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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
CONTEMPT PETITON (CIVIL) NO. 898 OF 2018
IN CIVIL APPEAL NO. 2453 OF 2007
STATE OF TAMIL NADU ....Petitioner(s)
:Versus:
P.K. SINHA AND ANR. ....Respondent(s)
WITH
M.A. No.934/2018 in C.A. No. 2453 OF 2007
Contempt Petition (Civil) No…………. of 2018
(Diary No.12431/2018)
M.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
O R D E R
A.M. Khanwilkar, J.
1. This Court on 16th February, 2018 pronounced its
judgment and final order in Civil Appeal Nos.2453/2007,
2454/2007 and 2456/2007 and directed the Central
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Government to frame a scheme under Section 6A of the InterState
River Water Disputes Act, 1956 (for short, “1956 Act”),
for smooth implementation of the Award passed by the
Tribunal and as modified by this Court for carrying out 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 framing of the proposed scheme, initiated
consultations with party States/Union Territory. The first
meeting for that purpose was convened on 9th March, 2018 in
which the modalities of the scheme including the composition
of the Authority were discussed. The party States then
submitted responses and in view of the divergent views
expressed by the party States/U.T., it was felt that if the
Scheme was to be framed by the Central Government itself,
States may again approach this Court. To avoid further
litigations by the States in respect of constitution and
functions of the proposed Board, the Central Government felt
it necessary to seek clarification of this Court for which I.A.
No.47065/2018 was filed on 31st March, 2018 for the following
reliefs:
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“(a) Clarify whether it is open to the Central Government to
frame the Scheme under 6‟A‟ at variance with the
recommendations contained in the report of CWDT
regarding Cauvery Management Board.
(b) Clarify that in case the Cauvery Management Board as
recommended in the report of CWDT is to be constituted,
does the Central Government have the following flexibility:
(i) To modify the composition of the Board to a mixture of
administrative & technical body, and not purely a technical
body as recommended by CWDT in its report, for effective
conduct of the business of the Board and considering overall
sensitivity of the issues involved.
(ii) Clarify whether the Board framed by the Central
Government under 6A of ISWRD Act, 1956 can have
functions different from the ones recommended for Cauvery
Management Board by CWDT in its report.
(c) Any other guidance or directions that Hon‟ble Supreme
Court may like to give in the light of divergent views
expressed by party States/UT with regard to framing of the
Schemes under Section 6A of the ISRWD Act, 1956.
(d) Allow application for extension of time of Three months
for implementation of Order dated 16.02.2018 in this
instant Civil Appeal.
(e) Pass such other order/orders as this Hon‟ble Court may
deem fit and proper in the facts and circumstances of the
present case.”
2. On the same day i.e. 31st March, 2018, the State of Tamil
Nadu filed a contempt petition being Contempt Petition (Civil)
No.898 of 2018, complaining about the non-framing of the
scheme by the Central Government within a period of six
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weeks as granted by this Court. The State of Tamil Nadu also
prayed for a direction to the respondents named in the said
contempt petition to forthwith frame a scheme in accordance
with the judgment of this Court dated 16th February, 2018 by
providing for Cauvery Management Board and Cauvery Water
Regulation Committee with all powers to give effect to the
decision of the Tribunal as well as the judgment of this Court.
Besides the contempt petition filed by the State of Tamil Nadu,
another contempt petition came to be filed by a private party,
namely, Mr. R.K.R. Anantaraman, Member of Legislative
Assembly on 3rd April, 2018. On the same date, the matter
was mentioned by the counsel for the Union of India for taking
up the application filed by Union of India, for hearing. This
Court directed the said application to be listed on 9th April,
2018. In the meantime, I.A. No.50562 of 2018 came to be filed
on behalf of the Union Territory of Puducherry on 5th April,
2018 for the following reliefs:
“(i) direct the Respondent/Government of India to take
effective steps to implement the judgment dated 16.02.2018
passed by this Hon‟ble Court in C.A. No.2453 of 2007 and
other connected appeals without further delay;
(ii) direct the Respondent/Government of India to frame a
scheme under Section 6-A of the Inter State Water Disputes
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Act constituting Cauvery Management Board (CMB) and
Cauvery Water Regulation Committee (CWRC) for effective
implementation of the directions of this Hon‟ble Court
without further delay; and
(iii) to pass such other order or orders as may be deemed fit
and proper in the interests of justice.”
3. The aforementioned applications/contempt petition were
listed on 9th April, 2018 when this Court passed the following
order:
“We have heard Mr. K.K. Venugopal, learned Attorney
General for the Union of India appearing in M.A. No.
