SCHOOL OF LAW – RAFFLES UNIVERSITY

Indian Federalism – Shubhangi Khandelwal 1

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 administrative relations
• 262. Adjudication of disputes relating to waters of inter State rivers or
river valleys
• (1) Parliament may by law provide for the adjudication of any dispute or
complaint with respect to the use, distribution or control of the waters of,
or in, any inter State river or river valley.
• (2) Notwithstanding anything in this Constitution, Parliament may by law
provide that neither the Supreme Court nor any other court shall exercise
jurisdiction in respect of any such dispute or complaint as is referred to in
clause

2
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 contd
The Interstate River Water Disputes Act, 1956 is an Act of the Parliament
of India enacted under Article 262 of Constitution of India on the eve of
reorganization of states on linguistic basis to resolve the water disputes
that would arise in the use, control and distribution of an interstate river
or river valley.
Sec 2(c)(i)- defines Water Dispute
Sec 2(c)(ii)- interpretation of terms and agreement relating to water
which constituted water dispute.
Sec 2 (c)(iii)- levying water rate
Beyond these three clauses , if anything is there which is not to be
considered as water dispute.
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 Sec 3 if there is a water dispute with the govt of another state , the state
may, in such form and manner as may be prescribed, request the Central
Government to refer the water dispute to a Tribunal for adjudication.
Sec 4 Constitution of Tribunal- When any request under section 3 is
received from any State Government in respect of any water dispute and
the Central Government is of opinion that the water dispute cannot be
settled by negotiations, the Central Government shall, within a period not
exceeding one year from the date of receipt of such request, by
notification in the Official Gazette, constitute a Water Disputes Tribunal
for the adjudication of the water dispute

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 Sec 5 – after constituting tribunal u/ sec 4, matter is always referred by
GOI to the water dispute to the Tribunal for adjudication.
Sec 6- (i) The Central Government shall publish the decision of the
Tribunal in the Official Gazette and the decision shall be final and binding
on the parties to the dispute and shall be given effect to by them.
(ii) The decision of the Tribunal, after its publication in the Official Gazette
by the Central Government under sub-section (1), shall have the same
force as an order or decree of the Supreme Court.
Sec 11- bars on jurisdiction- neither the Supreme Court nor any other
Court shall have or exercise jurisdiction in respect of any water dispute
which may be referred to a Tribunal under this Act.

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 T.N.C.N.V.V.N.U.P. Sangham v. UOI (1990)
Known as Cauvery water dispute.
Facts- Cauvery originates from kur in mysore. Inter- state river flows from
Mysore to Madras.
Regarding share of water in 1924 a renewal was made.
After state reorganisation act- changes were made and dispute arose
regarding that renewal.
Karnataka wanted to construct a dam at kaveri objected by madras.
But finally on 1924 agreement- Karnataka constructed a dam
1974- by this time, agreement was expected to be over.
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 From 1924 to 1974 an agreement was there.
In 1974 Karnataka did not want to renew it. Agreement could not be
renewed.
Dispute arose.
GOI appointed a committee that whatever be the decision would be
agreed upon it which resulted in filing case by both the parties.
GOI wanted to settle the matter outside the court by arbitration.
But one NGO filed a petition. Multiple hearings were there. UOI took 24
adjournments from court as on the basis that they settle the matter
outside the court.
But this time no adjournment has been give.
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 • Writ filed by farmer’s association u/art 32 to establish their right to life
and right to agriculture. Petition filed against govt of Karnataka.
• TN cauvery sangam filed petition seeking
• (i) SC should issue direction to UOI directing the constitution of tribunal
and referring the matter to tribunal.
• (ii) directing Karnataka not to utilised water beyond the limit and not to
make any dams, canal, diverting the water by constructing those dams
and canals.
UOI and Karnataka objected the jurisdiction of SC. SC don’t have
jurisdiction because of 2(c) r/w sec 11 of water dispute act.

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 • SC held
u/art 32 SC was not asked to adjudicate the water dispute. NGO not
asking to adjudicate the water dispute but asking to refer this to tribunal.
UOI reluctant to constitute tribunal. It is only UOI where statutory power
conferred and by not performing it, they forced to SC to direct the UOI to
ask to constitute a tribunal.
Rejected the contention that they don’t have jurisdiction u/art 32 and
ordered to direct to construct tribunal and that should be notified in
official gazatte.

