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Supreme Court: The 3-Judge Bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ directed Centre to apprise it about steps taken for setting up of the Cauvery Management Board for implementation of its judgement on distribution of river water among Tamil Nadu, Karnataka, Kerala and Puducherry.

Attorney General KK Venugopal asked the Court to hear the matter a day after the Karnataka polls on the ground that the draft scheme has to be put before the Union Cabinet for approval. The Court had asked Centre to frame and file a draft Cauvery management scheme by May 3, 2018.

Senior Advocate Shekhar Naphade, appearing for the State of Tamil Nadu, took strong exception to the submission and said:

 “This is the end of co-operative federalism and the rule of law in the country. This is the partisan attitude of the union of India to favour Karnataka.”

The Court initially asked the Karnataka government to release four TMC of Cauvery water to Tamil Nadu by May 8, but later directed the state to apprise it “as to how much water can be released”. It said once the Centre places the draft scheme, which would also include Cauvery Water Management Board and Monitoring Authority, it would consider the grievances of all the stakeholder States. Earlier the Court had asked the Tamil Nadu and Karnataka governments to ensure that peace prevails till it finalises the Cauvery management scheme for implementation of its judgment on water distribution.

Source: PTI

Case BriefsSupreme Court

Supreme Court: Deciding the Cauvery Water Dispute that reportedly travels beyond 100 years, the bench of Dipak Misra, CJ and Amitava Roy and AM Khanwilkar, JJ awarded to the State of Karnataka an additional 14.75 TMC of water, i.e., 10 TMC, on account of availability of ground water in Tamil Nadu + 4.75 TMC, for drinking and domestic purposes including such need for the whole city of Bengaluru. Hence, in view of the allocation of additional 14.75 TMC of water to Karnataka, the State of Karnataka would now be required to release 177.25 TMC of water at the inter-state border with Tamil Nadu. The Cauvery Water Dispute Tribunal had, by award dated 05.02.2007, directed the State of Karnataka to release 205 TMC of water to the State of Tamil Nadu.

The Court noticed that the Tribunal had drastically reduced the share of Karnataka towards Domestic and Industrial purpose for the reason being that only 1/3rd of the city of Bangaluru falls within the river basin and also on the presumption that 50% of the drinking water requirement would be met from ground water supply. Holding that the said view taken by the Tribunal ignores the basic principle pertaining to drinking water and is, thus unsustainable, the Court said:

“Drinking water requirement of the overall population of all the States has to be placed on a higher pedestal as we treat it as a hierarchically fundamental principle of equitable distribution.”

In a 465-page detailed judgment, the Bench took note of the fact that around 20 TMC of groundwater is available beneath the surface in Tamil Nadu which the Tribunal has not taken into account citing it as a conjecture. Hence, while keeping in mind the risks associated with over extraction of underground water, the Court said that 10 TMC of the said available groundwater in Tamil Nadu can, in the facts and circumstances of the present case, be accounted for in the final determination of its share.

The Court, however, refused to interfere with the allocation of water in favour of the State of Kerala and the Union Territory of Puducherry.

Stressing upon the importance of the matter, the Court said:

“in view of the acute scarcity of the water resources and the intensely contested claims of the States, it is expected that the allocations hereby made would be utilized for the purposes earmarked and accepted and no deviancy is shown in carrying out the verdict of this Court.”

[State of Karnataka v. State of Tamil Nadu, 2018 SCC OnLine SC 135, decided on 16.02.2018]

Case BriefsSupreme Court

Supreme Court: In the Cauvery Water Dispute where the issue relating to referring the matter to the Tribunal was concerned, the 3-judge bench of Dipak Misra, Amitava Roy and A.M. Khanwilkar, JJ said that once a water dispute, as defined under Article 262(1) read with provisions of the Inter-State River Water Disputes Act, 1956 is adjudicated by the tribunal, it loses the nature of dispute. A person aggrieved can always have his remedy invoking the jurisdiction under Article 136 of the Constitution of India. The Court, hence, held that the contention of the Union of India with regard to the maintainability of the appeal by special leave under Article 136 of the Constitution of India stands repelled.

