ivil Appeal No 2446 of 1991
From the Judgement and Order dated 11101990 of the Bombay High Court in FA No 649 of 1990
Mrs CM Chopra for the Appellant
Respondent in person
The Judgment of the Court was delivered by KULDIP SINGH J
His parents advertised for  homely non medico bride
Her parents responded
Marriage took place on January 24 1988 at Noida near Delhi
They hardly lived as husband and wife at Pune for about seven months when on August 16 1988 the husband filed a petition under Section 13 of the Hindu Marriage Act for dissolution of Marriage on the ground of cruelty
He alleged she had a habit of smoking and it was found that she was in the habit of drinking and even once came drunk to the applicant s house and abused everybody
He further alleged  it was found by the applicant that she was working as a model prior to marriage and he found few pictures of the respondent in bikini and semi nude clothes in magazines
She vehemently denied the allegations and claimed that the she was a homely vegetarian non smoking teetotaller and faithful house wife
The Family Court at Pune proceeded ex parte and granted divorce decree by the order dated November 30 1989
Wife s application for setting aside the ex parte decree was dismissed by the Family Court on June 24 1990
The High Court by its judgment dated October 1011 1990 unheld the findings of the Family Court with the modification that in place of decree for dissolution of marriage it granted a decree for judicial separation
This appeal by way of special leave is by the wife against the judgments of the courts below
85 During the pendency of the divorce proceedings before Family Court Pune the wife filed a petition on May 1 1989 before this Court seeking transfer of the case from the Family Court Pune to Delhi
This Court granted ad interim stay of the proceedings before the Family Court Pune
The stay remained operative till September 11 1989 when this Court dismissed the transfer petition and vacated the stay
Thereafter the husband appeared before the Family Court on September 15 1989 whereas the appellant wife remained absent
Notices were sent by registered post to the wife on her address at Noida and also at her Delhi address given by her in the proceedings before this Court
The notice came back with the remarks not found
The Family Court ordered substituted service and a notice was published in the Times of India New Delhi of dated October 241989 asking the wife to appear before the Family Court on November 16 1989 or the proceedings would be taken ex parte
On November 16 1989 the Family Court ordered ex parte proceedings
The issues were framed on November 21 1989 the evidence of the husband was recorded on November 25 1989 and the judgment was pronounced on November 30 1989
The appellant filed an application dated December 18 1989 for setting aside the ex parte divorce decree wherein she stated that after she was forced to leave her matrimonial home at Pune she was residing with her parents at Noida
She further stated that in OctoberNovember 1989 she had gone to reside with her brother at Delhi
According to her she applied to the Army Authorities claiming maintenance out of her husband s salary
Respondent husband is an Army officer
The Army Authorities sent a letter dated December 14 1989 to her father wherein it was mentioned that his daughter s application for maintenance allowance could not be entertained because the husband had already obtained a divorce decree from the court
A copy of the Family Court Judgment granting divorce decree to the husband was also annexed to the letter
The appellant claims that for the first time on or about December 14 1989 She came to know through her father that the respondent had already been granted an ex parte divorce decree by the Family Court
The appellant in her application inter alia stated as under The applicant submits that the applicant did not receive any noticelettersummons or communication from this Hon ble Court s office
Even there was no intimation given by postal 86 authorities and the applicant honestly states that till the receipt of the letter from the Army HQ New Delhi she was not aware of the date of proceeding
The applicant submits the applicant was under bona fide belief that she will receive a notice from this Hon ble Court
As such and being far from Pune either in Noida  UP or at New Delhi it was not possible for her to approach this Hon ble Court for any enquiry since she was also not permitted to appear through the lawyer At any rate and in any event the applicant also did not come across the public notice published in Times of India New Delhi on 24th October 1989 as stated in the decree
The applicant submits the applicant had every intention to resist the marriage petition filed by the opponent since the same was absolutely false frivolous and out and out false and has been resisted by the applicant by filing written statement preliminary objection including to approach the Supreme Court of India
The intention of the applicant was clear
The applicant submits the applicant was also advised by her Advocate that she will receive a fresh notice in due course of time after the stay was vacated by the Hon ble Supreme Court of India from this Hon ble Court
The applicant states she resides at a far long distance from Pune
She was also refused any assistance of lawyer
The applicant has no relation or any representative who can look after her in the present proceeding in Pune
It was in these circumstances the applicant was prevented by sufficient cause from appearing in the marriage petition proceeding No56189 and as such the said decree is required to be set aside  
The applicant states the applicant is unable to maintain herself she has no source of income  
The applicant submits because of the passing of ex parte decree she has been refused maintenance allowance
The applicant also prays for granting of maintenance allowance pending final disposal of this application The Family Court dismissed the application for setting aside ex parte divorce decree on the following reasoning But where the party itself knows that stay obtained by it has been vacated there appears no warrant for the proposition that again a notice is required to be given to the said party
I do 87 not think that such advice was really given to the applicant
The applicant has not produced any evidence to the effect that she received such advice from a lawyer
It is her own statement
It is a self serving statement and can hardly be believed
I think that if the applicant was really keen and desirous to contest matrimonial petition she would have at once made enquiries to find out as to when the next date for hearing in this court was fixed after her application for transfer of the case was dismissed by the Supreme Court and the stay obtained by her was vacated
The order of vacating the stay was passed on 11th September 1989 by the Hon ble Supreme Court and the applicant knew fully well about it
The opponent who had also appeared in the Supreme Court in connection of that matter did appear in this Court on 1591989
The record of PA No 56189 shows that opponent applied for issuing of notice to the present applicant
The notice was issued by registered post on two separate addresses
One of the address was the one shown by applicant herself in Supreme Court petition and the other address was the one which was admitted to be her address in the matrimonial petition which was address of her father at Delhi