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 • Complied with this direction, UOI constituted water dispute tribunal in
1993.
• SC did not answer the second question. By that time with regard to 1 st
question WD tribunal had been constituted. Status quo had to be
maintained by Karnataka.
• Cauvery WD tribunal
TN filed two interlocutory application in tribunal-
1. State of Karnataka should not to impound and utilise the water of
cauvery river beyond the agreed.
2. An order passed restraining state of Karnataka from constructing
dams, canals and new projects.
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 • Tribunal held that it doesn’t have the power to issue interim order. Can
adjudicate only when express provision is there in WD act.
• TN filed an appeal u/art 136 before SC
SC observed that they are not deciding the WD but deciding the powers
of tribunal to adjudicate the matter.
Rejected the argument of Karnataka regarding lack of competency on
adjudicating WD.
There is question on merit.
St of TN presented two arguments-
- When tribunal exercising its power, they have power to issue interim
relief is incidental and ancilliary to power.
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 - By virtue of art 262 r/w s 11 no courts in India have jurisdiction to
adjudicate cauvery WD. The tribunal constituted is only body to
adjudicate and interim relief power is not there with tribunal, then
parties would be left with no relief.
- A tribunal constituted should not only adjudicate WD but also juris to
adjudicate interlocutory application.
Argument of Karnataka
1. Tribunal has to come with a report after adjudicating matter where
total investigation has to be done by sec 3 r/w sec4.
Cannot decide matter which is treated as half baked on basis of partial
investigation.
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 So if there are deciding interim application, it is half baked information.
So cant decide.
2. Karnataka said that argument doesn’t have value. Adjudicate matter
only those which are referred. Here they have final adjudication.
If TN wanted to have interim relief , then asked to GOI, then GOI referred
to tribunal has power to decide interim relief.
SC- a tribunal constituted u/act is not only have power to adjudicate
matter finally but have power to adjudicate interim application that
power is inherent like of civil court comes u/ sec 151 of cpc. So tribunal is
at par of civil court.
Whatever incidental and ancillary related to subject matter has power to
decide those also.
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 • Also directed the tribunal to re consider the application which were
rejected earlier.
• Tribunal decided in favour of TN.
• By exercising art 136 SC interpreted the scope and extent of tribunal.
Karnataka passed an ordinance in their legislature i.e. Karnataka Cauvery
basic irrigation protection ordinance
The ordinance in sec 3 provides for protection for irrigation in irrigable
areas
Sec 3 (1) shall be the duty of state to protect preserve and maintain
irrigation from the waters of cauvery river and its tributaries in the
irrigable area u/ the various projects specified u/ schedule.
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 • 3(2) for the purpose of giving effect to sub sec 1, state govt may
obstruct or cause to obstructed during every waterior such quantity of
water on it may deem requisite from the flows of cauvery river and its
tributaries in such manner and during such intervals as the st govt on
any officer no below the rank of an engineer in chief designated by it
may deem fit.
• Sec 4 overriding effect of the ordinance
Other than the final order of tribunal u/sec 5 r/w sec 6 this ordinance will
prevail over any other order, report, decision of any court or tribunal.
Sec 5- power to remove difficulties
Sec6- power to make rules.
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 3 question referred to SC by president for advisory opinion
1. Whether the ordinance and the provision are in accordance with
provision of constitution.
2. i) whether the order of tribunal constitutes a report and a decision
within the meaning of sec 5 (2) of WD act?
ii) Whether the order of tribunal is required to be published in official
gazette to make it effective?
3. Whether a WD tribunal constituted u/ the act is competent to grant
any interim relief to the parties?

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 Argument of Karnataka-
1. No question of constitutional validity
Presumption of constitutional validity which ordinarily attached to
legislation, the onus heavily on the party challenging the same to show
that impugned act is ultra virus.
2. State act is based on entry 17 of list ii, the legislation is to protect,
preserve and maintain irrigation from cauvery water
3. Scheme of the act contemplates only one final report made after full
investigation, the interim order is not a order u/ the inter-state water
dispute act.

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 • 4. the executive power u/art 73 cannot extend to any state wrt matters
on which state can legislate in view of art 162.
Contention of TN
1. Art 262 r/w sec 11 bars jurisdiction of any court, tribunal thus required
to perform as a pure judicial body.
2. State doesn’t have power to legislate with regard to water dispute.
They are not making a law on development and regulation of water u/ 17
of ii list but making a law on water dispute i.e. colourable legislation
3. The impugned is having extra territorial operation
4. Violates ROL. Against PNJ. They are having judge in his own case. They
are concluding it by making an act, they are acting judge in his own cause.
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 5. Violates the FR u/art 14 and 21.
Contention of Pondicherry
Act is unconstitutional and a piece of colourable legislation.
SC observed:
1. Ordinance is to override the decision of the tribunal.
2. State legislation affect beyond its territory and it affects the right of
other states.
3. No state can claim exclusive ownership of inter state river water.
4. The ordinance is unconstitutional because it affects the jurisdiction of
the tribunal constituted u/ the central act.
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 5. Karnataka assumed the role of judge in its own cause.
6. Ordinance challenges the decision of SC
7. Ordinance has an extra territorial operation.
8. It is unconstitutional being direct conflict with art 262.
9. It is against ROL.
10. It cause evil consequence to the federal structure.
Order given by tribunal was notified and published by UOI in 2013. after
publication, that award made effective and state of karanataka came to
challenge it.
Whether the award given by tribunal can be challenged in SC?
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 • State of AP v. State of Karnataka (2001)
River originates from Maharashtra flows from Karnataka, AP and merges
to bay of Bengal.
CG in 1963 came with a formula
Sharing of water among three states
400 TMC- Maharashtra
600 TMC- Karnataka
800 TMC- AP
Did not agree by maharshtra

