The State of Karnataka by its Chief Secretary Vs. State of Tamil Nadu by its Chief Secretary &amp; Others
be segregated having an extricable composition and integrated whole for the purposes of the requirements of its inhabitants, more particularly when the same relates to allocation of water for domestic purposes to meet their daily errands. It will be inconceivable to have an artificial boundary and deny the population the primary need of drinking water. We hold so in the special features of the case keeping in view the global status the city has attained and further appreciating the doctrine of equitable proportionality on the bedrock of pressing human needs. 391. At this juncture, we need to recount that as per the national water policies, not only drinking water has been placed at the top of the other requirements in the order of priority, but it has also been predicted that adequate drinking water facilitates should be provided to the entire population, both in urban and rural areas and that drinking water should be made a primary consideration. It was declared as well that drinking water needs of human beings and animals should be the first charge on any available water. Article 14 of the Berlin Rules also mandates that in determining an equitable and reasonable use, the States shall first allocate water to satisfy vital human needs.392. In view of the above, we are constrained to observe that the approach of the Tribunal cannot be approved in the facts and circumstances indicated hereinabove. We are, thus, of the considered opinion that the allocation of water for drinking and domestic purposes for the entire city of Bengaluru has to be accounted for. Noticeably, Karnataka had claimed 14.52 TMC, i.e., 6.52 TMC for existing water schemes for Bengaluru and 8.00 TMC for the ongoing drinking water schemes for the city as in June, 1990. It had demanded 30 TMC as drinking water requirement for the city with the projection of 2025. Having regard to the percentage of decennial growth, as has been adopted by the Tribunal, in 2011, the demand of Karnataka for drinking water requirement for Bengaluru city would be in the vicinity of 24 TMC. Even excluding the computation for urban population of the State to be 8.70 TMC as arrived at by the Tribunal and that too without any basis and accepting the water requirement of rural population to be 8.52 TMC though also without any basis, the total figure representing drinking and domestic water requirement of the urban and rural population would be 32.5 TMC rounded upto 33 TMC in comparison to 46 TMC as claimed by Karnataka in its statement. Having rejected the assumption that 50% of the drinking water requirement would be met from ground water, this 33 TMC would, in our estimate, be a safe and acceptable figure qua drinking and domestic water requirement of the State of Karnataka for its urban and rural population. By applying the consumptive percentage of 20%, the volume of water to be allocated to Karnataka on this count would be 6.5 TMC in lieu of 1.75 awarded by the Tribunal, i.e., an increase by 4.75 TMC.393. Qua the view against transbasin diversion, suffice it to state that not only in the context of Bengaluru city, for the reasons cited hereinabove, a digression from the confines of the concept of in-river basin would be justified, since the National Water Policy of 1987, in categorical terms, enjoined that water should be made available to water short areas by transfer from other areas including transfers from one river basin to another. This very conspicuously emphasizes on an inclusive comprehension and in a deserving case like Bengaluru city, it would not be incompatible with the letter and spirit of the factors that ought to inform the determination of reasonable and equitable share of water in an interstate river as well as of the national policies formulated for planning and development of the precious natural resource involved. X.9 Allocation of water towards environmental protection: 394. On the aspect of allocation qua environmental protection, the Tribunal, in order to secure the purity of environmental and ecological regime in view of the injudicious use of available resources by human beings compounded by population explosion and distorted lifestyles and having regard to the spectre of river water pollution on account of industrial development and deforestation leading to siltation of reservoirs, etc., assigned 10 TMC to be reserved from the common pool to meet the environmental aspects. 395. We appreciate the endeavour and the initiative of the Tribunal having regard to the sustenance of purity of environment to which every individual is entitled and also simultaneously obliged to contribute to cultivate the feeling of environmental morality. That is the constant need of the present. In view of such an obtaining situation, we are not inclined to interfere in any manner in the allocation of the quantum of 10 TMC towards environmental protection. It stands affirmed. X.10 Revised water allocation amongst competing States: 396. The river Cauvery originates in Karnataka and eventually after its full flow through the other riparian States of the basin assimilates in the Bay of Bengal. With the evolution of the principle of equitable apportionment which is really to ensure equal justice to the basin States, the concept of prescriptive right or right to the natural flow of any inter-state river has ceased to exist. Having regard to the historical facts which demonstrate the constraints suffered by Karnataka resulting in its limited access and use of the surface flow of Cauvery in spite of being the upper riparian state, compared to Tamil Nadu, then Madras presidency, as well as severally drought conditions in its 28 districts/taluks, we are inclined to award an additional quantity of water to it in the measure of 14.75 TMC in all, 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). On these considerations, we consider Karnataka to be more deserving amongst the competing States to be entitled thereto.
