STATE OF KARNATAKA BY ITS CHIEF SECRETARY versus P. K. SINHA AND ANR. on 18 May 2018

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE[2018] 5 S.C.R. 1127

OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

STATE OF TAMIL NADU

v.

P. K. SINHA AND ANR.

(Contempt Petition (Civil) No. 898 of 2018

In

Civil Appeal No. 2453 of 2007)

MAY 18, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D.Y. CHANDRACHUD, JJ.]

Inter-State Water Disputes:

Supreme Court by judgment dated 16.02.2018, whilemodifying the award of the Cauvery Water Disputes Tribunal andallocating waters of Cauvery river to the States of Tamil Nadu,Karnataka and Kerala and Union Territory of Puducherry, directedCentral Government to frame a scheme u/s. 6A of Inter-State RiverWater Disputes Act, 1956 – Central Government with a view to arriveat a consensus for framing of the proposed Scheme, initiatedconsultations with party States/Union Territory – To avoid furtherlitigation by the States, in respect of constitution and functions ofthe proposed Board, Central Government filed interlocutoryapplication seeking certain clarifications – State of Tamil Nadu filedcontempt petition complaining about non-framing of the scheme bythe Central Government within a period of six weeks as granted bySupreme Court – Another contempt petition was filed by privateparty – Interlocutory applications were filed by State of Tamil Naduand Union Territory of Puducherry – Central Government producedDraft Scheme before Supreme Court – Appropriateness of Clauses9(3)(i) and 9(3)(vii) as well as 9(3)(iii) in the Draft Scheme wasquestioned by State of Karnataka – State of Kerala contended thateffect of the Scheme would impinge upon the rights of the States inrespect of conservation and use of water which was exclusively aState subject covered by Entry 17 in List II of Seventh Schedule tothe Constitution – Held: The fact that the subject of water formspart of Entry 17 of List II of the Seventh Schedule, cannot be thebasis to whittle down the efficacy of the Award passed by the

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ATribunal as modified by Supreme Court and in particular the Schemeto ensure smooth, effective and efficient implementation of the Awardof the Tribunal as modified by Supreme Court – The Draft Schemehas been drafted singularly for that purpose and the same will haveto be taken forward to its logical end in accordance with law withpromptitude – Award of the Tribunal qualifies the volume of riverBwater to be shared and apportioned between the States – The partiescannot be allowed to reopen the issues already settled in the Awardand as modified by Supreme Court, indirectly in the guise ofquestioning the appropriateness of clause 9(3)(iii) in the DraftScheme – The Authority cannot be expected to issue directionsCmechanically and that the Authority must have complete power toenforce its directions so as to comply with the Award as modified bySupreme Court – Draft Scheme is in consonance with the dictumand directions in the Award and also in conformity with s. 6A of the1956 Act – Draft Scheme to be taken to its logical and in accordance with law – Contempt petitions and the IAs disposed of – Inter-StateDWater Disputes Act, 1956.CIVIL ORIGINAL JURISDICTION : Contempt Petition (Civil)No. 898 of 2018 in Civil Appeal No. 2453 of 2007

From the Judgment and Order dated 16.02.2018 of this Hon’bleECourt in C. A. No. 2453 of 2007.

WITH

M.A. No.934/2018 in C.A. No. 2453 OF 2007

Contempt Petition (Civil) No. 1131 of 2018

FM.A. No. 937/2018 in C.A. No. 2453 OF 2007

I.A. No.47065/2018, I.A. No.50562/2018 and

I.A. No.68455/2018.

K.K. Venugopal, AG, M. R. Naik, AG (Karnataka), ShekharGNaphade, Rakesh Dwivedi, Subramonium Prasad, Shyam Divan, JaideepGupta, A.S. Nambiar, Sr. Advs., G. Umapathy, C. Paramasivam,K.V. Vijayakumar, Imtiaz Ahmed, Mrs. Naghma Imtiaz, Ahmed Zargham,Ms. Amra Moosavi, Naresh Kumar (for M/s. Equity Lex Associates),Mukesh Kumar Maroria, V. G. Pragasam, S. Wasim A. Qadri,Mrs. Madhavi Divan, Rohit Bhat, Mohan V. Katarki, Brijesh Kalappa,H

OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

R.S. Ravi, V. N. Raghupathy, Ranvir Singh, J.M. Gangadhar, AbdulAzeem Kalebudde, G. Prakash, Jishnu M.L., Mrs. Priyanka Prakash,Mrs. Beena Prakash, Vijay Shankar V.L., S. Prabu Ramasubramanian,S. Manuraj, P.K. Manohar, Mrs. Shanta Vasudevan, Advs. for theappearing parties.