Both these notices were sent by registered post in due course
The court waited till return of this notice
On both these envelops postal authorities have endorsed that the present applicant was not found on these addresses
The opponent had therefore made application that the applicant was avoiding to take notice and hence substituted service by publishing in Times of India be made
Accordingly a notice was published as per order of the Court on opponent s application
Thus the contention of the respondent that she had no notice of the further proceeding in marriage petition does not appear convincing
As stated already in the first instance there was no necessity for her to wait for receipt of the notice in the circumstances of the present case
The notices sent to her were obviously evaded otherwise there was no reason why the applicant was found on either of the addresses which she admits to be the correct addresses
Even if she was not present there was no reason why other major members of the family did not accept these notices
And lastly the publication of the notice 88 in one of the most widely circulated newspaper at Delhi was sufficient notice to the applicant
 The High Court upheld the reasoning and the conclusions reached by the Family Court and dismissed the appeals filed by the wife
The respondent appeared before us in person and himself argued his case
The learned counsel for the appellant raised the following points for our consideration a That the Family Court and the High Court grossly erred in dismissing the application filed by the appellant for setting aside the ex parte proceedings b That the divorce petition was filed hardly seven months after the marriage
Section 14 of the Hindu Marriage Act provides it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce unless at the date of the presentation of the petition one year has elapsed since the date of the marriage
The divorce petition should have been dismissed as not competent in terms of Section 14 of the Hindu Marriage Act c that even on merits the divorce decree is based on no evidence
The allegations in the divorce petition are wholly vague
In any case the evidence of Major Ved Prakash being wholly interested and contrary to the record the courts below fell into grave error in accepting serious allegations against the appellant on the basis of his evidence d that the High Court acted illegally in substituting the decree of divorce to that of a decree for judicial separation
The High Court should have dismissed the divorce petition
We may take up the Fist Point
The appellant filed written statement before the Family Court Pune vehemently denying the allegations made against her by the respondent
She also raised preliminary objections regarding the maintainability of the divorce petition
She filed a transfer petition before this Court which was dismissed in September 1989
She filed another transfer petition which was dismissed by this Court on April 121990 with the following observations 89 It is open to the petitioner to move the High Court under Section 24 Code of Civil Procedure for consideration of her prayer that the case be transferred to another Judge
On the merits of this prayer we decline to make any observation
It would appear that the case is now listed before the Family Judge at Pune on 13490
It will be appropriate that having regard to the apprehension expressed by the petitioner the Court should not proceed with the matter until her prayer for transfer is considered by the High Court
We accordingly direct the Family Court Pune to stay further proceeding in the case a period of 60 days from today to enable the petitioner to approach the High Court
 It is no doubt correct that the appellant did not approach the High Court for the transfer of the case but the fact remains that she was been seriously contesting the divorce proceedings and it would not be fair to assume that she deliberately choose to abstain from the Family Court and was intentionally avoiding the summons
The Family Court and the High Court have held that after the dismissal of the transfer petition and vacation of stay by this Court the appellant wife should have on her own joined the proceeding before the Family Court
According to the courts below no notice for appearance was required to be sent to the parties after the stay was vacated
It is not necessary for us to go into the question as to whether a fresh notice to the parties is necessary where the superior Court vacates the stay order and as a consequence the proceeding recommence before the court below
We are of the view that in the fact and circumstances of this case the interest of justice required the issue of such a notice
The admitted facts in this case are as under i While dismissing the transfer petition and vacating the stay order this Court did not fix any date for the appearance of the parties before the Family Court Pune ii The Family Court had permitted the assistance of a lawyer to the appellant wife in the following terms As applicant is from Delhi and it would cause hardship permission is granted 90 for engaging an Advocate for pleading her case only for the purpose of presenting applications or serving notices and noting the orders of the Court
 iii The appellant did not engage a lawyer to represent her before the Family Court Pune
iv The appellant wife was residing with her parents at Noida Delhi
Even the distance between Noida and Pune was a big hassle for the appellant especially when she had no counsel to look after the proceedings before the Family Court Pune
We are of the view that in the facts and circumstances of this case she was justified in her assumption that the proceedings before the Family Court would be resumed after fresh notice to the parties
The applicability of the Rules of natural justice depends upon the facts and circumstances of each case
We are of the view that in the facts and circumstances of this case she was justified in her assumption that the proceedings before the Family Court would be resumed after fresh notice to the parties
The applicability of the Rules of natural justice depends upon the facts and circumstances of each case
We are of the view that in this case fair play and the interest of justice required the issuance of a fresh notice to the parties after the stay order was vacated by this Court
We do not therefore agree with the findings of the Courts below to the contrary
In any case realising the requirements of natural justice the Family Court sent two registered notices to the appellant at her Noida address and also at the address given by her in the proceedings before this Court
Unfortunately both the notices came back with the endorsements that the appellant could not be found on the given addresses
There is no material on the record to reach a conclusion that the appellant refused to receive the notices
There is also nothing on the record to show as to whether the postal authorities made any efforts to deliver the registered letters to any of the appellant s relations at the given addresses
The courts below are wholly unjustified in holding that the appellant refused to receive the notices and further that the said notices could have been received by any of her relations on the given addresses
After the notices sent by registered post were received back the Family Court did not make any attempt to serve the appellant through the process of the Court
The appellant was no stranger to the respondent
She was his wife
