Puducherry not below the rank                      F
           of Chief Engineer.
      3) One representative of IMD of the rank of : Member
           Joint Secretary
      4) One representative of Central Water          : Member
           Commission dealing with river gauging
           not below the rank of Chief Engineer                            G
      5) One representative of the Central Ministry : Member
           of Agriculture & FW not below the rank of
           Commissioner
      6) Secretary to the Authority                   : Member
                                                        Secretary          H
1146    SUPREME COURT REPORTS                          [2018] 5 S.C.R.


 A     The headquarters of the Cauvery Water Regulation
       Committee shall be at Bengaluru.
       2. Functions of the Cauvery Water Regulation Committee:
             The Regulation Committee shall ensure the implementation
       of the provisions contained in the final order of the Tribunal
 B     further modified by the Supreme Court order dated 16.02.2018
       in accordance with the directions of the Authority namely:-
          a) to collect daily water levels, inflows and storage position
       at each of the following reservoirs – Hemavathy, Harangi,
       Krishnarajasagara, Kabini, Mettur, Bhavanisagar, Amaravathy
 C     and Banasurasagar.
          b) to ensure ten daily releases of water on monthly basis from
       the reservoirs as directed by the Authority.
          c) to collect data of water released from the aforesaid
 D     reservoirs on 12 hourly basis.
           d) the Authority’s representatives at each of the reservoirs
       shall monitor proper implementation of the regulation instruction
       issued by the Regulation Committee; in the event of any variation,
       the representative shall immediately inform the Secretary of the
       Committee for appropriate action.
 E
          e) to collect daily water flows passing through presently
       identified inter-State contact point i.e., Billigundulu gauge and
       discharge site and keep the Authority suitably informed.
          f) to compile and reconcile monthly water account for each
 F     reservoir.
          g) to collect and compile weekly information about important
       rain gauge stations of the IMD in order to be able to broadly
       assess the position of monsoon and keep the Authority informed
       about the status of the monsoon.
 G        h) the State representative, in-charge of the major projects
       will keep the Regulation Committee regularly informed about
       the occurrence of the rainfall in the commands and whether
       any change in the releases is required.
          i) to prepare seasonal and annual report of the water account
 H     and submit the same to the Authority as indicated below:-
STATESTATE  OF TAMIL NADU
      OF KARNATAKA      BY ITSv. CHIEF
                                 P. K. SINHA  AND ANR.
                                        SECRETARY  v. STATE 1147
  OF T. N. BY ITS[A. M. KHANWILKAR,
                  CHIEF  SECRETARY [DIPAK J.]  MISRA, CJI]

      • South-West monsoon season - 1st June to 15th October                    A
                          (inclusive of fortnight of October)
      • North East Monsoon season - 16th October to 31st January
      • Hot weather season        - 1st February to 31st May
       3. Meetings of the Regulation Committee:                                 B
       1) The Regulation Committee shall meet once in ten days during
       the months of June and October when the southwest and northeast
       monsoon set in; after the monsoon has set in, the meeting will be
       held at least once a fortnight but the Committee shall have the
       powers to convene meetings as often as necessary. In the case            C
       of any emergency situation, a minimum of 48 hours notice shall
       be given for holding a meeting.
       2) In case, the State which is likely to be affected is not
       represented in the meeting, then the possibility of calling another
       meeting will be examined by the Committee.
                                                                                D
            Provided that if the situation is such that it is not possible to
       delay taking a decision, then the Committee may decide the issue
       by majority vote even in the absence of representative from the
       affected State.
       3) The quorum for meeting of Regulation Committee shall be six           E
       Members.
       4) All the Members including the Chairman and Member
       Secretary of the Committee shall have voting right; the Chairman
       shall also have a casting vote.
                                                                                F
                                           Sd/-
                                           U.P. Singh
                                           Secretary
                                     Ministry of Water Resources,
                                     River Development & Ganga
                                                                                G
                                     Rejuvenation, Govt. of India
                                     New Delhi-110001.”
      13. As aforementioned, the comments on the draft corrected
scheme are mainly at the behest of State of Karnataka and State of
Kerala. No suggestion has been offered by the State of Tamil Nadu to
                                                                                H
1148             SUPREME COURT REPORTS                           [2018] 5 S.C.R.