The Order of the Court was passed by

A. M. KHANWILKAR, J. 1. This Court on 16[th]February, 2018pronounced its judgment and final order in Civil Appeal Nos.2453/2007,2454/2007 and 2456/2007 and directed the Central Government to framea scheme under Section 6A of the Inter- State River Water DisputesAct, 1956 (for short, “1956 Act”), for smooth implementation of theAward passed by the Tribunal and as modified by this Court for carryingout the rights of the States with regard to allocation or sharing of water.The Central Government with a view to arrive at a consensus for framingof the proposed scheme, initiated consultations with party States/UnionTerritory. The first meeting for that purpose was convened on 9[th] March,2018 in which the modalities of the scheme including the composition ofthe Authority were discussed. The party States then submitted responsesand in view of the divergent views expressed by the party States/U.T., itwas felt that if the Scheme was to be framed by the Central Governmentitself, States may again approach this Court. To avoid further litigationsby the States in respect of constitution and functions of the proposedBoard, the Central Government felt it necessary to seek clarification ofthis Court for which I.A. No.47065/2018 was filed on 31[st] March, 2018for the following reliefs:

“(a) Clarify whether it is open to the Central Government toframe the Scheme under 6‘A’ at variance with therecommendations contained in the report of CWDT regardingCauvery Management Board.

(b) Clarify that in case the Cauvery Management Board asrecommended in the report of CWDT is to be constituted, doesthe Central Government have the following flexibility:

(i) To modify the composition of the Board to a mixture ofadministrative & technical body, and not purely a technicalbody as recommended by CWDT in its report, for effectiveconduct of the business of the Board and considering overallsensitivity of the issues involved.

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A(ii) Clarify whether the Board framed by the CentralGovernment under 6A of ISWRD Act, 1956 can have functionsdifferent from the ones recommended for CauveryManagement Board by CWDT in its report.

(c) Any other guidance or directions that Hon’ble Supreme CourtBmay like to give in the light of divergent views expressed byparty States/UT with regard to framing of the Schemes underSection 6A of the ISRWD Act, 1956.

(d) Allow application for extension of time of Three months forimplementation of Order dated 16.02.2018 in this instant CivilCAppeal.

(e) Pass such other order/orders as this Hon’ble Court may deemfit and proper in the facts and circumstances of the present case.”

2. On the same day i.e. 31[st] March, 2018, the State of TamilNadu filed a contempt petition being Contempt Petition (Civil) No.898Dof 2018, complaining about the non-framing of the scheme by the CentralGovernment within a period of six weeks as granted by this Court. TheState of Tamil Nadu also prayed for a direction to the respondents namedin the said contempt petition to forthwith frame a scheme in accordancewith the judgment of this Court dated 16[th] February, 2018 by providingEfor Cauvery Management Board and Cauvery Water RegulationCommittee with all powers to give effect to the decision of the Tribunalas well as the judgment of this Court. Besides the contempt petition filedby the State of Tamil Nadu, another contempt petition came to be filedby a private party, namely, Mr. R.K.R. Anantaraman, Member ofLegislative Assembly on 3[rd] April, 2018. On the same date, the matterFwas mentioned by the counsel for the Union of India for taking up theapplication filed by Union of India, for hearing. This Court directed thesaid application to be listed on 9[th] April, 2018. In the meantime, I.A.No.50562 of 2018 came to be filed on behalf of the Union Territory ofPuducherry on 5[th]April, 2018 for the following reliefs:

G“(i) direct the Respondent/Government of India to take effectivesteps to implement the judgment dated 16.02.2018 passed bythis Hon’ble Court in C.A. No.2453 of 2007 and other connectedappeals without further delay;

(ii) direct the Respondent/Government of India to frame a schemeHunder Section 6-A of the Inter State Water Disputes Act constituting Cauvery Management Board (CMB) and CauveryWater Regulation Committee (CWRC) for effectiveimplementation of the directions of this Hon’ble Court withoutfurther delay; and

(iii) to pass such other order or orders as may be deemed fit andproper in the interests of justice.”

3. The aforementioned applications/contempt petition were listedon 9[th] April, 2018 when this Court passed the following order:

“We have heard Mr. K.K. Venugopal, learned Attorney Generalfor the Union of India appearing in M.A. No. 934/2018, Mr.Shekhar Naphade and Mr. Rakesh Dwivedi, learned seniorcounsel alongwith Mr. G. Umapathy, learned counsel appearingfor the State of Tamil Nadu, Mr. Shyam Divan, learned seniorcounsel alongwith Mr. Mohan V. Katarki, learned counsel forthe State of Karnataka, Mr. Jaideep Gupta, learned senior counselfor the State of Kerala and Mr. A.S. Nambiar, learned seniorcounsel for the Union Territory of Puducherry.

Regard being had to our judgment, we direct the Union of Indiato file a Draft Scheme before this Court CONMT.PET.(C) 898/2018 etc. 3 on or before 3.5.2018. We have so directed as we donot want the controversy to continue before this Court. We requestlearned senior counsel for the parties to convey to the competentauthorities of the respective States to maintain peace at thisjuncture, so that this Court can put the final stamp on the Schemeafter due deliberation.

Let the matter be listed on 3.5.2018.”

4. Again the matters were listed on 3[rd] May, 2018 when the Courtpassed the following order:

“Let the matter be listed on 8.5.2018 to enable learned counselfor the State of Karnataka to obtain instructions. Mr. K.K.Venugopal, learned Attorney General for India alongwith Mr.Tushar Mehta, learned Additional Solicitor General of India andMr. S. Wasim A. Qadri, learned counsel appearing for the Unionof India shall obtain instructions as to what steps have been takento frame the scheme, and the same shall be put forth by way ofan affidavit by the next date of hearing after serving a copy onboth sides. Call on date fixed.”