It could not have been difficult for him to find out the address where she was staying
Under the circumstances resort to the substitute service by way of publication in the newspaper was not justified
91 We are therefore of the view that there was sufficient cause for the non appearance of the appellant in the matrimonial petition before the Family Court
The view we have taken on the first point it is not necessary to deal with the other points raised by the learned counsel for the appellant
We therefore set aside the order of the Family Court dated June 24 1990 and allow the appellant s application dated December 18 1989 and set aside the ex parte decree passed against the appellant in Marriage petition No A 56189
As a consequence the judgment of the Family Court Pune dated November 30 1989 and the judgment of the High Court in First Appeal No 64990 dated October 1011 1990 are also set aside
The appellant had asked for transfer of her case from the Principal Judge Family Court Pune to some other court and this Court gave liberty to the appellant to move the High Court for the said purpose
We are satisfied that the reason given by the appellant for such transfer and the apprehensions entertained by her are wholly unjustified
We ar however of the view that the Principal Judge Family Court Pune has taken the grievances made by the appellant before this Court rather seriously and has commented adversely about the same
With a view to do complete justice between the parties we direct that this case be transferred from the file of Principal Judge Family Court Pune to the Principal Judge Family Court Bombay
The parties are directed to appear before the Principal Judge Family Court Bombay on June 22 1992
Before concluding we wish to place on record that we tried to persuade the parties to live together and in the alternative to settle their dispute amicably but with no result
We allow the appeal in the above terms with no order as to costs
NVK Appeal allowed


Summary:
In pursuance of the directions given by this Court in a Writ Petition filed by the Tamil Nadu Ryots  Association the Union Government by its notification dated June 2 1990 constituted the Cauvery Water Disputes Tribunal under Section 4 of the for adjudication of the dispute regarding sharing of water of the inter State river Cauvery between the States of Karnata ka the upper riparian State Tamil Nadu the lower riparian State and Kerala and the Union Territory of Pondicherry
By another notification of the same date it also referred the water dispute emerging from the Letter of Request lodged by the State of Tamil Nadu under Section 3 of the Inter State Water Disputes Act with the Central Government on the fail ure of the negotiations between the parties in this regard for reference of the dispute to a Tribunal for adjudication
In the Letter of Request the State had made a grievance against construction of works in Karnataka area and the appropriation of water upstream so as to prejudice the interests downstream in the State of Tamil Nadu and also sought the implementation of the agreements of 1892 and 1924 which had been entered into when most of the areas in these States comprised in the then Presidency of Madras and the then State of Mysore
The last of the agreements had expired in 1974 and though the understanding of 1976 had been reached further negotiations in the matter had failed and hence the State of Tamil Nadu had lodged the aforesaid Letter of Request
Before the Tribunal the State of Tamil Nadu submitted an application for interim relief praying that State of Karnataka be directed not to impound or utilise water of Cauvery river beyond the extent impounded or utilised by them as on 3151972 as agreed to by the Chief Ministers of the basin States and the concerned Union Minister and an order restraining Karnataka from undertak 499 ing any new projects dams reservoirs canals andor from proceeding further with the construction of those already commenced in the Cauvery basin
The Union Territory of Pondicherry also sought a direction both to Karnataka and Tamil Nadu to release the water already agreed to during the months of September to March
Meanwhile Tamil Nadu filed an urgent petition to direct Karnataka as an emergent measure to release at least 20 TMC of water as the first instalment pending final orders on their interim application
Besides contesting the application on merits both Karnataka and Kerala raised a preliminary objection that the Tribunal constituted under the Act had a limited jurisdic tion and had no inherent powers as an ordinary Civil Court has and there was no provision of law which authorised or conferred jurisdiction on the Tribunal to grant any interim relief
The Tribunal held that since the question of grant ing interim relief was not referred to it the applications interim relief were not maintainable
On appeal by the State of Tamil Nadu and the Union Territory of Pondicherry this Court held that reliefs prayed for in the applications for interim relief and direc tions were covered in the reference and fell within the purview of the dispute referred to it by the Central Govern ment under Section 5 of the later State Water Disputes Act
Accordingly the Court directed the Tribunal to decide the applications for interim relief and directions on merits
Rejecting the objections once again raised by the State of Karnataka as regards the maintainability of the applica tions for interim relief the Tribunal passed an order directing the State of Karnataka to ensure that 205 TMC water was available in Tamil Nadu s Mettur reservoir every year
Tamil Nadu was also directed to deliver to Pondicherry 6 TMC water
The Tribunal also directed Karnataka not to increase its area under irrigation by the waters of Cauvery beyond the existing area
The order was to remain operative till the final adjudication of the dispute referred to it
The Tribunal s order thus gave rise to the issuance of the Karnataka Cauvery Basin Irrigation Protection Ordinance 1991 by the State of Karnataka nullifying the Tribunal s order
The ordinance was subsequently replaced by Act No 27 of 1991
500 The State of Karnataka also instituted a suit under Article 131 against the State of Tamil Nadu and others for a declaration that the Tribunal s order granting interim relief was without jurisdiction and therefore null and void etc
Under these circumstances the President of India made a Reference to this Court under Article 1431 of the Consti tution seeking advisory opinion on a whether the Ordi nance and the provisions thereof were in accordance with the provisions of the Constitution b whether the Tribunal s order constituted a report and a decision within the meaning of Section 52 of the  and whether the same was required to be published by the Govern ment of India in order to make it effective and c whether a Water Disputes Tribunal constituted under the Inter State Water Disputes
Act was competent to grant any relief to the parties to the dispute