934/2018, Mr. Shekhar Naphade and Mr. Rakesh Dwivedi,
learned senior counsel alongwith Mr. G. Umapathy, learned
counsel appearing for the State of Tamil Nadu, Mr. Shyam
Divan, learned senior counsel alongwith Mr. Mohan V.
Katarki, learned counsel for the State of Karnataka, Mr.
Jaideep Gupta, learned senior counsel for the State of Kerala
and Mr. A.S. Nambiar, learned senior counsel for the Union
Territory of Puducherry.
Regard being had to our judgment, we direct the Union of
India to 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 do not want the controversy to
continue before this Court. We request learned senior
counsel for the parties to convey to the competent
authorities of the respective States to maintain peace at this
juncture, so that this Court can put the final stamp on the
Scheme after due deliberation.
Let the matter be listed on 3.5.2018.”
4. Again the matters were listed on 3rd May, 2018 when the
Court passed the following order:
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“Let the matter be listed on 8.5.2018 to enable learned
counsel for 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 and Mr. S. Wasim A. Qadri, learned counsel
appearing for the Union of India shall obtain instructions as
to what steps have been taken to frame the scheme, and the
same shall be put forth by way of an affidavit by the next
date of hearing after serving a copy on both sides. Call on
date fixed.”
5. On 8th May, 2018, a request was made by Mr. K.K.
Venugopal, learned Attorney General for India for some more
time as the draft scheme was ready but it was yet to be placed
before the Cabinet of Ministers. This Court after hearing the
parties for some time, passed the following order:
“It is submitted by Mr. K.K. Venugopal, learned Attorney
General for India that the draft Scheme is ready, but it shall
be placed before the Cabinet as expeditiously as possible.
The same is seriously opposed to by Mr. Shekhar Naphade,
learned senior counsel appearing for the State of Tamil Nadu
on many a ground. Regard being had to delay, we direct the
Secretary, Ministry of Water Resources, River Development &
Ganga Rejuvenation, Government of India, to remain
personally present with the draft Scheme, as directed by this
Court in the judgment, before this Court at 10.30 a.m. on
14th May, 2018. We have directed for personal appearance
of the aforesaid Secretary so that the authorities under the
Scheme can implement the judgment passed by this Court
as the same has the status of the decree. Call on the date
fixed.”
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6. In the meantime, the State of Karnataka filed I.A.
No.68455 of 2018 to place on record an affidavit showing the
status of the total water in the Water Year 2017-18 and in
particular, during the months of March and April, 2018. All
the I.As. and the contempt petitions were again taken up on
14th May, 2018 in terms of the order dated 8th May, 2018. The
draft scheme framed by the Central Government was produced
before this Court. The counsel appearing for the States
requested the Court for a copy of the draft scheme so that they
would be able to make submissions as to whether the scheme
was in consonance with the judgment of this Court. This
Court passed the following order on 14th May, 2018:
“In pursuance of our earlier order, Mr. U.P. Singh, Secretary,
Ministry of Water Resources, River Development and Ganga
Rejuvenation is personally present. He has filed the draft
Scheme framed by the Central Government. Mr. Shekhar
Naphade, Mr. Jaideep Gupta and Mr. A.S. Nambiar, learned
senior counsel appearing for the States of Tamil Nadu,
Kerala and Union Territory of Puducherry respectively, would
submit that they may be given copies of the draft Scheme
only to examine whether the said Scheme is in consonance
with the judgment of this Court. The copies of the Scheme be
given in the course of the day. Let the matter be listed on
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16.5.2018. The personal appearance of the Secretary,
Ministry of Water Resources, River Development and Ganga
Rejuvenation is dispensed with.”
7. On 16th May, 2018, Mr. Shekhar Naphade, learned
senior counsel appearing for the State of Tamil Nadu, Mr.
Jaideep Gupta, learned senior counsel appearing for the State
of Kerala and Mr. A.S. Nambiar, learned senior counsel
appearing for the Union Territory of Puducherry made
submissions regarding the appropriateness of some of the
clauses in the said draft scheme. Mr. Shyam Divan, learned
senior counsel appearing for the State of Karnataka expressed
his inability to offer any comments for want of instructions. He
submitted that due to the recent developments due to
elections to the Karnataka Legislative Assembly, it was not
possible for the Advocate on Record for the State, who was
instructing him, to take instructions from the State
Government. This Court made it clear that as long as the
Advocate on Record for the State of Karnataka was not
discharged, it was open to him to assist the Court as an officer
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of the Court and offer his comments on the draft scheme, if so
advised.