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5. On 8[th] May, 2018, a request was made by Mr. K.K. Venugopal,learned Attorney General for India for some more time as the draftscheme was ready but it was yet to be placed before the Cabinet ofMinisters. This Court after hearing the parties for some time, passed thefollowing order:

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B“It is submitted by Mr. K.K. Venugopal, learned Attorney Generalfor India that the draft Scheme is ready, but it shall be placedbefore the Cabinet as expeditiously as possible. The same isseriously opposed to by Mr. Shekhar Naphade, learned seniorcounsel appearing for the State of Tamil Nadu on many a ground.Regard being had to delay, we direct the Secretary, Ministry ofCWater Resources, River Development & Ganga Rejuvenation,Government of India, to remain personally present with the draftScheme, as directed by this Court in the judgment, before thisCourt at 10.30 a.m. on 14th May, 2018. We have directed forpersonal appearance of the aforesaid Secretary so that theDauthorities under the Scheme can implement the judgment passedby this Court as the same has the status of the decree. Call onthe date fixed.”

6. In the meantime, the State of Karnataka filed I.A. No.68455of 2018 to place on record an affidavit showing the status of the totalEwater in the Water Year 2017-18 and in particular, during the months ofMarch and April, 2018. All the I.As. and the contempt petitions wereagain taken up on 14[th] May, 2018 in terms of the order dated 8[th] May,2018. The draft scheme framed by the Central Government wasproduced before this Court. The counsel appearing for the Statesrequested the Court for a copy of the draft scheme so that they wouldFbe able to make submissions as to whether the scheme was inconsonance with the judgment of this Court. This Court passed thefollowing order on 14[th] May, 2018:

“In pursuance of our earlier order, Mr. U.P. Singh, Secretary,Ministry of Water Resources, River Development and GangaGRejuvenation is personally present. He has filed the draft Schemeframed by the Central Government. Mr. Shekhar Naphade, Mr.Jaideep Gupta and Mr. A.S. Nambiar, learned senior counselappearing for the States of Tamil Nadu, Kerala and UnionTerritory of Puducherry respectively, would submit that they maybe given copies of the draft Scheme only to examine whetherHthe said Scheme is in consonance with the judgment of this Court.

The copies of the Scheme be given in the course of the day. Letthe matter be listed on 16.5.2018. The personal appearance ofthe Secretary, Ministry of Water Resources, River Developmentand Ganga Rejuvenation is dispensed with.”

7. On 16[th] May, 2018, Mr. Shekhar Naphade, learned seniorcounsel appearing for the State of Tamil Nadu, Mr. Jaideep Gupta, learnedsenior counsel appearing for the State of Kerala and Mr. A.S. Nambiar,learned senior counsel appearing for the Union Territory of Puducherrymade submissions regarding the appropriateness of some of the clausesin the said draft scheme. Mr. Shyam Divan, learned senior counselappearing for the State of Karnataka expressed his inability to offer anycomments for want of instructions. He submitted that due to the recentdevelopments due to elections to the Karnataka Legislative Assembly, itwas not possible for the Advocate on Record for the State, who wasinstructing him, to take instructions from the State Government. ThisCourt made it clear that as long as the Advocate on Record for the Stateof Karnataka was not discharged, it was open to him to assist the Courtas an officer of the Court and offer his comments on the draft scheme,if so advised.

8. After due deliberations, Mr. K.K. Venugopal, learned AttorneyGeneral for India requested this Court to defer the matter till 17[th] May,2018, so as to make necessary changes in the draft scheme in deferenceto the observations made by this Court. Accordingly, the matter wasdeferred till 17[th] May, 2018. On 17[th] May, 2018, the learned AttorneyGeneral produced the corrected copy of the draft scheme after dulyincorporating necessary changes in the concerned clauses of the draftscheme to bring it in line with the observations made by this Court on theprevious date of hearing.

9. With reference to the corrected copy of the draft scheme, Mr.Shyam Divan, learned senior counsel appearing for the State ofKarnataka submitted his objections in writing. Mr. Jaideep Gupta, learnedsenior counsel appearing for the State of Kerala maintained his objectionstaken on the earlier occasion that the effect of the scheme would impingeupon the rights of the States in respect of the conservation and use ofwater which was exclusively a State subject, covered by Entry 17 inList II of the Seventh Schedule to the Constitution. In addition, he alsosupported the objections raised by the State of Karnataka in respect ofclauses 9(3)(i) and 9(3)(vii) as well as 9(3)(iii).

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A10. Mr. Venugopal, learned Attorney General countered theobjections raised by the State of Karnataka and State of Kerala. Hesubmits that the dispensation envisioned in the concerned clauses isessentially to ensure smooth and effective implementation of the scheme.He submits that the implementation of the scheme will be strictly inaccordance with the distribution of water to the respective States/U.T.Bin consonance with the Award of the Tribunal as modified by this Court.

11. Mr. A.S. Nambiar, learned senior counsel appearing for theUnion Territory of Puducherry emphasized that the authority constitutedfor implementation of the scheme must be invested with complete powerfor ensuring smooth implementation of the scheme in accordance withCthe Award passed by the Tribunal and as modified by this Court.