1[ds]84. It is absolutely manifest that the ruling in Madhav Rao Scindia (supra) states that after coming into force of the 1947 Act, the paramountcy lapsed and after the integration of the States with the Indian Union, the shadow of paramountcy faded and theia became the full sovereign authority. After the Constitution came into force, the exercise of power by the State over its citizens stood circumscribed by the Constitution. In the said case, the doctrine of paramountcy has no play. The two agreements, on a studied scrutiny, do not indicate any aspect that can be called political or touching any facet of the sovereigntyof India. Theagreements covered the areas of larger public interest like construction of dams and irrigation of land existing within the two States, namely, the State of Mysore and the State of Madras and had nothing to do with political arrangement. Therefore, we are not inclined to accept the submission of Mr. Nariman that after coming into force of the 1947 Act and thereafter the Constitution of India, the agreements of 1892 and 1924 became inoperative and totally extinct.On a perusal of the aforesaid, it seems to us that there is no discord or lack of concord with the view expressed in State of Seraikella (supra). We are persuaded to think so as the Constitution Bench in the earlier case was dealing with a different kind of instrument which was indubitably of political character entered prior to coming into force of the Constitution.104. In the case of Madhav Rao Scindia (supra), the sphere of adjudication was absolutely different. In the case at hand, the agreements in question relate to the sphere of water sharing, irrigation, etc. and have nothing to do, even remotely, with the concept of sovereignty and integrity of India and, therefore, it will be erroneous to hold that the bar under Article 363 of the Constitution would apply. It is so as both the agreements between the States do not refer to any political element and cannot be termed as political in character. The view expressed in State of Seraikella (supra), as already stated hereinbefore, related to an aspect of integrity or sovereignty of India and that is why, the bar operated. The bar under Article 363 was not allowed to stand in Madhav Rao Scindia (supra) as it was dealing with a constitutional claim of the Rulers relating to Privy Purse and the same did not have any political characteristics. In any case, the position has been absolutely made clear by the Constitution Bench in State of Tamil Nadu (popularly known as Mullaperiyar dam case). Therefore, it can be stated, without desiring to give rise to any controversy and without fear of any contradiction, that the bar under Article 363 is not applicable. The submission astutely advanced on behalf of the State of Karnataka that the two agreements should not be looked into at all for the purpose of adjudication of the water dispute by the Tribunal because of Article 262 of the Constitution is unacceptable.On a keen scrutiny of the evidence on record, there is no proof that the State of Mysore, at the relevant time, had denounced the agreement. We have already discussed the doctrine of paramountcy and how the same is not applicable to these categories of agreements. Mr.Nariman, learned senior counsel, would submit that automatic extinction of agreement because of evaporation of the doctrine of paramountcy is one thing and applicability of the said principle to treat the agreement as unconscionable is quite a distinct aspect.As held earlier, the agreements did not automatically come to an end either after coming into force of the 1947 Act or after coming into force of the Constitution because of thend further owing to the fact that there had been no denouncement. The bargaining power may not have existed in 1892 or 1924 but definitely, the said power to bargain or to choose came alive after the 1947 Act and, undoubtedly, after the Constitution came into being. However, the State of Karnataka chose not to do so. If we allow ourselves to say so, it chose not to rise like a phoenix but, on the contrary, it maintained sphinx like silence at the relevant time. Therefore, we are not persuaded to accept the submission that the agreements should be declared as void because of unconscionability.In the present case, the two provisions, namely, Sections 107 and 119 of the Reorganization Act of 1956 unequivocally spell out the continuance of the assets and liabilities. That apart, the new State of Mysore after 1956 recognised and enforced the agreement and, in any case, did not repudiate it. And in all possibilities, the State could not have done it as it related towaters and the Parliament in the Reorganisation Act did not make any law in that regard.147. We are inclined to think so inasmuch as the relevant clauses which are open to reconsideration are absolutely essential parts of the contract and it is extremely difficult to place appropriate construction on the contract without them. The clauses in the contract do not indicate permanency but, on the contrary, indicate fixed term and that is how we intend to construe the same. The continuance of contract, as we find, was further a subjective consideration and merely agreed upon and, therefore, to hold that it continued solely because of the experience gathered would not be appropriate and it would be contrary to the concept of understanding the clauses in a contract to give effect to its continuance. The continuance after 50 years was dependent on certain aspects and, therefore, we have no hesitation in holding that the agreement expired after 50 years. The submission on behalf of the State of Tamil Nadu is that the obligations of the contract continued but, in this context, it is worth noting that the parties to the agreement had entered into correspondence with the Central Government agitating their grievances and they met at the various levels to discuss and to arrive at an acceptable arrangement. That not having been accepted, the complaint was lodged. Taking into consideration the entire conspectus of facts and circumstances, we hold that the agreement expired after 50 years in the year 1974.The aforesaid submission advanced by the State of Karnataka should not detain us for long. On a perusal of the complaint, it does not contain the wordsut the antecedents of the complaint, the view of the Central Government while referring water dispute and the expression of opinion of this Court In Re: Presidential Referenceal) (supra). In the backdrop of the language of the 1956 Act, the expiration by the efflux of time and the role of this Court, we are not inclined to entertain such a plea. We must say without any hesitation that it may, in the first blush, have the potentiality to invite the intellectual interaction but the same fails to gain significance when one perceives the controversy from a broader perspective and the various orders passed from time to time by the