It was contended on behalf of the State of Karnataka that the legislation clearly fell within the competence of the State Legislature under Entry 17 as well as Entries 14 and 18 of List II in the Seventh Schedule of the Constitu tion and the State Legislature had every right to legislate on the subject and this legislative power was subject only to Entry 56 of List I which however did not denude the States of the power to legislate under Entry 17 and in the absence of the constitution of a River Board for Cauvery as envis aged under Entry 56 the State retained full legisla tive power to make laws as if Entry 17 had remained un touched that the executive power of the Union under Article 73 could not extend to any State with respect to matters on which the State alone could legislate in view of the field having been covered by Article 162 of the Constitution that since the Inter State River Disputes Act enacted under Article 262 of the Constitution did not attract any Entry in List I it was law essentially meant to provide for the adjudication of a dispute with respect to the use distribu tion or control of waters of or in any inter State river or river valley and did not therefore step on the toe of Entry 17 that the Ordinance which became Act subsequently only sought to impose by section 3 a duty on the State Government to protect preserve and maintain irrigation from Cauvery waters in the irrigable areas failing within the various projects specified in the Schedule to the said legislation and therefore the legislation was clearly within the scope of the State s power to legislate and was intra vires the Constitution
A fortiori the power to legislate conferred on the State Legislature by Entries 14 17 and 18 of List 501 II could not be inhibited by an interim order of the Tribu nal since the scheme of the Act envisaged only one final report or decision of the Tribunal under section 52 which would have to be gazetted under section 6 thereof and therefore it was open to the Karnataka Legislature to make a law ignoring or overriding the interim order of the Tribu nal that the scheme of the Act did not envisage the making of an interim order by the Tribunal once a water dispute was referred to the Tribunal it must investigate  the matters referred to it and forward a report to the Central Government setting out the facts found by it and giving its decision on the matters referred to it and the Central Government must publish this decision in the official ga zette to make it final and binding on the parties to the dispute and since the interim order was not preceded by such an investigation the said order could not be described as a decision  under section 52 of the Act and conse quently the Central Government was under no obligation to publish the interim order that the words any matter ap pearing to be connected with or relevant to water dispute  employed in section 51 of the Act did not contemplate reference of an interim relief matter nor could the same empower the Tribunal to make an interim order pendente lite and therefore having regard to the purpose scope and intendment of the Act the Tribunal constituted thereunder had no power or authority to grant any interim relief which would have the effect of adversely interfering with its existing rights although while finally adjudicating the dispute it could override any executive or legislative action taken by the State and since the allocation of flow of waters between the concerned States was generally based on the principle of equitable apportionment  it was incum bent on the Tribunal to investigate the facts and all rele vant materials before deciding on the shares of the con cerned States which was not possible at the interim stage and hence the legislature had advisedly not conferred any power on the Tribunal to make an interim order affecting the existing rights of the concerned parties and that the President could refer any question of law under Article 143 and therefore also ask the Supreme Court to reconsider any of its decisions
In its written statement the State of Kerala by and large supported the stand of the State of Kerala
However subsequently it was submitted that since neither the scheme of the Act conferred any power on the Tribunal to make an interim order nor the scope of Article 262 read with the scheme of Act contemplated making of a Reference in that regard the only remedy available to a State 502 which apprehended any action by the upper riparian State likely to adversely affect the rights of its people was to move the Supreme Court under Article 131 of the Constitu tion notwithstanding the provisions of Article 262 and section 11 of the Act and accordingly this Court s view that there was a Reference to the Tribunal for grant of interim relief was not consistent with the true meaning and scope of Article 262 and the provisions of the Act and this Court should not feel bound by it
The State of Tamil Nadu contended that ordinarily a dispute between two or more States would be governed by Article 131 of the Constitution and subject to the provi sions of the Constitution the Supreme Court alone would have jurisdiction if and in so far as the dispute involved any question whether of law or fact on which the existence or extent of a legal right depended that the Tribunal was required to perform a purely judicial function which but for Article 262 and section 11 of the  would have been performed by a court of law that since the Tribunal was a substitute for the Supreme Court it was reasonable to infer that all the powers exer cised by the Supreme Court under Article 131 could be exer cised by the Tribunal while adjudicating a water dispute and therefore the ancillary and incidental power to grant interim relief inhered in such a Tribunal without the need for an express provision or any specific reference to it in that behalf that apart the decision of this Court dated 26th April 1991 that the reference to the Tribunal included the question of grant of interim relief operated as res judicata and was binding on the contesting parties regard less of the view that this Court might take on the generali ty of the question referred for decision if the question of granting of interim relief formed part of the Reference the Tribunal was duty bound to decide the same and even other wise it had inherent jurisdiction to grant interim relief whether or not the question regarding grant of interim relief was specifically referred and therefore its deci sion would constitute a report under section 52 of the Act and was liable to be published in the official Gazette as required by section 6 that if there was any ambiguity in the interim order the same could be taken care of under section 53 of the Act that the Ordinance in question was ultra rites the Constitution for diverse reasons the real object and purpose was to unilaterally nullify the Tribu nal s interim order after having failed in the first round of litigation the State of Karnataka had no right to uni laterally decide the quantum of water it would appropriate or the extent to which it would diminish the flow of Cauvery waters to 503 the State of Tamil Nadu and thereby deny to the people of Tamil Nadu their rightful share in the Cauvery waters the right to just and reasonable use of water being a matter for adjudication by the Tribunal no single State could by the use of its legislative power arrogate unto itself the judi cial function of equitable apportionment and decide for itself the quantum of water it would use from the inter State river regardless of the prejudice it would cause to the other State by its unilateral action such a power could not be read in Entry 17 as it would be destructive of the principle that such water disputes were justiciable and must be left for adjudication by an independent and impartial special forum to which it was referred namely the Tribunal constituted for resolving the dispute and not by unilateral