12. For completion of record, we deem it apposite to reproducethe draft corrected scheme produced by the learned Attorney Generalbefore this Court. The same reads thus:

“DRAFT

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CAUVERY WATER MANAGEMENT SCHEME(MINISTRY OF WATER RESOURCES, RIVERDEVELOPMENT AND GANGA REJUVENATION)

New Delhi, the May, 2018

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S. O. ………..Whereas the Central Government, in exercise ofthe powers conferred upon it by Section 4 of the Inter-StateRiver Water Disputes Act, 1956 (33 of 1956) (hereinafter referredto as ‘the Act’;) had constituted by notification number S.O.437(E), dated 2[nd] June, 1990, the Cauvery Water DisputesTribunal (CWDT) (hereinafter referred to as ‘the Tribunal’) toadjudicate upon the water dispute regarding the Inter-State riverCauvery and the river valley thereof among the States ofKarnataka, Kerala, Tamil Nadu and Union Territory Puducherry(then Pondicherry; F

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And whereas the Tribunal investigated the matters referred to itand forwarded to the Central Government a Report under Sub-Section (2) of Section 5 of the said Act, on 05.02.2007. Theparty States filed Special Leave Petitions (SLPs) in the SupremeCourt against the 5(2) Report of the Tribunal. The Supreme Courtconverted the SLPs filed by the party States into Civil Appeals.

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On 04.02.2013, the Supreme Court directed the Government ofIndia to notify the 5(2) Award of the Tribunal. In pursuance ofwhich, the Government of India notified the 5(2) Award of CWDTdated 05.02.2007 vide S.O.404 (E) dated 19.02.2013.

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And whereas Supreme Court pronounced its judgment and finalorder in Civil Appeals 2453/2007, 2454/2007 & 2456/2007 on16.02.2018 and directed the Central Government to frame a“scheme” under Section 6 A of the Act to implement the TribunalAward further modified by the Supreme Court order dated16.02.2018.

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Now, therefore, in exercise of the powers conferred by SectionC6A of the said Act, the Central Government hereby frames thescheme, inter-alia, constituting the Cauvery WaterManagement Authority (hereinafter referred to as the“Authority”) and the Cauvery Water Regulation Committee(hereinafter referred to as ‘the Committee’) to give effect to theDdecision of the Cauvery Water Dispute Tribunal as modified bythe Supreme Court in its order dated 16.02.2018, namely:-

(1) This Scheme may be called the Cauvery Water ManagementScheme, 2018,

(2) It shall come into force on the date of its publication in theOfficial Gazette.

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I. Establishment of Cauvery Water Management Authority

1. Name of the Authority: It shall be called as CauveryWater Management Authority F

2. Status and Constitution of the Authority:

1. The Authority shall be a body corporate having perpetualsuccession and a common seal and shall sue and be sued.

2. Composition of the Authority : The Authority shallconsist of the following members:

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(a) Chairman- To be appointed by the Central Governmentamongst serving officers:

(i) Who is a senior and eminent engineer with wide experiencein water resource management; handling of inter-State water H

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sharing issues; construction, operation and maintenance ofirrigation projects; or

(ii) an All India Service Officer, in the rank of Secretary orAdditional Secretary to the Government of India with experiencein wate resources and inter-State water sharing issues.

Chairman shall have tenure of 5 years or till 65 years of age,whichever is earlier.

(b) Two whole time Members- To be appointed by CentralGovernment for a term of three years extendable to five years.

(i) One Member (Water Resources) – an engineer not belowthe rank of Chief Engineer from the Central Water EngineeringServices (CWES) cadre.

(ii) One Member (Agriculture) – not below the rank of aCommissioner from the Ministry of Agriculture & Farmers’Welfare.

(c) Two Part Time Members – Representatives of theCentral Government of the rank of Joint Secretary to benominated by Ministry of Water Resources,

River Development & Ganga Rejuvenation and Ministry ofAgriculture and Farmers’ Welfare respectively.

(d) Four Part Time Members from States –Administrative Secretaries in charge of Water ResourceDepartments of each State Government of Kerala, Karnataka, Tamil Nadu and Union Territory of Puducherrywho shall be nominated by their respective State Governments.

3. Secretary of the Authority:

The Authority shall have a Secretary who shall be anengineer to be appointed by the Central Government for a termof three years extendable to five years not below the rank ofChief Engineer from the CWES cadre. He shall not have anyvoting rights.

4. Quorum and Voting: Six Members shall form a Quorumand the concurrence of the majority shall be necessary fortransaction of the business of the Authority except such business as the Authority may from time to time prescribe as routine. TheMembers shall have equal powers.

The next meeting will be held within three days if the meetingis postponed for want of quorum and for that meeting quorumwill not be necessary.

5. Disposal of Business by the Authority:

(a) On the following matters, the Authority shall record its decisionby a resolution at a meeting in which the Chairman and all theMembers from the party States are present:-

(i) Framing of Rules of Business;

(ii) Delegation of functions to a Member or Secretary orany official of the Authority;

(iii) Categorizing any part of the business of the Authorityas of a formal or routine nature;

(iv) Any other matter which any of the four party Statesrequire that it shall bedecided at a meeting of the Authority.