Tribunal and by this Court. Therefore, the matter deserves to be adjudicated on merits.On a perusal of the award, it appears that the Tribunal, after coming to hold that the 1974 agreement is valid which we have not accepted, noted the submissions of the State of Karnataka, Tamil Nadu and Kerala and Union Territory ofPrinciples of apportionment to be followed:362. Having dealt with the issues of paramountcy, perceived unconscionability of the Agreements, continuation thereof after coming into force of the 1956 Act as well asof the disputeon the basis of such Agreements being in infraction of Article 363, it is now essential at this juncture, in the backdrop of the above contentious assertions, to dwell on the principles of allocation of water of theCauvery river and thethereof for uniform application. That apart, the fact of the24 having expired after 50 years in the year 1974 has been already determined. As rightly minuted by the Tribunal, having regard to the progression of events after the execution of the said Agreement, the accusations of breach and violations of the Agreement have to be treated as inconsequential at this distant point of time. Besides, there is no objective and judicially manageable standard to examine and evaluate the same in a golden scale or embark upon in an exercise of exactitude and precision to weigh the impact thereof for determination of allocation of the share.363. As enunciated by this Court in In Re: Presidential Referenceal) (supra), the waters of anriver passing through the corridors of the riparian States constitute national asset and cannot be said to be located in any one State. Being in a state of flow, no State can claim exclusive ownership of such waters or assert a prescriptive right so as to deprive the other States of their equitable share. It has been propounded therein that the right to flowing water isto be a right incident to property in the land and is a right publici juris of such character, that while 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 Nature, each beneficiary has a right to just and reasonable use of it. We endorse the view of the Tribunal in the attendant perspectives that the acknowledged principle of distribution and allocation of waters between the riparian States has to be done on the basis of their equitable share, however contingent on the facts of eachview that the principle of equality does not imply equal division of water but connotes equal consideration and equal economic opportunity of theStates and that justice ought to be done to them, has been emphasized in the course of the arguments. To conceive that equality rests on equal sharing of water within an arithmetical formula, would be fundamentally violative of the established conception of equitable apportionment because the said concept inheres a multiple factors. It is the obligation of the Tribunal to address the same and the duty of this Court is to adjudge within the permissible parameters of the justification of the said adjudication. To reiterate, having regard to the above propositions as well as the provisions of the 1956 Act, the dissension has to be addressed in the backdrop of equal Status of the States and the doctrine of equitability.As far as the allocation is concerned, the uses are to be governed by the rider that these priorities must be modified, if necessary, in particular region with reference to area specific considerations. In conclusion, the policy laid stress that in view of vital importance of water for human and animal life, for maintaining ecological balance and for economic and developmental activities of all kinds and considering its increasing scarcity, the planning andis resource and its optimal, economical and equitable use has become a matter of utmost urgency. It emphasized that the success of the National Water Policy would depend entirely on the development and maintenance of a national consensus and commitments to its underlying principles and objectives. Significantly, the Policy, which is a national charter for Planning andof Water Resourcesfor its disciplined and judicious utilization recognizes and accepts it to be scarce and valuable bounty of nature to be developed, conserved and put to planned use on an environmentally sound basis with due regard to the needs of the State concerned. The Policy, thus, sustains the concept of basin state as contemplated in the Helsinki Rules, Campione Rules and Berlin Rules.The National Water Policy of 2002 which is a revised and updated form of the earlier model, reiterates the emphasis on the need for planning, development andof the water resourcesfrom the national stand point. Pertaining to water allocation priorities, this Policy added to the list, in particular, ecology and agro industries andindustries, qualifying that the priorities as enumerated could be modified or added if warranted by the specific considerations of the areas/regions. The primacy of drinking water was reiterated. On the aspect of ground water development, it was stated that a periodicalof the groundwater potential on the scientific basis should be made taking into consideration the quality of water available and the economic viability of its extraction. Same caution against over exploitation of ground water was sounded. It was, inter alia, mandated that adequate safe drinking water facility should be provided to the entire population, both in urban and in rural areas, and irrigation and multipurpose projects should invariably include in it drinking water component wherever there is no alternative source of drinking water. It was clarified that drinking water needs of human beings and animals should be the first charge on any available water. Qua irrigation, the Policy stated that planning either in an individual project or in a basin as a whole should take into account the irrigability of land, cost effective irrigation options possible from all available sources of water and appropriate irrigation techniques for optimising water use efficiency. The aspect that the irrigation intensity should be such as to extend the benefits of irrigation to a large number of farm families as much as possible, keeping in view the need to maximize production, was also underlined. It was most importantly provided that water sharing/distribution amongst the States should be guided by national perspective with due regard to the availability of water resources and the needs within the river basin. The Policy, therefore, did not bar