Date of the Judgment: November 14, 2019
Judges: Uday Umesh Lalit, J., Vineet Saran, J.
Can a state unilaterally construct a dam on an inter-state river without the consent of the lower riparian state? The Supreme Court of India recently addressed this critical question in a dispute between Tamil Nadu and Karnataka concerning the Pennaiyar River. The core issue revolved around the construction of a dam by Karnataka on the Markandeya River, a tributary of the Pennaiyar, and whether this action violated existing agreements and the rights of Tamil Nadu as a lower riparian state. The bench, comprising Justices Uday Umesh Lalit and Vineet Saran, heard the arguments and issued an order.
Case Background
The State of Tamil Nadu filed a suit against the State of Karnataka and the Union of India on May 18, 2018, under Article 131 of the Constitution of India. Tamil Nadu claimed that Karnataka was undertaking various projects on the Pennaiyar River and its tributaries, which would severely affect the natural flow of water to Tamil Nadu, impacting the livelihoods of farmers and drinking water needs.
Tamil Nadu specifically objected to five projects by Karnataka:
✓ A pumping scheme to divert water from the Pennaiyar River to Lakkur Tank.
✓ A lift irrigation scheme at Ellamallappa Chetty tank to fill up the Hoskote tank.
✓ Pumping water from the main Pennaiyar River at Belahalli for irrigation.
✓ Diversion of surplus waters from Varathur Tank to Narsapur Tank.
✓ Construction of a reservoir with a 500 Mcft storage capacity across the Markandeya River near Yargol village.
Tamil Nadu contended that these projects violated the 1892 agreement between the then Madras and Mysore states, which required prior consent for any new irrigation works on the Pennaiyar River. The state also argued that the construction of a dam across the Markandeya River would severely affect the flow of water into Tamil Nadu, impacting several anicuts (small dams) and their ayacuts (irrigated areas).
Karnataka, on the other hand, argued that the 1933 agreement modified the 1892 agreement, stating that no consent was needed for projects not involving irrigation, such as drinking water projects. The state claimed that the Markandeya reservoir was solely for drinking water purposes for Kolar, Bangarpet, and Malur towns and 45 enroute villages and that the project was approved in 2007 and 70-75% of the work was completed.
Timeline
| Date | Event |
|---|---|
| 1892 | Agreement between Madras and Mysore states regarding water usage of Pennaiyar River. |
| 1933 | Agreement between Madras and Mysore states modifying the 1892 agreement. |
| 2007 | Karnataka’s Markandeya reservoir project approved. |
| 2008 | Modified Government Order issued for the Markandeya reservoir project. |
| 09.03.2012 | Tamil Nadu requests details of Karnataka’s Pennaiyar basin schemes. |
| 23.02.2012 | News report surfaces about Karnataka planning to block Pennaiyar River flow. |
| 22.05.2013 | Tamil Nadu officials inspect the Markandeya Anicut site and find preliminary works ongoing. |
| 18.05.2018 | Tamil Nadu files suit against Karnataka and Union of India under Article 131 of the Constitution of India. |
| 05.12.2018 | Union of India files its Written Statement. |
| March 2019 | Karnataka files its Written Statement. |
| 30.04.2019 | Tamil Nadu files a Replication to the Written Statement of the Union of India. |
| 07.05.2019 | Tamil Nadu files a Replication to the Written Statement of Karnataka. |
| 16.05.2019 | Tamil Nadu officials visit the Markandeya dam site and report ongoing construction. |
| 14.11.2019 | Supreme Court issues order on Tamil Nadu’s interim application. |
Legal Framework
The case primarily revolves around the interpretation of the following:
✓ **Article 131 of the Constitution of India**: Grants the Supreme Court original jurisdiction in disputes between states.
✓ **Article 262 of the Constitution of India**: Allows Parliament to legislate on inter-state water disputes and exclude the jurisdiction of the Supreme Court and other courts.
✓ **The Inter-State River Water Disputes Act, 1956**: Provides for the adjudication of disputes relating to inter-state rivers through tribunals.