(b) Chairman of the Authority can invite representatives fromCentral Water Commission, National Institute of Hydrology,Indian Agricultural Research Institute (IARI) and/or any otheragency including universities as special inviteesto attend theAuthority meetings or otherwise, in carrying out the functionsspecified under this scheme.

(c) Subject to the foregoing provisions, the Authority shall frameits own rules for the conduct of its business.

6. Indemnity of Members:

No Member, officer or employee of the Authority shall be liablefor loss, injury or damages resulting from:

(a) action taken by such Member, officer or employee ingood faith and without malice under the apparent authority ofthe orders, even though such action is later determined to beunauthorised, or (b) the negligent or wrongful act of omission of any otherperson employed by the Authority and serving under such A

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Member, officer or employee unless such member, officer, oremployee failed to exercise due care in the appointment of suchother person or the supervision of his work.

7. Officers and Servants of the Authority:

The Authority may from time to time appoint or employ suchand so many officers and employees as it thinks fit and removeor dismiss them, under the rules and regulations applicable to theappointment, removal and dismissal of the Central Governmentofficers and employees. All such officers and employees shallbe subject to the sole control of the Authority. The Authoritymay, with the previous approval of the Central Government, makeregulations to regulate conditions of service of all such officersand employees in respect of the residential accommodation, houserent allowance, travelling allowance, daily allowance, conveyanceallowance and medical reimbursement. The scales of pay andthe other service conditions shall be as applicable to CentralGovernment employees.

Persons employed in the services of the three States and theUnion Territory of Puducherry may be appointed or employedby the Authority in such proportions as the Authority may deemfit. The Authority shall arrange with the State Government/UnionTerritory to spare the services of the persons employed in theState Government/Union Territory for whole time employmentwith the Authority, or for the performance of any work or servicesfor the Authority. The Authority may also make direct recruitmentof any personnel or obtain the same from the Centre or othersources as considered appropriate.

8. Administrative and Field Organisation Costs:

(i) All expenses of the Authority (including salary and otherexpenses of the Chairman and independent Members) shall beborne by the State Governments, in the ratio of Kerala – 15%Karnataka – 40%, Tamil Nadu – 40%; and Union Territory ofPondicherry – 5%. The expenses pertaining to Memberrepresenting a State shall be borne by the State concerned.

(ii) The cost of maintaining, operation and controlling of gaugingand other hydrological systems for communicating data shall beborne by the State concerned. The cost of construction and maintenance of the storages, power installations, diversion works,head-works and canal networks shall be borne wholly by theState Government in whose territory the works are located.

9. Powers, Functions and Duties of the Authority:

1. The Authority shall be charged with the power and shall beunder a duty to do anyor all things necessary, sufficient andexpedient for securing compliance and implementation of thefinal decision and directions of the Tribunal further modified bySupreme Court Order dated 16.02.2018 including:

(i) Storage, apportionment, regulation and control ofCauvery waters.

(ii) Supervision of operation of reservoirs and withregulation of water releases therefrom with the assistance ofRegulation Committee.

(iii) Regulated release by Karnataka, at the inter-Statecontact point presently identified as Billigundulu gauge anddischarge station, located on the common border of Karnatakaand Tamil Nadu.

2. The Authority may constitute one or more sub-committeesand assign to them such of its functions and delegate such of itspowers as it thinks fit.

3. In particular and without prejudice to the generality of theforegoing functions, the Authority shall perform inter-alia, thefollowing functions:

(i) The Authority at the beginning of the water year, i.e. firstJune each year would determine the total residual storagein the specified reservoirs. As, it is not possible to know theamount of season-wise river flows which will be availableduring a season; it will be assumed that the inflows will beaccording to 50% dependable year (yield 740 TMC). Theshare of each State will be determined on the basis of theflows so assumed together with the available carry overstorage in the reservoirs. The withdrawals will be allowedduring the first time interval of ten days of the season onthe basis of the share worked out for each party State,limited to the water requirements during the same period A

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1140SUPREME COURT REPORTS

Aindicated by each State by placing an indent of waterdemand with Cauvery Water Regulation Committee.

(ii) The Authority will take stock of the actual yield in the basinat the end of the previous time interval as well as theutilization/releases and storage built up during the intervalBand assess the trend of inflows and authorize withdrawalsto the States for the subsequent time interval accordingly.For giving effect to the aforesaid provision, the Authoritymay have to repeat this exercise for two or more timeintervals.

C(iii) The Authority shall ensure the implementation of the Awardof the Tribunal modified by the Supreme Court order dated16.02.2018 including the carry -over storage during goodyear and the water releases for environmental purposes.The Authority through the Regulation Committee and withthe help of CWC, and other Central/State organizations asDnecessary will identify situations of distress in the basin.Distress caused by diminution of water flows during theperiod will be shared by the party States after the distressconditions and their extent is determined by the Authority,keeping in view water shares allotted to parties.

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(iv) The following important reservoirs in the basin namely:Banasurasagar in Kerala, Hemavathy, Harangi, Kabini andKrishnarajasagara in Karnataka and Lower Bhavani,Amaravathy and Mettur in Tamil Nadu shall be operated inan integrated manner by the concerned State under theFoverall guidance of the Authority for each ten day periodthroughout the year to meet the seasonal waterrequirements of the various States for irrigation, hydro-power generation, domestic and industrial uses etc. Theremaining quantities of the surplus water shall be conservedas far as possible and spillage of water shall be reduced toGthe minimum.