as such the sharing or allocation of water in areas within the basin state.e National Water Policy of 2002 which is a revised and updated form of the earlier model, reiterates the emphasis on the need for planning, development andof the water resourcesfrom the national stand point. Pertaining to water allocation priorities, this Policy added to the list, in particular, ecology and agro industries and, qualifying that the priorities as enumerated could be modified or added if warranted by the specific considerations of the areas/regions. The primacy of drinking water was reiterated. On the aspect of ground water development, it was stated that a periodicalof the groundwater potential on the scientific basis should be made taking into consideration the quality of water available and the economic viability of its extraction. Same caution against over exploitation of ground water was sounded. It was, inter alia, mandated that adequate safe drinking water facility should be provided to the entire population, both in urban and in rural areas, and irrigation and multipurpose projects should invariably include in it drinking water component wherever there is no alternative source of drinking water. It was clarified that drinking water needs of human beings and animals should be the first charge on any available water. Qua irrigation, the Policy stated that planning either in an individual project or in a basin as a whole should take into account the irrigability of land, cost effective irrigation options possible from all available sources of water and appropriate irrigation techniques for optimising water use efficiency. The aspect that the irrigation intensity should be such as to extend the benefits of irrigation to a large number of farm families as much as possible, keeping in view the need to maximize production, was also underlined. It was most importantly provided that water sharing/distribution amongst the States should be guided by national perspective with due regard to the availability of water resources and the needs within the river basin. The Policy, therefore, did not bar as such the sharing or allocation of water in areas within the basin state.In conclusion, the Policy recorded that its success would depend entirely on evolving and maintaining national consensus and commitment to its underlying principles and objectives. It also laid emphasis on the needs of the community that requires to be taken into account for the development and management water resources.377. The national policies of the country as above, therefore, evidently supplement and consolidate the prescriptions of the Helsinki Rules, Campione Rules and Berlin Rules in the matter ofof reasonable and equitable share of water in an interstateriver. To reiterate, the Helsinki Rules and the other Rules envisage a basin state on the issue of equitableate river. Though the Rules predicate that in determining the share of one basin state, the otherstates would not be subjected to substantial injury, yet the clear emphasis is to fulfill the economic and social needs of the population of the State and in the sphere of irrigation, its farmer community. Indubitably, the principle of apportionment would apply uniformly to all river basins in a State. The sharing of anriver, as the professed norms of distribution suggest, has to be with the spirit of harmonious disposition and equanimous dispensation. The norms or the factors suggested, understandably, can never be exhaustive and designed only a balanced framework of pragmatic measures to ensure beneficial use of water resources in ansed application thereof and reciprocal adjustments for common good. In the regime of a welfare state wedded to the guarantees enshrined in the National Charter, any yardstick for distribution of any national asset like water would have to be essentially in furtherance thereof. The criteria identified in the Rules and supplemented by the national policies in letter and spirit, though in quite detail, can only be construed as illustrative and cannot be perceived as aformula or put in aal exactitude to exclude any other consideration or exigency to effect a desirableof water of anriver depending on the prevalent eventualities. Having regard to the geographic, hydrographic, hydrological, hydrogeological, climatic, ecological and other fluvial phenomena attendant on time, the spectrum of priorities and the factors associated therewith are bound to vary. Be it clearly stated that while no precise formula can be adopted, there has to be a sincere and pragmatic endeavour to have a rational amalgam of globally accepted norms and the local necessities founded on the doctrine of fairness and equity. The factors already enumerated, needless to say, may inter se demand precedence of one over the other depending on the ground realities, the ultimate test being to ensure that the allocations on the basis thereof in favour of one basin State ought not to be substantially detrimental to theStates. The order of precedence in the areas of necessity, as set out in the National Policy, is not incompatible with the acknowledged determinants for ascertaining the reasonable and equitable share of anriver. Nevertheless, the weight age of one item of need would depend in a given situation on the degree and priority thereof thereby necessitating grant of preference of one over the other in departure of the sequence set out in the policy. This again is to underline the attribute of variability in the approach of application of the otherwise identified criteria, the ultimate goal being equitablehe resources. This concept gains more significance where the resource is scarce and inadequate qua the demand thereof. It is warrantable as the dispute involves the inhabitants of one State with the inhabitants of another State. Such involvement by statutory command engulfs the principle of obtaining situational adjustment having due regard to priority. In the above predominant conspectus, in our estimate, the factors as set out in the Helsinki Rules and endorsed as well as supplemented by the Campion Rules and the Berlin Rules and further consolidated by our national policies as above are efficient, rational, objective and pragmatic guidelines to conduct any exercise for determining the reasonable and equitable share of basin States in the water of anriver like Cauvery as in the present case.It needs to be stated that the gravamen of the rival assertions span from wrong application of the principles