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Few would disagree that former Chief Justice of India Dipak Misra left his stamp on the judiciary. This can be viewed through the prism of some of his major judgments that show the breadth of legal dimensions a chief justice must tackle. India Legal runs a series on these judgments

By Justice K Sreedhar Rao

CASE DETAILS

Title: The State of Karnataka by its Chief Secretary vs State of Tamil Nadu by its Chief Secretary & Ors

Bench: CJI Dipak Misra, Justices JJ Amitava Roy and AM Khanwilkar

Case no: Civil Appeal no. 2453 of 2007

Date of judgment: February 16, 2018

Historically, despite Karnataka being an upper riparian state, it has suffered from constraints, resulting in its limited access to the surface flow of the Cauvery compared to Tamil Nadu. In the light of this, the Supreme Court modified the award passed by the Cauvery Water Disputes Tribunal insofar as the share allocated to Karnataka is concerned, but kept the major part of the award intact.

Pursuant to the Cauvery water dispute with Karnataka, Tamil Nadu raised the issue before the Union government in July 1986. It requested adjudication of the dispute by a tribunal constituted under Section 3 of the Interstate Water Disputes Act, 1956. On the basis of this request, the government constituted the Cauvery Water Disputes Tribunal in June 1990.

The Tribunal, while adjudicating the water dispute affecting Karnataka, Ta­mil Nadu, Kerala and the Union Territory of Puducherry, passed its award in February 2007. It is as follows: “Since the major shareholders in the Cauvery waters are the states of Karnataka and Tamil Nadu, we order the tentative monthly deliveries during a normal year to be made available by the State of Karnataka at the inter-State contact point presently identified as Billigundulu gauge and discharge station located on the common border as under:

The total above quantum of 192 TMC of water comprises 182 TMC from the allocated share of Tamil Nadu and 10 TMC allocated for environmental purposes.”

Thereafter, the award was challenged in the Supreme Court by Karnataka, Kerala and Tamil Nadu. While observing that the share allocated to Karnataka was deficient, the Supreme Court granted an additional 14.75 TMC of water to Karnataka, ie, 10 TMC (on account of availability of groundwater in Tamil Nadu) + 4.75 TMC (for drinking and domestic purposes, including water needs for the whole of Bengaluru). Thus, 14.75 TMC would be deducted from the quantum allocated by the Tribunal in favour of Tamil Nadu.

The final statement by the bench headed by CJI Dipak Misra said: “After considering all relevant materials brought on record, we are of the view that having regard to imperative of economy of consumption of water, the final determination of irrigated area arrived at by the Tribunal for Tamil Nadu, cannot be declared incorrect or fallacious. We do not find any perversity of approach in the Tribunal’s findings with regard to the allocation of water for domestic and industrial purposes in the State of Tamil Nadu. Hence, the same requires no interference. Drinking water requirement of the overall population of all the states has to be placed on a higher pedestal as we treat it as a hierarchically fundamental principle of equitable distribution. The Tribunal has allocated a total of 30 TMC of water towards the overall needs of the State of Kerala and we concur with the said conclusion of the Tribunal. The rejection of the stand of Kerala seeking trans-basin diversion for hydro-power projects by the Tribunal is justified. We concur with the Tribunal’s findings that the Union Territory of Puducherry is entitled for a second crop, having regard to its unique geographical position and its irrigated area being approximately 43,000 acres.

“The admission of facts along with the confirmatory empirical data suggests that around 20 TMC of groundwater is available beneath the surface in Tamil Nadu which the Tribunal has not taken into account citing it as a conjecture. We, while keeping in mind the risks associated with over extraction of underground water, deem it fit that 10 TMC of the said available groundwater in Tamil Nadu can, in the facts and circumstances of the present case, be accounted for in the final determination of its share.

“The Tribunal had drastically reduced the share of Karnataka towards domestic and industrial purpose for the reason being that only 1/3rd of the city of Bengaluru falls within the river basin and also on the presumption that 50% of its drinking water requirements can be met from groundwater supply. The said view taken by the Tribunal ignores the basic principle pertaining to drinking water, and is thus unsustainable. Keeping in mind the global status that the city has attained, an addition of 4.75 TMC is awarded to Karnataka….”

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