8. After due deliberations, Mr. K.K. Venugopal, learned
Attorney General for India requested this Court to defer the
matter till 17th May, 2018, so as to make necessary changes in
the draft scheme in deference to the observations made by this
Court. Accordingly, the matter was deferred till 17th May,
2018. On 17th May, 2018, the learned Attorney General
produced the corrected copy of the draft scheme after duly
incorporating necessary changes in the concerned clauses of
the draft scheme to bring it in line with the observations made
by this Court on the previous date of hearing.
9. With reference to the corrected copy of the draft scheme,
Mr. Shyam Divan, learned senior counsel appearing for the
State of Karnataka submitted his objections in writing. Mr.
Jaideep Gupta, learned senior counsel appearing for the State
of Kerala maintained his objections taken on the earlier
occasion that the effect of the scheme would impinge upon the
rights of the States in respect of the conservation and use of
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water which was exclusively a State subject, covered by Entry
17 in List II of the Seventh Schedule to the Constitution. In
addition, he also supported the objections raised by the State
of Karnataka in respect of clauses 9(3)(i) and 9(3)(vii) as well as
9(3)(iii).
10. Mr. Venugopal, learned Attorney General countered the
objections raised by the State of Karnataka and State of
Kerala. He submits that the dispensation envisioned in the
concerned clauses is essentially to ensure smooth and
effective implementation of the scheme. He submits that the
implementation of the scheme will be strictly in accordance
with the distribution of water to the respective States/U.T. in
consonance with the Award of the Tribunal as modified by this
Court.
11. Mr. A.S. Nambiar, learned senior counsel appearing for
the Union Territory of Puducherry emphasized that the
authority constituted for implementation of the scheme must
be invested with complete power for ensuring smooth
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implementation of the scheme in accordance with the Award
passed by the Tribunal and as modified by this Court.
12. For completion of record, we deem it apposite to
reproduce the draft corrected scheme produced by the learned
Attorney General before this Court. The same reads thus:
“DRAFT
CAUVERY WATER MANAGEMENT SCHEME
(MINISTRY OF WATER RESOURCES, RIVER
DEVELOPMENT AND GANGA REJUVENATION)
New Delhi, the May, 2018
S. O. ………..Whereas the Central Government, in exercise
of the powers conferred upon it by Section 4 of the InterState
River Water Disputes Act, 1956 (33 of 1956)
(hereinafter referred to as „the Act‟;) had constituted by
notification number S.O. 437(E), dated 2nd June, 1990, the
Cauvery Water Disputes Tribunal (CWDT) (hereinafter
referred to as „the Tribunal‟) to adjudicate upon the water
dispute regarding the Inter-State river Cauvery and the river
valley thereof among the States of Karnataka, Kerala, Tamil
Nadu and Union Territory Puducherry (then Pondicherry;
And whereas the Tribunal investigated the matters referred
to it and forwarded to the Central Government a Report
under Sub-Section (2) of Section 5 of the said Act, on
05.02.2007. The party States filed Special Leave Petitions
(SLPs) in the Supreme Court against the 5(2) Report of the
Tribunal. The Supreme Court converted the SLPs filed by the
party States into Civil Appeals. On 04.02.2013, the Supreme
Court directed the Government of India to notify the 5(2)
Award of the Tribunal. In pursuance of which, the
Government of India notified the 5(2) Award of CWDT dated
05.02.2007 vide S.O.404 (E) dated 19.02.2013.
And whereas Supreme Court pronounced its judgment and
final order in Civil Appeals 2453/2007, 2454/2007 &
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2456/2007 on 16.02.2018 and directed the Central
Government to frame a “scheme” under Section 6 A of the
Act to implement the Tribunal Award further modified by the
Supreme Court order dated 16.02.2018.
Now, therefore, in exercise of the powers conferred by
Section 6A of the said Act, the Central Government hereby
frames the scheme, inter-alia, constituting the Cauvery
Water Management Authority (hereinafter referred to as
the “Authority”) and the Cauvery Water Regulation
Committee (hereinafter referred to as „the Committee‟) to give
effect to the decision of the Cauvery Water Dispute Tribunal
as modified by the Supreme Court in its order dated
16.02.2018, namely:-
(1) This Scheme may be called the Cauvery Water
Management Scheme, 2018,
(2) It shall come into force on the date of its publication in
the Official Gazette.
