Holding

The Karnataka Ordinance is ultra vires, the Tribunal’s interim order is a report and decision requiring gazette publication, and the Tribunal is competent to grant interim relief when referred by the Central Government.

Summary

The President referred three questions to the Supreme Court concerning the Cauvery water dispute, the Karnataka Cauvery Basin Irrigation Protection Ordinance (later Act No.27 of 1991), and the powers of the Cauvery Water Disputes Tribunal. The Court held that the Karnataka Ordinance was ultra vires the Constitution because it interfered with the Tribunal’s jurisdiction under Article 262 and the Inter‑State Water Disputes Act, 1956. It further ruled that the Tribunal’s interim order of 25 June 1991 constitutes a report and decision within the meaning of Section 5(2) of the Act and must be published in the Official Gazette under Section 6 to be effective. The Court affirmed that the Tribunal is competent to grant interim relief when the Central Government refers the matter to it, but declined to answer whether it can do so without such a reference. Consequently, the Ordinance was declared invalid, the interim order was confirmed as binding, and the Tribunal’s jurisdiction to grant interim relief was recognised. The advisory opinion was delivered, giving due weight to the Court’s earlier judgment on the same dispute.

Issues considered

Whether the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 (now Act No.27 of 1991) is constitutionally valid and within the legislative competence of the State.
Whether the interim order dated 25 June 1991 passed by the Cauvery Water Disputes Tribunal constitutes a 'report and decision' under Section 5(2) of the Inter‑State Water Disputes Act, 1956 and therefore must be published under Section 6 of the Act.
Whether a Water Disputes Tribunal constituted under the Inter‑State Water Disputes Act is empowered to grant interim relief to the parties, both when a reference for such relief is made by the Central Government and when no such reference is made.

Legislation cited

Constitution of Indias. Article 131, s. Article 143, s. Article 245, s. Article 246, s. Article 248, s. Article 262, s. Entry 14 of List II, s. Entry 17 of List II, s. Entry 18 of List II, s. Entry 56 of List I, s. Entry 97 of List I
Inter-State Water Disputes Act, 1956s. 11, s. 5(1), s. 5(2), s. 5(3), s. 6
Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 (subsequently Act No.27 of 1991)
River Boards Act, 1956

Subjects

inter‑state water disputeinterim relieftribunal jurisdictionconstitutional validitylegislative competenceArticle 262Article 131Article 143Cauvery Riverfederalism

Judgment

IN THE MATTER OF : A

CAUVERY .WATER DISPUTES TRIBUNAL

NOVEMBER 22, 1991

[RANGANATH MISRA, CJ., K.N.SINGH, A.M. AHMADI, B
KULDIP SINGH AND P.B. SAW ANT, JJ.] '

Constitution of India, 195 0:

Articles 131 and 262-0riginal Jurisdiction of Supreme Court-lnter-
State rive~ water dispute-Adjudication of-Excluded from pwview of q
Court and vested in Water Ttibunal under the Inter-State Water Disputes
Act, 1956-Question of grant of interim relief-Whether could he agi-
tated before Court.

Article 143-Advisory Jurisdiction-Whether Court can review its ·
opinion-Whether I',-esident can refer a question of law already decided D,
by the Court-Advisory opinion on Presidential Reference-Nature and
effect of

Articles 245,246,248,262, Seventh Schedule, List I-Entries 56 and
97, List //--Entries 14, 17 and 18-Inter-State river water--Karnataka
Cauve1y Basin Irrigation Protection Ordinance, 1991/Act No. 2 7 of E
1991--Constitutional validity of-Legislative competence of State
Legislature-Whether denuded by Parliamentar)' legislation-Whether State
Legislature can change the law declared by Court-Whether can set aside
decision of inter-parties and affect their rights and liabilities alone-Whether
Inter-State Disj,·utes Act P.nacted under Article 262 or·Entry 56--Distinc-
tion inter se between Article 262, Entry 56 of List I and Entry 17 of List ·· ~
II-Executive Order or legislative enactment of State Legislature inte1fer-, :
ing with adjudicatory process of Water Tribunal-Whether dnterference
with judicial power of State. ..,

Karnataka Cauvery Basin Irrigation frotection ·Urdinance, 19911
Act No.2 7 of 1991: Constitutional validity of G

Inter-State Water Disputes Act, 1956:

Sections 5(2) and 6-lnter-State river water dispute-Order of Tri- i
bunal granting interim relief-Whether a report and decision-Whether
requires to be published in the official gazette. H

497
498 SUPREME COURT REPORTS [1991] SUPP. 2 ·S.C.R.

A Section 1J~xclusion ofjurisdiction of Courts, including Supreme
Court-Question ofgrant of interim relief-Whether falls outside purview
of the Section.

Practice and Procedure: " ''
B Supreme Court Rules-Order XL, Rule I-Advisory opinion of Su-
preme Court under Article 143 of the Constitution-Whether could be
reviewed.

In pursuance of the directions given by this Court in a Writ
Petition filed by the Tamil Nadu Ryots' Association, the Union Gov-
c ernment, by its notification dated June 2, 1990, constituted the Cauvery
Water Disputes Tribunal under Section 4 of the Inter-State Water
Disputes Act, 1956 for adjudication of the dispute regarding sharing
of water of the inter-State river Cauvery between the States ofKarnataka,
the upper riparian State, Tamil Nadu, .the lower riparian State, and
Kerala and the Union Territory of Pondicheriry. By another notifi-
D cation of the same date, it also referred the water dispute emerging
from the Letter of Request lodged by the State of Tamil Nadu under
Section 3 of the Inter State Water Disputes Act with the Cenfral
Government on the failure of the negotiations between the partres
in this regard, for reference of the dispute to a Tribunal for adjudi-
cation.
E
In the Letter of Requesnhe State had made a grievance against
construction of works in Karnataka area and the appropriation of
water upstream so as to prejudice the interests downstream in the
State of Tamil Nadu, an(( also ~ought the implementation of the
:'---
agreements of 1892 and 1924, which had been entered into when
F most of the areas in these States comprised in the then Presidency
of Madras and the then State of Mysore. The last of the agreements
had expired in 1974 and though the understand.ing of 1976 had been
reached, further negotiations in the matter had failed and hence the
State of Tamil Nadu had lodged the aforesaid Letter of Request.
G
Before the Tribunal, the State of Tamil Nadu submitted an
application for interim relief praying that State of Karnataka be
directed not to impound or utilise water of Cauvery river beyond
the extent impounded or utilised by them as on 31.5.1972, as agreed
to by the Chief Ministers of the basin States and the concerned
H Union Minister and an order restraining Karnataka from undertak-
CAU\TERY WATER DISPUTES TRIBUNAL 499

ing any ~ew projects, dams, reservoirs, canals and/or from proceed- A
ing further with the construction of those already commenced in the
Cauvery basin. The Union Territory of Pondicherry also sought a
direction both to Karnataka and tamil Nadu to release the water
already agreed to during the months of September to March.

Meanwhile, Tamil Nadu filed an urgent petition to direct B
Karnataka, as an emergent measure, to release at least 20 TMC of
water as the first instalment, pending final orders on their interim
application. ·

Besides contesting the application on merits, both Karnataka
and Kerala raised a preliminary objection that the Tribunal consti- c
tuted under the Act had a limited jurisdiction, and had no inherent
powers as an ordinary Civil Court has, and there was no provision
of law which authorised or conferred jurisdiction on the Tribunal to
grant any interim relief. The Tribunal held that since the question
of gran.ting interim relief was not referred to it, the applications for
interim relief were not maintainable. D

On appeal by the State of Tamil Nadu and the Union Territory
of Pondicherry, this Court held that reliefs prayed fo~ in the appli-
cations for interim relief and directions, were covered in the refer-
ence and fell within the purview of the dispute referred to it by the
Central Government under Section 5 of the Inter-State Water Dis- E
putes Act. Accordingly, the Court directed the Tribunal to decide
_!~e applications for interim relief and directions on merits.

Rejecting tht objections once again raised by the State of
Karnataka, as regards the maintainability of the applications for
interim relief, the Tribunal passed an_ order directing the State of F
Karnataka, to ensure that 205 TMC water was available in Tamil
Nadu's Mettur reservoir every year. Tamil Nadu was also directed
to deliver to Pondicherry 6 TMC water. The Tribunal also directed
Karnataka not to increase its area under irrigation by the waters of
Cauvery, beyond the existing area. The order was to remain opera-
tive till the final adjudication of the dispute referred to it.
G

The Tribunal's order thus gave rise to the issuance of the
Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 by
the State of Karnataka nullifying the Tribunal's order. The ordi-
nance was· subsequently replaced by Act No. 27of1991. H
500 SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

A The State of Karnataka also instituted a suit under Article 131
agafnst the State of Tamil Nadu and others for a declaration that
the Tribunal's order granting 'interim relief was without jurisdic-
tion and, therefore, null and void, etc.

Under these circumstances, the President of India made a Ref-
B erence to this Court under Article 143(1) of the Constitution seek-
ing advisory opinion on: (a) whether the Ordinance and the provi-
sions thereof were in· accordance with the provisions of the Consti-
tution, (b) whether the Tribunal's order constituted a report and a
decision within the meaning of Section 5(2) of the Inter-State Water
Disputes Act, and whether the same was required to be published by
C the Government of India in order to make it effective, and {c) whether
a Water Disputes Tribunal constituted under the Inter-State Water
Disputes Act was competent to grant any relief to the parties to the
dispute.

It was contended on behalf of the State of Karnataka that the
D legislation clearly fell within the competence of the State Legisla-·
ture under Entry 17 as well as Entries 14 and 18 of List II in the
Seventh Schedule of the Constitution and the State Legislature had
every right to legislate on the subject and this legislative power was
subject only to Entry 56 of List I which, however, did not denude
the States of the power to legislate under Entry 17, and, in the
E absence of the constitution of a River Board for CaL1very, as envis ·
aged under Entry 56, the State retained full legislative power to
make laws as if Entry 17 had remained untouched; that the execu-
tive power of the Union under Article 73 could not extend to any
State with respect to matters on which the State alone could 'legis-
late, in view of the field having been covered by Article 162 of the
F Constitution; that since the Inter-State River Disputes Act enacted
under Article 262 of the Constitution did not attract any Entry in
List I, it was law essentially meant to provide for the adjudication
of a dispute with respect to the use., distribution or control of waters
of, or in, any inter-State river or river valley and did not; therefore,
step on the toe of Entry 17, that the Ordinance, which became Act
G subsequently, only sought to impose by section 3, a duty on the State
Government to protect, preserve and maintain irrigation from Cauvery
waters in the irrigable areas falling within the various projects specified
in the Schedule to the said legislation, and, therefore, the legislation
was clearly within the scope of the State's power to legislate and
was intra vires the Constitution. A fortiori, the power to legislate
H conferred on the State Legislature by Entries 14, 17 and 18 of List
CAlNERY WATER DISPUTES TRIBUNAL 501

II, could not be inhibited by an interim order of the Tribunal, since A
the scheme of the Act envisaged only one final report or decision of

- ~
tl!e Tribunal under section 5(2) which would have to be gazetted
under section 6 thereof, and therefore, it was open to the Karnataka
Legislature to make a law ignoring or overriding the interim order
of the Tribunal; that the scheme of the Act did not envisage the
making of an interim order by the Tribunal; once a water dispute B
was referred to the Tribunal, it must 'investigate' the matters re-
ferred to it and forward a report to the Central Government setting
out the facts found by it and giving its decision on the matters
referred to it, and the Central Government must publish this deci-
..... sion in the official gazette to make it final and binding on the par-
ties to the dispute, and since the interim order was not preceded by c
such an investigation, the said order could not be described as 'a
decision' under section 5(2) of the Act, and consequently, the Ceo-
tral Government was under no obligation to publish the interim
order, that the words 'any matter appearing to be connected with
or relevant to water dispute' employed in section 5(1) of the Act did .
not contemplate reference of an interim relief matter, nor could the D
same empower the Tribunal to make an interim order pendente lite,
.. and, therefore, having regard to the purpose, scope and intendment
of the Act, the Tribunlll constituted thereunder had no power or
authority to grant any interim relief which would have the effect of
adversely interfering with its existing rights, although while finally
adjudicating the dispute it could override any executive or legisla- E
tive action taken by the State, and since the allocation of flow of
waters between the concerned States was generally based on the
principle of 'equitable apportionment', it was incumbent on the Tri-
bunal to investigate the facts and all relevant materials before de-
ciding on the shares of the concerned States which was not possible
at the interim stage and hence the legislature had advisedly not F
conferred any power on the Tribunal to make an interim order
affecting the existing rights of the concerned parties, and that the
President could refer any question of law under Article 143 and
therefore, also ask the Supreme Court to reconsider anv of its deci-
sions.
G
In its written statement, the State of Kerala, by and large,
..,.__ supported the stand of the State of Kerala. However, subsequently
it was submitted that since neither the scheme of the Act conferred
any power on the Tribunal to make an interim order nor the scope
of Article 262 read with the scheme of Act contemplated making of
a Reference in that regard, the only remedy available to a State H
502 SUPREME COURT REPORTS (1991) SUPP. 2 S.C.R.

A which apprehended any action by the upper riparian State likely to
adversely affect the rights of its people, was to move the Supreme
Court under Article 131 of the Constitution, notwithstanding the
provisions of Article 262 and section 11 of the Act; and accordingly,
this Court's view that there was a Reference to the Tribunal for
grant of interim relief was not consistent with the true meaning and
-
B scope of Article 262 and the provisions of the Act and this Court
should not feel bound by it.

The State of Tamil Nadu contended that ordinarily a dispute
between two or more States would be governed by Article 131 of the
Constitution and, subject to the provisions of the Constitution, the
c Supreme Court alone would have jurisdiction if and in so far as the ....
dispute involved any question whether of law or fact on which the
existence or extent of a legal r!ght depended, that the Tribunal was
required to perform a purely judicial function which, but for Arti-
cle 2-62 and section 11 of the Inter-State Water Disputes Act, would
have b~erformed by a court of law, that since tt1e Tribunal was
D a substitute for the Supreme Court, it was reasonable to infer that
all the powers exercised by the Supreme Court under Article 131
could be exercised by the Tribunal while adjudicating a water dis-
pute and, therefore, the ancillary and incidental power to grant
interim relief inhered in such a Tribunal without the need for an
express provision or any specific reference to it in that behalf; that
E apart, the decision of this Court dated 26th April, 1991 that the
reference to the Tribunal included the question of grant of interim
relief operated as res judicata and was binding on the contesting
parties regardless ,of the view that this Court might take on the
generality of the question referred for decision; if the question of
granting of interim relief formed part of the Referenfe, the Tribu-
F nal was duty bound to decide the same and even otherwise, it had
inherent jurisdiction to grant interim relief, whether or not the
question regarding grant of interim relief was specifically referred,
and therefore, its decision would c-onstitute a report under section
5(2) of the Act and was liable to be published in the official Gazette
as required by section 6; that if there was any ambiguity in the
G interim order the same could be taken care of under section 5(3) of,
the Act; that the Ordinance in question was ultra 1 ires the Constitu- '
1

tion for diverse reasons; the real object and purpose was to unilat.:.
erally nullify the Tribunal's interim order after having failed in the
first round of litigation; the State of Karnataka had no right to
unilaterally decide the quantum of water it would appropriate or
H the extent to which it would diminish the flow of Cauvery waters to
CAUVERY WATER DISPUTES TRIBUNAL 503

the State of Tamil Nadu and thereby. deny to the people of Tamil A
Nadu their rightful share in the Cauvery waters; the right to 'just
and reasonable use of water being a matter for adjudication by the
Tribunal, no single State could, by the use of its legislative power
arrogate unto itself the judicial function of equitable apportionment
and decide for itself the quantum of water it would use from the
inter-State river regardless of the prejudice it would cause to the B
other State by its unilateral action; such a power could not be read
in Entry 17 as it would be, destructive of the principle that such
water disputes were justiciable and must be left for adjudication by
an independent and impartial special forum to which it was re-
ferred, namely, the Tribunal constituted for resolving the dispute,
and not by unilateral executive or legislative interfer~ce, an~, therefore, C
the object of the legislation not being bona fide, the same could not
be allowed to stand as it had the effect of overruling a judicial order
· passed by a Tribunal specially appointed to adjudicate on the water
dispute between the parties thereto; it sought to override or neu-
tralize the law enacted by Parliament in exercise of power con-
ferred by Article 262 ~and not Article 246 read with the relevant D
entryin the Seventh Schedule) of the Constitution; a State Legisla-
ture could have no power to legislate with regard to a· water dispute
as it would be incongruous to confer or infer such power in a State
Legislature to destroy what a judicial body has dQne under a C~n-
tral law; it had extra-territorial operation, in that, it directly im-
pinged on the rights of the people of Tamil Nadu to the use ,of E
Cauvery waters; it was also contrary to the Rule of Law, and a
power not comprehended even by Article 262 could not be read into
the legislative power of the State for. it would pervert the basic
concept of justice; and was also violative of the fundamental rights
of the inhabitants of Tamil Nadu guaranteed by Articles 14 and 21
of the Constitution, in that, the action of Karnataka was wholly F
arbitrary and in total disregard of the right to life of those inhabit-
ants in Tamil Nadu who survived on Cauvery waters; it was further
contended that in a civilisc<!_society governed by the Rule of Law, a
party to a 'lis' -water dispute- could not be allowed to arrogat~ to
itself the right to decide on the dispute or to nullify an interim
order made by a Tribunal in obedience to the decision of the apex · G
court, by abusing the legislative power under Entry 17 under which
the legislation purported to be; moreover, the jurisdiction of tliis
Court under Article 143 of the Constitution was discretionary and
this Court should refrain from answering a Reference which was in
general terms without background facts and was likely to entail a
roving inquiry which may ultimately prove academic only; secondly, H

•
r
't

504 SUPREME COURT REPORTS [1991] SUPP. 2 S.C.R.

A the State of Karnataka had immediately after the interim order
instituted a suit in this. Court in which it had prayed for a declara-
tion that the interim order of the Tribunal dated 25th June, 1991
was without jurisdiction, null and void, and for setting aside the
said order; while on the one hand, the decision of this Court had
become final and was res judicata between the parties thereto, on
B the other hand, ithe State of Karnataka was raking up the same
question of jurisdiction before this Court in a substantive suit with
a view to over-reaching this Court's earlier order; the Presidential

..
Reference in terms referred to disputes and differences having arisen
out of the Tribunal's interim order which was said to have given
rise to a public controversy likely to result in undesirable conse-
c quences; 'such matters could be effectively countel'"ed by the con-
cerned Government and did not call for a Presidential Refe~ence; if
there was any doubt or difficulty in the implementation of the order
in question, recourse could always be had to section 5(3) of the Act
and hence,' this Court should refuse to answer the Reference.

D The U.ition Territory of Pondicherry, contended that the prom-
ulgation of the Ordinance (now Act) was intende~ to fur~'1er pr~
t.ract the long standing water dispute which came to '1e referr~d tp
the Tribunal only after this Court issued a mand~~u~ ~!1 th?t behalf
and was likely to prejudicially ·affect the interest Mme State as well
as the farmers and other inhabitants who utilised th\? water from
E rh'er Cauvery; that the said legislation was unconstitutional and
was a piece of colourable legislation, that in the case of flowing
water the riparian States· had no ownership or proprietary right
therein except in the usufruct thereof and, therefore, the power to
legislate therein under Entry 17 of List II could extend to only the
usufructuary right subject to the right of a riparian State to get the
F customary quantity of water; that the Ordinance was also yoid for
re·pugnancy, being in conflict with the Central legislation, and also
violative of Article 21 of the Constitution as it was intended to
diminish the supply of water to Tamil Nadu and Pondicherry, which
was also against the spirit of Articles 38 and 39 of the Constitution,
that sii1t"e the water dispute referred to the Tribunal comprised the
G issul' rt.>garding the grant of interim relief, as held by this Court, the
interim order made by the Tribunal cpnstituted a report within the
meaning of section 5(2) of the Act and, consequently, the Central
Government was obliged to publish it, as required by section 6 of
the Act; and when so published it would operate as a dccisit>n i11
rem: hut even without put:lication it was binding on Karnataka as a
dcrhi11n in jwrs01w111, since the jurisdiction of all courts including

"
CAUVERY WATER DISPUTES TRIBUNAL 505
'
the Supreme Court was taken away by virtue· of section 11 of the A
Act read with Article 262(2) of the Constitution, and the Tribunal
had all attributes of a Court; it was required to discharge the judi- .
cial function of adjudicating a water dispute between two or more
States and must be deemed to possess the inherent incidental and
ancillary power to grant interim relief which inhered in all such·
judicial bodies, and absence of an express provision in that behalf B
did not detract from the view that such power inhered in a Tribu-
nal.