of equitable apportionment to the facts of the case, defectiveof the materials on recordbearing on the requirements registered by the competing States, faulty approach in the matter of evaluation of the parameters bearing in particular on the crop water requirement, ground water availability and use and unmerited rejection of various projects as testimony of rightful claims to resultant inaccurate allocation of the water of theriver involved. As detailed hereinbefore, the impugned decision of the Tribunal would demonstrate that it had undertaken a detailed exercise on the basis of the pleadings of the parties, the evidence, oral and documentary, including several contemporary official records and statistics supplemented by the testimony of various acclaimed experts in the field of water research and use over the years. Having regard to the jurisdiction being exercised, we would, in this factual backdrop, test the competing contentions on the basis of broad features of the controversy and the established legal postulates applicable thereto and interfere in theny discernible vitiating infirmity, incurably afflicting the adjudicative pursuit of the Tribunal thereby rendering its appraisalof the materials on recordon any issue as well as the final determination to be patently unsustainable.As we notice, the Tribunal, after adopting the principle of equitable apportionment, in the process of computing the reasonable and equitable shares of the basin States as the first initiative, determined the irrigated areas of the States and in doing so, noted from the report ofy Fact Findingsubmitted in the year 1972 that the utilization of waters of Tamil Nadu including Karaikal region of the Union Territory of Puducherry, Mysore and Kerala had been 566.60 TMC, 176.82 TMC and 5 TMC respectively. As the background of the Agreements of 1892 and 1924 would reveal, the State of Karnataka had been raising persistent protests against the restraints put on it on the use of the waters of the river for which it alleged that it was not possible on its part to irrigate lands even as envisaged in the4. This was clearly by way of its remonstrance against Tamilendeavours to wrest its dominion over the water by exercising its prescriptive right to the natural flow thereof within its territories. Noticeably, the principle of equitable apportionment, as has evolved over the time, has not been and rightly not disputed by theas the yardstick for the allocation in praesenti. In view of the fact that river Cauvery is deficit in its water content compared to the demands of the riparian States involved, restrictions and savings in the matter of use thereof are not only necessary but also natural corollaries. In that view of the matter, it is incumbent to identify the areas under irrigation with the expansion thereof with time, together with the crop pattern and the suitability thereof, having regard to theon of the deficient surface flow available. On the basis of the reports of the various Committees and the recorded data referred to hereinabove, the bearing of the 1924 Agreement in particular over the march of events cannot also be totally disregarded. The Tribunal, after taking into account all these factors,Tamil Nadu, applied the restrictions to work out the irrigated area to which it would be entitled to assert its share of allocation, namely, no area for summer paddy; area of summer paddy raised prior to 1924 to be replaced bycrop; annual intensity of irrigation to be restricted to 100%; cropping period to be restricted within the irrigated season, i.e., 31st June to 31st January and ambitious lift irrigation schemes to be discouraged. It, thus, quantified such area for Tamil Nadu to be 24.71 lakh acres against its claim of 29.26 lakh acres. As far as Karnataka is concerned, the Tribunal noticed that in the pre 1924 Agreement era, irrigation in the then State of Mysore was primarily from direct diversion channels from the rivers together with the system of tank irrigation and that in the absence of any reservoir, the waters of Cauvery and its tributaries like Kabini, Hemawathi, Harangi and Suvaranwathi used to flow through the State but their ultimate destination was the Delta State of the then State of Madras as a result whereof, even as admitted by the State of Tamil Nadu, Karnataka could develop only 3.14 lakh acres of land by 1924. This inability of the State of Karnataka to develop its land for irrigation in the background of its persistent cavil of being deprived of its legitimate share and use of the water of Cauvery cannot be ignored. It is a recorded fact that though under the 1924 Agreement, Karnataka in terms of the relevant provisions thereof ought to have developed 7.45 lakh acres by 1974, it could achieve only 2.15 lakh acres. However, the Tribunal in all allowed 18.85 lakh acres of area to Karnataka being under irrigation prior to 1974 against its claim of 20.98 lakh acres. In case of Karnataka as well, the Tribunal excluded thend crop in view of the scarcity of water in the basin with due regard to the rainfall pattern and even suggested restrictions on the crop variety and the duration thereof. On an overall consideration of the relevant materials to which our attention has been drawn, we are of the view that having regard to the imperative of economy of consumption of water, the approach of the Tribunal cannot be found fault with having regard to the exitingAs the records reveal, after the evidence of the expert witnesses was recorded, as required by the Tribunal, the States filed their affidavits furnishing details of water requirements as well as the crops grown by them together with an indication of a minimum crop water requirement. The affidavit filed on behalf of Tamil Nadu was marked as Ext. TN1665 and that of Karnataka as Ext. KAR518. Hence, we shall analyse the ultimate determination by the Tribunal and scrutinize its ultimate justification. As has been noted earlier, there has been a considerable dispute over Ext.1665 and the area of dispute relates to the violation of the principles of natural justice,of opportunity ofadmissibility of the affidavit in evidence and, above all, the transgression of the sense of propriety by the State of Tamil Nadu. We have already stated that what had already been available on record can be considered from the factual assertions of the affidavit. Be that as it may, there has to be an adjudication by this Court and not allow the main protagonist States to keep the fight