 A     the corrected draft scheme, except to submit that the implementation of
       the scheme should be with utmost dispatch in consonance with the Award,
       as modified by this Court, in its letter and spirit. He submitted that there
       is distress situation in the State of Tamil Nadu due to scarcity of water
       which can be remedied to some extent by the effective implementation
       of the scheme.
 B
              14. After hearing the parties, we are of the considered opinion
       that the suggestions/objections of the State of Karnataka and State of
       Kerala are devoid of merit. The fact that the subject of water, that is to
       say, water supplies, irrigation and canals, drainage and embankments,
       water storage and water power, forms part of Entry 17 of List II of the
 C     Seventh Schedule to the Constitution, cannot be the basis to whittle
       down the efficacy of the Award passed by the Tribunal and as modified
       by this Court and, in particular, the scheme to ensure smooth, effective
       and efficient implementation of the Award of the Tribunal, as modified
       by this Court. The draft scheme has been formulated singularly for that
 D     purpose and the same will have to be taken forward to its logical end in
       accordance with law with promptitude.
              15. Reverting to the specific grievance with regard to clauses
       9(3)(i) and 9(3)(vii), the argument is that the same would compel the
       States to furnish/place an indent for the supplies required by them on
 E     each reservoir site. That is wholly unnecessary as the Award passed by
       the Tribunal quantifies the volume of river water to be shared and
       apportioned between the States. This objection does not commend us
       inasmuch as the necessity to furnish/place an indent of water demand
       and about the total water reservoir is to work out the quantity of river
       water to be released during the relevant period in consonance with the
 F     proportion specified in the Award as modified by this Court and, in
       particular, on the principles delineated in the decision of this Court under
       Point No. X about the method and manner of apportionment to be
       followed. That is to further the rights of the States/U.T. for just and
       reasonable use of water from the allocable water on equitable basis and
 G     not to impinge upon their rights and moreso for smooth and effective
       implementation of the Award as modified by this Court.
             16. Coming to the suggestion/objection in reference to clause
       9(3)(iii) of the draft scheme, reliance has been placed on the
       recommendation made by the Assessors to the Tribunal forming part of
 H     the report of the Tribunal. The Assessors had advised that 10 TMC
STATESTATE  OF TAMIL NADU
      OF KARNATAKA      BY ITSv. CHIEF
                                 P. K. SINHA  AND ANR.
                                        SECRETARY  v. STATE 1149
  OF T. N. BY ITS[A. M. KHANWILKAR,
                  CHIEF  SECRETARY [DIPAK J.]  MISRA, CJI]

each as carry-over storage in the reservoirs of the two States may be            A
provided to take care of any delay in onset of South-West monsoon.
That may be the recommendation of the Assessors but the allocation
and distribution of river water will have to be in full conformity with the
Award as modified by this Court and as aforementioned on the principles
of apportionment to be followed as delineated in Point No. X of the
                                                                                 B
judgment of this Court.
       17. Needless to observe, we cannot allow the parties to reopen
the issues already settled in the Award and as modified by this Court,
indirectly in the guise of questioning the appropriateness of clause 9(3)(iii)
in the draft scheme. The Authority constituted under the scheme will be
bound by the contours regarding apportionment of river water in terms            C
of the Award as modified by this Court and while doing so, is expected
to take into account all factors that may be relevant at the given point of
time, including to identify the situation of distress in the basin caused due
to identifiable factors before quantifying the water quantity for being
released or allotted to the party States/U.T. for the relevant period.           D
      18. We appreciate the stand taken by Mr. Nambiar, learned senior
counsel appearing for Union Territory of Puducherry, that the Authority
cannot be expected to issue directions mechanically and that the Authority
must have complete power to enforce its directions so as to comply with
the Award, as modified by this Court, in its letter and spirit, concerning       E
the apportionment of water between the party States/U.T. We say no
more.
        19. Considering the fact that the Union of India has already
formulated the draft scheme and has also offered explanation in I.A.
No.47065 of 2018 and the affidavit filed on 7th May, 2018 in M.A. No.934/        F
2018 about the reasons which were beyond the control of the appropriate
authority dealing with framing of the scheme, we do not wish to continue
the contempt action any further. For the same reason, the directions
sought in I.As. filed by the concerned party also need not detain us. For,
the corrected draft scheme is in consonance with the dictum and directions
in the Award as modified by this Court and also in conformity with Section       G
6A of the 1956 Act. The draft scheme ought to be taken forward to its
logical end in accordance with law with utmost dispatch.
      20. In view of the above, we dispose of all the I.As., M.As. and
the contempt petitions by this common order, on accepting the assurance
given on behalf of the Union of India that the draft scheme will be taken        H
1150              SUPREME COURT REPORTS                          [2018] 5 S.C.R.


 A     to its logical end in accordance with law, with utmost dispatch. We hope
       and trust that the draft scheme reproduced in paragraph 12 above, is
       notified in the Official Gazette and given effect to with promptitude before
       the onset of the impending monsoon.
              21. Accordingly, all the I.As., M.As. and the contempt petitions
 B     are disposed of.


       Kalpana K. Tripathy                                        Matters disposed of.



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