Six intervention applications were also filed by· different per-
sons and bodies from Karnataka, including the Advocate General of
the State in support of the case of Karnataka. C
1
An. intervention application raising the contentions similar to
those of State of Tamil Nadu was also filed by the Tamil Nadu
Ryots' Association which had preferred the original Writ Petition
on which a mandate to constitute the Tribunal was given.
[)
Answering the Reference, this Court,

HELD : 1.1 The Karnataka Cauvery Basin Irrigation Pro-
tection Ordinance 1991 promulgated by Governor of Karnataka on
25th July, 1991 (su1?sequently enacted by the State Legislature as
Act No. 27of1991) is beyond the legislative competence of the State E
and, is therefore, ultra vires the Constitution. (565 E]

1.2 The object of the provisions of the Ordinance is obvious
coming close on the Order of the Tribunal and in the context of the
stand taken by the State of Karnataka that the Tribunal has no
pow·er or jurisdiction to pass any interim relief, it is to override the F
said decision of the Tribunal and its implementation. The Ordi-
nance has thus the effect of defying and nullifying any interim order
.of the Tribunal appointed under a law of the Parliament. The other
effect of the Ordinan'ce is to reserve to the State of Karnataka
exclusively the right t? appropriate as much of the water of river
Cauvery and its tributaries as it deems requisite and in a manner G
and at periods it deems fit and proper, although pending final adju-
dication by the Tribunal. (546 F-G]

1.3 The Ordinance affects the jurisdiction of the Tribunal ap~
pointed under the Central Act, viz., the Inter-State Water Disputes
Act, which has been made under Article 262 of the Constitution. H
506 SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

A The State of K~rnataka has arrogated to itself the power to decide
unilaterally whether the Tribunal has jurisdiction to pass the in-
terim order or not and whether the order is binding on it or not.
The State has presumed that till a final order is passed by the
Tribunal, the State has the power to appropriate the waters of the
river Cauvery to itself unmindful of and unconcerned with the con-
B sequences of such action on the lower riparian States, that it has
superior rights over the said waters and it can deal with them in
any manner, and the lower riparian States have no equitable rights
and that it is th~ sole judge as to the share of the other riparian
States in the said waters. Moreover, it has assumed the role of a
judge in its own cause. [552 C, F-G]
c 1.4 Apart from the fact that the Ordinance directly nullifies
the decision of the Tribunal, it also challenges the decision of this
Court, which has ruled that the Tribunal had power to consider the
question of granting interim relief since it was specifically referred
to it. The Ordinance further has an extra-territorial operation inas-
D much as it interferes with the equitable rights of Tamil---Nadu and
Pondicherry to the waters of the Cauvery river. To the extent that
the Ordinance interferes with the decision of this Court and of the
Tribunal appointed under the Central legislation, it is clearly un-
constitutional being not only in direct conflict with the provisions of
Article 262 of the Constitution under which the said enactment is
E made, but being also in conflict with the judicial power of the State.
[552 H, 553 A)
1.5 The legislature can change the basis on which a decision is
given by the Court and thus change tlie law in general, which will
affect a class of persons and events at large but it cannot set aside
an individual decision inter-parties and affect their rights and li-
F abilities alone. Such an act on the part of the legislature amounts to
exercising the judicial power of the State and to functioning as an
appellate court or Tribunal. [554 H, 555 A)
Municipal Corporation of the City of Ahmedabad etc. v. New Shorock
Spg. & Wvg. Co., Ltd. etc. [1971) 1 SCR 288; Madan Mohan Pathak v.
G Union of India & Ors. etc., [1978] 3 SCR 334 and P.Sambamurthy & Ors.
etc. etc. v. State of Andhra Pradesh & Anr., (1987) 1 SCR 879, referred
to.

1.6 Any executive order or a legislative enactment of a State
which interferes with the adjudicatory process and adjudication by
H such Tribunal is an interference with the judicial power of the State.
In view of the fact that the Ordinance in question seeks directly to
CAtNERY WATER DISPUTES TRIBUNAL 507

nullify the order of the Tribunal, it impinges upon the judicial power A
of the State. [555 C-D]
1.7 Further, admittedly, the effect of the Ordinance is to af-
fect the flow of the waters of the river Cauvery into. the territory of
Tamil Nadu and Pondicherry which are the lower riparian States.
The Ordinance has, therefore, an extra-territorial operation, and is B
thus beyond the legislative competence of the State and is ultra vires
the provisions of Article 245(1) of the Constitution. [555 E]
1.8 The Ordinance is also agains.t the basic tenets of the rule
of law inasmuch as the State of'Karnataka by issuing the Ordinance
has sought to take law in its own hand and to be above the law. Such
an act is an invitation to lawlessness and anarchy, inasmuch as the c
Ordinance is a manifestation of a desire on the part of the State to
be a judge in its own cause and to defy the decisions of the judicial
authorities. The action forebodes evil consequences to the federal
structure under the Constitution and opens doors for each State to
act in the way it desires disregarding not only the rights of the other
States, the orders passed by instrumentalities constituted under an D
Act of Parliament but also the provisions of the Constitution. If the
power of a ~tate to issue such an Ordinance i~ upheld it will lead to
the break down of the Constitutional mechanism and affect the unity
and integrity of the nation. [SSS F-G] --
2.1 Under Article 131, this Court has original jurisdiction, among E
other things, in any dispute between two or more States where the
dispute involves any question whether of law or fact on the exist-
ence and extent of which a legal right depends except those matters
which are specifically excluded from the said jurisdiction by the
proviso. However, the Parliament has also been given power by
Artiele 262 of the Constitution to provide by law that neither the F
Supreme Court nor any other court shall exercise jurisdiction in
respect of any dispute or complaint with respect to the use, distribu-
tion or control of the water of, or in, any inter-State river or river
valley. Section 11 of the Inter-State Water Disputes Act, 1956, has
in terms provided for such exclusion of the jurisdiction of the Courts.
Thus, Section 11 of the Act read with Article 262 excludes original G
jurisdiction of the inter-State water dispute which may be referred
to the Tribunal established. under the Act from the purview of any
Court including the ·Supreme Court under Article 131. [544 H, 545
·A-BJ .

2.2 The Inter-State Water Disputes Act, 1956 has been enacted H
only under Article 262 of the Constitution, and not under Entry 56,
508 SUPREME COURT REPORTS [1991] SUPP. 2 S.C.R.

A as it relates to the adjudication of the disputes and with no other
aspect either of the inter-State river as a whole or of the waters in
it. [550 G] .

2;3 Entry 56 speaks of regulation and development of inter-
State rivers and river valleys and does not relate to the disputes
B between the riparian States with regard to the s·ame and adjudica-
tion thereof. Even assuming that the .expression "regulation and
development" would in its~width, include resolution of disputes aris-
ing out therefrom and a provision for adjudicating them, the Act
does not make the declaration required under Entry 56. This is
obviously not an accidental omission, but a deliberate disregard of
c the Entry since it is not applicable to the subject-matter of the
legislation. Further no Entry in either of the 'three Lists refers spe-
cifically to the adjudication of disputes with regard to inter-State
river waters, the reason being that Article 262 of the Constitution
specifically provides for such adjudication. [547 A-CJ

D 2.4 An analysis of Article 262 shows that an exclusive power is
given to the Parliament to enact a law providing for the adjudica-
tion of disputes or complaints relating to "use, distribution or con-
trol" of the waters of, or in any inter-State- river or river valley.
The words "use", "distribution" and "control" are of wide import
and may include regulation and development of the said waters.
E The provisions clearly indicate the amplitude of the scope of adjudi-
cation, inasmuch as it would take within its sweep the determination
of the exterit, and the manner, of the use of the said waters, and·the
power to give directions in respect of the same. [508 F-G]

2.5 The language of the Article has, further to be distinguished
F from that of Entry 56 and Entry 17. Whereas Article 262(1) speaks
of atljudication of any dispute or complaint and that too with re-
spect to the use, distribution or control of the waters of or in 1any
inter~State river or river valley, Entry 56 speaks of regulation and
development of inter-State rivers and river valleys. Thus, the dis-
tinction between Article 262 and Entry 56 is that whereas former
G speaks of adjudication of disputes with respect to use, distribution
."-
or control of the waters of any inter-State river or river valley,
Entry 56 speaks of regulation and development of inter-State rivers
and river valleys. Entry 17 likewise speaks of water, that is to say,
water supplies, irrigation and canals, drainage and embankments,
water storage and water power subject to the provisions of Entry
H 56. It does not speak either of adjudication of disputes or of an
CAuv.E.KY WATER DISPUTES TRIBUNAL 509

inter-State river as a whole and State can only deal with water A
within its territory. [547 H, 548 A-CJ

2.6 The Inter-State Disputes Act, 1956 is made pursuant fo. the
pro:visions of Article ·262 specifically for adj udfration of the disputes
between the riparian States with regard to the use, distribution or
control of the waters of the inter-State rivers or river valleys, and is B
not relatable to Entry 56 and, therefore, does not cover either the
field occupied by Entry 56 or by Entry 17. Since the subject of
adjudication of the said disputes is taken care of specifically and
exclusively by Article 262, by necessary implication the subject stands
excluded from the field covered by Entries 56 and 17. It is not,
therefore, permissible either for the Parliament under Entry 56 or C
for a State legislature under Entry 17 to enact a legislation provid-
ing for adjudication of the said disputes or in any manner affecting
or interfering with the adjudication established by law under Arti-
cle 262. This is apart from the fact that the State legislature would
even otherwise be incompetent to provide .for adjudication or to
affect in any manner the adjudicatory process or the adjudication D
made in respect of the'inter-State river waters beyond its territory
or with regard to disputes between itself and another State relating
to the use, distributiOn or control of such waters. Any such act on
its part will be extra-territorial in nature and, therefore, beyond its
competence. [549 C-F]
E
2. 7 It is not correct to say that it is Entry 97 of the Union List,
which deals with the topic of use, distribution and control of the
waters of an inter-State river. This is so bec~use the expression
"regulation and deveiopment of inter-State rivers and river valleys"
in Entry 56 would include the use, distribution and allocation of the
waters of the inter-State rivers and river valleys between different F :
riparian States. Otherwise, the intention of the Constituent Assem-
bly to' provide for the Union to take over the regulation and deve-
lopment under its co'ntrol makes no sense and serves no purpose.
Further, the River Boards Act, 1956, which is admittedly enacted
under Entry 56 for the regulation and development of inter-State
rivers and river valleys, does cover the field of the use, distribution G
and allocation -of the waters oflhe inter-State rivers and river val-
leys, indicating .that t~e expression "regulation and development" in
Entry 56 has legislat.ively also been construed to include the use,
distribution or allocation of the waters of the inter-State rivers and
river valleys between riparian States. To contain the operation of
Entry 17 -to the waters of an inter-State river and river valleys H

I•
510 SUPREME COURT REPORTS [1991] SUPP. 2 S.C.R.

A within the boundaries of a State and to deny the competence to the
State legislature to interfere with or to affect or to extend to the
use, distribution and allocation of the waters of such river or river
valley beyond its territory, directly or indirectly, it is not necessary
to fall back on the residuary Entry 97, as an appropriate declara-
tion under Entry 56 would suffice. The very basis Of a federal Con-
B stitution mandates such interpretation and would not bear an inter-
pretation to the contrary which will destroy the constitutional scheme
and the Constitution itself. Although, therefore, it is possible techni-
cally to separate the "regulation and development" of the inter-
state river and river valley from the "use, distribution and alloca-
tion" of its waters, it is neither warrante~ nor necessary to do so.
c [549 G, 550, B-F)
2.8 Though the waters of an inter-State river pass through the
territories of the riparian States such waters cannot be said to be
located in any one State. They. are in a state of flow and no State
can claim exclusive ownership of such waters so as to deprive the-
D other States of their equitable share. Hence in respect of .such wa-
ters, no State can effectively legislate for the use of such waters
since its legislative power does no~ extend beyond its territories. It
is further an acknowledged priPciple of distribution and allocation
of waters between the riparian States that the same has to be done
on the basis of the equitable share of each State. What the equitable
E share will be will depend upon the facts of each case. (551 H, 552
A-R)

3.1 The order of the Tribunal dated 25th June, 1991 granting
interim relief constitutes a report and a decision within the meaning
of Section 5(2) of the Inter-State Water Disputes Act, 1956. The said
order is, therefore, required to be published by the Centr.al Govern-
F ment in the Official Gazette under Section 6 of the Act in order to
make it effective. [565 F-G]
3.2 Sub-section (1) of Section S expressly empowers the Cen-
tral Government to refer to the Tribunal not only the main water
dispute, but any matter appearing to be connected with or relevant
G to it. A request for an iitterim relief, whether in the nature of man-
datory direction or prohibitory order, whether for the maintenance
of status quo or for the grant of urgent relief or to prevent the final
relief being rendered infructuous, would be a matter connected with
or relevant to the main dispute. In fact, this Court, by its decision of
April 26, 1991, has in terms held that the request of the St~te of
H Tamil Nadu for granting interim relief had been referred by the
Central Government to the Tribunal and directed the Tribunal to
CAUVERY WATER DISPUTES TRIBUNAL 511

consider the request on merits, the same being a part of the Refer- A
ence. Hence the order of the Tribunal will be a report and decision
within the meaning of Section 5(2) and would have, therefore, to be
published under Section 6 of the Act in order to make it effective.
[S62 A-CJ

3.3 It is not correct to say that since the Order does not say B
that it is a report and decision it is not so under Section 5(2) of the
Act. Either the Order is such a report and decision because of its
contents or not so at all. If the contents do not show that it is such a
report, it will not become one because the Order states so. The
contents of the order clearly show that it is a report and a decision
within the meaning of Section 5(2). [563 BJ C
3.4 The scope of the investigation that a Tribunal or a Court
makes at the stage of passing an interim order is limited compared
to that made before making the final adjudication. The eXtent and
the nature of the investigation and the degree of satisfaction re-
quired for granting or rejecting the application for interim relief D !

would depend upon the nature of the dispute, and the circumstances
in each case. No hard and fast rule can be laid down in this respect.
However, no Tribunal or court is prevented or prohibited from pass-
ing interim orders on the ground that it does not have at that stage
all the material required to take the final decision. To read such an,
inhibition in the power of the Tribunal or a court is to deny to it the E
power to grant interim relief when Reference for such relief is made.
l{ence, the Tribunal constituted under the Act is not prevented from
passing an interim order or direction, or granting an interim relief
pursuant to the reference merely because at the interim stage it has
not carried out a complete investigation which is required to be done
before it makes its final report and gives its final decision. It can F
pass interim orders on such material as according to it is appropri-
ate to the nature of the interim order. [563 E-H]

3.5 The interim orders passed or reliefs granted by the Tribu-
nal 'when they are not of purely procedural nature and have to be
implemented by the parties to make them effective, are deemed to
be a report and a decision within the meaning of Sections 5(2) and 6 G
of tl>e Act. (564 A]

3.6 In the instant case, Order of the Tribunal discusses the
material on the basis of which it is made and gives a direction to the
State of Karnataka to release water from its reservoirs in Karnataka
so as to ensure that 205 TMC of water is available in Tamil Nadu's H
512 SUPREME COURT REPORTS [1991] SUPP. 2 S.C.R.

A Mettur reservoir in a year from June to May. It maKes the order
effective from 1st July, 1991 and also lays down a time-table to
regulate the release of water from month to month. It also provides L
for adjustment of the supply of water during the said period. It
further directs the State of Tamil Nadu to deliver 6 TMC of water
for the Karaikal region of the Union Territory of Pondicherry. In
B addit.ion, it directs the State of Karnataka not to increase its area
under irrigation by the waters of the river Cauvery beyond the
existing 11.2 lakh acres. It further declares that it will remain op-
erative till the final adjudication of the dispute. '.fhus, the order is
not meant to be merely declaratory in nature but is meant to. be
implemented and given effect to by the parties. Hence, the.order in
c question constitutes a report a.nd a decision within the meaning of
Section 5(2) and is required to be published by the Central Govern-
ment under Section 6 of the Act in order to be binding on the
parties and to make it effective. [564 B-D)1 . "

3.7 It is not correct to say that Section 5(3) of the Act cannot
D apply to the interim orders as it is only the fina! decision· which is
meant to undergo the second reference to the Tribunal provided for
in it. If the Tribunal has power to make an interim decision when a
reference for the same is made, that decision will also attract the ...
said provisions. The Central Government or any State Government
after considering even such decision may require an explanation or
E guidance from the Tribunal as stated in the said provisions and ·
such explanation and guidance may be sought within three months
from the. date of such decision . .The Tribunal may then reconsider
the decision and forward to the Central Government· a further· re-
port giving such explanation or guidance as it deems fit. Jn such
cases it is the interim decision thus reconsidered which has to be
F published by the Central Government under Section 6 of the Act
and becomes binding and effective. Therefore, there is no reason
why the provisions of Section 5(3) should prevent or incapacitate
the Tribunal from passing the interim order. Once a decision, whether
interim or final, is made ·under Section 5(2) it attracts· the provi-
sions .both of sub-section (3) of that Section as well as the provisions
G of Section 6 of the Act. (564 E-G)

4.1 A Water Disputes Tribunal constituted under the Inter-
State Water Disputes Act is competent to grant any interim relief to
the parties to the dispute when a reference is made by the Central
Government. Whether the Tribunal ~as power to grant relief when
H no reference is made for such relief is a question which does n.ot
CAUVERY WATER DISPUTES TRIBUNAL 513

arise in the facts and circumstances under which the Reference is A
made. (565 H, 566 A]

.-· 4.2 This Court has held by its order dated 26th April, 1991
.- that the Central Government had made a reference to the Tribunal
for the consideration of the claim for interim relief prayed for by
the State of Tamil Nadu and hence t~e Tribunal had jurisdiction to B
consider the said request being a part of the Reference itself. Im-
plicit in the said decision is the finding that the subject of interim
relief is a matter connected with or relevant to the water dispute
within the meaning of Section 5(1) of the Act. Hence the Central
Government could refer the matter of granting interim relief to the
Tribunal for adjudication. Although this Court has kept open the C
question, viz., whether the Tribunal has incidental, ancillary, inher-
ent or implied power to grant the interim relief when no reference
for grant of such relief is made to it, it has in terms concluded the
second part of the question. [557 A-C]

4.3 It is impermissible for this Court to sit in appeal even in D
adjudicatory jurisdiction, nor is it competent for the President to
invest this Court with an appellate jurisdiction, over the said decision
through a Reference under Article 143 of the Constitution. [557 DJ

4.4 It is not correct to say that the question of grant of interim
relief falls outside the purview of the provisions of Section 11 of the E
Inter-State Water Dispute Act and can be agitated under Article
131 of the Constitution. The effect of the provisions of Section 11 of
the Act read with Article 262· of the Constitution is that the entire
judicial power of the State, and, therefore, of the courts including
that of the Supreme Court to adjudicate upon original dispute or
complaint with respect to the use, distribution or control of the F
water of, or in any inter State river or river valleys has been vested
in the Tribunal appointed under Section 4 of the said Act. [555 B-DI

5. It is not correct to say that the President can refer any
question of law under Article 143 and, therefore, also ask this Court
j._ to reconsider any of its decisions. In the first instance, the language G
of clause (1) of Article 143 is opposed to such a proposition. The
-,, clause empowers the President to refer for this Court's opinion a
question of law or fact which has arisen or is likely to arise. When
this Court in its adjudicatory jurisdiction. pronounces its authorit:t-
tive opinion on a question of law, it cannot he said I hat there is any
doubt about the question of law or the sam1• is re.\ i11tef.:l'tl so as to H
514 SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

A· require the President to know what the true position of law on the
question is. The decision of this Court on a question of law is bind-
ing on all courts and authorities. Hence, und2r the said clause the
President cu refer a question of law only when this court has not
decided it. Secondly, a decision given by this Court can be reviewed ·•
only under article 137 read with Rule I of Order XL of the the
B Supreme Court Rules 1966 and on the conditions mentioned therein.
When, further, this Court overrules the view of law expressed by it
in an earlier case, it does not do so sitting in appeal and exercising
an appellate jurisdiction over the earlier decision. It does so in
exercise of its inherent power and only in exceptional circumstances
such as when the earlier decision is per incuriam or is delive.red in
C the absence of relevant or material facts or if it is manifestly wrong
and productive of public mischief. [557 E-H, 558 A-CJ

The Delhi Laws Act, 1912, The Ajmer-Menvara (Extension of Laws)
Act, 1947 and the Part C States (Laws) Act, 1950 (1951) SCR 747,
distinguished.
D
The Bengal Immunity Company Ltd. v. The State of Bihar & Ors.,
(1955] 2 SCR 603, relied on.