I. Establishment of Cauvery Water Management
Authority
1. Name of the Authority: It shall be called as Cauvery
Water Management Authority
2. Status and Constitution of the Authority:
1. The Authority shall be a body corporate having
perpetual succession and a common seal and shall sue and
be sued.
2. Composition of the Authority : The Authority
shall consist of the following members:
(a) Chairman- To be appointed by the Central
Government amongst serving officers:
(i) Who is a senior and eminent engineer with wide
experience in water resource management; handling of interState
water sharing issues; construction, operation and
maintenance of irrigation projects; or
(ii) an All India Service Officer, in the rank of Secretary or
Additional Secretary to the Government of India with
experience in 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
Central Government for a term of three years extendable to
five years.
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(i) One Member (Water Resources) – an engineer not below
the rank of Chief Engineer from the Central Water
Engineering Services (CWES) cadre.
(ii) One Member (Agriculture) – not below the rank of a
Commissioner from the Ministry of Agriculture & Farmers‟
Welfare.
(c) Two Part Time Members – Representatives of
the Central Government of the rank of Joint
Secretary to be nominated by Ministry of Water Resources,
River Development & Ganga Rejuvenation and
Ministry of Agriculture and Farmers‟ Welfare respectively.
(d) Four Part Time Members from States –
Administrative Secretaries in charge of Water Resource
Departments of each State Government of Kerala,
Karnataka, Tamil Nadu and Union Territory of
Puducherry who shall be nominated by their respective State
Governments.
3. Secretary of the Authority:
The Authority shall have a Secretary who shall be an
engineer to be appointed by the Central Government for a
term of three years extendable to five years not below the
rank of Chief Engineer from the CWES cadre. He shall not
have any voting rights.
4. Quorum and Voting: Six Members shall form a
Quorum and the concurrence of the majority shall be
necessary for transaction of the business of the Authority
except such business as the Authority may from time to time
prescribe as routine. The Members shall have equal powers.
The next meeting will be held within three days if the
meeting is postponed for want of quorum and for that
meeting quorum will not be necessary.
5. Disposal of Business by the Authority:
(a) On the following matters, the Authority shall record its
decision by a resolution at a meeting in which the Chairman
and all the Members from the party States are present:-
(i) Framing of Rules of Business;
(ii) Delegation of functions to a Member or Secretary or
any official of the Authority;
(iii) Categorizing any part of the business of the
Authority as of a formal or routine nature;
(iv) Any other matter which any of the four party
States require that it shall be decided at a meeting of the
Authority.
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(b) Chairman of the Authority can invite representatives
from Central Water Commission, National Institute of
Hydrology, Indian Agricultural Research Institute (IARI)
and/or any other agency including universities as special
invitees to attend the Authority meetings or otherwise, in
carrying out the functions specified under this scheme.
(c) Subject to the foregoing provisions, the Authority shall
frame its own rules for the conduct of its business.
6. Indemnity of Members:
No Member, officer or employee of the Authority shall be
liable for loss, injury or damages resulting from:
(a) action taken by such Member, officer or
employee in good faith and without malice under the
apparent authority of the orders, even though such action is
later determined to be unauthorised, or
(b) the negligent or wrongful act of omission of any
other person employed by the Authority and serving under
such Member, officer or employee unless such member,
officer, or employee failed to exercise due care in the
appointment of such other person or the supervision of his
work.
7. Officers and Servants of the Authority:
The Authority may from time to time appoint or employ such
and so many officers and employees as it thinks fit and
remove or dismiss them, under the rules and regulations
applicable to the appointment, removal and dismissal of the
Central Government officers and employees. All such officers
and employees shall be subject to the sole control of the
Authority. The Authority may, with the previous approval of
the Central Government, make regulations to regulate
conditions of service of all such officers and employees in
respect of the residential accommodation, house rent
allowance, travelling allowance, daily allowance, conveyance
allowance and medical reimbursement. The scales of pay
and the other service conditions shall be as applicable to
Central Government employees.
Persons employed in the services of the three States and the
Union Territory of Puducherry may be appointed or
employed by the Authority in such proportions as the
Authority may deem fit. The Authority shall arrange with the
State Government/Union Territory to spare the services of
the persons employed in the State Government/Union
Territory for whole time employment with the Authority, or
for the performance of any work or services for the Authority.
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The Authority may also make direct recruitment of any
personnel or obtain the same from the Centre or other
sources as considered appropriate.
8. Administrative and Field Organisation Costs:
(i) All expenses of the Authority (including salary and
other expenses of the Chairman and independent Members)
shall be borne by the State Governments, in the ratio of
Kerala – 15% Karnataka – 40%, Tamil Nadu – 40%; and
Union Territory of Pondicherry – 5%. The expenses
pertaining to Member representing a State shall be borne by
the State concerned.