(v) The Authority shall maintain an account of cropping pattern,area cropped and area irrigated for each party State. TheAuthority shall also maintain an account of domestic andindustrial water usage by each party State.

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OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI][A. M. KHANWILKAR, J.][A. M. KHANWILKAR, J.]

(vi) The Authority is to set up a well-designed communicationnetwork in the Cauvery basin for transmission of data anda computer based control room for data processing todetermine the hydrological conditions including distress, ifany. For this purpose, it may utilize the latest technology.For operational purposes, this work may be entrusted bythe Authority to CWC or any other Central/StateGovernment organization.

(vii) At the start of irrigation season i.e. 1[st] June of every year,all the party States through their representatives in theAuthority shall submit an indent for the supplies requiredby them at each reservoir site (capacity 3 TMC and above)for the month of June broken in 10 daily intervals. TheAuthority will examine reasonableness of the indentskeeping in view the cropping pattern and extent of area tobe irrigated and order releases keeping in view the overallceiling prescribed by the Tribunal and modified by theSupreme Court Order dated 16.02.2018 for the month afterdetermining the available carry-over storage and taking intoconsideration the likely inflows during the month. TheRegulation Committee shall release water on ten daily basesas ordered by the Authority.

In case of deficiency in the water availability during anymonth as reported by the Regulation Committee, theAuthority will consider reduction in the indent of the partiesin proportion to the quantities allocated to each State by theTribunal as modified by the Supreme Court order dated16.02.2018 for the designated crops.

The Regulation Committee shall keep a watch on the actualperformance of the monsoon during each ten daily intervaland report position to the Authority indicating therein theextent of variation from the normal. The Authority on receiptof such information will consider any change in the releaseordered by them earlier. Similar exercise will continue asthe monsoon progresses during the succeeding months tillthe end of the water year i.e. 31[st] May of every year.

(viii) The Authority has to ensure that the State Governmentsshould construct proper hydraulic structures at all important A

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1142SUPREME COURT REPORTS

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anicut sites in the basin with provision of appropriateregulation mechanism. Besides, regular monitoring of thewithdrawals at such diversion structures on the part of theState would be necessary.

(ix) The Authority may direct party States to furnish data inBrespect of carry-over storage in reservoirs, including inflowsand outflows, rainfall data, the area irrigated and waterutilized.

(x) The Authority shall arrange collection of data for importantrain gauge stations maintained by Indian MetrologicalCDepartment (IMD)/ Central Water Commission (CWC)/States in the Cauvery basin; as also inflow data measuredat important nodal points on the Cauvery river systemthrough the Cauvery Regulation Committee which willsuitably compile the rainfall data for different monsoonseasons along with the inflows measured at different sites.

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(xi) the Authority or any Member or any representative thereofshall have power to enter upon any land or property uponwhich any hydraulic structure or any work of gauging ormeasuring device has been or is being constructed, operatedor maintained by any agency in the Cauvery basinE

(xii) To hold and dispose of property, enter into contracts, sueand be sued and do all such acts as may be necessary forthe proper exercise and discharge of its jurisdiction, powersand functions.

(xiii) To construct or make direction to construct additionalFgauging stations to the States concerned with the assistanceof Central Government and CWC for implementing thedecision of the Tribunal.

(xiv) If the Authority finds that any Government of the partyStates namely Tamil Nadu, Kerala, Karnataka and UnionGTerritory of Pondicherry do not co-operate in implementingthe decision/direction of the Tribunal, it can seek the helpof the Central Government for implementation of theAward of the Tribunal as modified by the Hon’bleSupreme Court order of 16.02.2018.

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STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATESTATE OF TAMIL NADU v. P. K. SINHA AND ANR.STATE OF TAMIL NADU v. P. K. SINHA AND ANR.

OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI][A. M. KHANWILKAR, J.][A. M. KHANWILKAR, J.]

(xv) If any delay/shortfall is caused in release of water onaccount of default of any party State, the Authority shalltake appropriate action to make good the deficiency bysubsequently deducting indented releases of that party State.

(xvi) The Authority will advice the party States to take suitablemeasures to improve water use efficiency, by way ofpromoting micro-irrigation (drip and sprinkler), change incropping pattern, improved agronomic practices, systemdeficiency correction, command area development etc.

(xvii) The Authority will advice the party States to adopt efficienttechnologies for water conservation and preservation.

(xviii) The Authority shall comply with directions with respectto composition, establishment and administration thatthe Central Government may provide time to time.

(xix) The Authority may delegate such of its power, as it thinksfit to Cauvery Water Regulation Committee.

10. Annual Report of the Authority:

The Authority shall prepare and transmit to each of thefour parties as early as possible in any case before 30[th]September of each year, an Annual Report covering the activitiesof the Authority for the preceding year. The Authority shall makeavailable to each State on its request any information within itspossession any time and always provide access to its records tothe States and their authorized representatives.

11. Records of the Authority and their Location:

The Authority shall keep a record of all meetings andproceedings, maintain regular accounts, and have a suitable officewhere documents, records, accounts and gauging data shall bekept open for inspection by the Central Government andGovernment of each of the party States and Union Territory ortheir representatives at such time and under such regulations asthe Authority may determine.