in continuance. The Tribunal, as is demonstrable, on the basis of the overall materials before it, took note, amongst others, of the crop pattern, duration of the crops, consumption of water thereby, soil conditions conducive thereto, rainfall pattern, Delta and system efficiency along with the drought conditions of Karnataka as projected by it, in conjunction with the testimony of the expert witnesses of both the States of Tamil Nadu and Karnataka, and in the interest of economical use of the water of the deficit basin, allocated 250.62 TMC to Karnataka for its irrigated area of 18.85 lakh acres and 390.85 TMC to Tamil Nadu for its irrigated area of 24.71 lakh acres. Significantly, it is worthwhile to notice, in this context, the recommendations ofy Fact Findingrequired restriction on double crop paddy area; introduction of short duration variety in place ofand preference to crops needing less water. Further, the Tribunal has considered the crop water requirement, namely, crop duration, ET crop, puddling requirements, percolation losses, effective rainfall and system efficiency. Keeping in view the accepted principles, we find that neither the analysis undertaken by the Tribunal nor the findings relatable thereto can be regarded as implausible by any standard. Certain parameters have been exhaustively examined by the Tribunal on the basis of the materials brought on record with supporting reasons and, therefore, the conclusion on this score cannot be termed as untenable warranting interference in the exercise of this Courts jurisdiction under Article 136 of the Constitution of India. We may pause here to clarify. In our first verdict that pertained to the delineation of the maintainability of appeals by special leave while holding the appeals to be maintainable, we had kept it open for advertence at a later stage the issue whether there should be broad approach or a narrow one. After hearing all the sides at length, at this juncture, we are inclined to say that while adjudicating a matter of such a nature we cannot be totally guided exclusively either byextraordinary discretionary orrestrictive approach but think it appropriate to have an intermediary approach as the controversy covers a span of more than 100 years involving change in boundaries, population growth and subsequent events. We may hasten to add that though the parameters of applicability of Article 136 can be broad to appreciate the materials and scrutinize the manner of appreciation by the Court/Tribunal depending upon the lis raised. In the present appeals preferred by special leave, we think it condign to adopt an approach which is neither broad nor narrow but an ‘intermediaryespecially having regard to the natureof the disputethat involves the inhabitants of three States and a Union Territory.383. In the realm of determination of irrigated area, the assessment by the Tribunal, as we find, encapsules the factual and characteristically complex situation. Lands have already been irrigated. It is an issue of sustenance at the ground reality level. To reduce the allocation of water on this core would be inequitable. Therefore, in the obtaining fact situation, in our comprehension, no interference is warranted. That apart, having regard to the degree of wiredrawn complexities involved, requiringexpertise to dislodge the otherwisefindings of the Tribunal founded on an exhaustive appreciationof the materials onrecord, we arenot inclined to upset the determination made by it in this regard. On an overall scrutiny of the materials to which our attention had been drawn, we are in general agreement with the approach and assessment made by the Tribunal and the deductions made by it on the basis thereof. Sans rhetoric and emotionally appealing submissions, we find that the rival contentions are equally balanced and to reiterate, on an overall considerationof the materials onwe do not feel persuaded to differ with the Tribunals adjudication.In respect of the claim of Kerala, it is a matter of record that rainfall is evenly distributed over the months of May to November so much so that occasional support by artificial irrigation is required in the instances of shortfall in rains and that too during small periods. Against its demand of 99.8 TMC under different heads, it had demanded 35 TMC for transbasin diversion to generatepower. The Tribunal rejected the States request for transbasin diversion forprojects which, in terms of the National Water Policy of 2002, was even otherwise lower in preference to drinking water and irrigation. The Tribunal in adjudging the States share did notice that it had been unsuccessful in furthering its projects so much so that pending the completion and utilization thereof, the unutilized water allocated to it subject to the mechanism set up by the Cauvery Management Board/Regulatory Authority, would be received by Tamil Nadu. The Tribunal examined the information furnished by it in the common format and adjudged 29.76 TMC which was rounded upto 30 TMC as its share after due regard to its demand, amongst others, pertaining to different projects in Kabani, Bhavani, and Pambar basins having regard to their individual features and corresponding crop water requirement. This allocation included the share for domestic and industrial water purposes as well with the population projection for 2011. The findings of the Tribunal are not belied by the materials in support thereof and, therefore, we are inclined to accept the same.With regard to the claim of Union Territory of Puducherry for Karaikal region, it is a matter of record that because of its close proximity to the sea, the ground water by its nature is unsuitable for drinking and irrigation purposes and, thus, the Tribunal having regard to its irrigated area of 43000 acres allowed its second crop in departure from the yardstick applied for Karnataka and Tamil Nadu and granted 6.35 TMC by way of crop water requirement. It also relieved the Union Territory of the application of 20% consumptive utility formula while assessing its domestic and industrial water requirements. In the absence of any convincing reason to determine otherwise, the adjudication of the Tribunal on this count does not deserve anyour view, having regard to the overwhelming empirical data following multiple research studies by different authorities authenticating beyond doubt availability of replenishable ground water in the Delta areas of Tamil Nadu, 20 TMC of ground water quantified by the Tribunal is an eminently safe quantity to be accounted for in finally allocating/apportioning the share of Cauvery water. While expressing this view, we are not unmindful of the stand of Tamil Nadu and the aspect thatof ground water in the absence of adequate replenishment and further in the areas proximate to the coastal zone is generally avoidable. However, in the attendant facts and circumstances, in view of the studied scrutiny of all pertinent facets of the issue by balancing all factors, we are of the unhesitant opinion that at least 10 TMC of ground water available in the Delta areas of Tamil Nadu can be accounted for in finally determining the