(ii) The cost of maintaining, operation and controlling of
gauging and other hydrological systems for communicating
data shall be borne 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 the State 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 be under a duty to do any or all things necessary,
sufficient and expedient for securing compliance and
implementation of the final decision and directions of the
Tribunal further modified by Supreme Court Order dated
16.02.2018 including:
(i) Storage, apportionment, regulation and control
of Cauvery waters.
(ii) Supervision of operation of reservoirs and with
regulation of water releases therefrom with the
assistance of Regulation Committee.
(iii) Regulated release by Karnataka, at the interState
contact point presently identified as
Billigundulu gauge and discharge station, located on the
common border of Karnataka and Tamil Nadu.
2. The Authority may constitute one or more subcommittees
and assign to them such of its functions
and delegate such of its powers as it thinks fit.
3. In particular and without prejudice to the generality of
the foregoing functions, the Authority shall perform interalia,
the following functions:
(i) The Authority at the beginning of the water year, i.e. first
June each year would determine the total residual storage in
the specified reservoirs. As, it is not possible to know the
amount of season-wise river flows which will be available
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during a season; it will be assumed that the inflows will be
according to 50% dependable year (yield 740 TMC). The
share of each State will be determined on the basis of the
flows so assumed together with the available carry over
storage in the reservoirs. The withdrawals will be allowed
during the first time interval of ten days of the season on the
basis of the share worked out for each party State, limited to
the water requirements during the same period indicated by
each State by placing an indent of water demand with
Cauvery Water Regulation Committee.
(ii) The Authority will take stock of the actual yield in the basin
at the end of the previous time interval as well as the
utilization/releases and storage built up during the interval
and assess the trend of inflows and authorize withdrawals to
the States for the subsequent time interval accordingly. For
giving effect to the aforesaid provision, the Authority may
have to repeat this exercise for two or more time intervals.
(iii) The Authority shall ensure the implementation of the Award
of the Tribunal modified by the Supreme Court order dated
16.02.2018 including the carry -over storage during good
year and the water releases for environmental purposes. The
Authority through the Regulation Committee and with the
help of CWC, and other Central/State organizations as
necessary will identify situations of distress in the basin.
Distress caused by diminution of water flows during the
period will be shared by the party States after the distress
conditions and their extent is determined by the Authority,
keeping in view water shares allotted to parties.
(iv) The following important reservoirs in the basin namely:
Banasurasagar in Kerala, Hemavathy, Harangi, Kabini and
Krishnarajasagara in Karnataka and Lower Bhavani,
Amaravathy and Mettur in Tamil Nadu shall be operated in
an integrated manner by the concerned State under the
overall guidance of the Authority for each ten day period
throughout the year to meet the seasonal water
requirements of the various States for irrigation, hydropower
generation, domestic and industrial uses etc. The
remaining quantities of the surplus water shall be conserved
as far as possible and spillage of water shall be reduced to
the minimum.
(v) The Authority shall maintain an account of cropping pattern,
area cropped and area irrigated for each party State. The
Authority shall also maintain an account of domestic and
industrial water usage by each party State.
(vi) The Authority is to set up a well-designed communication
network in the Cauvery basin for transmission of data and a
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computer based control room for data processing to
determine the hydrological conditions including distress, if
any. For this purpose, it may utilize the latest technology.
For operational purposes, this work may be entrusted by the
Authority to CWC or any other Central/State Government
organization.
(vii) At the start of irrigation season i.e. 1st June of every year, all
the party States through their representatives in the
Authority shall submit an indent for the supplies required by
them at each reservoir site (capacity 3 TMC and above) for
the month of June broken in 10 daily intervals. The
Authority will examine reasonableness of the indents
keeping in view the cropping pattern and extent of area to be
irrigated and order releases keeping in view the overall
ceiling prescribed by the Tribunal and modified by the
Supreme Court Order dated 16.02.2018 for the month after
determining the available carry-over storage and taking into
consideration the likely inflows during the month. The
Regulation Committee shall release water on ten daily bases
as ordered by the Authority.
In case of deficiency in the water availability during any
month as reported by the Regulation Committee, the
Authority will consider reduction in the indent of the parties
in proportion to the quantities allocated to each State by the
Tribunal as modified by the Supreme Court order dated
16.02.2018 for the designated crops.