✓ **The 1892 Agreement**: An agreement between the then Madras and Mysore states regarding the use of the Pennaiyar River.
✓ **The 1933 Agreement**: A modification of the 1892 agreement.
The 1892 Agreement states that:
*The extent of the rights of the Party States, in the use, control and distribution of waters of the Inter State River, is recognized in an agreement of 1892 entered into between the then State of Madras and Mysore…*
The 1933 Agreement states that:
*An anicut will include any construction of rough stone (dry) or masonry across a river either in part or full and in any direction, which will have the effect of diverting water from the river, but the consent of the Madras Government will not be required under the agreement of 1892 for the construction of any anicut if there is to be no irrigation under it.*
Arguments
Tamil Nadu’s Arguments:
-
Karnataka’s projects, especially the dam on the Markandeya River, violate the 1892 agreement, which requires prior consent for new irrigation works.
-
The Markandeya River, being a tributary of the Pennaiyar, is covered under the 1892 and 1933 agreements.
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The construction of a dam, not just an anicut, is a major irrigation project that requires consent, as per the 1933 agreement.
-
Karnataka did not provide full information about the schemes despite repeated requests from Tamil Nadu.
-
The Union of India failed to take action despite complaints from Tamil Nadu.
-
The suit is maintainable under Article 131 of the Constitution as it involves violation of an agreement and the rights of the lower riparian state.
-
The actions of Karnataka have deprived the flows due to the lower riparian State.
Karnataka’s Arguments:
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The suit is not maintainable due to Article 262 of the Constitution and Section 11 of the Inter-State River Water Disputes Act, 1956, which bar the Supreme Court’s jurisdiction in inter-state water disputes.
-
The 1933 agreement does not require consent for drinking water projects, and the Markandeya dam is solely for drinking water.
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The project has been approved and is 75-80% complete with due sanctions and permissions.
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The projects will not cause prejudice to Tamil Nadu, as most of the Pennaiyar basin is in Tamil Nadu.
-
There is no violation of either the 1892 Agreement or the 1933 Agreement.
Union of India’s Arguments:
-
No request for the appointment of an arbitrator under Rule-IV of the 1892 Agreement has been received from either State Government.
-
No request has been received from any of the State Governments under the Inter-State River Dispute Act, 1956.
| Main Submissions | Sub-Submissions of Tamil Nadu | Sub-Submissions of Karnataka | Sub-Submissions of Union of India |
|---|---|---|---|
| Maintainability of the Suit | The suit is maintainable under Article 131 of the Constitution as it involves violation of an agreement and the rights of the lower riparian state. | The suit is not maintainable due to Article 262 of the Constitution and Section 11 of the Inter-State River Water Disputes Act, 1956, which bar the Supreme Court’s jurisdiction in inter-state water disputes. | No specific submission on maintainability. |
| Violation of Agreements | Karnataka’s projects, especially the dam on the Markandeya River, violate the 1892 agreement, which requires prior consent for new irrigation works; The Markandeya River, being a tributary of the Pennaiyar, is covered under the 1892 and 1933 agreements; The construction of a dam, not just an anicut, is a major irrigation project that requires consent, as per the 1933 agreement. | The 1933 agreement does not require consent for drinking water projects, and the Markandeya dam is solely for drinking water; There is no violation of either the 1892 Agreement or the 1933 Agreement. | No specific submission on violation of agreements. |
| Information and Action | Karnataka did not provide full information about the schemes despite repeated requests from Tamil Nadu; The Union of India failed to take action despite complaints from Tamil Nadu. | The project has been approved and is 75-80% complete with due sanctions and permissions. | No request for the appointment of an arbitrator under Rule-IV of the 1892 Agreement has been received from either State Government; No request has been received from any of the State Governments under the Inter-State River Dispute Act, 1956. |
| Impact of Projects | The actions of Karnataka have deprived the flows due to the lower riparian State. | The projects will not cause prejudice to Tamil Nadu, as most of the Pennaiyar basin is in Tamil Nadu. | No specific submission on the impact of projects. |
Issues Framed by the Supreme Court
The Supreme Court did not explicitly frame issues in this order, as it was primarily dealing with an interim application. However, the core issues before the court were:
- Whether the construction of a dam by Karnataka on the Markandeya River is in violation of the 1892 and 1933 agreements.