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be segregated having an extricable composition and integrated whole for the purposes of the requirements of its inhabitants, more particularly when the same relates to allocation of water for domestic purposes to meet their daily errands. It will be inconceivable to have an artificial boundary and deny the population the primary need of drinking water. We hold so in the special features of the case keeping in view the global status the city has attained and further appreciating the doctrine of equitable proportionality on the bedrock of pressing human needs. 391. At this juncture, we need to recount that as per the national water policies, not only drinking water has been placed at the top of the other requirements in the order of priority, but it has also been predicted that adequate drinking water facilitates should be provided to the entire population, both in urban and rural areas and that drinking water should be made a primary consideration. It was declared as well that drinking water needs of human beings and animals should be the first charge on any available water. Article 14 of the Berlin Rules also mandates that in determining an equitable and reasonable use, the States shall first allocate water to satisfy vital human needs.392. In view of the above, we are constrained to observe that the approach of the Tribunal cannot be approved in the facts and circumstances indicated hereinabove. We are, thus, of the considered opinion that the allocation of water for drinking and domestic purposes for the entire city of Bengaluru has to be accounted for. Noticeably, Karnataka had claimed 14.52 TMC, i.e., 6.52 TMC for existing water schemes for Bengaluru and 8.00 TMC for the ongoing drinking water schemes for the city as in June, 1990. It had demanded 30 TMC as drinking water requirement for the city with the projection of 2025. Having regard to the percentage of decennial growth, as has been adopted by the Tribunal, in 2011, the demand of Karnataka for drinking water requirement for Bengaluru city would be in the vicinity of 24 TMC. Even excluding the computation for urban population of the State to be 8.70 TMC as arrived at by the Tribunal and that too without any basis and accepting the water requirement of rural population to be 8.52 TMC though also without any basis, the total figure representing drinking and domestic water requirement of the urban and rural population would be 32.5 TMC rounded upto 33 TMC in comparison to 46 TMC as claimed by Karnataka in its statement. Having rejected the assumption that 50% of the drinking water requirement would be met from ground water, this 33 TMC would, in our estimate, be a safe and acceptable figure qua drinking and domestic water requirement of the State of Karnataka for its urban and rural population. By applying the consumptive percentage of 20%, the volume of water to be allocated to Karnataka on this count would be 6.5 TMC in lieu of 1.75 awarded by the Tribunal, i.e., an increase by 4.75 TMC.393. Qua the view against transbasin diversion, suffice it to state that not only in the context of Bengaluru city, for the reasons cited hereinabove, a digression from the confines of the concept of in-river basin would be justified, since the National Water Policy of 1987, in categorical terms, enjoined that water should be made available to water short areas by transfer from other areas including transfers from one river basin to another. This very conspicuously emphasizes on an inclusive comprehension and in a deserving case like Bengaluru city, it would not be incompatible with the letter and spirit of the factors that ought to inform the determination of reasonable and equitable share of water in an interstate river as well as of the national policies formulated for planning and development of the precious natural resource involved. X.9 Allocation of water towards environmental protection: 394. On the aspect of allocation qua environmental protection, the Tribunal, in order to secure the purity of environmental and ecological regime in view of the injudicious use of available resources by human beings compounded by population explosion and distorted lifestyles and having regard to the spectre of river water pollution on account of industrial development and deforestation leading to siltation of reservoirs, etc., assigned 10 TMC to be reserved from the common pool to meet the environmental aspects. 395. We appreciate the endeavour and the initiative of the Tribunal having regard to the sustenance of purity of environment to which every individual is entitled and also simultaneously obliged to contribute to cultivate the feeling of environmental morality. That is the constant need of the present. In view of such an obtaining situation, we are not inclined to interfere in any manner in the allocation of the quantum of 10 TMC towards environmental protection. It stands affirmed. X.10 Revised water allocation amongst competing States: 396. The river Cauvery originates in Karnataka and eventually after its full flow through the other riparian States of the basin assimilates in the Bay of Bengal. With the evolution of the principle of equitable apportionment which is really to ensure equal justice to the basin States, the concept of prescriptive right or right to the natural flow of any inter-state river has ceased to exist. Having regard to the historical facts which demonstrate the constraints suffered by Karnataka resulting in its limited access and use of the surface flow of Cauvery in spite of being the upper riparian state, compared to Tamil Nadu, then Madras presidency, as well as severally drought conditions in its 28 districts/taluks, we are inclined to award an additional quantity of water to it in the measure of 14.75 TMC in all, 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). On these considerations, we consider Karnataka to be more deserving amongst the competing States to be entitled thereto.

