Dr. Justice A. K. Rajan, L .L D
Former Judge, Madras High Court
1. Constitution of India by Clause (1) of Article 262 empowers Parliament, ’by law, to provide for the Adjudication of disputes relating to waters of or in, any inter-state rivers or river valley’; Clause (2) em-powers the parliament, by law, to provide that ’neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in Clause (1).’ Parliament exercising that power enacted The Inter State River Water Disputes Act 1956. Section 11 of the Act reads “Notwithstanding anything contained in any other law, neither the Supreme Court nor any other Court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under the Act.”
Constitution of Water Dispute Tribunal:
2. As per Section 3 of the Act, any Government of a State can make a complaint that a water dispute has arisen with another State and request the Central Government to refer the water dispute to a Tribunal for adjudication. When any such request is received from a State Government and the Central Government is of the opinion that the water dispute cannot be settled by negotiations, the Central Government shall by notification in the Official Gazette, constitute a Water Dispute Tribunal, for adjudicating the dispute. From the above provisions it is clear that only when the Central Government comes to the conclusion that a particular water dispute cannot be settled by negotiations (between the parties States) a Tribunal would be constituted. In other words, the very fact that a Water Dispute Tribunal was constituted, it is beyond any doubt that the water Dispute raised by one State cannot be settled, by any amount of negotiations, between the concerned parties. That is, the factum of constitution of the Water Dispute Tribunal is a conclusive proof that the dispute raised, was incapable of settlement by negotiations and that adjudication was the only way out for settlement of the dispute.
3. The Central Government Constituted ‘The Cauvery Water Disputes Tribunal’, by Notification dated 2-6-1990. The Notification reads thus:
“Central Govt. is of the opinion… the water dispute… cannot be settled by negotiations……Central Govt. hereby refers …..for adjudication the water disputes ….emerging from letter …..dated 6th July 1986 from the Govt. of Tamil Nadu. In the letter request was made adjudicate the disputes arising out of the I). ‘Breach of Agreements of 1892 and 1924 ‘. Ii) interest of the State affected by construction of FIVE Dams and expanding the ayacut by Karnataka. iii).affected the prescriptive rights of people of T.N.; diminished the quantum of water, etc.”
Report of the Tribunal dated 9th February 2007:
4. Once such a Tribunal had been constituted, the Central Government, as per Section 5 (1), shall refer the water dispute and any other matter connected or relevant to the water dispute, to the Tri-bunal for adjudication. Section 5(2) provides that the ‘Tribunal shall investigate the matter and forward to the Central Government, a report setting out the facts as found by it and giving its decision on the matters referred to it’. The Tribunal, while adjudicating the disputes, refers to Section 6A including Sec.6A (7) included by 1980 Amendment Act, by which the Central Government got the power to frame Schemes for the implementation of the Award of the Tribunal. The Tribunal also refers to Section 6(2), included by 2002 Amendment, which declares that the Award of the Tribunal shall have the same force as an order or decree of the Supreme Court. The Tribunal considered Section 6A, including the Sub –section 6A (7) and Section 6(2) in detail while constituting the Management Board. The Tribunal found that would create an anomalous situation. The Order or Decree of the Supreme Court cannot be examined for purposes of modification by the two Houses of the Parliament. The Tribunal, then refers to the Krishna Water dispute tribunal and the Narmada water dispute Tribunal and the Schemes framed by those Tribunals and also to the 2003 judgment of the Supreme Court and concludes that the Tribunal has implied power to make recommendations in that aspect. Thereafter holds, that “Cauvery Management Board on the lines of Bhakra Beas Management Board may be constituted by the Central Government” by its decision.
Publication by Central Government in the Official Gazette on 19th February 2013:
5. Section 6 (1) of the Act provides that “the Central Government shall publish the decision of the Tribunal in the Official Gazette and the decision shall be final and binding on the parties to the dispute and shall be given effect to by them”. Section 6(2) of the Act reads that “The decision of the Tribunal, after its publication in the Official Gazette by the Central Government under sub –section (1), shall have the same force as an order or decree of the Supreme Court”.