- Whether the suit filed by Tamil Nadu is maintainable under Article 131 of the Constitution, given the provisions of Article 262 and the Inter-State River Water Disputes Act, 1956.
- Whether the Union of India failed to take action despite representations from Tamil Nadu.
- Whether any interim directions are required to be passed pending the final disposal of the suit.
Treatment of the Issue by the Court
| Issue | How the Court Dealt with It |
|---|---|
| Violation of Agreements | The Court did not make a final determination on the violation of the 1892 and 1933 agreements. It noted that the issue would be considered after the parties have led evidence. |
| Maintainability of the Suit | The Court acknowledged the arguments regarding Article 262 and the Inter-State River Water Disputes Act, 1956, but deferred a final decision on maintainability to a later stage. |
| Failure of Union of India to Act | The Court observed that no formal request for constituting a tribunal under the Act was made by Tamil Nadu. It did not find the Union of India at fault for not constituting a tribunal. |
| Interim Directions | The Court declined to grant any interim relief, noting that the project was already 75% complete and had received necessary sanctions. |
Authorities
The Court considered the following authorities:
| Authority | Court | How it was Considered | Legal Point |
|---|---|---|---|
| State of Karnataka v. State of Tamil Nadu and Others (2018) 4 SCC 1 |
Supreme Court of India | Referred to the principle that an Inter State River is a national asset and no single State can claim exclusive ownership. | Inter-State River as a National Asset |
| State of Tamil Nadu v. State of Kerala and Another (2014) 12 SCC 696 |
Supreme Court of India | Referred to the principle that a tributary would be part of the Inter State River and would be covered by the agreement. | Tributary as part of Inter-State River |
| State of Orrisa v. Government of India and Another (2009) 5 SCC 492 |
Supreme Court of India | Referred to the power of the Court to direct the Central Government to constitute a Tribunal and to grant interim relief pending the constitution of the Tribunal. | Power of the Court to Direct Tribunal Constitution |
| Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padugappu Sangam v. Union of India and Others (1990) 3 SCC 440 |
Supreme Court of India | Referred to the issue of maintainability of a Writ Petition by the concerned Writ Petitioners. | Maintainability of Writ Petition |
| Article 131 of the Constitution of India | Constitution of India | Cited as the basis for the Supreme Court’s original jurisdiction in disputes between states. | Original Jurisdiction of Supreme Court |
| Article 262 of the Constitution of India | Constitution of India | Cited as the basis for Parliament’s power to legislate on inter-state water disputes and exclude the jurisdiction of the Supreme Court and other courts. | Parliamentary Power over Inter-State Water Disputes |
| The Inter-State River Water Disputes Act, 1956 | Parliament of India | Cited as the legislation providing for the adjudication of disputes relating to inter-state rivers through tribunals. | Adjudication of Inter-State Water Disputes |
| The 1892 Agreement | Agreement | Cited as the agreement between the then Madras and Mysore states regarding the use of the Pennaiyar River. | Agreement on Pennaiyar River Usage |
| The 1933 Agreement | Agreement | Cited as a modification of the 1892 agreement. | Modification of 1892 Agreement |
Judgment
How each submission made by the Parties was treated by the Court?
| Submission | How the Court Treated It |
|---|---|
| Tamil Nadu’s submission that Karnataka’s projects violate the 1892 agreement. | The Court did not make a final determination on this submission, stating that it would be considered after the parties have led evidence. |
| Tamil Nadu’s submission that the Markandeya River is covered under the agreements. | The Court acknowledged this submission but did not make a final determination on it. |
| Tamil Nadu’s submission that the Union of India failed to take action. | The Court noted that no formal request for constituting a tribunal was made by Tamil Nadu and did not find the Union of India at fault. |
| Karnataka’s submission that the suit is not maintainable. | The Court acknowledged this submission but deferred a final decision on maintainability to a later stage. |
| Karnataka’s submission that the 1933 agreement does not require consent for drinking water projects. | The Court did not make a final determination on this submission. |
| Karnataka’s submission that the project is approved and mostly complete. | The Court noted this fact while declining to grant interim relief. |
| Union of India’s submission that no request for arbitration or tribunal was received. | The Court acknowledged this submission and noted that Tamil Nadu had not made a formal request. |
How each authority was viewed by the Court?