The headquarters of the Authority shall be at New Delhi.

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A12. Contracts and Agreements:

The Authority shall enter into such contracts and agreementsas may be necessary and essential for the full and properperformance of the functions and duties conferred or imposedon it.

B13. Financial Provision:

(i) The Government of India shall initially contribute a sum ofRs. 2 crores (two crores only) for the functioning of theAuthority.

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

D(iii) On the constitution of the Authority, the Governments ofthe State of Kerala, Karnataka, Tamil Nadu and UnionTerritory of Puducherry shall contribute Rupees two croresin the ratio indicated in (ii) above, towards the fund of theAuthority in the first instance; and later on make advancepayments on a quarterly basis as demanded by the AuthorityEkeeping in view the Annual Budget of the Authority.

(iv) The Authority shall maintain detailed and accurate accountsof all receipts and disbursements and shall after the closingof each financial year, prepare an annual Statement ofAccounts and send copies thereof to the AccountantFGeneral and concerned basin States.

(v) The accounts maintained by the Authority shall be auditedby the Comptroller and Auditor General of India or hisnominee, who shall certify, subject to such observation ashe may wish to make on the annual accounts of theGAuthority. The Authority shall forward to the AccountantGeneral, the Central Government and the concerned basinStates – the copies of the Report of the Comptroller andAuditor General of India and shall include the same in itsAnnual Report.

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(vi) To perform any other function which is supplemental,incidental or consequential to all or any of the functionsspecified in sub-paragraphs (i) to (v) above.

14. Decision of the Authority:

The decision of the Authority on all matters for the purposesof implementing the award of the Tribunal as modified by theSupreme Court order dated 16.02.2018 including but not limitedto the matters covered under paragraph 9, shall be final andbinding on all the party States/UT.

15. Constructions outside jurisdiction of the Authority:

Save and except to the extent otherwise prescribed in theorder of the Tribunal and judgment of the Supreme Court, theplanning, construction and maintenance of the projects will becarried out by each State/UT Government through its ownagencies.

II Cauvery water Regulation Committee

1. Composition of the Cauvery Water RegulationCommittee:

There shall be a Cauvery Water Regulation Committee with thefollowing composition:

1) Full-Time Member (Water Resources) of: Chairman the Authority

2) One representative each of the States of: MemberKerala, Karnataka, Tamil Nadu and UnionTerritory of Puducherry not below the rankof Chief Engineer.

3) One representative of IMD of the rank of: Member Joint Secretary

4) One representative of Central Water: MemberCommission dealing with river gaugingnot below the rank of Chief Engineer

5) One representative of the Central Ministry : Memberof Agriculture & FW not below the rank ofCommissioner

6) Secretary to the Authority: Member

Secretary

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The headquarters of the Cauvery Water RegulationCommittee shall be at Bengaluru.

2. Functions of the Cauvery Water Regulation Committee:

The Regulation Committee shall ensure the implementationof the provisionscontained in the final order of the Tribunalfurther modified by the Supreme Court order dated 16.02.2018in accordance with the directions of the Authority namely:-

a) to collect daily water levels, inflows and storage positionat each of the following reservoirs – Hemavathy, Harangi,Krishnarajasagara, Kabini, Mettur, Bhavanisagar, Amaravathyand Banasurasagar.

b) to ensure ten daily releases of water on monthly basis fromthe reservoirs as directed by the Authority.

c) to collect data of water released from the aforesaidreservoirs on 12 hourly basis.

d) the Authority’s representatives at each of the reservoirsshall monitor proper implementation of the regulation instructionissued by the Regulation Committee; in the event of any variation,the representative shall immediately inform the Secretary of theCommittee for appropriate action.

e) to collect daily water flows passing through presentlyidentified inter-State contact point i.e., Billigundulu gauge anddischarge site and keep the Authority suitably informed.

f)to compile and reconcile monthly water account for eachreservoir.

g) to collect and compile weekly information about importantrain gauge stations of the IMD in order to be able to broadlyassess the position of monsoon and keep the Authority informedabout the status of the monsoon.

h) the State representative, in-charge of the major projectswill keep the Regulation Committee regularly informed aboutthe occurrence of the rainfall in the commands and whetherany change in the releases is required.

i) to prepare seasonal and annual report of the water accountand submit thesame to the Authority as indicated below:- STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATESTATE OF TAMIL NADU v. P. K. SINHA AND ANR.STATE OF TAMIL NADU v. P. K. SINHA AND ANR.

• South-West monsoon season- 1[st] June to 15[th] October (inclusive of fortnight of October)

• North East Monsoon season- 16[th] October to 31[st] January• Hot weather season- 1[st] February to 31[st] May

3. Meetings of the Regulation Committee:

1) The Regulation Committee shall meet once in ten days duringthe months of June and October when the southwest and northeastmonsoon set in; after the monsoon has set in, the meeting will beheld at least once a fortnight but the Committee shall have thepowers to convene meetings as often as necessary. In the caseof any emergency situation, a minimum of 48 hours notice shallbe given for holding a meeting.

2) In case, the State which is likely to be affected is notrepresented in the meeting, then the possibility of calling anothermeeting will be examined by the Committee.