Tribunal framed the Scheme:
6. The decision of the Tribunal was gazetted by the Central Gov-ernment on 19th February 2013. Therefore the decision, of the Cauvery water dispute Tribunal, has attained the status of an Order or decree of the Supreme Court. Thus, the Scheme framed by the Cauvery Water Dispute Tribunal has reached finality. The Central Government is bound to implement the Tribunal’s decision, including the constitution of the Cauvery Management Board. There is absolutely no reason or authority for the Central Government to delay or postpone the constitution of the Management Board.
Incorrect Statement made before the Supreme Court:
7 (a) But, surprisingly, the Attorney General made a submission before the Supreme Court on 3rd October 2016, that it was Parliament’s sole right “to annul, vary, modify the Centre’s Scheme” (as reported by The Hindu).The Attorney General deliberately wanted to ignore the fact that the scheme was framed by the Tribunal which has the force of a Decree or Order passed by the Supreme Court. The Attorney General has further stated that “The Supreme Court, by ordering the setting up of the CMB, has denuded the Centre of its powers under the1956 Act to frame a Scheme based on the Tribunal’s award. The final say is vested with the parliament”. The Attorney General ignored the provisions of Sub Section (2) to Section 6, included by the Amendment Act 2002, which declares that once the AWARD was published in the Official Gazette the Award gets the status of an Order of the Supreme Court. It is an axiomatic principle of law that the Central Government cannot amend or alter a Decree or an Order of the Supreme Court. An order of the Supreme Court becomes effective the moment it is pronounced, and it is “binding on all the authorities and it is not open to any authority to ignore a binding judgment of the Supreme Court….”[ (2004 ) 12 SCC 322 ]. Therefore the Final Award passed by the Tribunal constituted under the Act will have the same force and be binding on all the authorities including the parties before the Tribunal ,as if it were the Order or decree of the Supreme Court. That is the award is binding on the States of Karnataka, Tamil Nadu, Kerala and Pondicherry and the Parliament and Government of India.
7(b).The both the Houses of the Parliament had the power, under Section 6A (7) of the Act, to modify any scheme framed by such a Tribunal, before the 2002 amendment to the Act. The said amend-ment Act provides in Section 6(2), “the decision of the Tribunal, af-ter its publication in the Official Gazette by the Central Government …. shall have the same force as an order or decree of the Supreme Court ”. The amendment, to Section 6(2) has impliedly repealed the provisions of Section 6A (7). The Tribunal has clearly stated this, in different words, in the award itself.
CAUVERY MANAGEMENT BOARD AND CAUVERY REGULATION COMMITTEE [CMB AND CRC]
8(a).The Tribunal was of the view, taking note of the sensitive na-ture of the issue, and, for the effective implementation of the award a proper mechanism was also required. The tribunal held as follows, in Chapter 8 paragraph 16 (page223):-
“Since the implementation of the final award of the Tribunal involves regulation of supplies from various reservoirs and at other important nodal points /diversion structures, it would be imperative that the mechanism (Cauvery Management Board) is entrusted with the function of supervision of operation of reservoirs and with regulation of water releases there from with the assistance of Cauvery Water Regulation Committee (to be constituted by the Board)“. [The structure and scope of the Board and the Committee has also been specified by the Tribunal in an elaborate manner.]
8(b). As per the award of the Tribunal, the Cauvery Management Board shall constitute the Cauvery Regulation Committee. That Regulation Committee has been entrusted with the task of effective implementation of the Scheme. The Tribunal has laid down that
“The Regulation Committee shall ensure the implementation of the provisions contained in the final order of the Cauvery Water Disputes Tribunal in accordance with the directions of the board namely:-
a) to collect daily water levels , inflows and storage position at each of the following reservoirs-Hemavathy, Harangi, Krishnarajasa-gara, Kabini, Mettur, Bhavanisagar, Amaravathy and Banasurasagar.
b) to ensure ten daily releases of water on monthly basis from the reservoirs as directed by the Board .
c) to collect data of water released from the aforesaid reservoirs on 12 hourly basis.
d) the Board’s representatives at each of the reservoirs shall moni-tor proper implementation of the regulation…….; in the event of any variation the representative shall immediately inform the secretary of the Committee for appropriate action.
e) to collect daily water flows passing through presently identified interstate contact point i.e., Billigundulu gauge discharge site and keep the Board suitably informed.
f) to compile monthly water account for each reservoir.