The Court explained that the Section 11 of the 1956 Act bars the jurisdiction of the courts and needless to say, that is in consonance with the language employed in Article 262 of the Constitution. The Founding Fathers had not conferred the power on this Court to entertain an original suit or complaint and that is luminescent from the language employed in Article 131 of the Constitution and from the series of pronouncements of this Court. It was held that Section 6 of 1956 Act cannot be interpreted in an absolute mechanical manner and the words “same force as on order or decision” cannot be treated as a decree for the purpose for excluding the jurisdiction of this Court. The language employed in Section 6(2) of 1956 Act suggests that the decision of the tribunal shall have the same force as the order or decree of this Court. There is a distinction between having the same force as an order or decree of this Court and passing of a decree by this Court after due adjudication. The Parliament has intentionally used the words from which it can be construed that a legal fiction is meant to serve the purpose for which the fiction has been created and not intended to travel beyond it. The purpose is to have the binding effect of the tribunal’s award and the effectiveness of enforceability. Thus, it has to be narrowly construed regard being had to the purpose it is meant to serve.

Stating that a provision should not be interpreted to give a different colour which has a technical design rather than serving the object of the legislation, the Court said that the exposition of the principles of law relating to fiction, the intendment of the legislature and the ultimate purpose and effect of the provision called for repelling the submissions raised on behalf of the Union of India that Section 6(2) bars the jurisdiction conferred on this Court under Article 136. [State of Karnataka v. State of Tamil Nadu, 2016 SCC OnLine SC 1450, decided on 09.12.2016]

Case BriefsSupreme Court

Supreme Court: With regard to the constitution of the “Cauvery Management Board”, the Court directed the States of Karnataka, Tamil Nadu, and Kerala and the Union Territory of Puducherry to nominate their respective representatives as per the final order passed by the Cauvery Water Disputes Tribunal on or before 4.00 p.m. tomorrow i.e. 01.10.2016. The Court also directed that the Board should submit a report on ground reality of the situation.

Coming down heavily upon the State of Karnataka, the Court said that all authorities in the territory of India are bound to act in aid of the Supreme Court and also, if required, render assistance and aid for implementation of the order/s of this Court, but, unfortunately, the State of Karnataka is flouting the order and, in fact, creating a situation where the majesty of law is dented. The Bench of Dipak Misra and U.U. Lalit, JJ said that they would have proceeded to have taken steps for strict compliance of the order, but will refrain to do so as they are directing the Cauvery Management Board to study the ground reality.

The Court directed the State of Karnataka to release 6000 cusecs of water despite the resolution passed by the Joint Houses of State Legislature of the State of Karnataka from 01.10.2016 to 06.10.2016 i.e. the next date of hearing. The Court said that it is granting this opportunity as the last chance and that the State of Karnataka, being a part of the federal structure of this country, should rise to the occasion and should not bent upon maintaining an obstinate stand of defiance, for one knows not when the wrath of law shall fall on one. [State of Tamil Nadu v. State of Karnataka, 2016 SCC OnLine SC 1055 , decided on 30.09.2016]

Case BriefsSupreme Court

Supreme Court: The Court directed the State of Karnataka to release 6000 cusecs of water from tomorrow i.e. 28.09.2016 till the next date of hearing i.e. 30.09.2016 and said that the State of Karnataka shall obey the order without any kind of impediment, obstruction or any other attitude till the next date of hearing. Needless to say, the water that has been released will be adjusted in the eventual adjudication.

Fali S. Nariman, appearing on behalf of the State of Karnataka had submitted that there will be difficulty on the part of the State of Karnataka because of the resolution passed by the State to use the Cauvery water for drinking purpose only and not to release the water to the State of Tamil Nadu. The bench of Dipak Misra and U.U. Lalit, JJ, however, said that the direction for release of water has been passed for the coming three days despite the resolution passed.

The Court had asked Mukul Rohatgi, the Attorney General for India what could be the possible solution for the situation and said that the same is being done not because this Court cannot adjudicate or pass appropriate orders in accordance with law to maintain and sustain the rule of law and majesty of law which are elan vital of our constitutional law, but prior to that it would be appropriate if there is a  discussion regard being had to the conceptual federalism prevalent in our democratic body polity. Mukul Rohatgi submitted that the Union of India is prepared to facilitate so that the impasse between the two States can appositely melt. Both the States expressed their consent to it. [State of Karnataka v. State of Tamil Nadu, I.A. NO.12/2016 IN I.A. NO.10 in Civil Appeal No.2456/2007, decided on 27.09.2016]