Provided that if the situation is such that it is not possible todelay taking a decision, then the Committee may decide the issueby majority vote even in the absence of representative from theaffected State.

3) The quorum for meeting of Regulation Committee shall be sixMembers.

4) All the Members including the Chairman and MemberSecretary of the Committee shall have voting right; the Chairmanshall also have a casting vote.

Sd/-U.P. SinghSecretary

Ministry of Water Resources,River Development & GangaRejuvenation, Govt. of IndiaNew Delhi-110001.”

13. As aforementioned, the comments on the draft correctedscheme are mainly at the behest of State of Karnataka and State ofKerala. No suggestion has been offered by the State of Tamil Nadu to A

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Athe corrected draft scheme, except to submit that the implementation ofthe scheme should be with utmost dispatch in consonance with the Award,as modified by this Court, in its letter and spirit. He submitted that thereis distress situation in the State of Tamil Nadu due to scarcity of waterwhich can be remedied to some extent by the effective implementationof the scheme.B

14. After hearing the parties, we are of the considered opinionthat the suggestions/objections of the State of Karnataka and State ofKerala are devoid of merit. The fact that the subject of water, that is tosay, water supplies, irrigation and canals, drainage and embankments,water storage and water power, forms part of Entry 17 of List II of theCSeventh Schedule to the Constitution, cannot be the basis to whittledown the efficacy of the Award passed by the Tribunal and as modifiedby this Court and, in particular, the scheme to ensure smooth, effectiveand efficient implementation of the Award of the Tribunal, as modifiedby this Court. The draft scheme has been formulated singularly for thatDpurpose and the same will have to be taken forward to its logical end inaccordance with law with promptitude.

15. Reverting to the specific grievance with regard to clauses9(3)(i) and 9(3)(vii), the argument is that the same would compel theStates to furnish/place an indent for the supplies required by them onEeach reservoir site. That is wholly unnecessary as the Award passed bythe Tribunal quantifies the volume of river water to be shared andapportioned between the States. This objection does not commend usinasmuch as the necessity to furnish/place an indent of water demandand about the total water reservoir is to work out the quantity of riverwater to be released during the relevant period in consonance with theFproportion specified in the Award as modified by this Court and, inparticular, on the principles delineated in the decision of this Court underPoint No. X about the method and manner of apportionment to befollowed. That is to further the rights of the States/U.T. for just andreasonable use of water from the allocable water on equitable basis andGnot to impinge upon their rights and moreso for smooth and effectiveimplementation of the Award as modified by this Court.

16. Coming to the suggestion/objection in reference to clause9(3)(iii) of the draft scheme, reliance has been placed on therecommendation made by the Assessors to the Tribunal forming part ofHthe report of the Tribunal. The Assessors had advised that 10 TMC

each as carry-over storage in the reservoirs of the two States may beprovided to take care of any delay in onset of South-West monsoon.That may be the recommendation of the Assessors but the allocationand distribution of river water will have to be in full conformity with theAward as modified by this Court and as aforementioned on the principlesof apportionment to be followed as delineated in Point No. X of thejudgment of this Court.

17. Needless to observe, we cannot allow the parties to reopenthe issues already settled in the Award and as modified by this Court,indirectly in the guise of questioning the appropriateness of clause 9(3)(iii)in the draft scheme. The Authority constituted under the scheme will bebound by the contours regarding apportionment of river water in termsof the Award as modified by this Court and while doing so, is expectedto take into account all factors that may be relevant at the given point oftime, including to identify the situation of distress in the basin caused dueto identifiable factors before quantifying the water quantity for beingreleased or allotted to the party States/U.T. for the relevant period.

18. We appreciate the stand taken by Mr. Nambiar, learned seniorcounsel appearing for Union Territory of Puducherry, that the Authoritycannot be expected to issue directions mechanically and that the Authoritymust have complete power to enforce its directions so as to comply withthe Award, as modified by this Court, in its letter and spirit, concerningthe apportionment of water between the party States/U.T. We say nomore.

19. Considering the fact that the Union of India has alreadyformulated the draft scheme and has also offered explanation in I.A.No.47065 of 2018 and the affidavit filed on 7[th] May, 2018 in M.A. No.934/2018 about the reasons which were beyond the control of the appropriateauthority dealing with framing of the scheme, we do not wish to continuethe contempt action any further. For the same reason, the directionssought in I.As. filed by the concerned party also need not detain us. For,the corrected draft scheme is in consonance with the dictum and directionsin the Award as modified by this Court and also in conformity with Section6A of the 1956 Act. The draft scheme ought to be taken forward to itslogical end in accordance with law with utmost dispatch.

20. In view of the above, we dispose of all the I.As., M.As. andthe contempt petitions by this common order, on accepting the assurancegiven on behalf of the Union of India that the draft scheme will be taken A

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Ato its logical end in accordance with law, with utmost dispatch. We hopeand trust that the draft scheme reproduced in paragraph 12 above, isnotified in the Official Gazette and given effect to with promptitude beforethe onset of the impending monsoon.

21. Accordingly, all the I.As., M.As. and the contempt petitionsBare disposed of.

Kalpana K. Tripathy Matters disposed of.

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