Jatindra Nath Gupca v. 1he Province of Bihar & Ors., (1949] FCR
595; Hari Vishnu Kamath v. Syed Ahmad lshaque & Ors., f1955) 1 SCR
E 1104; Delhi Judicial Service Association. Tis Hazari Court, Delhi etc. v.
Sta 1e of Gujarat & Ors. etc., JT (1991) 3 SC 617and .State o.f Bombay v.
Gajanan Mahadev Badley, AIR 195-' Bomhay 351, refer.red to.

5.2 Under the Constitution appellate jurisdiction owr the ear-
lier decision does not vest in this Court; nor can it be vested in it hy
F
the President under Article 143. If it is accepted that the President
can ask this Court to reconsider any of its decisions it would mean
that the advisory jurisdiction under Artidt: 143 is also an appellate
jurisdiction of this Court over its own derision between the same
parties and the executive has a power to ask this Court to revise
its decision. If such power is read in Article 143 it would he a
G
serious inroad into the independence of judiciary. [558 DJ

5.3 The facts in A.R.Antulay's case arc peculiar and the deci-
sion therein has to be confined to those special facts. Further the
decision heing inter-parties operates as res j1uliwt11 and cannot be
H reopened. [560 G, 561 EJ
C:AUVERY WATER DlSPUTES TRIBUNAL [SAWANf, J.] 515

A.R.Antu/ay v. R.S. Nayak & Anr., (1988) Suppl. 1 SCR 1 and A
R.S.Nayak v. A. R. Antulay, [1984) 2 SCR 495, referred to.

~ 6. No opinion is expressed on the question whether the opinion
-" given by this Court on a Presidential Reference under Article 143 of
the Constitution, such as the present one, is binding on all courts,
firstly, because the question does not form part of the Reference, B
and, secondly, any opinion expressed on it would again be advisory.
However, adjudicatively it has been held by this Court that the
advisory opinion is entitled to due weight and respect and normally,
it will be followed. The said view holds the field today and may
usefully continue to do so till a more opportune time. [S6S C-D]
...-. c
AD YI SO RY WRISDICTION: Special Reference No. 1 of 199 L

(Under Article 143 of the Constitution of India).

G. Ramaswamy, Attorney General, V.R.Reddy, Addi. Solicitor Gen~
era!, F.S. Nariman, T.R. Andhyarujina, Dr. Y.S. Chitale, S.S. Javali, K. D
Parasaran, A.K. Ganguli, K.K. Venugopal, A.S. Nambiar, Shanti Bhushan,
P.P. Rao, P.P. Muthanna, K. Subramanian, Curiae Joseph, N.N.Gangadeb,
Ms. A. Subhashini, Ms. Niranjana Singh, M.Veerappa, Subhash Shamrn,
Mohan Katarki, Atul Chitale, K.H. Nobin Singh, Subbanna, A. Subba
Rao, G. Umapathy, E.C Agarwala, P.N. Ramalingam, Smt. Shante
Vasudevan, P. Krishnamurthy, P.K. Manohar, K.V. Viswanathan, Shalid E
Rizvi, Ashok Mukhoty, Mrs: Sangeeta Garg, Jayant Bhushan, T.T.
Kunhikanan, M.D.B. Raju, G. Prabhakar, N. Ganpathi, S.R. Bhat, P. Mahale
and P.R. Famasesh for the appearing parties. -

;, A.K. Sen, Venkataraman and C.S. Vaidyanathan for the Intervener.
F.
The Report of the Court was delivered by

SAWANT, J. On July 27, 1991 the President, under Article 143 of
the Constitution, referred to this Court three questions for its opinion. The
Reference reads as follows. :
G
·-'\ "Whereas, in exercise of the powers conferred by Section 4 of
the Inter-State Water Disputes Act, 1956 (hereinafter referred
-....,,, to as "the Act"). the Central Government constituted a Water
Disputes Tribunal Called "the Cauvery Water Disputes Tri\1u-
nal" (hereinafter called "the Tribunal") by a notification datdd
2 June. 1990, a copy whereof is annexed hereto, for the adj udi- H
516 SUPREME COURT REPORTS (1991) SUPP. 2 S.C.R.

A cation of the Water Dispute regarding the Inter-State River
Cauvery;
WHEREAS on 25 June 1991, the Tribunal passed an interim
Order (hereinafter ref~rred to as "the Order''), a copy whereof
is annexed itereto;
B WHEREAS, differences have arisen with regard to certain
aspects of the Order;
WHEREAS, on 25 July 1991, the Governor ofKarnataka prom-
ulgated the Karnataka Cauvery Basin Irrigation Protection Or-
dinance, 1991 (hereinafter referred to as "the Ordinance"), a
c copy whereof is annexed hereto;
WHEREAS, doubts have been expressed with regard to the
constitutional validity of the Ordinance and its provisions;
WHEREAS, there is likelihood of the constitutional validity of
the provisions of the Ordinance, and any action taken thereun-
D der, being challenged in Courts of law involving protracted
and avoidable litigation;
WHEREAS, the said differences and doubts have given rise to
a public controversy which ·may lead to undesirable conse-
quences;
E AND· WHEREAS, in view of what is hereinbefore stated, it
appears to me that the following questions of law have arisen
and are of such nature and of such public impoflmce that it is
expedient to obtain the opinion of the Supreme Court of India
thereon;
.....
NOW, THEREFORE, in exercise of the powers conferred upon
F me by clause (I) of Article 143 of the Constitution of India, I,
Ramaswamy Venkataraman, President of India, hereby refer
the following question to the Supreme Court of India for con-
sideration and report thereon, namely:
(I) Whether the Ordinance and the provisions thereof are in
G accordance with the provisions of the Constitution;
(2) (i) Whether the Order of the Tribunal constitutes a report
and a decision within the meaning of section 5 (2) of the
Act; and
-\
: (ii) Whether the Order of the Tribunal is required to be
H published by the Central Government in order to make it \
effective;
CAlNERY WATER DISPUTES TRIBUNAL [SAWANT, J.] 517

(3) Whether the Water Disputes Tribunal constituted under ,A
the Act is competent to grant any interim relief to the
parties to the dispute."

To appreciate the significance of the questions referred and our
answers to them, it is necessary to understand the factual background
which has led to the Reference.

The river Cauvery is an inter-State river and is one of the major
rivers of the Southern Peninsula. The basin area of the river and its tribu-
taries has substantial spread-over within the territories of the two States,
namely, Karnataka and Tamil Nadu, Kamataka being the upper riparian
State and Tamil Nadu being the lower riparian State. The other areas
which are the beneficiaries of the river water are the territories comprised
'C
in the State of Kerala and in the Union Territory of Pondicherry. The total
length of the river from its head to its outflow into the Bay of Bengal is
about 802 kms. It travels about 381 kms. in Southem-Eastemly direction
before it reaches the border of Karnataka and Tamil Nadu. It also consti-
tutes boundary between the said two States to an extent about 64 kms. and
then traverses a distance of about 357 kms. in Tarriil Nadu before joining
b
the sea. ·

There were two agreements of 1892 and 1924 for sharing the water
of the river between the areas .which are predominantly today comprised
in the State of Kamataka and Tamil Nadu,. and which were at the time of
the agreements comprised in the then Presidency of Madras on the one E
·hand and the State of Mysore on the other. The last agreement expired in
1974. The river presently covers three States of Karnataka, Tamil Nadu
and Kerala and the Union Territory of Pondicherry. The present State of
,.., Tamil Nadu has an area of about 43,868 sq. Jans. of the Cauvery River
basin, reducing the basin area which at the time of the agreement was
about 49, 136 sq. kms. As against this the basin area of the said river F
which was about 28,887 sq. kms. in the State of Mysore has increased to
about 34,273 sq. kms. in the present State of Karnataka\.

The contributions made to the flows of the Cauvery River by Karnataka.
Tamil Nadu and Kerala, according to the State of Karnataka is 425 TMC,
252 TMC and 113 TMC respectively ·together amounting to 790 TMC. G
According to the State of Tamil Nadu, the contributions of the three States
respectively are 392 TMC, 222 TMC and 126 TMC respectively together
amounting to 740 TMC. The Study Team appointed by the Central Gov-
ernment in 1974 worked out the appropriations of the respective States as
follows: Karnataka-177 TMC, Tamil Nadu including Pondicherr~89
TMC and Kerala-5 TMC. B.
518 SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

A In 1956 the Parliament enacted the River Boards Act, 1956 for the
purpose of regulation and development of inter-State rivers and river val.,.
leys and also the Inter-State Water Disputes Act, 1956 for adjudication of
·disputes with regard to the use, distribution or control etc. of the said
waters. In 1970 Tamil Nadu invoked the provisions of Section 3 of the
Inter-State Water Disputes Act, 1956 and requested the Central Govern-
B ment for reference of the dispute between the two States, viz. Tamil Nadu
and Kamataka to a Tribunal under the Act. The Central Government
initiated negotiations between the two States. Simultaneously, Tamil Nadu
moved this Court by means of a suit wider Article 131 of the Constitution
being Suit No. I of 1971 seeking a direction to the Union Government to
constifute a Tribunal and to refer the dispute to it. In the said suit, Tamil
c Nadu applied for an interim order to restrain the S!ate of Karnataka from
proceeding with and executing the projects mentioned therein. This Court
by its Order of 25th January, 1971 dismissed .the application for interim
relief.
It appears that the negotiations between the two states which were
D going on in the meanwhile, resulted in the constitution of a Fact Finding
Committee in June 1972 which was set up to ascertain facts, amongst
others as to the availability of water resources, the extent of utilisation
and the nature of the areas in the respective States within the river basin,
and their requirements. In view of the constitution of the Committee,
Tamil Nadu withdrew its suit.
E.
The. Fact Finding Committee submitted its Reports in December,
1972, and August 1973. A Central Study Team headed by Shri CC. Patel,
then Addi. Secretary to Government of India, in the Ministry of Irrigation
was also set up to examine the question of assessing the savings of water
in the existing and. planned projects of the three States in the Cauvery
F basin. The recommendation of the Study Team on improvement and mod-
ernisation of the irrigation system including the strengthening of the works
and the lining of channels, integrated operations of the reservoirs within
the Cauvery basin., scientific assessment of water requirement in the com-
mand area and for monitoring the releases from the reservoirs for an
efficient tie up between the rainfall and command, water requirement and
G release were announced at the Inter-State Conference of June 1974. r-·

Further negotiations resulted in what is known as "the 1976 Under- ,--
standing". This Understanding envisaged the apportionment of the surplus \-
water in the ratio of 30:53: 17 amongest the States of Tamil Nadu, Karnataka
and Kerala respectively. In the case of savings, the Study Team proposed
H the apportionment in the ratio of 87 TMC to Kamataka, 4 TMC to Tamil
Nadu and 34 TMC to Kerala.

1
'
CAlNERY WATER DISPUTES TRIBUNAL [SAWANI, J.] 519

It appears that in spite of the information gathered through the Fact A
Finding Committee and the Study Team set up by the Union Government,
the negotiations were not fruitful. In 1983, Tamil Nadu Ryots Association
presented a petition to this Court under Article 3.2 of the Constitution
being Writ Petition No. 13347 of 1983. The petition sought issue of a writ
of mandamus to the Central Government requiring it to refer the dispute
to a Tribunal under the Act. The petition was also accompanied by an B
application seeking interim relief. The State of Tamil Nadu supported the
Writ Petition. Notices were issued to the respondents including the Union
Government and the State of Karanataka. The petition remained pending
in this Court for nearly seven years. No application for interim relief was
moved during this period.

Although the inter-State meetings continued to be held during this
period, nothing worthwhile emerged out of them. Hence, in June 1986, the
State of Tamil Nadu lodged a Letter of Request under Section 3 of the Act
with the Central Government for the Constitution of a Tribunal and for
reference of the water dispute for adjudication to it. In the said letter,
Tamil Nadu primarily made a grievance against the construction of works D
in the Karnataka area and the anpropriaion of water upstream so as to
prejudice the interests down-stream in the State of Tamil Nadu. It also
sought the implementation of the agreements of 1892 and 1924 which had
expired in 197 4.

At the hearing of the Writ Petition filed by the Tamil Nadu Ryots E
Association, the Central Government left the matter to the Court. This
Court taking into consideration the course of negotiations and the length
of time which had passed, by its judgment dated May 4, 1990 held that the
negotiations between the two States had failed and directed the Union
Government to constitute a Tribunal under Section 4 of the Act. In pursu-
ance of the directions given by this Court, the Union Government by its F
notification dated June 2, 1990, constituted the Cauvery Water Disputes
Tribunal and by another Notification of the even date referred to it the
water dispute emerging from Tamil Nadu's Letter of Request dated July 6,
1986.

2. The Cauvery Water Disputes Tribunal ·(hereinafter referred to as the G
"Tribunal") commenced its first sitting on 20th July, 1990. On that day,
Tamil Nadu submitted a letter before the Tribunal seeking interim reliefs.
The Tribunal directed Tamil Nadu to submit a proper application. There-
upon Tamil Nadu and the Union Territory of Pondicherry submitted two
separate applications for interim reliefs being CMP Nos. 4 and 5 of 1990.
H
520 SUPREME COURT REPORTS {19911 SUPP.2 S.C.R.

A The interim relief claimed by Tamil Nadu was that Kamataka be
directed not to impound or utilise water of Cauvery river beyond the
extent impounded or utilised by them as on 31-5-1972, as agreed to by the
Chief Ministers of the basin States and the Union Minister for Irrigation
and Powers. It further sought passing of an order restraining Kamataka
. from undertaking any new projects, dams, reservoirs, canals and/or from
B proceeding further with the construction of projects, dams, reservoirs,
canals etc. in the Cauvery basin.

In its application for interim relief Pondicharry sought a direction
from the Tribunal both to Kamataka and Tamil Nadu to release the water
already agreed to i.e., 9.355 TMC during the months of September to
C March.

The Tribunal considered simultaneously both the applications for
interim reliefs as well as the procedure governing the trial of the main
dispute. It directed the disputant States to file their pleading by way of
statements of cases and also required the States of Kamataka and Kerala
D. to submit their replies to the applications for interim reliefs made by
tamil Nadu and Pondicherry. By September 1990, all the disputant States
submitted their first round of pleadings or statements of cases. By Novem-
ber 1990, Karnataka and Kerala also submitted their replies to the applica-
tions for interim reliefs. The Tribunal gave time to the States to submit
their respective counter statements in reply to the Statements of cases
E filed earlier in the main dispute.

Jt appears that before the disputant states submitted their counter
statements in the main dispute, the Tribunal heard the applications for
interim reliefs since Tamil Nadu had, in the meanwhile, filed an applica-
tion being CMP No.9 of 1990 as an urgent petition to direct Karnataka as
F an emergent measure to release at least 2~ TMC of water as the first
instalment, pending final orders on their interim application CMP No.4/
90. It appears that this application was filed on the ground that the samba
crop could not be sustained without additional supplies at Mettur reservoir
in the Tami! Nadu State. Besides contesting the application on merits,
both Karnataka and Kerala raised a preliminary objection to the jurisdic-
G tion of the Tribunal to entertain the said application and to grant any
interim relief. The preliminary objection was that the Tribunal constituted
under Act, had a limited jurisdiction. It had no inherent powers as an
ordinary Civil Court bas, and there was no provision of law which author-
ised or conferred jurisdiction .on the Tribunal to grant any interim relief.
The Tribunal heard the parties both on the preliminary objection as well
H
CAlNERY WATER DISPUTES TRIBUNAL [SA WANT, J.) 521

as <;n merits, and by its Order of January 5, 1991, held, among other A

-
things, as follows :-

" ...... This Act is a complete code in so far as the reference of a
dispute is concerned. In the circumstances, in our opinion, the
Tribunal is authorised to decide only the 'water dispute' or
disputes which have been referred to it. If the Central Govern- B
ment is of the opinion that there is any other matter connected.
with or relevant to the ·water dispute' which has already been
referred to the Tribunal, it is always open to the Central Gov- .
ernment to refer also the said matter as a dispute to the Tribu-
nal constituted under Section 4 of the Act. Further, no water
dispute can be referred by the Central Government unless the : C
Central Government is of the opinion that the said dispute ·
cannot be settled by negotiations. In fact, no water dispute can
be adjudicated without its reference to the Tribunal. ·
The interim reliefs which have been sought for even if the
same are connected with or relevant to the water dispute al-
D
ready referred, cannot be considered because the disputes in
respect of the said matters have not been referred by the Cen-
tral Government to the Tribunal. Further, neither there is any
averment in these petitions that the dispute related to interim
relief cannot be settled by negotiations and that the Central
Government has already fom1ed the opinion that it shall be . E
referred to the tribunal. In case the petitioners of CMP Nos.
4,5 and 9 of 1990 are aggrieved by the conduct of the State of
Karnataka and an emergent situation had arisen, as claimed,
they could have raised a dispute before the Central Govern-
ment and in case the Central Government was of the opinion
that the said dispute could not be settled by negotiations, the
said dispute could also have been referred by the Central Gov-
f
ernment to the Tribunal. In case such a dispute bad been re-
ferred then it would have been open to the Tribunal to decide
the said dispute which decision would then be final 'and bind-
ing on-the parties.
x x x x x x x x
From the letter dated 6.7.1986. which was the request made on
behalf of the State of Tamil Nadu to the Central Government
for referring the dispute to the Tribunal, it is clear that the
dispute which has been referred to this Tribunal in regard to
the executive action taken by the Kamataka State in construct- H
522 SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

A ing Kabini, Hemavathi, Harangi, Swarnavathi and other projects
and expanding the ayacuts and the failure of the Karnataka
Government to implement the agreements of 1892 and 1924
relating to the use, distribution and the control of Cauvery
waters. No interim dispute iti regard to the release of waters by
the Karnataka Government from year to year subsequent to the
B date of the request made by the State of Tamil Nadu was at all
referred to the Tribunal. The Tribunal has been called upon to
decide the main water dispute, which, when adjudicated upon,
would undoubtedly be binding on the parties. In view of the
above, we are of the opinion that the Tribunal cannot entertain
the prayer for interim relief unless the dispute relating to the
c same is specifically referred to the Tribunal.
x . x x x x x x x x