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variety in place ofand preference to crops needing less water. Further, the Tribunal has considered the crop water requirement, namely, crop duration, ET crop, puddling requirements, percolation losses, effective rainfall and system efficiency. Keeping in view the accepted principles, we find that neither the analysis undertaken by the Tribunal nor the findings relatable thereto can be regarded as implausible by any standard. Certain parameters have been exhaustively examined by the Tribunal on the basis of the materials brought on record with supporting reasons and, therefore, the conclusion on this score cannot be termed as untenable warranting interference in the exercise of this Courts jurisdiction under Article 136 of the Constitution of India. We may pause here to clarify. In our first verdict that pertained to the delineation of the maintainability of appeals by special leave while holding the appeals to be maintainable, we had kept it open for advertence at a later stage the issue whether there should be broad approach or a narrow one. After hearing all the sides at length, at this juncture, we are inclined to say that while adjudicating a matter of such a nature we cannot be totally guided exclusively either byextraordinary discretionary orrestrictive approach but think it appropriate to have an intermediary approach as the controversy covers a span of more than 100 years involving change in boundaries, population growth and subsequent events. We may hasten to add that though the parameters of applicability of Article 136 can be broad to appreciate the materials and scrutinize the manner of appreciation by the Court/Tribunal depending upon the lis raised. In the present appeals preferred by special leave, we think it condign to adopt an approach which is neither broad nor narrow but an ‘intermediaryespecially having regard to the natureof the disputethat involves the inhabitants of three States and a Union Territory.383. In the realm of determination of irrigated area, the assessment by the Tribunal, as we find, encapsules the factual and characteristically complex situation. Lands have already been irrigated. It is an issue of sustenance at the ground reality level. To reduce the allocation of water on this core would be inequitable. Therefore, in the obtaining fact situation, in our comprehension, no interference is warranted. That apart, having regard to the degree of wiredrawn complexities involved, requiringexpertise to dislodge the otherwisefindings of the Tribunal founded on an exhaustive appreciationof the materials onrecord, we arenot inclined to upset the determination made by it in this regard. On an overall scrutiny of the materials to which our attention had been drawn, we are in general agreement with the approach and assessment made by the Tribunal and the deductions made by it on the basis thereof. Sans rhetoric and emotionally appealing submissions, we find that the rival contentions are equally balanced and to reiterate, on an overall considerationof the materials onwe do not feel persuaded to differ with the Tribunals adjudication.In respect of the claim of Kerala, it is a matter of record that rainfall is evenly distributed over the months of May to November so much so that occasional support by artificial irrigation is required in the instances of shortfall in rains and that too during small periods. Against its demand of 99.8 TMC under different heads, it had demanded 35 TMC for transbasin diversion to generatepower. The Tribunal rejected the States request for transbasin diversion forprojects which, in terms of the National Water Policy of 2002, was even otherwise lower in preference to drinking water and irrigation. The Tribunal in adjudging the States share did notice that it had been unsuccessful in furthering its projects so much so that pending the completion and utilization thereof, the unutilized water allocated to it subject to the mechanism set up by the Cauvery Management Board/Regulatory Authority, would be received by Tamil Nadu. The Tribunal examined the information furnished by it in the common format and adjudged 29.76 TMC which was rounded upto 30 TMC as its share after due regard to its demand, amongst others, pertaining to different projects in Kabani, Bhavani, and Pambar basins having regard to their individual features and corresponding crop water requirement. This allocation included the share for domestic and industrial water purposes as well with the population projection for 2011. The findings of the Tribunal are not belied by the materials in support thereof and, therefore, we are inclined to accept the same.With regard to the claim of Union Territory of Puducherry for Karaikal region, it is a matter of record that because of its close proximity to the sea, the ground water by its nature is unsuitable for drinking and irrigation purposes and, thus, the Tribunal having regard to its irrigated area of 43000 acres allowed its second crop in departure from the yardstick applied for Karnataka and Tamil Nadu and granted 6.35 TMC by way of crop water requirement. It also relieved the Union Territory of the application of 20% consumptive utility formula while assessing its domestic and industrial water requirements. In the absence of any convincing reason to determine otherwise, the adjudication of the Tribunal on this count does not deserve anyour view, having regard to the overwhelming empirical data following multiple research studies by different authorities authenticating beyond doubt availability of replenishable ground water in the Delta areas of Tamil Nadu, 20 TMC of ground water quantified by the Tribunal is an eminently safe quantity to be accounted for in finally allocating/apportioning the share of Cauvery water. While expressing this view, we are not unmindful of the stand of Tamil Nadu and the aspect thatof ground water in the absence of adequate replenishment and further in the areas proximate to the coastal zone is generally avoidable. However, in the attendant facts and circumstances, in view of the studied scrutiny of all pertinent facets of the issue by balancing all factors, we are of the unhesitant opinion that at least 10 TMC of ground water available in the Delta areas of Tamil Nadu can be accounted for in finally determining the