The Regulation Committee shall keep a watch on the actual
performance of the monsoon during each ten daily interval
and report position to the Authority indicating therein the
extent of variation from the normal. The Authority on receipt
of such information will consider any change in the release
ordered by them earlier. Similar exercise will continue as the
monsoon progresses during the succeeding months till the
end of the water year i.e. 31st May of every year.
(viii) The Authority has to ensure that the State Governments
should construct proper hydraulic structures at all
important anicut sites in the basin with provision of
appropriate regulation mechanism. Besides, regular
monitoring of the withdrawals at such diversion structures
on the part of the State would be necessary.
(ix) The Authority may direct party States to furnish data in
respect of carry-over storage in reservoirs, including inflows
and outflows, rainfall data, the area irrigated and water
utilized.
(x) The Authority shall arrange collection of data for important
rain gauge stations maintained by Indian Metrological
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Department (IMD)/ Central Water Commission (CWC)/States
in the Cauvery basin; as also inflow data measured at
important nodal points on the Cauvery river system through
the Cauvery Regulation Committee which will suitably
compile the rainfall data for different monsoon seasons along
with the inflows measured at different sites.
(xi) the Authority or any Member or any representative thereof
shall have power to enter upon any land or property upon
which any hydraulic structure or any work of gauging or
measuring device has been or is being constructed, operated
or maintained by any agency in the Cauvery basin
(xii) To hold and dispose of property, enter into contracts, sue
and be sued and do all such acts as may be necessary for
the proper exercise and discharge of its jurisdiction, powers
and functions.
(xiii) To construct or make direction to construct additional
gauging stations to the States concerned with the assistance
of Central Government and CWC for implementing the
decision of the Tribunal.
(xiv) If the Authority finds that any Government of the party
States namely Tamil Nadu, Kerala, Karnataka and Union
Territory of Pondicherry do not co-operate in implementing
the decision/direction of the Tribunal, it can seek the help of
the Central Government for implementation of the Award
of the Tribunal as modified by the Hon’ble Supreme
Court order of 16.02.2018.
(xv) If any delay/shortfall is caused in release of water on
account of default of any party State, the Authority shall
take appropriate action to make good the deficiency by
subsequently deducting indented releases of that party
State.
(xvi) The Authority will advice the party States to take suitable
measures to improve water use efficiency, by way of
promoting micro-irrigation (drip and sprinkler), change in
cropping pattern, improved agronomic practices, system
deficiency correction, command area development etc.
(xvii) The Authority will advice the party States to adopt efficient
technologies for water conservation and preservation.
(xviii) The Authority shall comply with directions with respect to
composition, establishment and administration that the
Central Government may provide time to time.
(xix) The Authority may delegate such of its power, as it thinks fit
to Cauvery Water Regulation Committee.
10. Annual Report of the Authority:
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The Authority shall prepare and transmit to each of
the four parties as early as possible in any case before 30th
September of each year, an Annual Report covering the
activities of the Authority for the preceding year. The
Authority shall make available to each State on its request
any information within its possession any time and always
provide access to its records to the States and their
authorized representatives.
11. Records of the Authority and their Location:
The Authority shall keep a record of all meetings and
proceedings, maintain regular accounts, and have a suitable
office where documents, records, accounts and gauging data
shall be kept open for inspection by the Central Government
and Government of each of the party States and Union
Territory or their representatives at such time and under
such regulations as the Authority may determine.
The headquarters of the Authority shall be at New Delhi.
12. Contracts and Agreements:
The Authority shall enter into such contracts and
agreements as may be necessary and essential for the full
and proper performance of the functions and duties
conferred or imposed on it.
13. Financial Provision:
(i) The Government of India shall initially contribute a
sum of Rs. 2 crores (two crores only) for the functioning of
the Authority.
(ii) All the capital and revenue expenditure required to be
incurred by the Authority shall be borne by the State
Governments of Kerala, Karnataka, Tamil Nadu and Union
Territory of Pondicherry in the ratio of 15:40:40:5
respectively.
(iii) On the constitution of the Authority, the Governments of the
State of Kerala, Karnataka, Tamil Nadu and Union Territory
of Puducherry shall contribute Rupees two crores in the ratio
indicated in (ii) above, towards the fund of the Authority in
the first instance; and later on make advance payments on a
quarterly basis as demanded by the Authority keeping in
view the Annual Budget of the Authority.
(iv) The Authority shall maintain detailed and accurate accounts
of all receipts and disbursements and shall after the closing
of each financial year, prepare an annual Statement of
Accounts and send copies thereof to the Accountant General
and concerned basin States.