✓ State of Karnataka v. State of Tamil Nadu and Others [(2018) 4 SCC 1]: The Court referred to this case to highlight that an inter-state river is a national asset, and no single state can claim exclusive ownership of its water.
✓ State of Tamil Nadu v. State of Kerala and Another [(2014) 12 SCC 696]: The Court referred to this case to support the argument that a tributary would be part of the inter-state river and would be covered by the agreement.
✓ State of Orrisa v. Government of India and Another [(2009) 5 SCC 492]: The Court referred to this case to discuss the power of the Court to direct the Central Government to constitute a Tribunal and to grant interim relief pending the constitution of the Tribunal.
✓ Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padugappu Sangam v. Union of India and Others [(1990) 3 SCC 440]: The Court referred to this case to discuss the issue of maintainability of a Writ Petition.
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily influenced by the following factors:
✓ The advanced stage of the project: The Court noted that the project was already 75% complete, which weighed against granting any interim relief that would halt construction.
✓ Lack of a formal request for a tribunal: The Court emphasized that Tamil Nadu had not made a formal request to the Central Government for the constitution of an Inter-State River Water Disputes Tribunal, which is a prerequisite for the Central Government to act.
✓ Balance of convenience: The Court did not find a strong prima facie case for granting interim relief, considering the project’s purpose (drinking water), the permissions obtained, and the advanced stage of completion.
| Sentiment | Percentage |
|---|---|
| Project Completion Stage | 40% |
| Lack of Formal Request | 35% |
| Balance of Convenience | 25% |
Fact:Law Ratio
| Category | Percentage |
|---|---|
| Fact | 60% |
| Law | 40% |
The Court’s reasoning was more influenced by the factual aspects of the case, such as the project’s completion status and the lack of a formal request for a tribunal, than by legal interpretations.
Logical Reasoning:
Key Takeaways
- The Supreme Court did not grant any interim relief to Tamil Nadu, allowing Karnataka to continue with the dam construction.
- The Court emphasized the importance of following the prescribed procedure for seeking the constitution of an Inter-State River Water Disputes Tribunal.
- The Court acknowledged that the issue of violation of agreements and maintainability of the suit would be considered at a later stage after the parties have led evidence.
- The Court highlighted that inter-state river disputes require a collaborative approach and adherence to established legal mechanisms.
- The Court allowed Tamil Nadu to make an appropriate application invoking the powers of the Central Government in terms of the provisions of the Act and seek constitution of an Inter State River Water Disputes Tribunal.
Directions
The Court directed that:
✓ Tamil Nadu is permitted to make an appropriate application invoking the powers of the Central Government in terms of the provisions of the Act and seek constitution of an Inter State River Water Disputes Tribunal.
✓ Such request may be made within four weeks from the date of this order.
Development of Law
The order does not establish any new legal principle. However, it reinforces the following:
✓ The importance of adhering to the procedural requirements under the Inter-State River Water Disputes Act, 1956, for seeking the constitution of a tribunal.
✓ The principle that while inter-state rivers are national assets, the resolution of disputes requires adherence to legal mechanisms.
The ratio decidendi of the case is that interim relief cannot be granted when a project is substantially complete, and the applicant has not followed the prescribed procedure for seeking the constitution of a tribunal.
Conclusion
The Supreme Court dismissed Tamil Nadu’s interim application, primarily due to the advanced stage of the dam construction and the lack of a formal request for a tribunal. The Court did not make a final determination on the merits of the case, emphasizing that these issues would be addressed after the parties have presented their evidence. The Court allowed Tamil Nadu to apply for the constitution of a tribunal.