The observations made by Hon 'ble Supreme Court in Union of
India v. Paras Lamines (P) Ltd., [1990] 4 SCC 453-supplied
were in relation to the Appellate Tribunal constituted under
D the Customs Act, 1962. It was held that the Tribunal functions
is a court within the limits of its jurisdiction. Its area of juris-
diction.is defined but within the bounds of its jurisdiction it
has all the powers expressly and impliedly granted. The Su-
preme Court while discussing the extent of the power of the
E Tribunal in respect of the grant made by a particular Statute
held that the Tribunal will have all incidental and ancillary
powers for doing of such acts or employing all such means as
are reasonably necessary to make the grant effective. The im-
port of the decision of the Hon'ble Supreme Court is that the
Tribunal will have incidental and ancillary powers while exer-
F cising the powers expressly conferred. These incidental and
ancillary powers must relate to the actual dispute referred and
not to any other matter including granting of interim reliefs
which are not at all subject matter of reference.
In our opinion what the Supreme Court intended to hold was
that the Tribunal has incidental and ancillary powers to pass
G orders in respect of a reference for adjudication of which it has
been constituted. It·has not, however, further laid (sic.) that it
has also incidental and ancillary powers to grant relief in re-
spect of a dispute which has not at all been referred.
In the instant case, the water dispute which has been referred
H to us is that which emerges from the letter of the State of
CAUVERY WATER DISPUfES TRIDUNAL (SAWANT, J.) 523

Tamil Nadu dated 6th July, 1986. The Tribunal will have the A
power to pass such consequential orders as are required to be ,
made while deciding the said dispute and will also have inci-
dental and ancillary powers which will make the decision of
the reference effective but these powers are to be exercised'
only to enable it to decide the reference effectively but not to
decide disputes not referred including a dispute in regard to B
grant of interim relief/interim reliefs.

x x x x x x x x x

The Second submission raised by the learned counsel for Tamil
Nadu namely to the effect that the Tribunal alone could exer- C
cise jurisdiction in respect of a water dispute by virtue .of
Article 262 of the Constitution of India and in case Tribunal
holds otherwise the State of Tamil Nadu will be left with no
remedy available to it, it may be stated that since we have
taken the view that in case a water dispute really arises and
such water dispute could not be resolved by negotiations then D
it will be open to the Central Government to refer the said
dispute to the Tribunal for adjudication, the question of not
having a remedy for a wrong does not arise before the Tribu-
nal. The Central Government if it finds that the dispute is
connected with or related to the water dispute already referred
to the Tribunal, it is open to it to refer the said dispute also to E
the Tribunal in regard to the granting of an interim relief." ·

In the view that it took, as above; the Tribunal held that it could not
entertain the said applications for grant of interim reliefs as they were not
maintainable in law, and dismissed the same.
F
3. Being aggrieved, the State of Tamil Nadu approached this Hon'ble
Court by means of special leave petitions under Article 136 of the Consti-
tution against the orders passed both in the original application for interim
relief being CMP No.4 of 1990 as well as in the application for urgent
. interim relief being CMP No.9 of 1990. So did the Union Territory of
Pondicherry against the order passed by the Tribunal in its application for G
interim relief being CMP No.5 of 1990. These special leave petitions
which were later on converted into Civil Appeals Nos.303-04 of 1991 and
Civil Appeal No. 2036 of 1991 respectively, were heard together and
disposed of by this Court by its judgment dated April 26, 1991. While
allowing the appeals this Court held as follows:
H
524 SUPREME COURT REPORTS (1991) SUPP. 2 S.C.R.

A "Thus, we hold that this Court is the ultimate interpreter of the
provisions of the Inter-State Water Disputes Act, 1956 and has
an authority to decide the limits, powers and the. jurisdiction of
the Tribunal constituted under the Act. This Court has not only
the power but obligation to decide as to whether the Tribunal
has any jurisdiction or not under the Act, to entertain any
B interim application till it finally decides the dispute referred to
it.
x x x x x x x x x
A perusal of the order of reference dated 2.6.90 as already
extracted above clearly goes to show that the Central Govern-
C ment had referred the water disputes regarding the inter-State
river Cauvery and the river valley thereof, emerging from let-
ter dated 6th July, 1986 from the Government of Tamilnadu.
Thus all the disputes emerging from letter dated 6th July, 1986
had been referred to the Tribunal. The Tribunal committed a
serious error in omitting to read the following-important para-
D graph contained in the aforesaid letter dated 6.7.86."
This Court then quoted the said paragraph from· the said letter of6.7.1986
which reads as follows:

"REQUEST FOR EXPEDITIOUS ACTION IN REFERRING THE
DISPUTE TO TRIBUNAL:
E
From 1974-75 onwards, the Government of Karnataka has been
impounding all the flows in their reservoirs. Only after their
reservoirs are filled up, the surplus flows are let down. The
injury inflicted on this State in the past decade due to the
unilateral action of Karnataka and the suffering we had in
F running around for :i few TMC of water every time and crops
reached the withering stage has been briefly stated in note
(Enclosure-XXVIII). It is patent that the Government ofKarnataka
have badly violated the inter-State agreements and caused ir-
reparable harm to the age old irrigation in this State. Year
after year, the realisation at Mettur is falling fast and thou-
G sands of acres in our ayacut in the basin are forced to remain
fallow. The bulk of the existing ayacut in Tamil Nadu concen-
trated mainly in Thanjavur and Thiruchirappalli districts is
already gravely affected in that the cultivation operations are
getting long delayed, traditional double crop lands are getting
reduced to single crop lands and crops even in the single crop
H lands are withering and falling for wmtt of adequate wettings
CAUVERY WATER DISPUTES TRIBUNAL (SAWANT, J.] 525

at crucial times. We are convinced that the in ordinate delay in ' .< •
...
solving the dispute is taken advantage of by the Government
\
of Karnataka in extending their canal systems and their ayacut
_,Jo ' in the new projects and every day of delay in adding to the '
,.,., injury caused to our existing irrigation."
The Court then proceeded to observe as follows:
B
"The above passage clearly. goes to show that the State of
Tamilnadu was claiming for an immediate relief as year after
year. the realisation of Mettur was falling fast and thousands
of acres in their ayacut in the basin were forc£·d to remain
.,;._ fallow. It was specifically mentioned that the inordinate delay
.in solving the dispute is taken advantage of by the Government
c
of I<.arrtataka in extending their canal systems and their ayacut
in the new projects and every day of delay is adding to the
injury caused to their existing irrigation. The Tribunal was
thus clearly wrong in holding that the Central Government had
not made any reference for granting.any interim relief. We are
not concerned, whether the appellants are entitled or not, for
D
any interim relief on merits, but we are clearly of the view that
the reliefs prayed by_the appellants in their C.M.P. Nos. 4, 5
"' and 9 of 1990 clearly come within the purview of the dispute
referred by the Central Government under Section 5 of the
Act. The Tribunal has not held that it had not incidental and
E
ancillary powers for granting an interim relief, but it has re-
fused to entertain the C.M.P. Nos.4,5 and 9 on the grow1d that
the reliefs prayed in these applications had not been referred
by the Central Government. In view of the above circum-
stances we think it is not necessary for us to decide in this
-t
case, the larger question-whether the Tribunal constituted un-
F
der the Water Disputes Act has any power or not to grant any
interim relief. In the present case the appellants become enti-
tied to succeed on the basis of the finding recorded by us in
their favour that the reliefs prayed by them in their C.M.P.
Nos. 4,5 and 9 of 1990 are covered in the reference made by
the Central Government. It may also be noted that at the fag
.. ~
end of the arguments it was submitted before us on behalf of
G I

the State of Karnaiaka that they were agreeable to proceed
with the C.M.P.s on merits before the Tribunal on the terms
that all party States agreed that all questions arising out of or
connected with or relevant to the water dispute (set out in the
respective pleadings of the respective parties), including all
H
526 SUPREME COURT REPORTS [1991) SUPP. 2 S . C.R.

A applications for interim directions/reliefs by party States be
determined by the Tribunal on merits. However, the above
terms were not agreeable to the State of Tamilnadu as such we
have decided the appeals on merits." (_
In view of its findings as above, this court by the said order directed
the Tribunal to decide CMPs Nos. 4, 5 and 9 of 1990 on merits. In
B pursuance of these directions, the Tribunal heard the said applications of
Tamil Nadu and Pondicherry. It appears that before the Tribunal, objec~
tions were again raised o:ii behalf of the State of Kamataka with regard to
the maintainability of the applications filed by Tamil Nadu and Pondicherry
for interim reliefs. The Tribunal did not countenance the said objections
holding that the direction given by this Court was binding on it. The
c Tribunal then proceeded to decide the applications on merits and by its
order dated June 25, 1991 held as follows:
"When we are deliberating whether any emergent order ought
to be passed, our prime consideration ought to be to preserve,
as far as possible, pending final adjudication the rights of the
o- parties and also to ensure that by unilateral action of one party
other party is not prejudiced from getting appropriate relief at
the time of tte passing of the final orders. We ought to also
. endeavour to prevent the commission of any act by the parties
which might impede the Tribunal from making final orders in
conformity with the principles of fair and equitable distribu-
E tion of the waters of this inter-State river.
x x x x x x x x x
...... At this stage it would be neither feasible nor reasonable to
determine how to satisfy the needs of the each State to the
greatest extent possible with a minimum of detriment to oth-
F ers. We do not also propose at this stage to enter into the
question whether the present use of water of the river Cauvery
either by the State of Tamil Nandu or the State ofKarnataka fa
the most beneficial use to which the water could be put to. .
X X X X X X X Xe X
...... We do not propose to examine at this stage the legality or
G justifiability of erection of these reservoirs, dams, canals, etc.
The said matters may be gone into if found necessary at the
appropriate stage. In this case it would be in accordance with
justice to fix the annual releases into Mettur Dam by making
average of the same for a number of normal years in the im-
mediate past.
H
x x x x x x x x x
CAWERY WATER DISPUTES TRIBUNAL [SAWANT, J.] 527

...... We have already mentioned that at the present stage we A

.. would be guided by consideration of balance of convenience
and maintenance of the existing utilisation so that rights of the
parties may be preserved till the final adjudication .... ".
1

The Tribunal then directed the State of Kamataka to release water,
from its reservoirs in Kamataka so as to ensure that 205 TMC water is
available in Tamil Nadu's Mettur reservoir in a year from June to May.
B
The Tribunal further directed Kamataka to regulate the release of water;
every year in the manner stated in the order. The monthly quota of the
water was to be released in four equal instalments every week, and if
there was not sufficient water available in any week the deficit was di-:
rected to be made good in the subsequent week. The Tribunal also di-
rected Tamil Nadu to deliver to Pondicherry 6 TMC water for its Karaikal C
1

region in a regulated manner. In addition, the Tribunal directed Karnataka
not to increase its area under irrigation by the waters of Cauvery, beyond
the existing 11.2 lakh acres. The Tribunal then observed that its said
order would remain operative till the final adjudication of the dispute
referred to it.
c
Thereafter. on July 25, 1991 the Governor of Kamataka issued an
Ordinance named "the Kamata.ka ·'.:.'auvery Basin Irrigation Protection Or~
dinance, 1991" which reads as follows: '

"An Ordinance to provide in the interest of the general public E
for the protection and preservation of irrigation in irrigable
areas of the Cauvery basin in Kamataka depender.t on the
waters of the Cauvery river and its tributaries.
Whereas the karnataka Legislative Councii is not in Session
and the Governor of Karnataka is satisfied that circumstanc~s
exists which render it necess~JY for him to take immediate F
action, for the protection and preservation of irrigation in the
irrigable areas of the Cauvery basin in Kamataka dependent on
the water of Cauvery river and its tributaries.
Now, therefore, in exercise of the power conferred under clause
(l) of Article 213 of Constitution oflndia, I, Khurshed Alam G
Khan. Governor of Kamataka, am pleased to promulgate the
following Ordinance, namely:- '
1. Short title, extent and commencement:-
( I) This Ordinance may be called the Karnataka Cauvery Ba-
sin Irrigation Protection Ordinance, 1991. H
I
1
l

\I•
,.~

528 SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

A (2) It extends to the whole of the State of Karnataka.
(3) It shall come into force at once.
2. Definition: Unless the context otherwise requires:-
(a) "Cauvery basin" means the basin area of the Cauvery
-.:..
\-
;::
,__
t-
river and its tributaries_ lying within the territory of the
B •
.,.·-
State of Kamataka.
}

{b) "Irrigable area" means the are_as specified in the Sched-
ule.
(c) "Schedule" means the Schedule annexed to this Ordinance.
,.L
c (d) "Water year" means the year commencing with the lst of
June of a Calendar year and ending with the 31st of May
of the next Calendar year.
3. Protection of Irrigation in irrigable area:
••
(I) It shall be the duty of the State Government to protect, ,-
D preserve arid maintain .irrigation from the waters of the '..-
Cauvery river and its tributaries in the irrigable area w1-
der the various projects specified in the Schedule. .....
(2) For the purpose of giving effect to sub-section (I) the
State Government may abstract or cause to be abstracted,
during every water year, such quantity of water as it may
E
deem requisite, from the flows of the Cauvery river and
its tributaries, in such manner and during such intervals
as the State Government or any Officer, not below the
rank of an Engineer-in-Chief designated by it, may deem
fit and proper. 'lo--
F 4. Overriding effect of the Ordinance:-
The provisions of this Ordinance, (and of any Rules and Or-
ders made thereunder), shall have effect notwithstanding any-
thing contained in any order, report or decision of any Court or
Tribunal (whetl1er made before or after the commencement of
G this Ordinance), save and except a final decision under the
provisions of sub-section (2) of section 5 read with section 6 of
the Inter-State Water Disputes Act, 1956.
5. Power to remove difficulties:-
If any difficulty arises in giving effect to the provisions of this
H Ordinance, the State Government may,. by order, as occasion

):-..-
'
CAUVERY WATER DISPUfES TRIBUNAL [SAWANf, J.] 529

requires, do anything (not inconsistent with the provisions of A
this Ordinance) which appears to be necessary for purpose of
removing the difficulty.
' 6. Power to make rules:-
(1) The State Government may, by Notification in the Offi-
cial Gazette make rules to carry out the purpose of this B
Ordinance.
(2) Every rule made under this Ordinance shall be laid as
may be after it is made, before each House of the State
Legislature while it is in Session for a total period of i

thirty days which may be comprised in one Session or in C
two or more Sessions and if before the expiry of the said
period, either House of the State Legislature makes any
modification in any rule or order directs that any rule or
order shall not have effect, and if the modification or
direction is agreed to by the other House, such rule or
order shall thereafter have effect only in such modified D
form or be no effect, as the case may be."
{
-'• The Schedule mentioned in the Notification refers to the irrigable
areas in Cauvery basin of karnataka under various projects including mi-
nor irrigation works.

Hot on the heels of this Ordinance, the State of Kamataka instituted E
a suit under Article 131 against the State of Tamil Nadu and others for a
declaration tht the Tribunal's order granting interim relief was without
jurisdiction and, therefore, null and void etc.

Another development which may be noticed is that the Ordinance
has since been replaced by Act No.27 of 1991. The provisions of the Act F
are a verbatim reproduction of the provisions of the Ordinance except that
in Section 4 of the Act the words "any court or" are omitted and Section 7
is added repealing the Ordinance. The omission of the above words ex-
cludes this court's order dated April 26, 1991 from the overriding effect of
the said provision. Reference to the OrdiJ¥lllCe hereafter will include ref-
erence to the Act also unless the conte~t otherwise requires. G
4. It is in the context of these developments that the President has made
the Reference which is set out in the beginning.

5. Before us are arraigned the State of Trunil Nadu and the Union Terri-
tory of Pondicherry on the one hand the States of Karnataka and Kerala on · H
530 SUPREME COURT REPORTS [1991) SUPP. 2 S.C.R.

A the other with the Union of Indian talcing no side on the issues arising out
of the Reference. There are also interveners on both sides. The conten-
tions of the pa.'iies are summarised hereafter. The contentions also include
a plea on both sides not to answer either all or one or the other question
raised in the Reference for reasons differently advanced. These pleas will
also be dealt with at their proper places. Before we deal with the conten-
B tions, it is necessary to note certain features of the Reference which are
also alluded to in the contentions of the parties. The Reference is made
under Article 143 (1) of the Constitution of India seeking opinion of this
Court under its advisory jurisdiction. As has been stated in the preamble
of the Reference and is also not disputed before us, the first two questions
are obviously the outcome of the dispute relating to the sharing of waters
C between Tamil Nadu and Pondicherry on the one hand and Kamataka and
Kerala on the other and the developments that took place in the said
dispute till the date of Reference. As has been contended on behalf of
Tamil Nadu and Pondicherry, even the third question has a relation to the
dispute and the said events, and is not general in nature though it is
couched in general terms. According to them, the question has been posed
D with an oblique motive of getting over the judgement of this Court dated
April 26, 1991 and the consequent order of the Tribunal dated June 25,
1991. Hence the said question should not be answered. Their other con-
tention is that if the question is general in nature, it requires no answer at
all.

E 6. The contentions of the parties on the questions referred may now be
summarised.

With reference to Question l the State of 1(;1111ataka contends, in the
light of the presumption of constitutional validity which ordinarily at-
taches to a legislation, that the onus lies heavily on the party challenging
F the same to show that the impugned Ordinance (now Act) is ultra vires
the Constitution. The impugned legislation clearly falls within the compe-
tence of the State legislature under Entry 17 as well as Entries 14 and 18
of List II i1i the Seventh Shedule of the Constitution. Water, that is to say,
water supplies, irrigation and canals, drainage and embankments, water
storage and water power fall within Entry 17 of List II (hereinafter re-
G ferred to as 'Entry 17') and the State Legislature has every right t6 legis-
late on the subject and this legislative power is subject only to Entry-56 of
List I (hereinafter referred to as 'Entry 56'). That Entry deals with regula-
tion and development of inter-State rivers and river valleys to the extent
to which such regulation and development under the control of the Union
is declared by Parliament by law to be expedient in the public interest.
H This Entry, it is contended, does not denude the States of the power to
CAUVERY WATER DISPUTES TRIBUNAL [SAWANT, J.) 531

legislate under Entry 17, since it merely empowers the Union, if Parlia-. A
ment has by law declared it to be in public interest, that the 'regulation
and development of inter-State rivers and river valleys . should, to the
extent the declaration permits, be taken under the ·control of tte Union.
1 On a plain reading of the said Entry it is evident that barring regulation
and development' of an inter-State river, subject to the declaration, the
Central Government is not conferred with the power to legislate on water, JJ
etc., which is _within the exclusive domain of the State legislatures. The
River Boards Act, 1956 beir.g the only legislation made by Parliament
under Entry 56, and the scope of the declaration in section 2 thereof being
limited 'to the extent hereinafter provided', that is to say provided by that
statute, and no River Board having been constituted thus far in respect of
and inter-State river under the said law, the power to legislate under Entry c
17 is not whittled down or restricted. Thus, contends the State of Karnataka,
the River Boards Act merely authorises the Union to set up a River Board
with a view to take under its control the regulation and development of
inter-State rivers without in any manner restricting or controlling the leg-
islative power under Entry 17. But in the absence of the constitution of a
River Board for Cauvery, it is contended that the State of Karnataka D
retains full legislative power to make laws as if Entry 17 has remained
•' untouched. Further, the executive power of the Union under Article 73
ca1U1ot extend to any State with respect to matters on which the State
alone can legislate in view of the field having been covered by Article
162 of the Constitution. Since the Act enacted under Article 262 of the
Constitution does not attract any Entry in list I, it is a law essentially E
meant to provide for the adjudication of a dispute with respect to the use,
distribution or control of waters of, or in, any inter-State river or river
valley and does not, therefore, step on the toe of Entry 17. What the
Ordinance (now Act) seeks to do is to impose by section 3 a duty on the
State Government to protect, preserve and maintain irrigation from Cauvery
waters in the irrigable areas falling within the various projects specified in F
the Schedule to the said legislation. The State of Karnataka, therefore,
contends that the impugned legislation is clearly within the scope of the
State's power to legislate and is, therefore, intra-vires the· Constitution. A
forteriori, the power to legislate conferred on the State legislature by
Entries 14, 17 and 18 of List II, cannot be inhibited by an interim order of
the Tribunal since the scheme of the Act envisages only one final report G
"'
or decision of the Tribunal under section 5 (2) which would have to be
gazetted under section 6 thereof. Until a final adjudication is made by the
Tribunal determining the shares of the respective States in the waters of
an inter-State river, the States would be free to make optimum use of
water within the State and the Tribunal cannot interfere with such use
under the guise of an interim order. Consequently it was open to the H
532 SUPREME COURT REPORTS [1991] SUPP. 2 S.C;R.