The order had come into operation from 19th February 2013, from the date of publication of the decision of the Tribunal in the official Gazette. The order supersedes the 1892 and 1924 agreements between the Govt. of Madras and the Govt. of Mysore.
Award of the tribunal ‘shall have the same force as an order or decree of the Supreme Court’:
9. In view of the provisions found in Section 6(2) of the Act, the final orders / award of the Tribunal have come into force on the date of publication of the award / order in the Official Gazette. From that day onwards all the reservoirs are to be monitored and controlled by the Cauvery Management Board and the Regulation Committee. The flow of water should be regulated only by the Committee. There was nothing to be done by the Central Govt. after the date of passing of the Award/ Order, except to publish the same in the Official Gazette and to appoint the Cauvery Management Board.
FINAL ORDER / AWARD OF THE TRIBUNAL:
Machinery for implementation of the final decision / order of the Tribunal):-
10. The following is the extract of the relevant portion of the award/order (found in Vol. V, Chapter 8;
“ 13. The Inter –State Water Disputes Amendment Act 1980 does not provide for details in regard to constitution of the Machinery and its functions, the Tribunal has implied power to make recommendations in this respect. The Tribunal considering the various aspects can make recommendations for implementing its decisions.
14. For this purpose we recommend that Cauvery Management Board on the lines of Bhakra Beas Management Board may be constituted by the Central Government. In our opinion, the necessity of setting up a suitable mechanism is of utmost importance; besides whatever machinery is set up should be adequately empowered to implement the Tribunal’s decision , as otherwise, we are afraid our decision would only be on a piece of paper.
15.The mechanism shall have to be independent in character comprising of technical officers from the Central Government and representatives from the Governments of the party States on the lines of Bhakra Beas Management Board (BBMS), to achieve objective of the distribution of waters as per equitable shares determined by the Tribunal.
16. Since the implementation of the final award of the Tribunal involves regulation of supplies from various reservoirs and at other nodal points/ diversion structures, it would be imperative that the mechanism (Cauvey Management Board) is entrusted with the function of supervision of operation of reservoirs and with regulation of water releases therefrom with the assistance of Cauvery Water Regulation Committee ( to be constituted by the Board).”
From the passages extracted above it is seen that the Tribunal was of the view that it is imperative to create the Cauvery Management Board [CMB] Cauvery Regulatory committee [CRC] and therefore the Tribunal recommended the establishment of CMB and CRC.
Then in Chapter 9 the final order and decision of the Cauvery Water Disputes Tribunal is enumerated.
FINAL ORDER AND DECISION OF THE CAUVERY WATER DISPUTES TRIBUNAL:
11.The Tribunal, in conclusion passed the Final order ( Chapter 9). Some of the most important directives are enumerated hereunder.
Clause V- Contains the allocation of water to the parties. [Kerala 30 TMC; Karnataka 270 TMC; Tamil Nadu 419 TMC; Pondicherry 7 TMC. Etc.]
Clause IX- Specifies the monthly deliveries during normal years to be made available by Karnataka at inter-State contact point Bil-ligundlu. It has also stated that the monthly release shall be broken in 10 daily intervals by Regulatory Authority. Etc.
Clause XVIII. Nothing in the order of this Tribunal shall impair the rights or power or authority of any State to regulate within its boundaries the use of water or to enjoy the benefit of waters within the State in any manner, not inconsistent with the order of the Tribunal.
Clause XIX: Meaning of ‘Normal year’, ‘ Water year’, ‘irrigation season’, etc are defined and specified.
Clause XX: Empowers Modification by Agreement between the Parties.
…to be continued in the next issue