executive or legislative interference and therefore the object of the legislation not being bona fide the same could not be allowed to stand as it had the effect of over ruling a judicial order passed by a Tribunal specially appointed to adjudicate on the water dispute between the parties thereto it sought to override or neutralize the law enacted by Parliament in exercise of power conferred by Article 262 and not Article 246 read with the relevant entry in the Seventh Schedule of the Constitution a State Legislature could have no power to legislate with regard to a water dispute as it would be incongruous to confer or infer such power in a State Legislature to destroy what a judicial body has done under a Central law it had extra territorial operation in that it directly impinged on the rights of the people of Tamil Nadu to the use of Cauvery waters it was also contrary to the Rule of Law and a power not comprehended even by Article 262 could not be read into the legislative power of the State for it would pervert the basic concept of justice and was also violative of the fundamental rights of the inhabitants of Tamil Nadu guaran teed by Articles 14 and 21 of the Constitution in that the action of Karnataka was wholly arbitrary and in total disre gard of the right to life of those inhabitants in Tamil Nadu who survived on Cauvery waters it was further contended that in a civilised society governed by the Rule of Law a party to a lis  water dispute could not be allowed to arrogate to itself the right to decide on the dispute or to nullify an interim order made by a Tribunal in obedience to the decision of the apex court by abusing the legislative power under Entry 17 under which the legislation purported to be moreover the jurisdiction of this Court under Arti cle 143 of the Constitution was discretionary and this Court should refrain from answering a Reference which was in general terms without background facts and was likely to entail a roving inquiry which may ultimately prove academic only secondly 504 the State of Karnataka had immediately after the interim order instituted a suit in this Court in which it had prayed for a declaration that the interim order of the Tribunal dated 25th June 1991 was without jurisdiction null and void and for setting aside the said order while on the one hand the decision of this Court had become final and was res judicata between the parties thereto on the other hand the State of Karnataka was raking up the same question of jurisdiction before this Court in a substantive suit with a view to over reaching this Court s earlier order the Presidential Reference in terms referred to disputes and differences having arisen out of the Tribunal s interim order which was said to have given rise to a public contro versy likely to result in undesirable consequences such matters could be effectively countered by the concerned Government and did not call for a Presidential Reference if there was any doubt or difficulty in the implementation of the order in question recourse could always be had to section 53 of the Act and hence this Court should refuse to answer the Reference
The Union Territory of Pondicherry contended that the promulgation of the Ordinance now Act was intended to further protract the long standing water dispute which came to be referred to the Tribunal only after this Court issued a mandamus in that behalf and was likely to prejudicially affect the interest of the State as well as the farmers and other inhabitants who utilised the water from river Cauvery that the said legislation was unconstitutional and was a piece of colourable legislation that in the case of flowing water the riparian States had no ownership or proprietary right therein except in the usufruct thereof and therefore the power to legislate therein under Entry 17 of List II could extend to only the usufructuary right subject to the right of a riparian State to get the customary quantity of water that the Ordinance was also void for repugnancy being in conflict with the Central legislation and also violative of Article 21 of the Constitution as it was in tended to diminish the supply of water to Tamil Nadu and Pondicherry which was also against the spirit of Articles 38 and 39 of the Constitutionthat since the water dispute referred to the Tribunal comprised the issue regarding the grant of interim relief as held by this Court the interim order made by the Tribunal constituted a report within the meaning of section 52 of the Act and consequently the Central Government was obliged to publish it as required by section 6 of the Act and when so published it would operate as a decision in rem but even without publication it was binding on Karnataka as a decision in personam since the jurisdiction of all courts including 505 the Supreme Court was taken away by virtue Of section 11 of the Act read with Article 2622 of the Constitution and the Tribunal had all attributes of a Court it was required to discharge the judicial function of adjudicating a water dispute between two or more States and must be deemed to possess the inherent incidental and ancillary power to grant interim relief which inhered in all such judicial bodies and absence of an express provision in that behalf did not detract from the view that such power inhered in a Tribunal
Six intervention applications were also filed by differ ent persons and bodies from Karnataka including the Advo cate General of the State in support of the case of Karnata ka
An intervention application raising the contentions similar to those of State of Tamil Nadu was also filed by the Tamil Nadu Ryots  Association which had preferred the original Writ Petition on which a mandate to constitute the Tribunal was given
Answering the Reference this Court HELD 11 The Karnataka Cauvery Basin Irrigation Protection Ordinance 1991 promulgated by Governor of Karna taka on 25th July 1991 subsequently enacted by the State Legislature as Act No 27 of 1991 is beyond the legislative competence of the State and is therefore ultra vires the Constitution
565 E 12 The object of the provisions of the Ordinance is obvious coming close on the Order of the Tribunal and in the context of the stand taken by the State of Karnataka that the Tribunal has no power or jurisdiction to pass any inter im relief it is to override the said decision of the Tribu nal and its implementation
The Ordinance has thus the effect of defying and nullifying any interim order of the Tribunal appointed under a law of the Parliament
The other effect of the Ordinance is to reserve to the State of Karna taka exclusively the right to appropriate as much of the water of river Cauvery and its tributaries as it deems requisite and in a manner and at periods it deems fit and proper although pending final adjudication by the Tribunal
546 F G 13 The Ordinance affects the jurisdiction of the Tribu nal appointed under the Central Act viz the inter State Water Disputes Act which has been made under Article 262 of the Constitution
506 The State of Karnataka has arrogated to itself the power to decide unilaterally whether the Tribunal has jurisdiction to pass the interim order or not and whether the order is binding on it or not
The State has presumed that till a final order is passed by the Tribunal the State has the power to appropriate the waters of the river Cauvery to itself unmindful of and unconcerned with the consequences of such action on the lower riparian States that it has supe rior rights over the said waters and it can deal with them in any manner and the lower riparian States have no equita ble rights and that it is the sole judge as to the share of the other riparian States in the said waters