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 CG decided to constitute Krishna Water dispute tribunal in 1969.
27th may 1976- they came with award.
31st may 1976- award got published.
Tribunal awarded
560- Maharshtra
700- Karnataka
800- AP
Provided in scheme A of the award.
Scheme B provides for recommendation for the surplus water- has to be
shared by constituting a Krishna valley authority.
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 In the award it was stated that scheme B is recommendary in nature.
CG notified only Scheme A, not B.
Suit filed by AP against Karnataka and Karnataka filed suit against AP u/art
131 .
Contention by Karnataka
Wanted to have declaration by SC that sch. B has to be notified as it is a
part of award.
AP contested that wanted to have declaration from SC declaring that Sch
B is not part of award and that sch B should not be notified.
Also wanted to have declaration where SC directs to Karnataka that it
does not raise height of Almati dam beyond 519 metre and should not
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 Make any construction in dam.
Both have contention that SC doesn’t have jurisdiction against each
other’s contention.
Whether SC have jurisdiction or not?
SC says it is not a water dispute because not adjudicating water dispute.
They are merely interpreting and implementing the award of tribunal.
That’s why they have jurisdiction.
With regard to first issue SC said that when tribunal itself says that sch B
is not a part of award. Merely recommendatory in nature. Therefore,
rejected the contention of Karnataka.

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 • With regard to second issue, SC said that height of Almati Dam could
have been adjudicated by tribunal, not SC.
State of Haryana v. State of Punjab
Suit filed u/ art 131
Claim by the state of Haryana that state of Punjab should construct Sutlej
– Yamuna link canal.
Mandatory injunction should be granted.
u/ the Punjab Re-organisation Act, Ravi- Beas water was available to
Punjab. Ravi beas doesn’t have natural flow in Haryana. To bring water,
they need to construct canal.

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 In 1976, a suit filed by Punjab and that suit was withdrawn by Punjab on
ground PM of India in consultation with CM where they agreed to have
water sharing.
In 1981, agreement b/w Punjab and Haryana to construct satluj Yamuna
link canal.
In 1985, Punjab legislature passed a resolution repudiated the agreement
entered in 1981.
A settlement was agreed in 1985, known as Punjab Settlement agreed
satluj Yamuna link canal will be completed in within 1 year.
This settlement provides for constitution of tribunal- ravi beas tribunal for
construction of canal.
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 Tribunal constituted for
- Water sharing between P & H
- Surplus water sharing
- construction of Satluj Yamuna link canal.
Haryana gave 600 cr to Punjab
Punjab constructed 95% but the part which P&H connect, wouldn’t be
constructed.
SC- tribunal constituted by that settlement and tribunal has given that
award where construction of canal was directed so it is not water dispute.
Merely the interpretation and implementation of award and hence
directed to construct canal to Punjab.
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 • Mullaperiyar Environment Protection Forum v. UOI (2006)
Dispute between kerala and TN
Periyar river flows only in Kerala, not inter-state river, no tributaries, no
natural flow to TN.
Kerala agreed to diverted to TN through particular dam by agreement
where ownership of dam is with TN.
Originally water level was 142 F.
Kerala considered that dam comes u/earthquake prone zone area, so the
water level cannot go beyond 141 F.
For this SC directed to increase the water level.

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 • Kerala legislature passed legislation provides for termination of
agreement and construction of new dam.
• This law challenged by TN in this case
• Question before court
- Whether the law passed by kerala is valid?
- Whether construction of dam by replacing existing water dam
constituting a water dispute?
SC observed
No dispute regarding of water dispute. Safety and construction of dam is
subject matter where SC has jurisdiction.

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 • Also direction given by SC is violated here. So law was invalidated to be
here. Here state legislature trying to usurp the power of judiciary.
• Here SC appointed a three member committee asked to decide the
probability of construction of new dam.
Atma Linga Reddy v. UOI (2008)
writ u/ art 32 filed by Atma linga seeking direction against Karnataka not
to construct mini hydro project in raycho.
By hydro project- they wanted to have uses of water which going to affect
15.9 TMC water which was suppose to be with A.P.
Whether SC has jurisdiction?

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 • SC said that they don’t have jurisdiction. Since it does constitute a water
dispute.
Krishna water tribunal is there. Approach there.
State of Orissa v. GOI (2009)
Writ u/art 32 against UOI and AP in regard to construction of canal by
orissa
Total length 239km
154 km in orissa
29km on boarder of orissa and AP
56 km in AP
And finally reaches to bay of bengal
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 • Here orissa sought direction from SC directing UOI to constitute WD
tribunal and a direction from UOI not to have further construction till
the time adjudication of matter and status quo maintain by AP
SC observed
State approach for their right to livelihood. That artificial direction of
water by this canal destructing the one district of orissa.
Here contention was to construct tribunal.
Therefore, SC has jurisdiction. They have the jurisdiction to give direction
to constitute tribunal and held to maintain status quo.

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