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(v) The accounts maintained by the Authority shall be audited
by the Comptroller and Auditor General of India or his
nominee, who shall certify, subject to such observation as he
may wish to make on the annual accounts of the Authority.
The Authority shall forward to the Accountant General, the
Central Government and the concerned basin States – the
copies of the Report of the Comptroller and Auditor General
of India and shall include the same in its Annual Report.
(vi) To perform any other function which is supplemental,
incidental or consequential to all or any of the functions
specified in sub-paragraphs (i) to (v) above.
14. Decision of the Authority:
The decision of the Authority on all matters for the
purposes of implementing the award of the Tribunal as
modified by the Supreme Court order dated 16.02.2018
including but not limited to the matters covered under
paragraph 9, shall be final and binding on all the party
States/UT.
15. Constructions outside jurisdiction of the
Authority:
Save and except to the extent otherwise prescribed in
the order of the Tribunal and judgment of the Supreme
Court, the planning, construction and maintenance of the
projects will be carried out by each State/UT Government
through its own agencies.
II Cauvery water Regulation Committee
1. Composition of the Cauvery Water Regulation
Committee:
There shall be a Cauvery Water Regulation Committee with
the following composition:
1) Full-Time Member (Water Resources) of : Chairman
the Authority
2) One representative each of the States of : Member
Kerala, Karnataka, Tamil Nadu and Union
Territory of Puducherry not below the rank
of Chief Engineer.
3) One representative of IMD of the rank of : Member
Joint Secretary
4) One representative of Central Water : Member
Commission dealing with river gauging
not below the rank of Chief Engineer
5) One representative of the Central Ministry : Member
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of Agriculture & FW not below the rank of
Commissioner
6) Secretary to the Authority : Member Secretary
The headquarters of the Cauvery Water Regulation
Committee shall be at Bengaluru.
2. Functions of the Cauvery Water Regulation
Committee:
The Regulation Committee shall ensure the
implementation of the provisions contained in the final
order of the Tribunal further modified by the Supreme Court
order dated 16.02.2018 in accordance with the directions of
the Authority namely:-
a) to collect daily water levels, inflows and storage
position at each of the following reservoirs – Hemavathy,
Harangi, Krishnarajasagara, Kabini, Mettur, Bhavanisagar,
Amaravathy and Banasurasagar.
b) to ensure ten daily releases of water on monthly
basis from the reservoirs as directed by the Authority.
c) to collect data of water released from the
aforesaid reservoirs on 12 hourly basis.
d) the Authority‟s representatives at each of the
reservoirs shall monitor proper implementation of the
regulation instruction issued by the Regulation Committee;
in the event of any variation, the representative shall
immediately inform the Secretary of the Committee for
appropriate action.
e) to collect daily water flows passing through
presently identified inter-State contact point i.e.,
Billigundulu gauge and discharge site and keep the
Authority suitably informed.
f) to compile and reconcile monthly water account
for each reservoir.
g) to collect and compile weekly information about
important rain gauge stations of the IMD in order to be
able to broadly assess the position of monsoon and keep
the Authority informed about the status of the monsoon.
h) the State representative, in-charge of the major
projects will keep the Regulation Committee regularly
informed about the occurrence of the rainfall in the
commands and whether any change in the releases is
required.
i) to prepare seasonal and annual report of the
water account and submit the same to the Authority
as indicated below:-
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South-West monsoon season - 1st June to 15 October
(inclusive of fortnight of October)
North East Monsoon season - 16th October to 31st
January
Hot weather season - 1st February to 31st May
3. Meetings of the Regulation Committee:
1) The Regulation Committee shall meet once in ten days
during the months of June and October when the
southwest and northeast monsoon set in; after the
monsoon has set in, the meeting will be held at least once a
fortnight but the Committee shall have the powers to
convene meetings as often as necessary. In the case of any
emergency situation, a minimum of 48 hours notice shall
be given for holding a meeting.
2) In case, the State which is likely to be affected is not
represented in the meeting, then the possibility of
calling another meeting will be examined by the
Committee.
Provided that if the situation is such that it is not
possible to delay taking a decision, then the Committee
may decide the issue by majority vote even in the absence
of representative from the affected State.
3) The quorum for meeting of Regulation Committee shall
be six Members.
4) All the Members including the Chairman and Member
Secretary of the Committee shall have voting right; the
Chairman shall also have a casting vote.
Sd/-
U.P. Singh
Secretary
Ministry of Water Resources,
River Development & Ganga
Rejuvenation, Govt. of India
New Delhi-110001.”