Moreover it has assumed the role of a judge in its own cause
552 C F G 14 Apart from the fact that the Ordinance directly nullifies the decision of the Tribunal it also challenges the decision of this Court which has ruled that the Tribu nal had power to consider the question of granting interim relief since it was specifically referred to it
The Ordi nance further has an extra territorial operation inasmuch as it interferes with the equitable rights of Tamil Nadu and Pondicherry to the waters of the Cauvery river
To the extent that the Ordinance interferes with the decision of this Court and of the Tribunal appointed under the Central legislation it is clearly unconstitutional being not only in direct conflict with the provisions of Article 262 of the Constitution under which the said enactment is made but being also in conflict with the judicial power of the State
1552 H 553 A 15 The legislature can change the basis on which a decision is given by the Court and thus change the law in general which will affect a class of persons and events at large but it cannot set aside an individual decision inter parties and affect their rights and liabilities alone
Such an act on the part of the legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or Tribunal
554 H 555 A Municipal Corporation of the City of Ahmedabad etc
vs New Shorock Spg
 Wvg
Co Ltd etc
  Madan Mohan Pathak vs Union of India  Ors
  and P Sambamurthy  Ors
vs State of Andhra Pradesh  Anr   referred to
16 Any executive order or a legislative enactment of a State which interferes with the adjudicatory process and adjudication by such Tribunal is an interference with the judicial power of the State
In view of the fact that the Ordinance in question seeks directly to 507 nullify the order of the Tribunal it impinges upon the judicial power of the State
555 C D 17 Further admittedly the effect of the Ordinance is to affect the flow of the waters of the river Cauvery into the territory of Tamil Nadu and Pondicherry which are the lower riparian States
The Ordinance has therefore an extra territorial operation and is thus beyond the legisla tive competence of the State and is ultra vires the provi sions of Article 2451 of the Constitution
555 E 18 The Ordinance is also against the basic tenets of the rule of law inasmuch as the State of Karnataka by issu ing the Ordinance has sought to take law in its own hand and to be above the law
Such an act is an invitation to law lessness and anarchy inasmuch as the Ordinance is a mani festation of a desire on the part of the State to be a judge in its own cause and to defy the decisions of the judicial authorities
The action forebodes evil consequences to the federal structure under the Constitution and opens doors for each State to act in the way it desires disregarding not only the rights of the other States the orders passed by instrumentalities constituted under an Act of Parliament but also the provisions of the Constitution
If the power of a State to issue such an Ordinance is upheld it will lead to the break down of the Constitutional mechanism and affect the unity and integrity of the nation
555 F G 21 Under Article 131 this Court has original jurisdic tion among other things in any dispute between two or more States where the dispute involves any question whether of law or fact on the existence and extent of which a legal right depends except those matters which are specifically excluded from the said jurisdiction by the proviso
However the Parliament has also been given power by Article 262 of the Constitution to provide by law that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any dispute or complaint with respect to the use distribution or control of the water of or in any inter State river or river valley
Section 11 of the  has in terms provided for such exclusion of the jurisdiction of the Courts
Thus Section 11 of the Act read with Article 262 excludes original juris diction of the inter State water dispute which may be re ferred to the Tribunal established under the Act from the purview of any Court including the Supreme Court under Article 131
1544 H 545 A B 22 The has been enacted only under Article 262 of the Constitution and not under Entry 56 508 as it relates to the adjudication of the disputes and with no other aspect either of the inter State river as a whole or of the waters in it
550 G 23 Entry 56 speaks of regulation and development of interState rivers and river valleys and does not relate to the disputes between the riparian States with regard to the same and adjudication thereof
Even assuming that the ex pression regulation and development would in its width include resolution of disputes arising out therefrom and a provision for adjudicating them the Act does not make the declaration required under Entry 56
This is obviously not an accidental omission but a deliberate disregard of the Entry since it is not applicable to the subject matter of the legislation
Further no Entry in either of the three Lists refers specifically to the adjudication of disputes with regard to inter State river waters the reason being that Article 262 of the Constitution specifically provides for such adjudication
547 A C 24 An analysis of Article 262 shows that an exclusive power is given to the Parliament to enact a law providing for the adjudication of disputes or complaints relating to use distribution or control of the waters of or in any inter State river or river valley
The words use distri bution and control are of wide import and may include regulation and development of the said waters
The provi sions clearly indicate the amplitude of the scope of adjudi cation inasmuch as it would take within its sweep the determination of the extent and the manner of the use of the said waters and the power to give directions in respect of the same
508 F G 25 The language of the Article has further to be distinguished from that of Entry 56 and Entry 17
Whereas Article 2621 speaks of adjudication of any dispute or complaint and that too with respect to the use distribution or control of the waters of or in any inter State river or river valley Entry 56 speaks of regulation and development of inter State rivers and river valleys
Thus the distinc tion between Article 262 and Entry 56 is that whereas former speaks of adjudication of disputes with respect to use distribution or control of the waters of any inter State river or river valley Entry 56 speaks of regulation and development of inter State rivers and river valleys
Entry 17 likewise speaks of water that is to say water supplies irrigation and canals drainage and embankments water storage and water power subject to the provisions of Entry 56
It does not speak either of adjudication of disputes or of an 509 inter State river as a whole and State can only deal with water within its territory
547 H 548 A C 26 The Inter State Disputes Act 19S6 is made pursuant to the provisions of Article 262 specifically for adjudica tion of the disputes between the riparian States with regard to the use distribution or control of the waters of the inter State rivers or river valleys and is not relatable to Entry 56 and therefore does not cover either the field occupied by Entry 6 or by Entry 17