A Kamataka Legislature to make a law ignoring or overriding the interim
order of the Tribunal. · ·

With regard to Question 2 (i) of the Reference, the State ofKarnataka:
contends that the scheme of the Act does not envisage the making of an
interim order by the Tribunal. Section 5 of the Act provides that after a
B · Tribunal has been constituted under section 4, the Central Government
<>hall refer the water dispute and any matter appearing to be connected
with, or relevant to, the water dispute to the Tribunal for adjudication. On
such Reference the Tribunal must investigate the matters referred to it and
forward a report setting out the facts found by it and giving its decision on
the matters referred to it. If upon consideration of the decision; the Cen-
c tral Government or any State Government is of opinion that anything
contained therein requires explanation or that guidance is needed upon
any point not originally referred to the Tribunal, such Government may
within three months .from the decision again refer the matter for further
consideration, and on such reference, the Tribunal may forward a further
report giving such explanation and guidance as it deems fit and thereupon
D the decision of the Tribunal shall be deemed to be modified accordingly.
Section 6 then enjoins upon the Central Government to publish the deci-
sion of the Tribunal in the Official Gazette and on such publication 'the
decision shall be final and binding on the parties to the dispute and shall
be given effect to by them'. It is contended by the State of Karnataka that
the scheme of the aforestated provisions clearly envisages that once a
E water dispute is referred to the Tribunal' the Tribunal must 'investigate'
the matters referred to it and forward a report to the Central Government
'setting out the facts found by it' and 'giving its decision' on the matters
referred to it. It is this decision which the Central Government must
publish in the Official Gazette to make it final and binding on the parties
~·
to the dispute. The State of Karnataka, therefore, contends that the scheme
F of the Act contemplates only one final report made after full investigation
in which findings of fact would be set out along with the Tribunal's
decision on the matters referred to it for adjudication, and does not con-
template an interim report based on half-baked information. Finality is
attached to that report which records findings of facts based on investiga-
tion and not an ad hoc, tentative and prima facie view based on no
G investigation or cursory investigation. The State of Karnataka, therefore,
contends that since the interim order was not preceded by an investigation
of the type contemplated by the Act, the said order of 25th June, 1991 r-'
\
could not be described as 'a report' or 'a decision' under section 5(2) of
the Act and hence there could be no question of publishing it in the \
H
gazette. It is, therefore, conte1ided that no finality can attach to such an
order which is neither a report nor a decision and even if published in the \'
\
CAUVERY WATER DISPUTES TRIBUNAL [SAWANT, J.] 533

gazette it cannot bind the parties to the dispute and can have no efficacy A
in law/. On Question 2(ii), it is, therefore, contended that since there was
no in4.restigation, no findings on facts, no report and no decision, the
Central Government is under no obligation to publish the interim order of
the Tribunal.

With reference to Question 3, the State of Karnataka reiterates that B
the scheme of the Act clearly envisages a final report to be given by the
Tribunal on conclusion of the investigation and after the Tribunal has
reached firm conclusions on disputed questions of fact raised before it by
the contesting parties. It is only thereafter that it can in its report record
its decision which on being gazetted becomes· final and bindiLg on the
parties. The words 'any matter appearing to be connected with or relevant C
to water dispute' employed in section 5(1) of the Act, do not contemplate
reference of an interim relief matter nor can the same empower the Tribu-
nal to make an interim order pendente lite. The Act has deliberately not
conferred any power on the Tribunal to make an interim order for the
simple reason that a water dispute has many ramifications, social, eco-
nomic and political, and involves questions of equitable distribution of D
water which cannot be done without a full-fledged investigation of the
relevant data-material includin~ statistical information. In the very nature
of things, therefore, it is impossible to think that the Act envisaged the
making of an interim order. While conceding that certain kinds of inter-
locutory orders which are processual in nature can be made by the Tribu-
nal to effectuate the purpose of the Act, namely, adjudication of a water E
dispute, no interim relief or order can be granted which will affect the
existing rights of the parties because that would in effect deprive the
concerned State of the power to legislate in respect of water under Entry
17 and/or make executive orders in that behalf under Article 162 of the
Constitution. The jurisdiction conferred on the Tribunal under the Act to
adjudicate upon a water dispute does not extend to grant of interim relief. F
The State of Karnataka, therefore, contends that having regard to the
purpose, scope and intendment of the Act, the Tribunal constituted there-
under has no power or authority to grant any interim relief which would
have the effect of adversely interfering with its existing rights, although
while finally adjudicating the dispute it can override any executive. or
legislative action taken by the State. Since .the allocation of flow waters G
between the concerned States is generally based on the principle of 'equi- I

table apportionment', it is incumbent on the Tribunal to investigate the
facts and all relevant materials before deciding on the shares of the con-
cerned States which is not possible at the interim stage and hence the
legislature has advisedly not conferred any power on the Tribunal to make
an interim order affecting the existing rights of the concerned parties. The H
534 SUPREME COURT REPORTS [1991) SUPP. 2 S.C.R.

A State of Kamataka, therefore, urges that this question deserves to be an-
swered in the negative.

The State of Ker.ala has in its written submissions of l 0th August,
1991 by and large supported the stand taken by the State of Kamataka. It
contends that the provisions of the Act enacted under Article 262 of the
B Constitution constitute a complete Code and the Tribunal has been con-
ferred the powers of a civil court under the Civil Procedure Code only in
respect of matters enumerated in section 9( l) of the Act. The power to
grant interim relief is conspicuously absent and in the absence of an
express provision in this behalf, the Tribunal, which is a creation of the
Act, can have no jurisdiction to grant interim relief. It would be advanta-
C geous to state the contention of the State of Kerala in its own words:

" ..... Tribunal has no jurisdiction or power to make an interim
award or grant any interim relief to a party unless the dispute
relating to the interim relief has itself been referred to the
TribWlal." (Paragraph 1.5)
D
This is further amplified in paragraph 3.3 of its submissions as un-
der.:

"Such a relief can be granted to a party if that forms the
subject matter of a separate reference to the Tribunal by the
Central Government. In such a situation, the order of the Tri-
E
bunal, would constitute a separate report and decision within
section 5(2) of the Act which would then be published by the
Central Government and would, therefore, be binding on the
parties."
It is, however, the stand of Kerala that no specific reference for grant of
F interim relief was made to the Tribunal and hence the interim order of
25th June, 1991 does not constitute a report and a decision within the
meaning of section 5(2) and hence the Central Government is not ex-
pected to gazette the same. Unless the same is gazetted finality cannot
attach to it nor can it bind the parties. Therefore, contends the State of
Kerala, the Tribunal ltad no jurisdiction to grant interim relief which it has
G granted by its aforesaid interim order. Hence the said order has no effi-
cacy in law nnd can be ignored.

On the question of issuance of the Ordinance, the State of Kerala
---
1·

\
contends, that such a legislation falls within the scope and ambit of Entry \
H
17 and is. therefore, perfectly legal and constitutional and is not in any
manner inconsistent with Entry 56 nor does it trench upon any part of the \
\
CAUVERY WATER DISPUTES TRIBUNAL [SAWANT, J.) 535

declaration in section 2 of the River Boards Act or any of the provisions A
thereof. Thus according to Kerala, the legislative competence to pass such
a statute vests in the State legislature under Entry 17 and, therefore, the,
Govemor of Karnataka was competent to issue the Ordinance under Arti-
cle ii 3 of the Constitution. '

However, in the course of his submissions before this Court, Mr. B
Shanti Bhushan, counsel for the State of Kerala departed from the stand ·
taken in the written submission and contended that the scheme of the. Act ,
does not confer any power whatsoever on the Tribu1_1al to make an interim
order and, therefore, the only remedy available to a State which appre- ,
bends any action by the upper riparian State likely to adversely affect its
right, i.e. the rights of its people, is to move the Supreme Court under C
Article 131 of the Constitution notwithstanding the provisions of Article
262 and section 11 of the Act. According to the learned counsel since the
scope of Article 262 read with the scheme of the Act does not contemplate 1

a Reference regarding the grant of interim relief to the Tribunal consti-
tuted under the Act, the field is left open for a suit to be instituted under
Article 131 of the Constitution. Mr. Shanti Bhushan went so far as to D
contend that even if the Act had invested power in the Central Govern-
ment such a provision would have been hit by Article 262 itself as the
scope of that Article is limited while Article 131 is wider in scope. Thus,
according to counsel, this Court's majority view expressed by Kasliwal, J.
in Civil Appeals Nos. 303, 304 & 2036 of 1991 which held that there was
a reference to the Tribunal for grant of interim relief is not consistent with ·E
the true meaning and sope of Article 262 and the provisions of the Act
and this Court should not feel bound by it if it agrees with counsel's
interpretation for to do so would be to render wrong advice to the Presi-
dent. It is thus manifest that counsel's submissions are a clear departure
from the written submission filed by the State on I 0th August, 1991.
F
The State of Tamil Nadu contends that ordinarily a dispute between
(i) the Government of India and one or more States or (ii) between the
Government of India and any State or States on one side and one or more
other States on the other or (iii) between two or more States would be
governed by Article 131 of the Constitution and, subject to the provisions
of the Constitution, the Supreme Court alone would have jurisdiction if G
and insofar as the dispute involves any question (whether of law or fact)
on which the existence or extent of a legal right depends. Article 131
begins with the words 'subject to the provisions of the Constitution' and
hence it must be read subject to Article 262 of the Constitution. Article
262 enables Parliament to provide by law for the adjudication of any
dispute or complaint with respect to the use, distribution or control of the H
536 SUPREME COURT REPORTS [1991] SUPP. 2 S.C.R.

A waters of, or in, any inter-State river or river valley. That law may,
notwithstanding anything contained in the Constitution, provide that nei-
ther the Supreme Court nor any other court shall exercise jurisdiction in
respect of any such dispute or complaint as is referred to above. In exer-
cise of power conferred by this provision., t.he Parliament enacted the Act
and by section I I provided as under :
B
"Notwithstanding anything contained in any other law, neither
the Supreme Court nor any other court shall have or exercise
jurisdiction in respect of any water dispute which may be re-
ferred to a Tribunal under this Act."

C While Article 262(2) begins with the words 'notwithstanding any-
thing in this constitution', section 11 begins with the words 'Notwith-
standing anything contained in· any other law' which conveys that all
courts including the Supreme Court are debarred from exercising jurisdic-
tion in respect of any water dispute which may. be referred to the tribunal
for adjudication.
D
It is, therefore, contended that the Tribunal required to perform a
purely judicial function which but for Article 262 and section 11 of the
Act would have been performed by a Court of law. An independent high
level machinery consisting of a Chairman and two other members nomi-
nated by the Chief Justice of India from amongst sitting Judges of the
E Supreme Court or of a High Court is to constitute the Tribunal for adjudi-
cating the water dispute. As the Tribunal is invested with the State's
judicial function it has all the trappings of a civil court and it is inconceiv-
able that such a high powered judicial body would not be empowered to
make interim orders or grant interim relief, particularly when it is empow-
ered even to override an existing legislation or interfere with a future
F legislation. Since the Tribunal is a substitute for the Supreme Court (but
for Article 262 and section I I of the Act, Article 131 would have applied)
it is reasonable to infer that all the powers which the Supreme Court under
Article 131 can be exercised by the Tribunal while adjudicating a water
dispute and, therefore, the ·power to grant interim relief inheres in such a
Tribunal without the need for an express provision in that behalf. A Tribu-
G nal on which is conferred a jurisdiction to adjudicate as to the prejudicial ,...
effect of a futurelegislation or executive action must of necessity possess I

the power to make interim orders interdicting a prejudicial act. The State
of Tamil Nadu, therefore, contends that a high powered Tribunal like the
present one which is a substitute for this Court must be presumed to have
jurisdiction to grant an appropriate interim relief. Such an ancillary and
H incidental power always inheres in a Tribunal which discharges judicial
C.AlNERY W.ATER DISPUfES TRIBUNAL [SAWANT, J.] 537

functions. It is, therefore, contended that Question 3 must be answered in . A
the affinnative.

Without prejudice to the generality of the above submission, the
State of Tamil Nadu contends that insofar as the question of jurisdiction to
grant interim relief concerning the Cauvery water disp\;<e is concernced,
the decision of this Court dated 26th April, 1991 in Civil Appeals Nos. B 1

303, 304 and 2036 of 1991 operates as res judicata and is binding on the
contesting parties regardless of the view that this Court may take on the
generality of the question referred for decision. It must be recalled that
this Court in its judgment of 26th April, 1991 came to the conchJ.sion that
-,
-" ttie reference made to the Tribunal included the question of. grant of
interim relief and this conclusion based on the interpretation of the terms C
of the reference dated 2nd June, 1990 read with letter dated 6th July, 1991
was cleady binding on the concerned parties and the Tribunal's interim
order on the merits of the matter made in p~suance of this Court's direc- '
tive to decide on merits is equally binding and cannot be disturbed in
proceedings arising out of a Reference under Article 143 (1) of the Con-
stitution. If the question of grant of interim relief fonns part of the Refer- D
ence, the Tribunal is duty bound to decide the same and such decision
would constitute a report under Section 5(2) of the Act which the Central
Government would be duty bound to publish as required by section 6 of
the Act. It is further contended that in the view of the State of Tamil Nadu
a Tribunal constituted under ·the Act has inherent jurisdiction to grant 1

interim relief as pointed out earlier, whether or not the question regarding E
grant of interim re!ief is specifically referred, and its decision thereon
would constitute a report under section 5(2) of the Act liable to be pub-
lished in the official Gazette as required by section 6 thereof. If there is
any ambiguity in the interim order the same can be taken care of under
section 5(3) of the Act. The State of Tamil Nadu, therefore, contends that
both parts of Question 2 deserve to ~ answered in the affinnative. F

So far as Question 1 of the Reference is concerned, the State of
Tamil Nadu contends that the Kamataka Ordinance (now Act) is ultra
vires the Constitution for diverse reasons. It is contended that the real
object and purpose of the legislation is to unilaterally 11ullify ·the Tribu-
-;
nal's interim order after having failed in the first round of litigation. It is G
' contended that the State of Karnataka had and has no right to unilaterally
decide the quantum of water it will appropriate or the extent to which it
will diminish the flow of Cauvery waters to the State of Tamil Nadu and
thereby deny to the people of Tamil Nadu their rightful share in the
Cauvery waters. The right to just and reasonable use of water being a
matter for adjudication by the Tribunal, no single State can by the use of H
538 SUPREME COURT REPORTS (1991) SUPP. 2 S.C.R.

A its legislative power arrogate upto itself the judicial function of equitable
apportionment and decide for itself the quantum of water it will use from
the inter-State river regardless of the prejudice it would cause to the other
State by its unilateral action. Such a power cannot be read in entry 17 as it
will l?e destructive of the principle that such water disputes are justiciable
and must be left for adjudication by an independent and impartial special
B forum to which it is referred, namely, the Tribunal constituted for resolv-
ing the dispute, and not by unilateral executive or legislative interference.
It is, therefore, contended that the object of the legislation not being bona
fide, the same cannot be allowed to stand as it has the effect of overruling
a judicial order passed by a Tribunal specially appointed to adjudicate on
the water dispute between the parties thereto.
c
On the question of legislative competence, the State of Tamil Nadu
contends that the statute is ultra vires the Constitution for the following
reasons:

D
(a) the Ordinance (now Act) is ultra vires the Constitution as
it seeks to override or neutralise the law enacted by Par-
Iiame.nt in exercise of power conferred by Article 262
(and not Article 246 read with the relevant entry in. the
Seventh Sechedule) of the Constitution. A State Legisla-
ture can have no power to legislate with regard to a water
..
.',__
\ .

dispute as it would be incongruous to confer or infer such
E power in a State legislature to destroy what a judicial
body has done under a Central law;

(b) the impugned legislation purporting to be under Entry 17
of List II has extra-territorial operation, in that, it directly
impinges on the rights of the people of Tamil Nadu to the
F use of Cauve!"y waters.

(c) the impugned legislation is contrary to the Rule of Law
and a power not comprehended even by Article 262 can-
not be read into the legislative power of the State for it
would pervert the basic concept of justice, and
G
t
(d) the impugned legislation is viofative of the fundamental
rights of the inhabitants of Tamil Nadu guranteed by Arti-
cles 14 and 21 of the Constitution, in that, the action of
Karnataka is wholly arbitrary and in total disregard of the
,/ right to life of those inhabitants in Tamil Nadu who sur-
H vive on Cauvery waters.
CAUVERY WATER DISPUTES TRIBl.J?l!AL [SAWANT, J.] 539

The State of Tamil Na.du strongly contends that in a civilised society A
g~verned by the Rule of Law, a party to a 'lis'-water dispute-cannot be
~ho\Ved to arrogate to itself the right to decide on the dispute or to nullify
an interim order ma.de by a Tribunal in obedience to the decision of the
apex court by abusing the legislative power under Entry 17 under whicl\
the impugned legislation purports to be.
B
Without raising any preliminary objection and without prejudice to
its afore-mentioned contentions, the State of Tamil Nadu contends that the
jurisdictioti of this Court under Article 143 of the Constitution is discre-
tionary and this Court should refrain from answering a Reference which is
in general terms without backgro'lind facts and is likely to entail a roving
inquiry which may ultimately prove academic only. Secondly, the State M C
.Karnataka has immediately after the interim order instituted a suit, beirig
Original Suit No. I of 1991, in this Court in which it has prayed for a
declaration that the interim order of tht: Tribunal dated 25th June, 1991 is
without jurisdiction, null and void, and for setting aside the said order. It
is contended that while on the one hand the decision of this Court, per
Kasliwal, J., has become final and is res judicate between the parties D
thereto, on the other hand the State of .Kamataka is raking up the sa~e
question of jurisdiction before this court in a substantive suit with a view
to overreaching this Court's earlier order. The Presidential Reference in
terms refers to disputes and differences having arisen out of the Tribunal's
interim order which, it is said, has given rise to a public controversy likely
to result in undesirable consequences. Such matters, contends the State of E
Tamil Na.du, can be effectively countered by the concerned Government
and do not call for a Presidential Reference. If there is any doubt br
difficulty in the implementation of the impugned order recourse can al-
ways be had to section 5(3) of the Act. In< the circumstances it is urged
that this Court should refuse to answer the Reference.
F
The Union Territory of Pondicherry contends that the promulgation
of the Ordinance (now Act) is intended to further protract the long stand-
ing water dispute which came to be referred to the Tribunal only after this
Court issued a mandamus in that behalf and is likely to prejudicially
affect the interest of the State as well as the farmers and other inhabitants
who utilise the water from river Cauvery. It is contended that the said G
legislation is unconstitutional and is a piece of colourable legislation for
the following reasons:

(a) the power of the State Legislature to enact a law on the
subject falling in Entry 17 List II, is subject to the provi-
sions of Entry 56 in List I, and once Parliament had made H
a declaration in that behalf in section 2 of the River Boards
540 · SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

A Act, the State Legislature was not competent to enact the
impugned law,
(b) once the Central Government had entrusted the Cauvery
water dispute to an independent Tribunal under the provi-
· sions of the Act, it was not constitutionally permissible
B for Karnataka to enact the impugned law,
(c) in the case of flowing water the riparian States have no
ownership or proprietary right therein except in the usufruct
thereof and, therefore, the power to legislate therein un-
der Entry 17 of List II can extend to only the usufructurary
right subject to the right of a riparian State to get the
c customary quantity of water,
(d) the objective of the impugned legislation is to set at naught
the interim order of the Tribunal and to the extent it seeks
to interfere with the exercise of judicial powers it is un-

D
constitutional,
(e) the impugned legislation is violative of Article 21 of the
Constitution as it is intended to diminish the supply of
water to Tamil Nadu and Pondicherry which is also against
the spirit of Articles 38 and 39 of the Constitution, and
...
(t) the impugned legislation seeks to eclipse the interim or-
E der of the Tribunal constituted under an Act made in
virtue of Article 262 of the Constitution and being in
conflict with the Central legislation is void for repug-
nancy.
For the above reasons, Pondicherry contends that the Ordinance (now
F the Act) is constitutionally invalid.