13. As aforementioned, the comments on the draft corrected
scheme are mainly at the behest of State of Karnataka and
State of Kerala. No suggestion has been offered by the State of
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Tamil Nadu to the corrected draft scheme, except to submit
that the implementation of the scheme should be with utmost
dispatch in consonance with the Award, as modified by this
Court, in its letter and spirit. He submitted that there is
distress situation in the State of Tamil Nadu due to scarcity of
water which can be remedied to some extent by the effective
implementation of the scheme.
14. After hearing the parties, we are of the considered
opinion that the suggestions/objections of the State of
Karnataka and State of Kerala are devoid of merit. The fact
that the subject of water, that is to say, water supplies,
irrigation and canals, drainage and embankments, water
storage and water power, forms part of Entry 17 of List II of
the Seventh Schedule to the Constitution, cannot be the basis
to whittle down the efficacy of the Award passed by the
Tribunal and as modified by this Court and, in particular, the
scheme to ensure smooth, effective and efficient
implementation of the Award of the Tribunal, as modified by
this Court. The draft scheme has been formulated singularly
24
for that purpose and the same will have to be taken forward to
its logical end in accordance with law with promptitude.
15. Reverting to the specific grievance with regard to clauses
9(3)(i) and 9(3)(vii), the argument is that the same would
compel the States to furnish/place an indent for the supplies
required by them on each reservoir site. That is wholly
unnecessary as the Award passed by the Tribunal quantifies
the volume of river water to be shared and apportioned
between the States. This objection does not commend us
inasmuch as the necessity to furnish/place an indent of water
demand and about the total water reservoir is to work out the
quantity of river water to be released during the relevant
period in consonance with the proportion specified in the
Award as modified by this Court and, in particular, on the
principles delineated in the decision of this Court under Point
No. X about the method and manner of apportionment to be
followed. That is to further the rights of the States/U.T. for
just and reasonable use of water from the allocable water on
equitable basis and not to impinge upon their rights and
25
moreso for smooth and effective implementation of the Award
as modified by this Court.
16. Coming to the suggestion/objection in reference to clause
9(3)(iii) of the draft scheme, reliance has been placed on the
recommendation made by the Assessors to the Tribunal
forming part of the report of the Tribunal. The Assessors had
advised that 10 TMC each as carry-over storage in the
reservoirs of the two States may be provided to take care of
any delay in onset of South-West monsoon. That may be the
recommendation of the Assessors but the allocation and
distribution of river water will have to be in full conformity
with the Award as modified by this Court and as
aforementioned on the principles of apportionment to be
followed as delineated in Point No. X of the judgment of this
Court.
17. Needless to observe, we cannot allow the parties to
reopen the 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
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Authority constituted under the scheme will be bound by the
contours regarding apportionment of river water in terms of
the Award as modified by this Court and while doing so, is
expected to take into account all factors that may be relevant
at the given point of time, including to identify the situation of
distress in the basin caused due to identifiable factors before
quantifying the water quantity for being released or allotted to
the party States/U.T. for the relevant period.
18. We appreciate the stand taken by Mr. Nambiar, learned
senior counsel appearing for Union Territory of Puducherry,
that the Authority cannot be expected to issue directions
mechanically and that the Authority must have complete
power to enforce its directions so as to comply with the Award,
as modified by this Court, in its letter and spirit, concerning
the apportionment of water between the party States/U.T. We
say no more.
19. Considering the fact that the Union of India has already
formulated the draft scheme and has also offered explanation
in I.A. No.47065 of 2018 and the affidavit filed on 7th May,
27
2018 in M.A. No.934/2018 about the reasons which were
beyond the control of the appropriate authority dealing with
framing of the scheme, we do not wish to continue the
contempt action any further. For the same reason, the
directions sought 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 directions in the Award as
modified by this Court and also in conformity with Section 6A
of the 1956 Act. The draft scheme ought to be taken forward to
its logical end in accordance with law with utmost dispatch.
20. In view of the above, we dispose of all the I.As., M.As.
and the contempt petitions by this common order, on
accepting the assurance given on behalf of the Union of India
that the draft scheme will be taken to its logical end in
accordance with law, with utmost dispatch. We hope and trust
that the draft scheme reproduced in paragraph 12 above, is
notified in the Official Gazette and given effect to with
promptitude before the onset of the impending monsoon.
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21. Accordingly, all the I.As., M.As. and the contempt
petitions are disposed of.
.………………………….CJI.
(Dipak Misra)
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Dr. D.Y. Chandrachud)
New Delhi;
May 18, 2018.
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