Since the subject of adjudication of the said disputes is taken care of specifi cally and exclusively by Article 262 by necessary implica tion the subject stands excluded from the field covered by Entries 56 and 17
It is not therefore permissible either for the Parliament under Entry 6 or for a State legislature under Entry 17 to enact a legislation providing for adjudi cation of the said disputes or in any manner affecting or interfering with the adjudication established by law under Article 262
This is apart from the fact that the State legislature would even otherwise be incompetent to provide for adjudication or to affect in any manner the adjudicatory process or the adjudication made in respect of the inter State river waters beyond its territory or with regard to disputes between itself and another State relating to the use distribution or control of such waters
Any such act on its part will be extra territorial in nature and therefore beyond its competence
549 C F 27 It is not correct to say that it is Entry 97 of the Union Listwhich deals with the topic of use distribution and control of the waters of an inter State river
This is so because the expression regulation and development of inter State rivers and river valleys in Entry 56 would include the use distribution and allocation of the waters of the inter State rivers and river valleys between differ ent riparian States
Otherwise the intention of the Con stituent Assembly to provide for the Union to take over the regulation and development under its control makes no sense and serves no purpose
Further the  which is admittedly enacted under Entry 56 for the regula tion and development of inter State rivers and river val leys does cover the field of the use distribution and allocation of the waters of the inter State rivers and river valleys indicating that the expression regulation and development in Entry 56 has legislatively also been con strued to include the use distribution or allocation of the waters of the inter State rivers and river valleys between riparian States
To contain the operation of Entry 17 to the waters of an inter State river and river valleys 510 within the boundaries of a State and to deny the competence to the State legislature to interfere with or to affect or to extend to the use distribution and allocation of the waters of such river or river valley beyond its territory directly or indirectly it is not necessary to fail back on the residuary Entry 97 as an appropriate declaration under Entry 56 would suffice
The very basis of a federal Consti tution mandates such interpretation and would not bear an interpretation to the contrary which will destroy the con stitutional scheme and the Constitution itself
Although therefore it is possible technically to separate the regulation and development of the interState river and river valley from the use distribution and allocation of its waters it is neither warranted nor necessary to do so
549 G 550 B F 28 Though the waters of an inter State river pass through the territories of the riparian States such waters cannot be said to be located in any one State
They are in a state of flow and no State can claim exclusive ownership of such waters so as to deprive the other States of their equitable share
Hence in respect of such waters no State can effectively legislate for the use of such waters since its legislative power does not extend beyond its territo ries
It is further an acknowledged principle of distribu tion and allocation of waters between the riparian States that the same has to be done on the basis of the equitable share of each State
What the equitable share will be will depend upon the facts of each case
551 H 552 A B 31 The order of the Tribunal dated 25th June 1991 granting interim relief constitutes a report and a decision within the meaning of Section 52 of the 
The said order is therefore required to be published by the Central Government in the Official Gazette under Section 6 of the Act in order to make it effective
565 F G 32 Sub section 1 of Section 5 expressly empowers the Central Government to refer to the Tribunal not only the main water dispute but any matter appearing to be connected with or relevant to it
A request for an interim relief whether in the nature of mandatory direction or prohibitory order whether for the maintenance of status quo or for the grant of urgent relief or to prevent the final relief being rendered infructuous would be a matter connected with or relevant to the main dispute
In fact this Court by its decision of April 26 1991 has in terms held that the request of the State of Tamil Nadu for granting interim relief had been referred by the Central Government to the Tribunal and directed the Tribunal to 511 consider the request on merits the same being a part of the Reference
Hence the order of the Tribunal will be a report and decision within the meaning of Section 52 and would have therefore to be published under Section 6 of the Act in order to make it effective
562 A C 33 It is not correct to say that since the Order does not say that it is a report and decision it is not so under Section 52 of the Act
Either the Order is such a report and decision because of its contents or not so at all
If the contents do not show that it is such a report it will not become one because the Order states so
The contents of the order clearly show that it is a report and a decision within the meaning of Section 52
563 B 34 The scope of the investigation that a Tribunal or a Court makes at the stage of passing an interim order is limited compared to that made before making the final adju dication
The extent and the nature of the investigation and the degree of satisfaction required for granting or reject ing the application for interim relief would depend upon the nature of the dispute and the circumstances in each case
No hard and fast rule can be laid down in this respect
However no Tribunal or court is prevented or prohibited from passing interim orders on the ground that it does not have at that stage all the material required to take the final decision
To read such an inhibition in the power of the Tribunal or a court is to deny to it the power to grant interim relief when Reference for such relief is made
Hence the Tribunal constituted under the Act is not pre vented from passing an interim order or direction or grant ing an interim relief pursuant to the reference merely because at the interim stage it has not carried out a com plete investigation which is required to be done before it makes its final report and gives its final decision
It can pass interim orders on such material as according to it is appropriate to the nature of the interim order
563 E H 35 The interim orders passed or reliefs granted by the Tribunal when they are not of purely procedural nature and have to be implemented by the parties to make them effec tive are deemed to be a report and a decision within the meaning of Sections 52 and 6 of the Act
564 A 36 In the instant case Order of the Tribunal discusses the material on the basis of which it is made and gives a direction to the State of Karnataka to release water from its reservoirs in Karnataka so as to ensure that 205 TMC of water is available in Tamil Nadu s 512 Mettur reservoir in a year from June to May It makes the order effective from 1st July 1991 and also lays down a time table to regulate the release of water from month to month
It also provides for adjustment of the supply of water during the said period