As regards Question 2 it is contended that the water dispute referred
to the Tribunal comprised the issue regarding the grant of interim relief as
held by KasJiwal, J. and hence the interim order made by the Tribunal
constitutes a report within the meaning of section 5(2) of the Act and
G consequently the Central Government is obliged to publish it is required
by section 6 of the Act. Once. '"if. is so published it will operate as a
decision in rem but even without publication it is binding on Kamataka as
a decision in personam. If any explanation or guidance is required it can
be had from the Tribunal by virtue of section 5(3) of the Act. Once the
time for seeking explanation or guidance is over the law enjoins on the
H. Central Government the obligation to publish the report under section 6 of
CAUVERY WATER DISPUTES TRIBUNAL [SAWANf, J.] 541

the Act. Both the elements of Question 2 must, contends Pondicherry, be A
answered in the affirmative.

So far as Question 3 is concerned, it is contended that the Tribunal
constituted under the Act, though not a Court, has all the attributes of a
Court since it is expected to discharge a judicial function and must, there-
fore, be presumed to have 'incidental and ancilliary powers' to grant B
interim relief, if equity so demands. That is so because the jurisdiction of
all-courts including this Court is taken away by virtue of section 11 of the
Act read with Article 262(2) of the Constitution. The Tribunal is, there-
fore, required to discharge the judicial function of adjudicating a water
dispute between two or more States atid must, therefore, be deemed to
possess the inherent power to grant interim relief which inheres in all such !:
judicial bodies. Absence of an express provision conferring power to grant
interim relief does not detract from the view that such power inheres in a
Tribunal which is called upon to discharge an essentially judicial function.
For discharging such a function it is essential that the Tribunal must
possess inherent power to pass interim orders from time to time in aid of
adjudication. The Union Territory of Pondicherry is, therefore, of the D
view that Question 3 must be answered in the affirmative.

Six intervention applications have been filed by different persons
and bodies from Karnataka including the Advocate General of the State in
support of the case of Karnataka raising contentions more or less similar
to those raised by the State itself. One intervention application is filed by E
the Tamil Nadu Society which had preferred the original Writ Petition in
which a mandate to constitute a Tribunal under the Act was given. The
contentions raised by the interveners are covered in the written submis-
sions filed by the State of Tamil Nadu and need not be reiterated. The said
intervener has also filed written submissions through counsel Shri Ashok
Sen which we shali deal with in the course of this judgment. F

Of the three questions which have been referred to this Court under
Article 143(1) of the Constitution, there can be no dispute, and indeed
there was none, that question 2 arises solely and entirely out of the Tribu-
nal's order granting interim relief. The question is whether that order
constitutes a report within the meaning of section 5(2) of the Act and is G
required to be published in the gazette.of the Central Goverilment to make
it effective. The first question refers t0 the constitutional validity of the
Karnataka Ordinance (now the Act). Although this question does not spe-
cifically refer to the Cauvery water dispute or the ·interim order passed by
the Tribunal, the preamble of the said statute leaves no doubt that- it is
concerned with 'the protection and preservation of irrigation in irrigable ~
542 SUPREME COURT REPORTS [1991) SUPP. 2 S.C.R.

A areas of the Cauvery basin in Karnataka dependent on the waters of the
Cauvery river and Its tributaries'. The provisions of the said law extracted
earlier leave no manner of doubt that the State Government has been
charged with the duty to abstract or cause !O be abstracted, during every
water year, such quantity of water as it may deem requisite, from the
flows of river Cauvery and its tributaries, 'notwithstanding anything con-
B tained in any order, report or decision of any ...... Tribunal ', whether made
before or after the commencement of the said law, save and except a final
decision under section 5(2) read with section 6 of the Act. There can,
therefore, be no doubt that if the provisions of this special K&nataka
enactment become legally effective, the Tribunal's order dated 25th June,
1991 granting interim relief would stand eclipsed. In that view of the
C matter Question 1 is clearly intertwined with the Cauvery water dispute
referred to the Tribunal and the interim order made by that body. The
third question, it was contended by Tamil Nadu and Pondicherry, though
innocent in appecrance and apparently general in nature, is in fact likely
to nullify the interim order of the Tribunal. There can be no doubt that
this Court's opinion on Question 3 will certainly have a bearing on the
D interim order of the Tribunal. Bearing this in mind we may now proceed
to deal with the questions referred to this Court in the light of the submis-
sions made at the Bar.

7. We will deal with the respective contentions with reference to each of
the questions.
E
Question No. I

To examine the validity of the contentions advanced on this ques-
tion it is first necessary to analyse the relevant provisions of the Constitu-
tion.
F The distribution of legislative powers is provided for in Chapter I of
Part XI of the Constitution. Article 245, inter alia states that subject to the
provisions of the Constitution, Parliament may make laws for the whole or
any part of the territory of India and the legislature of the State may make
laws for the whole or any part of the State. Article 246 provides, among
other things, that subject to clauses (l)and (2) of the said Article, the
G legislature of any State has exclusive power to make laws for such State
or any p~rt thereof with respect to any of the matters enumerated· in the
State List in the Seventh Schedule. Clauses (I) and (2) of the said Article
refer to the Parliament's exclusive powers to make laws with respect to
any of the matters enumerated in the Union List and the power of the
Parliament and the legislature of the State to make laws with respect to
H any of the matters enumerated in the Concurrent List. Article 248 gives
CAUVERY WATER DISPUTES TRIBUNAL [SAWANT, J.] 543

the Parliament exclusive power to make any law with respect to any A
matter not enumerated in the Concurrent List or the State List. I

Entry 56 of the Union List reads as follows:

"Regulation and development of inter-State rivers and river
valleys to the extent to which such regulation and development B
under the control of the Union is declared by Parliament by
law to be expedient in the public interest." ·

A reading of this Entry shows that so far as inter-State rivers and
river valleys are concerned, their regulation and development can be taken
~ over by the Union by a Parliamentary enactment. However, that enact- C 1

ment must declare that such regulation and development under the control
of the Union is expedient in the public interest.

Entry 17 in the State List reads as follows:

"Water, that is to say, water supplies, irrigation and canals,
drainage and embankments, water storage and water power D
subject to the provisions of Entry 56 of List I."
)
An examination of both the Entries shows that the State has compe-
tence to legislate with respect to all aspect of water including water flow-
ing through inter-State rivers, subject to certain limitations, viz. the con-_
trol over the regulation and development of the inter-State river waters E
should not have been taken over by the Union and secondly, the State
cannot pass legislation with respect to or affecting any aspect of the
waters beyond its territory. The competence of the State legislature in
respect of inter-State river waters is, however, denuded by the Parliamen-
tary legislation· only to the extent to which the latter legislation occupies
the field and no more, and only if the Parliamentary legislation in ques- F
tion declares that the control of the regulation and development of the
inter-State rivers and river valleys is expedient in the public interest, and
not otherwise. In _other words, if a legislation is made which fails to make
the said declaration it would not affect the powers of the State to make
legislation in respect of inter-State river water under Entry 17.
G
Entry 14 of List II relates, among other things, to agriculture. In so
far as agriculture depends upon water including river water, the State
legislature while enacting legislation with regard to agriculture may be
competent to provide for the regulation and development of its water
resources including water supplies, irrigation and canals, drainage and
embankments, water storage and water power which are the subjects men- H
544 SUPREME COURT REPORTS (1991) SUPP. 2 S.C.R.

A tioned in Entry 17. However, such a legislation enacted under Entry 14 in
so far as it relates to inter-State river water and its different uses and the
manners of using it, would also be, it is needless to say, subject to the
provisions of Entry 56. So also Entry 18 of List II which speaks, among · ~
other things, of land improvement which may give the State Legislature ··
the powers to enact similar legislation as under Entries 14 and 17 and
B subject to the same re'strictions. .

Entry 97 of the Union List is residuary and under it the Union has
the power to make legislation in respect of any matter touching inter-State
river water which is not enumerated in the State List or the Concurrent
List. Correspondingly, the State legislature cannot legislate in relation to
C the said aspects or matters.

8. Article 131 of the Constitution deals with original jurisdiction of the
Supreme Court and states as follows:-

"131. Original Jurisdiction of the Supreme Court:- Subject to
D the provisions of this Constitution, the Supreme Court shall, to
the exclusion of ariy other court, have original jurisdiction in
any dispute-
(a) between the Government of India and one or more
States; or
E (b) between the Government of India and any State or
States on one side and one or more other States on
the other; or
(c) between two or more States,
if and in so far as the dispute involves any question
F (whether of law or fact) on which the existence or
extent of a legal right depends:
Provided that the said jurisdiction shall not extend
to a dispute arising out of any treaty, agreement,
covenant, engagement, sanad or other similar in-
G strument which, having been entered into or ex-
ecuted before the commencement of this Constitu- !'
tion, continues in operation after such commence-
ment, or which provides that the said jurisdiction
shall not extend to stach a dispute."
It is clear from the Article that this Court has original jurisdiction,
H among other things, in any dispute between two or more States where the
CAUVERY WATER DISPUTES .TRIBUNAL [SA WANT, J.] · 545

dispute involves any question whether of law or fact onwhich the exist- A
ence and· extent of a legal right depends except those matters which are
specifically excluded from the said jurisdiction by the J>roviso. However,
the Parliament has also been given power by Article 262 of the Constitu-
tion to provide by law that neither the Supreme Court nor any other court
shall exercise jurisdiction in respect of any dispute or complaint with
respect to the use, distribution or control of the water of, or in, any inter- ,B
State river or river valley. Section 11 of the Act, nainely, the Inter-State
Water Disputes Act, 1956 has in terms provided for such exclusion of the
jurisdiction of the courts. It reads as follows:-

"Sec.11- Notwithstanding anything contained in any other law,
'
" neither the Supreme Court nor any other court shall have or C
exercise jurisdiction in respect of any water dispute which may
be referred to a Tribunal under this Act."

This provision of the Act read with Article 262 thus excludes origi-
11al cognizance or jurisdiction of the inter-State water dispute which may
be referred to the Tribunal established under the Act, from the purview of D
any Court including the Supreme Court under Article 131.

9. We may now analyse the provisions of the Karnataka Ordinance in
· question the text of which is already reproduced. Its preamble states, that
it is issued (i) to provide for the protection and preservation of irrigation
in irrigable areas of the Cauvery basin in Kamataka dependent on the
waters of the Cauvery river and its tributaries, and (ii) that the Governor
of Karnataka was satisfied that circilmstances existed which rendered it
necessary for him to take immediate action for the said protection and
.
' preservation. The irrigable areas of which protection and preservation is
sought by the Ordinance are mentioned in the Schedule to the Ordinance.
Admittedly the Schedule includes the irrigable area as. existing in 1972
during the tenure of the agreement of 1924. between Kamataka and Tamil
Nadu as well as the increase in the same since 1972 till the date of the
Ordinance as well as the areas which are committed to be brought under
irrigation on account of some of the projects mentioned in Column II of
the Schedule. Clause 3(1) of the Ordinance then makes a declaration of
the duty of the State Government to protect, preserve and maintain irriga-
tion from the waters of the Cauvery river and its tributaries in the said 0
irrigable area. Sub-clause (2) of the said clause then gives powers to the
State Government to abstract or cause to be abstracted during every water
year (which is defined as the year commencing with 1st of June of a
calendar year and ending with 3 lst May of next calendar year), such
quantity of water as it may deem requisite, from the flows of the Cauvery
river and its tributaries and in such manner and during such intervals as H
...
546 SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

A the State Government or any officer not below the rank of an Engineer-in-
Cbief designated by it may deem fit and proper. (Emphasis supplied). This
clause, therefore, vests in the State Government or the Officer designated
by it, an absolute power to appropriate any quantity of water from the
Cauvery river and its tributaries and in any manner and at any iilterval as
may be deemed fit and proper. The power given by the clause is unre-
B stricted arid uninhibited by any consideration save and except the protec-
tion and preservation of the irrigable area of the Karnataka State.
Clause 4 is still more absolute in its terms -and operation inasmuch
as it declares that the Ordinance and any rules and orders made thereunder
shall have effect notwithstanding anythng contained in any Order, report
c or decision of any court or tribunal (whether made before or after the
commencement of the Ordinance) save and except a final decision under
the provisions of sub-Section (2) of Section 5 read with Section 6 of the
Inter-State Water Disputes Act. ·

Clause (5) states that when any difficulty arises in giving effect to
the provisions of this Ordinance, the State Government may, by order, as
D occasion requires, do anything which appears to· be necessary for the
purpose of removing the difficulty, and clause (6) gives power to the State
Government to make rules to carry out the purpose of the Ordinance.
Clauses (4), (5) and (6) read together show that the Ordinance, Rules and
Order made thereunder will prevail over any order, report or decision of
any court including the Supreme Court and, of course, of the Tribunal
E under the Inter-State Water Dispute Act. The only decision which is
excluded from the overriding effect of the Ordinance"is the final decision
of the Water Disputes Tribunal given under Sectiori 5 (2) read with Sec-
tion 6 of the Inter-State Water Disputes Act.
10. The object of these provisions of the Ordinance is obvious. Coming
F close on the Order dated 25th June, 1991 of the Tiibunal and in the
context of the stand taken by the State of Kamataka that the Tribunal has
no power or jurisdiction to pass any interim order or grant ady interim
relief, it is to override the said decision of the Tribunal and its implementation.
The Ordinance has thus the effect of defying and nullifying any interim
order of the Tribunal appointed under a law of the Parliament. This position
G is not disputed before us on behalf of the State of Kamataka. The other
effect of the Ot:dinance is to reserve to the State ofKamataka exclusively
the right to appropriate as much of the water of river Cauvery and its
tributaries as it deems requisite and in a manner and at periods it deems fit
and proper, although pending the final adjudication by the Tribunal.
H 11. It cannot be disputed that the Act, viz., the Inter-State Water Disputes
Act, 1956 is not a legislation under Entry 56. In the first instance Entry 56
CAUVERY WATER DISPUTES TRIBUNAL [SAWANT, J.J 547

speaks of regulation and development of inter-State rivers and river val- A
leys and does not relate to the disputes between the riparian States with
l, regard to the same and adjudication thereof. Secondly, and even assuming
that the expression "regulation and development" would in its width, in-
clude resolution of disputes arising therefrom and a provision for adjudi-
cating them, the Act does not make the' declaration required by Entry 56.
This is obviously not an accidental omission but a deliberate disregard of B
the Entry since it is not applicable to the subject-matter of the legislation.
Thirdly, no Entry in either of the three Lists refers specifically to the
adjudication of disputes with regard to inter-State river waters.

The reason why none of the Entries in the Seventh Schedule men-
tion the topic of adjudication of disputes relating to the inter-State river c
waters is not far to seek. Article 262 of the Constitution specifically
provides for such adjudication. The Article appears under the heading
"Disputes relating to Waters'', and reads as follows:

"262. Adjudication of disputes relating to waters of inter-
State rivers or river valleys.- D
••••••••••••••••••••••~••••••••••

(I) Parliament may by law provide for the adjudication of
any dispute or complaint with respect to the use, distribu-
tion or control of the waters of, or in, any inter-State river
or river valley. E
(2) Notwithstanding anything in this Constitution, Parliament
may by law provide that neither the Supreme Court nor
any other court shall exercise jurisdiction in respect of
any such dispute or complaint as is referred to in clause
(I)."
An analysis of the Article shows that an exclusive power is given to
the Parliament to enact a law providing for the adjudication of such dis-
putes. The disputes or complaints for which adjudication may be provided
relate to the "use, distribution or control" of the waters of, or in any inter-
State river or river valley. The words "use", "distribution" and "control"
....
are of wide import and may include regulation and development of the G
' said waters. The provisions clearly indicate the amplitude of the scope of
adjudication inasmuch as it would take within its sweep the determination
of the extent, and the manner, of the use of the said waters, and the power
to give directions in respect of the same: The language of the Article has,
further to be distinguished from that of Entry 56 and Entry 17. Whereas
Article 262 (1) speaks of adjudication of any dispute or complaint and H
that too with respect to the use, distribution or control of the waters of or
548 SUPREME COURT REPORTS [1991) SUPP. 2 S.C.R.

A in any inter-State river or river valleys, Entry 56 speaks of regulation and
development df inter-State rivers and river valley. Thus the distinction
between Article 262 and Entry 56 is that whereas former speaks of adjudi-
cation of disputes with respect to use, distribution or control of the waters
of any inter-State river or river valley, Entry 56 speaks of regulation and
development of inter-State rivers and river valleys. (Emphasis supplied).
B Entry 17 likewise speaks of water, that is to say, water supplies, irrigation
and canals, drainage and embankments, water storage and water power
subject to the provisions of Entry 56. It does not speak either of adjudica-
tion of disputes or of an inter-State river as a whole as indeed it cannot,
for a State can only deal with water within its territory. It is necessary to
bear in mind these distinctions between Article 262, Entry 56 and Entry
C 17 as the arguments and counter-arguments on the validity of the Ordi-
nance have a bearing on them.

12. We have already pointed out another important aspect of Article 262,
viz., Clause (2) of the Article provides that notwithstanding any other
provision in the Constitution, Parliament may by law exclude the jurisdic-
D tion of any court. including the Supreme Court in respect of any dispute or
complaint for the adjudication of which the provision is made in such law.
We have also noted that Section 11 of the Inter-State Water Disputes Act
makes such a provjsion.

13. The said Ac!. a:S its preamble shows, is an Act to provide for the
E "adjudication of disputes relating to waters of inter-State rivers and river
valleys". Clause (c) of Section 2 of the Act defines "water dispute" as
follows: ·

"2. In this Act, unless the context otherwise requires,-

F (a) ·················································
(b)
(c) "water dispute" means any dispute or difference between
two or more State Governments with respect to
(i) the use, distribution or control of the waters of, or in, any
inter-State river or river valley; or
(ii) the interpretation of the terms of any agreement relating
to the use, distribution or control of such waters or the
implementation of such agreement; or
(iii) the levy of any water rate in contravention of the prohibi-
H tion contained in section 7 ."
CAUVERY WATER DISPUTES TRIBUNAL [SAWANT, J.) 549

Section 3 of the Act states that if it appears to the Government of A
any State that the water dispute with the Government of another State of
the nature stated therein, has arisen or is likely to arise, the State Govern-
ment may request the Central Government to refer the water dispute to a
Tribunal for adjudication. Section 4 of the Act provides for the constitu-
tion of a Tribunal when a request is received for referring the dispute to a
Tribunal and the Central Government is of the opinin that the water dfs- · -B
pute cannot be settled by negotiations. Section 5 of the Act requires the
Tribunal to investigate the matter referred to it and forward to the Central
Government the report of its findings and its decision. The Central Gov-
ernment has then to publish the decision under Section 6.ofthe Act which
decision is final and binding on the parties to the dispute and has to be
given effect to by them. These dominant provisions, among others, of the C
Act clearly show that apart from its title, the Act is made by the Parlia-
ment pursuant to the provisons of Article 262 of the Constitution specifi-
cally for the adjudication of the disputes between the riparian States with
regard to the use, distribution or control of the waters of the inter-State
rivers or river valleys. The Act is not relatable to Entry 56 and, therefore,
does not cover either the field occupied by Entry 56 or by Entry 17. Since D
the subject of adjudication of the said disputes is taken care of specifically
and exclusively by Article 262, by necessary implication the subject stands
excluded from the field covered by Entries 56 and 17. It is not, therefor~,
· premissible either for the Parliament under Entry 56 or for a State legisla-
ture under Entry 17 to enact a legislation providing for adjudication of the
said disputes or in any manner affecting or interferring with the adjudica- E
ti on or adjudicatory process of the machinery for adjudication established
by law under Article 262. This is apart from the fact that the State legisla-
ture would even, otherwise be incompetent to provide for adjudication or
to affect in any manner the adjudicatory process or the adjudication made
in respect of the inter-State river waters beyond its territory or with regard
to disputes between itself and another State relating to the use, distribu- F
tion or control of such waters. Any such act on its part will be extra-
territorial in nature and, therefore, beyond its competence.

14-. Shri Venugopal has in this connecHon urged that it is Entry 97 of the
Union List which deals with the to_pic of the use, distribution and control
of waters of an inter-State river. The use, distribution and control of the G
waters of such rivers; by itself is not a topic=which is covered by Article
262. It is also, accotding to him, not a topic--covered by Entry 56 which
only speaks of regulation and development of inter-State rivers and river
valleys meaning thereby the entirety of the rivers and river valleys and not
the waters at pr in a particular place (emphasis supplied). Further, the
regulation and development, according to him, has nothing to do with the H
550 SUPREME COURT REPORTS [1991] SUPP. 2 S.C.R.

A use, distribution or allocation of the waters of the inter-State river be-
tween different riparian States. That topic should, therefore, be deemed to
have been covered by the said residuary Entry 97.

With respect to the learned counsel, it is not possible to accept this
interpretation of the Entry ·97. This is so firstly because, according to us,
B the_ expression "regulation and development of Inter-State rivers and river
valleys" in Entry 56 would include the use, distribution and allocation of
• the waters of the inter-State rivers and river valleys between different
riparian States. Otherwise the intention of the Constituent Assembly to
provide for the Union to take over the regulation and development under
its control makes no sense and· serves no purpose. What is further, the
C River Boards Act, 1956 which is admittedly eracted under Entry 56 for
the regulation and development of inter-State rivers and river valleys does
cover the field of the use, distribution and allocation of the waters of the
inter-State rivers and river valleys. This shows that the expression "regu-
lation and development" of the inter-State rivers and river valleys in Entry
56 has legislatively also been construed to include the use, distribution or
D allocation of the waters of the inter-State rivers and river valleys between
riparian States. We are also of the view that to contain the operation of
Entry 17 to the waters of an inter-State river and river valleys within the
boundaries of a State and to deny the competence·to the State legislature
to interfere with or to affect or to extend to the use, distribution and
allocation of the waters of such river or river valley beyond its territory,
E directly or indirectly, it is not necessary to fall back on the residuary
Entry 97 as an appropriate declaration under Entry 56 would suffice. The
very basis of a federal Constitution like ours mandates such interpretation
and would not bear an interpretation to the contrary which will destory the
constitutional scheme and the Constitution itself. Although, therefore, it is
possible technically to separate the "regulation and development" of the
F inter-State river and river valley from the "use, distribution and alloca-
tion" of its water, it is neither warranted nor necessary to do so.

The above analysis of the relevant legal provisions dealing with the
inter-State rivers and river valleys and their waters shows that the Act,
viz., the Inter-State Water Disputes Act, 1956 can be enacted and has
G been· enacted only under Article 262 of the Constitution. It has not been
enacted under Entry 56 as it relates to the adjudication of the disputes and
with no other aspect either of the inter-State river as a whole or of the
waters in it.
15. It will be pertinent at this stage also to note the true legal position
H about the inter-State river water and the rights of the riparian States to tl:ie
CAUVERY WATER DISPlITES TRIBUNAL [SAWANT, J.] 551

same. In State of Kansas v. State of Colorado, [206) US 46 the Supreme A
Court of the United States ha~ in this connection observed as follows:
"One cardinal rule, underlying all the relations of the States to
each other, is that of equality of right. Each State stands on the
same level with all the rest. It can impose its own legislation
on no one of the others and is bound to yield its own view to B
none".

" ......the action of one State reaches, through the agency of
natural laws into the territory of another State, the question of
the extent and the limitation of the rights of the two States
becomes a matter of justiciable dispute between them ..... this
court is called upon to settle that dispute in such a way as will
c
recognise the equal rights of both and at the same time estab-
lish justice between them".

"The dispute is of a justiciable nature to be adjudicated by the
Tribunal and is not a matter for legislative jurisdiction of one
State ... ". Q
"The right to flowing water is now well settled to be a right
incident to property in the land; it is a right publici juris, of
such character that, whilst it is common and equal to all through
whose land it runs, and no one can obstruct or divert it, yet as
one of the beneficial gifts of Providence, each proprietor h~ a E
right to a just and reasonable use of it, as it passes through his
land, and so long as it is not wholly obstructed or diverted, or
no larger appropriation of the water running through it i's mad~
than a just and reasonable use, it cannot be said to be :wrongful
or injurious to a proprietor lower down".
F,
"The right to the use of the flowing water is publici juris, and
common to all the riparian proprietors; it is not an absolute,
and exclusive right to all the water flowing past their land so
that any obstruction would give a cause of action; but it is a.
right to the flow and enjoyment of the water subject to a
similar right in all the proprietors to the reasonable enjoyment ,..G
of the same gift of providence. It is therefore only for an
abstraction and deprivation of this common benefit or for an
unreasonable and unauthorised use of it that an action will
lie."

16. Though the waters'.of an inte.r-State river pass through tl~e territories H
of the riparian States such waters cannot be said to be located in any one ·
552 SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

A State. They are in a state of flow and no State can claim exclusive owner-
ship of such waters so as to deprive the other States of their equitable
share. Heni;e in respect of such waters, no State can effectively legislate
for the use of such waters since its legislative power does not extend
beyond its territories. It is further an acknowledged principle of distribu-
tion and allocation of waters between the riparian States that the same has
B. to be done on the basis of the equitable share of each State. What the
·equitable share will be will depend upon the facts of each case. It is
against the background of these principles and the provisions of law we
have already discussed that we have to examine the respective contentions
of the parties.

c 17. The Ordinance is unconstitutional because it affects the jurisdiction of
the Tribunal appointed under the Central Act, viz., the Inter-State Water
Disputes Act which legislation has been made under Article 262 of the
Constitution. As has been pointed out above, while analysing the provi-
sions of the Ordinance, its obvious purpose is to nullify the effect of the
interim order passed by the Tribunal on 25th June, 1991. The Ordinance
D makes no secret of the said fact and the written statement filed and the
submissions made on behalf of the State of .Karnataka show that since
according to the State of .Karnataka the Tribunal has no power to pass any
·interim order or grant any interim relief as it has done by the order of 25th
June, 199 l, the order is without jurisdiction and, therefore, void ab initio.
This being so, it is not a decision, according to Karnataka, within the
E meaning of Section 6 and not binding on it and in order to protect itself
against the possible effects of the said order, the Ordinance has been
issued. The State of Karnataka has thus arrogated to itself the power to
decide unilaterally whether the Tribunal has jurisdiction to pass the in- .
i
terim order or not and whether the order is binding on it or not. Secondly,
the State has also presumed ~hat till a final order is passed by the Tribu-
F nal, the State has the power to appropriate the waters of the river Cauvery
to itst:lf unmindful of and unconcemed with the consequences of such
action on the lower riparian States. Kamataka has thus presumed that it
has superior rights over the said waters and it can deal with them in any
manner. In the process, the State of Karnataka has also presumed that the
lower ripar in States have no equitable rights and It is the sole judge as to
G the share ot the other riparian States in the said waters. What is further, r
the State of Kamataka has assumed the role of a judge in its own cause.
Titus, apart from the fact that the Ordinance directly nullifies the decision
of the Tribunal dated 25th June,· 1991, it also challenges the decision
g~ted 26th April, 1991 of this Court which has ruled that the Tribunal had
power to consider the question of granting interim relief since it was
H specifically referred to it. The Ordinance further has an extra-territorial
CAUVERY WATER DISPUfES TRIBUNAL [SAWANT, J.] 55l

operation insasmuch as it interferes with the equitable rights of Tamil A
Nadu and Pondicherry to the waters of the Cauvery river. To the extent
that the Otdinance interferes with the decision of this Court and of the
Tribunal appointed under the Central legislation, it is clearly unconstitu-
tional being not only in direct conflict with the provisions of Article 262
of the Constitution under which the said enactment is made but being also
in conflict with the judicial power of the State. B

In this connection, we may refer to a decision of this Court in
Municipal Corporation of the City of Ahmedabad etc. v. Ne:.V Shot,ock
Spg. & Wvg. Co., Ltd. etc., [1971] l SCR 288. The facts in this case ~ere
that the High Court as well as this Court had held that property tax
collected for certain years by the Ahmedabad Municipal Corporation was C
illegal. In order to nullify the effect of the decision, the State Government
introduced Section l 52A by amendment to the Bombay Provincial Mu-
nicipal Corporation Act the effect of which was to command the Munici-
pal Corporation to refuse to refund the amount illegally collected despite
the orders of this Court and the High Court. This Court held that the said
provision makes a direct in road into the judicial powers of the State. The D
legislatures under the Constitution have, within the prescribed limits, power
to make laws prospectively as well as retrospectively. By exercis~ of ;
those powers a legislature can remove the basis of a decision rendered by
a competent court thereby rendering the decision ineffective. But no legis-
lature in the country has power to ask the instrumentalities of the State to
disobey or disregard the decisions given by the courts. Consequently, the E
provisions of sub-section (3) of section 152A were held repugnant to the
Constitution and were struck down. To the same effect is another decision 1

of this court in Madan Mohan Pathak v. Union of India & Ors. etc.,
[1978] 3 SCR 334. In this case a settlement arrived at between the Life
Insurance Corporation and its employees had become the basis of a deci-
sion of the High Court of Calcutta. This settlement was sought to be F
scuttled by the Corporation on the ground that they had received instruc-
tions from the Central Government that no payment of bonus should be 1

made by the Corporation to its employees without getting the same cleared
by the Government. The employees, therefore, moved the High Court, and
the High Court allowed the petition. Against that, a Letters Patent Appeal
was filed and while it was pending, the Parliament passed the Life Insur- G
ance Corporation (Modification of Settlement) Act, 1976 the effect of
which was to deprive the employees of bonus payable to them in accord-
ance with the tenns of the settlement and the decision of the Single Judge
of the High Court. On this amendment of the Act, the Corporation with-
drew its appeal and refused to pay the bonus. The employees having
approached this Court challenging the constitutional validity of the said H
554 SUPREME COURT REPORTS (1991) SUPP. 2 S.C.R.

A legislation, the Court held that it would be unfair to adopt legislative
procedure to undo a settlement which had become the basis of a decision
of the High Court. Even if legislation can remove the basis of a decision,
it has to do it by alteration of general rights of class but not by simply
excluding the specific settlement which had been held to be valid and
enforceable by a High Court. The object of the Act was in effect to take
B away the force of the judgment of the High Court. The rights under the
judgment would be said to arise independently of Article 19 of the Consti-
tution.

Yet another decision of this Court on the point is P. Sambamurthy &
Ors. etc. etc. v. State of Andhra Pradesh & Anr., (1987] 1 SCR 879. In
c this case what was called in question was the insertion of Article 371-D of
the Constitution. Clause (5) of the Article provided that the order of the
Administrative Tribunal finally disposing of the case would become effec-
tive upon its confirmation by the State Government or on the expiry of
three months from the date on which the order was made, whichever was
earlier. The proviso to the clause provided that the State Government may
D by special order made in writing for reasons to be specified therein, modify·
oi annul any order of the Administrative Tribunal before it became effec-
tive and in such a case the order of the Tribunal shall have effect only in
such modified form or be of no effect. This court held that it is a basic
principle of the rule of law that the exercise of power by the executive or
any other authority must not only be conditioned by the Constitution but
E must also be in accordance with law, and the power of judicial review is
conferred by the constitution with a view to ensuring that the law is
observed and there is compliance with the requirement of the law on the
part of the executive and other authoritie"s. It is through the power of
judicial review conferred on an independtnt institutional authority such as
the High Court that the rule of law is maintained and every organ of the
F State is kept within the limits of the law. If the exercise of the power of
judicial review can be set at. naught by the State Government by over-
riding the decision given against it, it would sound the death-knell of the
rule of law. The rule of law "1ould be meaningless as it would be open to
the State Government to d~fy '
the law and. yet get away with it. The
proviso to cl. (5) of Art. 371-D was therefore, violative of the basic
G structure doctrine. '
/ '

The principle which emerges from these authorities is that the legis-
lature can change the basis on whi,ch a decision is given by the Court and
thus change the law in general which will affect a class of per~o'ns, and
events at large. It cannot, however, set aside an individual decisi\>n inter-
H parties and affect their rights and liabilities alone. Such an act on the part
CAUVERY WATER DISPUTES TRIBUNAL [SAWANT, J.] 555

of the legislature amounts to exercising the judicial power of the State and 1 A
to functioning as an appellate. court or Tribunal. '

The effect of the provisions of section 11 of the present Act, viz., 1

the Inter-State Water Disputes Act read with Article 262 of the Constitu-.
ti on is that the entire judicial power of the State and, therefore, of the
courts including that of the Supreme Court to adjudicate upon original B
di~pute or complaint with respect to the use, distribution or control of the !
water of, or in any inter-State river or river valleys has been vested in the ·
Tribunal appointed under Section 4 of the said Act. It is, therefore, not
possible to accept the submission that the question of grant of interim ,I
relief falls outside the purview of the said provisions and can be agitated
under Article 131 of the Constitution. Hence any executive order or a c
legislative enactment of a State which interferes with the adjudicatory
:-:-· process and adjudication by such Tribunal is an interference witll. the 1

judicial power of the State. In view of the fact that the Ordinance in
question seeks directly to nullify the order of the Tribunal passed on 25th
June, 1991, it impinges upon the judicial power of the State and is, there-
fore, ulira vires the Constitution.

Further, admittedly, the effect of the Ordinance is to affect the flow
of the waters of the river Cauvery into the territory of Tamil Nadu and
Pondicherry which are the lower riparian States. The Ordinance has, therefore,
an extra-territorial operation. Hence the Ordinance is on that account
E
beyond the legislative competence of the State and is ultra vires. the
provisions of Article 245 (l) of the Constitution.

The Ordiance is also against the basic tenets of the rule of law
· inasmuch as the State of Karnataka by issuing the Ordinance has sought to '
take law in its own hand and to be above the law. Such an act is an
invitation to lawlessness and anarchy, inasmuch as the Ordinance is a F
manifestation of a desire on the part of the State to be a judge in its own
cause and to defy the decisions of the judicial authorities. The action
forebodes evil consequences to the federal structure under the Constitu-
tion and opens doors for each State to act in the way it desires disregard-
ing not only the rights of the other Stafes, the orders passed by
instrumentalities constituted under an Act of Parliament but also the pro- G
visions of the Constitution. If the power of a State to issue such an
Ordinance is upheld it will lead to the break down of the Constituticmal
mechanism and affect the unity and integrity of the nation.

18. In view_ of our findings as above on the unconstitutionality of the
Ordinance, it is not necessary for us to deal with the contention advanced 1

H
556 SUPREME CO~T REPORTS [i 991] SUPP. 2 S.C.R.

A on behalf of Tamil Nadu and Pondicherry that the Ordinance is unconsti-
tutional also because it is repugnant to the provisions of the River Boards
Act, 1956 which is admittedly enacted under Entry 56.
19. We also do not propose to deal with the contentions advanced on ·
behalf of both sides with reference to Articles 19 (I) (g) and 21 of the
B Constitution. On behalf of Kamataka the said Articles are invoked to
support the Ordinance contending that the Ordinance has been issued to
protect the fundamental rights of its inhabitants guaranteed to them by the
said Articles which rights were otherwise been denied by the Tribunals'
order of 25th June, 1991. As against it, it was contended on behalf of
Tamil Nadu that it was the Ordinance which was designed to deny to its
c inhabitants the said rights. Underlying the contentions of both is the pre-
sumption that the Tribunal's order denies to Kamataka and ensures to
Tamil Nadu the equitable share in the river water. To deal with the said
contentions is, therefore, to deal with the factual merits of the said order
which it is not for us to examine. Of the same genre are the contentions
advanced on behalf of Kamataka, viz., that the order creats new rights in
D favour of Tamil Nadu and leads to inequitable consequences so far as
Kamataka is concerned. For the same reasons, we cannot deal with these
contentions either.
· Question No. 3 :

E 20. Question 3 is intimately connected with Question 2. However, Ques-
tion 3 itself has to be answered in two parts, viz., whether a Water Dis-
putes Tribunal constituted under the Act is com.l'etent to grant any interim
relief (i) when no reference for grant of interim relief is made to the
Tribunal, and (ii) when such reference is made to it. It was contended on
behalf of Karnataka and Kerala that the answer to the second part of the
F question will also depend upon the answer to the first part. For if the
Tribunal has no power to grant interim relief, the Central Government
would be incompetent to make a reference for the purpose and the Tribu-
nal in turn will have no jurisdiction to entertain such reference, even if
made. And if the Tribunal has no power to grant interim relie(then the
order made by the tribunal will not constitute a report and a decision
G within the meaning of Section 5 (2) and hence it would not be required to
be published by the Central Government under Section 6 of the Ac~ in
order to make it effective. Further if the Tribunal has no such powet to >--
grant interim relief then the order passed 1:Jy the Tribunal on 25th June,
1991 will be void being without jurisdiction and, therefore, to that Iextent
the Ordinance issued by the State of Kamataka will not be in conflict with
H the provisions of the Act, viz., the Inter-State Water Disputes Act, 1956.
'1-"
'
CAlNERY WATER DISPUTES TRIBUNAL [SAWANT, J.] 55(

21. This Court by its decision of April 26, 1991 has held, as pointed out A
above, .that the Central Government had made a reference to the Tribunal
for the consideration of the claim for interim relief prayed for by the' Stat~
1

of Tamil Nadu and hence the Tribunal had jurisdiction to consider the said
request being a part of the Reference itself. Implicit in the said decision is,
the fin~ing that the subject of Interim relief is a matter connected with or
relevant to. ~he water dispute within the meaning of Section 5 (I) of the: B
Act. Hence· the Central Government could refer the matter of granting,
interim relief to the Tribunal for adjudication. Although this Court by the
said decision ~as kept open the question, viz., whether the Tribunal has ~
incidental, ancillary, inherent or implied power to grant the interim relief
when no reference for grant of such relief is made to it, it has in terms
concluded the second part of the question. We cannot, therefore, counte- ' C
nance a situation whereby Question 3 and for that matter Questions I and '
2 may be so construed as to invite our opinion on the said decision of this
Court. That would obviously be tahtamount to our sitting in appeal on the ~
said decision which it is impermifsible for us to do even in adjudicatory ·
jurisdiction. Nor is it competent for the President to invest us with an .
appellate jurisdiction over the said 1decision through a Reference tinder ' D
Article 143 of the Constitution.

Shri Nariman, however, contended that the President can refer any
question of law under Article 143 and, therefore, also ask this Court to
reconsider any of its decisions. For this purpose, he relied upon the Ian- ,
guage of clause (I) of Article 143 which is as follows: E

"143. Power of president to consult Supreme Court- :
(I) If at any time it appears to the President· that a question of
. law or fact has arisen, or is likely to arise, which is of such a
nature and of such public importance that it is expedient to ' F
obtain the opinion of the Supreme Court upon it, he may refer·
the question to that Court for consideration and the Court may,.
after such hearing as it thinks fit, report to the President its
opinion thereon."
In support of his contention he also referred us to the opinion ex-
pressed by this Court in re: The Delhi Laws Act, 1912, The Ajmer-Merwara (
(Extension of Laws) Act, 1947 and the Part C States (Laws) Act, 1950
. [1951) SCR 747. For the reasons which follow, we are unable to accept
this contention. In the first in~tance, the language of clause (I) of Article
143 far from supporting Shri Nariman's contention is opposed to it. The
said clause empowers the President to refer for this Court's opinion a
question of law or fact which has arisen or is likely to arise. When this H
558 SUPREME COURT REPORTS (1991) SUPP. 2 S.C.R.

A Court in its adjudicatory jurisdiction pronounces its authoritative opinion
on a question of law, it cannot be said that there is any doubt about the
question of law or the same is res integra so as to require the Pl'esident to )
know what the true position of law on the question is. The decision of this
Court on a question of law is binding on all courts and authorities. Hence
under the said clause tha President can refer a question of law only when
B this Court has not decided it. Secondly, a decision given by this Court can
be reviewed only under Article 137 read with Rule I of Order XL of the
Supreme Court Rules 1966 and on the conditions mentioned therein. When,
further, this Court overrules the view of law expressed by it in an earlier
case, it does not do so sitting in appeal and exercising an appellate
jurisdiction over the earlier decision. It does so in exercise of its inherent
C power and only in exceptional circumstances such as when the earlier
decision is per incuriam or is delivered in the absence of relevant or
material facts or if it is manifestly wrong and productive of public mis-
chief. See: The Bengal Immunity Company Ltd. v. The State of Bihar &
Ors., [1955] 2 SCR 603. Under the Constitution such appellate jurisdic-
tion does not vest in this Court; nor can it be vested in it by the President
D under Article 143. To accept Shri Nariman's contention ~ould mean.that
the advisory jurisdiction under Article 143 is also an appellate jurisdiction
of this Court over its own decision between the same parties and the
executive has a power to ask this Court to revise its decision. If such
power is read in Article 143 it would be a serious inroad into the inde-
pendence of judiciary.

So far as the opinion expressed by this Court in re The Delhi Laws
Act, 1912 (supra) is concerned, as the Reference itself makes clear, what
was referred was a doubt expressed by the President on the decision of the
Federal Court in Jatindra Nath Gupta v. The Province of Bihar & Ors.,
[1949] FCR 595 which was delivered on 20th May, 1949. The Federal
F Court at that time was not the apex court. Upto 10th October, 1949, the
appeals from its decisions lay to the Privy Council including the appeal
from the decision in question. The decisions of the Federal Court were not
binding on the Supreme Court as held in Hari Vishnu Kamath v. Syed
Ahmad lshaque & Ors., (1955) l SCR 1104. Hence it was not a case
where the President had referred to this Court for its opinion a decision
G which had become a law of the land. Hence the case in re The Delhi Laws
Act, I 912 (supra) does not support the contention.

The provisions of clause (2) of Article 374 of the Constitution also
do not help Shri Nariman's contention since the said provisions relate to
the transitional period and the "judgments and orders ofthe·Federal Court"
referred to therein are obviously the interim judgments and orders in the
CAUVERY WATER DISPlITES TRIBUNAL [SAWANT, J.] 559

suits, appeals and proceedings pending in the Federal Court at the com- A
mencement of the Constitution· and which stood transferred to the Su- ,
preme Court thereafter. This is also the view taken by a Division Bench of
Bombay High Court in State of Bombay v. Gajanan Mahadev Badley, ,
AIR [1954] Bombay 351. This view has been confirmed by this Court in·
Delhi Judicial Service Association, Tis Hazari Court. Delhi etc. v. State of
Gujrat & Ors. etc. JT 1991 (3) SC 617. Paragraphs 32 to 37 of the ' B
judgment deal with this subject specifically.

22. Both Shri Parasaran and Shri Venugopal requested us not to answer
the first part of Question 3 on the ground that the said part of the question 1

is purely theoretical and general in nature, and any answer given would be
academic because there will be no occasion to make any further interim C
order or grant another interim relief in this Reference. According to him,
the recitals of the order of Reference have bearing only on Questions l
and 2, and the second part of Question 3. They have no bearing on the
first part of Question 3 and since the Reference has been made in the
context of particular facts which have no connection with the theoretical
part of Question 3, the same should be returned unanswered as being D
factually unwarranted.

· 23. On behalf of karnataka and Kerala, however as pointed out above, it 1

was urged that we should answer the said part of the question for· the
· reasons stated there. Shri Shanti Bhushan in this connection relied upon
the decision of this Court in A.R. Antulay v. R.S. Nayak & Anr,. [l <J88] . E ·
Suppl. l SCR l. He pointed out that by the said decision the directions
given by this Court in its earlier decision were held to be void being
without jurisdiction and the same were quashed. In view of this precedent,
he submitted that a similar course is open to this Court and the decision 1

> dated April 26,1991 given by this Court may also be declared as being
without jurisdiction and void. In A.R. Antulay's case (supra) two ques- F
tions were specifically raised, viz., (i) whether the directions given by this
Court in R.S. Nayak v; A.R. Antulay, [1984] 2 SCR 495, (hereinafter
referred to as 'R.S Nayak's case') withdrawing the Special Case No.24 of
1982 and Special Case No.3 of 1983 arising out of a complaint filed by a
private individual pending in the court of Special Judge, Greater Bombay
and transferring the same to the High Court of Bombay in breach of G
..,. .Section 7 (l) of the Criminal Law Amendment Act, 1952 (which man-
·- - _; dates that the offences as in the said'..case shall be tried by a Special Judge
only) thereby denying at least one right of appeal to the appellant, was
violative of Articles 14 and 21 of the Constitution and whether such
directions were at all valid or legal and, (ii) if such directions were not
valid or legal, whether in view of the subsequent orders passed by this H
56-0 SUPREME COURT REPORTS [1991] SUPP. 2 S.C.R. ,
,__
,._

A Co)lrt on 17th of April, ·I 984 in a writ petition challenging the validity of
the, order and judgment of this Court in R.S. Nayak's case whereby.this
Court had dismissed the writ petition without prejudice to the right of the
pet~tk.. !r to approach this Court with an appropriate review petition or to
file any other application which he may be entitled in law to file, the
appeal filed was sustainable and the grounds of the appeal were justiciable.
B The latter question was further explained by stating that the question was
whether the directions given in R.S. Nayak's case jn a·proceydings inter-
parties were binding even if bad in law or violative of Articles 14 and 21
of the Constitution and as such were immune from correction by this
Court even though they caused prejudice and did injury. It may be stated
here that the said proceedings had come before this Court by way of a
c special leave petition against an order passed by the learn~d Judge of the
High Court to whom the said case came to be assigned subsequently in
pursuance of the directions given in R.S. Nayak's case. By the order
passed by the learned judge, as many as 79 charges were framed.against
the appellant and it was decided not to proceed against other named co-
conspirators. In the special leave petition filed to challenge the said order,
D two questions which we have stated above were raised and leave was
granted. This Court in that case held that (i) the directions given by this
Court in R.S. Nayak's case were violative of the limits of jurisdiction of ,
...
this Court since this Court could not confer jurisdiction on a High Court
which was exclusively vested in the Special Judge under the provisions of
the criminal Law Amendment Act of 1952; (ii) the said directions de-
E prived the appellant of his fundamental rights guaranteed under Articles
14 and 21 of the Constitution since the appellant had been treated differ-
ently from other offenders and he was deprived of a right of appeal to the
High Court; (iii) the directions were issued without observing the princi-
ple of audi alteram partem and (iv) the decision given was per incuriam.
Shri Shanti Bhushan urged that since in that case this Court had quashed
F its own earlier directions
v
on the ground that the High Court had no juris-
diction to try the offence and this Court could not confer such jurisdiction
on it, in the present case also the decision of the Court dated April 26,
199 l may be ignored for having proceeded on the basis that the Tribunal
had jurisdiction to pass interim relief when it had no such jurisdiction.

G We are afraid that the facts in A.R. Antulay's case (supra) are pecu- L
liar and the decision has to be confined to those special facts. As this
court has pointed out in the said decision, in the first instance, the direc-
tions which were given for withdrawing the case from the Special Judge /
to the High Court were without hearing the appellant. Those directions
deprived the appellant of a righLof appeal to the High Court and thus
H were prejudicial to him. There was, therefore, a manifest breach of the
CAUVERX WATER DISPUTES TRIBUNAL [SAWANT, J.) 561

rule of audi alteram partem. Secondly, while giving the impugned direc- , A I
tions, the Court had not noticed that under the said Act of 1952, the i
Special Judge had an exclusive jurisdiction to try the offence in question •
and this being a legislative provision, this court could not confer the said
jurisdiction on the High Court. The Court also pointed out that to the
extent that the case was withdrawn from the Special Judge and sent to the
High Court, both Articles 14 and 21 were violated. The appellant was B
discriminated against and the appellant's right of appeal which was an
aspect of Article 21 was affected. It would, thus, appear that not only the
directions given by this Court were without jurisdiction but they were also
,./ per incuriam and in breach of the principles of natural justice. They were
\
further violative of the appellant's fundamental rights under· Artieles 14
and 21 of the Constitution. None of the said defects exists in the decision C
of this Court dated April 26, 1991. It cannot be said that this Court had ,
not noticed the relevant provisions ofthe Inter-State Water Disputes Act. ·
The Court after perusing the relevant provisions of the Act which were
undoubtedly brought to its notice, has come to the conclusion that the
Tribunal had jurisdiction to grant interim relief when the question of
granting interim relief formed part of the Reference. There is further no D
violation of any of the principles of natural justice or of any provision of
the Constitution. The decision also does not transgress the limits of the
juri::;diction of this Court. We are, therefore, of the view that the decision
being inter-parties operates as. res judicata on the said p~int and it cannot
be reopened.
E
24. We, however, agree with the contentiOn that it is not necessary to
answer the first part of Question 3. The context in which all the questions
are referred to as and the preamble of the Reference amply bear out that
the questions have been raised against the background a particular set of
facts. These facts have no bearing on the first part of Question 3 which is
theoretical in nature. It is also legitimate to conclude that this part of the F
question was not prompted by the need to have a theoretical answer to
comprehend situations in general. Our answer to the second part of the
question should meet the exigencies of the situation.

Question No. 2 :
.G
.• 25. Coming now to Question 2, although the question is split into two
parts, they deal with the same aspect of the subject inasmuch as the
answer to the first part would automatically answer the second part of the
question. This situation, like the first question, relates to the specific order
of the Tribunal dated June 25, 1991. Hence, our opinion will have to be
on the legal merits of the said order. H
562 SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

A Sub-section (1) of Section 5 expressly empowers the Central Gov-
ernment to refer to the Tribunal not only the main water dispute but any
matter appearing to be connected with or relevant to it. It cannot be
disputed that a request for an interim relief whether in the nature of
mandatory direction or prohibitory order, whether for the maintenance of
status quo or for the grant of urgent relief or to prevent the final relief
B being rendered infructuous, would be a matter connected with or relevant
to the main dispute. In fact, this Court, by its said decision of April 26,
1991, has in terms held that the request of the State of Tamil Nadu for
granting interim relief had been referred by the Central Government to the
· Tribunal and directed the Tribunal to consider the request on merits, the
same being a part of the Reference. Hence the o~der of the Tribunal will
c be a report and decisfon within the meaning of Section 5 (2) and would
have, therefore, to be published under Section 6 of the Act in order to
make it effective.

· 26. One of the contentions advanced in this behal( was that the
Order of the Tribunal dated June 25, 1991 does not purport to be and does
D not state to be a report and decision. It only states that it is an order.
Secondly, the said order cannot be report and decision within the meaning
of Section 5 (2) of the Act because: (i) the Tribunal can make report only
after final adjudication of the dispute and there cannot be adjudication
without investigation. There is no provision for interim investigation and
interim finding and report; (ii) the Tribunal could not have made the
E report because its own showing: (a) pleadings were not complete, parties
had not yet placed on record all their documents and papers etc.; (b) there
was no investigation of the matters, the investigation could have been
done only after disclosure of documents followed by a detailed h,earing,
the evidence and arguments of the parties and judicial finding in conso-
nance with natural justice; (c) the assessors appointed to assess on the
F technical matters conducted their proceedings without consultation with
the engineers of the State. Sometimes the engineers of Tamil Nadu were
called for consultation in the absence of engineers of Karnataka. The
summoning of documents and information by the assessors was also casual
and did not conform to the principles of natural justice and fair-play. A
copy of the advice given by the assessors to the members of the Tribunal
G was not made available to the parties; (d) the Tribunal has stated "at this
stage it would not be feasible nor reasonable to determine how to satisfy, .\...

the needs of each State to the greatest possible extent with the minimum
detriment to others". Such an approach is contrary to the concept of an
investigation contemplated by the Act and hence no interim order (or,,
_interim relief could be made on such investigation not contemplated under:>
H the Act before making any order; (ii) it is only the decision which finds)
CAUVERY WATER DISPt.TfES TRffiUNAL [SAWANT, I.] 563

support from the report of the Tribunal which in tum must be the result of A
a full and final investigation in full which is required to be published I

under Section 6 of the Act and not an order such as the one passed by the '
Tribunal. The present order is neither a decision nor an adjudication an'd
hence cannot be published.
27. The contention that since the Order does not say that it is a report and B
decision and, therefore, it is not so under Section 5(2) of the Act is to say
the least facetious. Either the Order is such a report and decision because
of its contents or not so at all. If the contents do not show that it is such a
report, it will not become one because the Order states so. As is pointed
out a little later the contents of the Order clearly show that it is a report
and a decision within the meaning of Section 5(2). C
Some of the aforesaid submissions relate to the merits of the Order
passed and its consequences rather than to the jurisdiction and the· power
of the Tribunal to pass the said Order. While giving our opinion on the
present question, we are not concerned with the merits of the order and .
with the question whether there was sufficient material before the Tribu- D
nal, whether ·the Tribunal had supplied the copies of the advice given by
the assessor to the respective parties and whether it had heard them on the
same before passing the Order in question. The limited question we are
required to answer is whether the order granting interim relief is a report
and a decision within the meaning of Section 5(2) and is required co be
published in the official Gazette under Section 6 of the Act. It is needless E
to observe in this connection that the scope of the investigation that !l I
I

Tribunal or a court makes at the stage of passing an interim order is
limited compared to that made before making the final adjudication. The
extent and the nature of the investigation and the degree of satisfaction
required for granting or rejecting the application for interim relief would
depend upon the nature of the dispute and the circumstances in each case. F
No hard and fast rule can be laid down in this respect. However, no
Tribunal or court is prevented or prohibited from passing interim order on
the ground that it does not have at that stage all the material required to
take the final decision. To read such an inhibition in the power of the
Tribunal or a court is to deny to it the power to grant interim relief when
Reference for such relief is made. Hence, it will have to be held that the
Tribunal constituted under the Act is not prevented from passing an in-
terim order or direction, or granting an interim relief pursuant to the
reference merely because at the interim stage it has not carried out a
complete investigation which is required to be done before it makes its
final report and gives its final decison. It can pass interim orders on such
mat"'rial RS according to it is appropriate to the 11ature of the interim order. H

------
564 SUPREME COURT REPORTS [1991) SUPP. 2 S.C.R.

A 28. The interim orders passed or reliefs granted by the Tribunal when they
are not of purely procedural nature and have to be implemented by the .f.
partie·s to make them effective, are deemed to be a report and a decision
(-
within the meaning of Sections 5 (2) and 6 of the Act. The present Order
of the Tribunal discusses the material on the basis of which it is made and
gives a direction to the State ofKamataka to release water from its reservoirs "
B in Karnataka so as to ensure that 205 TMC of water is available in Tamil
Nadu's Mettur reservoir in a year from June to May. It makes the order
effective from lst July, 1991 and also lays down time-table to regulate the
release of water from month to month. It also provides for adjustment of
the supply of water during the said period. It further directs the State of
Tamil Nadu to deliver 6 TMC of water for the Karaikal region of the
c Union Territory of Pondicherry. In addition, it directs the State ofKarnataka
not to increase its area under irrigation by the waters of the river Cauvery
beyond the existing 11.2 lakh acres. It further declares that it will remain
operative till the final adjudicati~n. of the. dispute. Thus the Order is not
meant to be merely declaratory in,.;nafure but .is meant to be implemented
and given effect to by the parties. Jien~e',"tbe order in question constitutes
D a report and a decision within the meaning of Section 5 (2) and is required
to be published by the Central Government under Section 6 of the Act in ~

order to be binding on the parties and to make it effective.
•
29. The contention that Section 5 (3) of the Act cannot apply to the
interim orders as it is only the final decision which is meant to undergo
E the second reference to '1te Tribunal provided for in it has no merit. If t!te
l'ribunal has, as held- above, power to make an interim decision when a
reference for the same is made, that decision will also attract the said
provisions. The Central Government or any State Government after
considering even such decision may require an explanation or guidance
from the Tribunal as stated in the said provisions and such explanation
F and guidance may be sought within three months from the date of such
decision. The Tribunal may then reconsider the decision and forward to
a
the Central Government further report giving such explanation or guidance
as it deems fit. In such cases it is the interim decision thus reconsidered
which has to be published by the Central Government under Section 6 of
the Act and becomes binding and effective. We see, therefore, no reason
G why the provisions of Section 5(3) should prevent or incapacitate the
\.
...
Tribunal from passing the interim order. Once a decision, whether interim
or final, is made under Section 5(2) it attracts the provisions both of sub-
Section (3) of that Section as well as the provisions of Section 6 of the
Act.

H 30. As pointed out earlier, the present Order having been made pursuant
to the decision of this Court dated April 26, 1991 in C.As. Nos.303-04 of
CAUVERY WATER DISPlITES TRIBUNAL [SAWANT, I.] 565

1991 on a matter which was part of the Reference as held by this Court in A
I
the said decision, cannot but be a report and a decision under Section 5(2)
and has to be published under Section 6 of the Act to make it effective
and binding on the parties. This legal position of the said order is not open
for doubt. To question its efficacy under the Act would be tantamount to
flouting it.
BI
31. Before concluding we may add that the question whether the opinion
given by this Court on a Presidential Reference under Article 143 of ti,.e
Constitution such as the present one is binding on all courts was debated
before us for a considerable length of time. We are, however, of the view
that we need not record our opinion on the said question firstly, because
the question does not form part of the Reference and secondly, any opin-
ion we may express on it would again be advisory in nature. We will,
therefore, leave the matter where it stands. It has been held adjudicatively
that the advisory opinion is entitled to due weight and respect and nor-
mally it will be followed. We feel that the said view which holds the field
today may usefully continue to do so till a more opportune time.
D
32. Our opinion on the questions referred to us is, therefore, as follows: I

Question No.1. The Karnataka Cauvery Basin Irrigation Protection Ordi-
nance, 1991 passed by the Governor of Kamataka on 25th July, 19.91
(now the Act) is beyond the legislative competence of the State and is,
therefore, ultr_a vires the Constitution. E

Question No.2. (i) The Order of the Tribunal dated June 25, 1991
constitutes report and decision within the meaning
of Section 5 (2) of th~ Inter-State Water Disputes 1

Act, 1956;
F
(ii) the said Order is, therefore, required to be pub-
lished by the Central Government in the official .
Gazette under Section 6 of the Act in order to
mii.ke it effective.

Question No.3. (i) A Water Disputes Tribunal constituted under the G
Act is competent to grant any interim relief to the
1 --'., parties to .the dispute when a reference· for such
relief is made by the C~ntral Government;

(ii) whether the tribunal has power to grant interim
relief when no reference is made by the Central. H
.. ,.,

566 SUPREME COURT REPORi'$ [1991) SUPP. 2 S.C.R.

A Government for such relief is a que,stion which
does not arise in the facts and circumstances under
which the Reference is made. Hence we do not
deem it necessary to answer the same.
N.P.V Reference answered.

I