It further directs the State of Tamil Nadu to deliver 6 TMC of water for the Karaikal region of the Union Territory of Pondicherry
In addition it directs the State of Karnataka not to increase its area under irrigation by the waters of the river Cauvery beyond the existing 112 lakh acres
It further declares that it will remain operative till the final adjudication of the dispute
Thus the order is not meant to be merely declara tory in nature but is meant to be implemented and given effect to by the parties
Hence the order in question constitutes a report and a decision within the meaning of Section 52 and is required to be published by the Central Government under Section 6 of the Act in order to be binding on the parties and to make it effective
1564 B D 37 It is not correct to say that Section 53 of the Act cannot apply to the interim orders as it is only the final decision which is meant to undergo the second refer ence to the Tribunal provided in it
If the Tribunal has power to make an interim decision when a reference for the same is made that decision will also attract the said provisions
The Central Government or any State Government alter considering even such decision may require an explana tion or guidance from the Tribunal as stated in the said provisions and such explanation and guidance may be sought within three months from the date of such decision
The Tribunal may then reconsider the decision and forward to the Central Government a further report giving such explanation or guidance as it deems fit
In such cases it is the interim decision thus reconsidered which has to be published by the Central Government under Section 6 of the Act and becomes binding and effective
Therefore there is no reason why the provisions of Section 53 should prevent or incapacitate the Tribunal from passing the interim order
Once a deci sion whether interim or final is made under Section 52 it attracts the provisions both of sub section 3 of that Section as well as the provisions of Section 6 of the Act
564 E G 41 A Water Disputes Tribunal constituted under the InterState Water Disputes Act is competent to grant any interim relief to the parties to the dispute when a refer ence is made by the Central Government
Whether the Tribunal has power to grant relief when no reference is made for such relief is a question which does not 513 arise in the facts and circumstances under which the Refer ence is made
1565 H 566 A 42 This Court has held by its order dated 26th April 1991 that the Central Government had made a reference to the Tribunal for the consideration of the claim for interim relief prayed for by the State of Tamil Nadu and hence the Tribunal had jurisdiction to consider the said request being a part of the Reference itself
Implicit in the said deci sion is the finding that the subject of interim relief is a matter connected with or relevant to the water dispute within the meaning of Section 51 of the Act
Hence the Central Government could refer the matter of granting inter im relief to the Tribunal for adjudication
Although this Court has kept open the question viz whether the Tribunal has incidental ancillary
inherent or implied power to grant the interim relief when no reference for grant of such relief is made to it it has in terms concluded second part of the question
557 A C 43 It is impermissible for this Court to sit in appeal even in adjudicatory jurisdiction nor is it competent for the President to invest this Court with an appellate juris diction over the said decision through a Reference under Article 143 of the Constitution
557 D 44 It is not correct to say that the question of grant of interim relief falls outside the purview of the provi sions of Section II of the Inter State Water Dispute Act and can be agitated under Article 131 of the Constitution
The effect of the provisions of Section I 1 of the Act read with Article 262 of the Constitution is that the entire judicial power of the State and therefore of the courts including that of the Supreme Court to adjudicate upon original dis pute or complaint with respect to the use distribution or control of the water of or in any inter State river or river valleys has been vested in the Tribunal appointed under Section 4 of the said Act
1555 B D 5
It is not correct to say that the President can refer any question of law under Article 143 and therefore also ask this Court to reconsider any of its decisions
In the first instance the language Of clause 1 of Article 143 is opposed to such a proposition
The clause empowers the President to refer or this Court s opinion a question of law or fact which has arisen or is likely to arise
When this Court in its adjudicatory jurisdiction pronounces its authoritative opinion on a question of law it cannot be said that there is any doubt about the question of law or the same is res integra so as to 514 require the President to know what the true position of law on the question is
The decision of this Court on a question of law is binding on all courts and authorities
Hence under the said clause the President can refer a question of law only when this court has not decided it
Secondly a decision given by this Court can be reviewed only under article 137 read with Rule I of Order XL of the the Supreme Court Rules 1966 and on the conditions mentioned therein
When further this Court overrules the view of law ex pressed by it in an earlier case it does not do so sitting in appeal and exercising an appellate jurisdiction over the earlier decision
It does so in exercise of its inherent power and only in exceptional circumstances such as when the earlier decision is per incuriam or is delivered in the absence of relevant or material facts or if it is manifestly wrong and productive of public mischief
557 E H 558 A C The  The Ajmer Merwara Extension of Laws Act 1947 and the Part C States Laws Act  distinguished
The Bengal Immunity Company Ltd vs The State of Bihar  Ors  relied on
Jatindra Nath Gupta vs The Province of Bihar  Ors  Hari Vishnu Kamath
Syed Ahmad Ishaque  Ors   Delhi Judicial Service Association
Tis Hazari Court Delhi etc
vs State of Gujarat  Ors
 JT State of Bombay vs Gajanan Mahadev Badley AIR 1954 Bombay 351 referred to
52 Under the Constitution appellate jurisdiction over the earlier decision does not vest in this Court nor can it be vested in it the President under Article 143
If it is accepted that the President can ask this Court to reconsider any of its decisions it would mean that the advisory juris diction under Article 143 is also an appellate jurisdiction of this Court over its own decision between the same par ties and the executive has a power to ask this Court to revise its decision
If such power is read in Article 143 it would be a serious inroad into the independence of judi ciary
558 D 53 The facts in ARAntulay s case arc peculiar and the decision therein has to be confined to those special facts
Further the decision being inter parties operates as res judicata and cannot be reopened
560G 561 E 515 ARAntulay vs KS Nayak  Anr 1988 Suppt
1 SCR 1 and R SNayak vs
A R Antulay   referred to
No opinion is expressed on the question whether the opinion given by this Court on a Presidential Reference under Article 143 of the Constitution such as the present one is binding on all courts firstly because the question does not form part of the Reference and secondly any opinion expressed on it would again be advisory
However adjudicatively it has been held by this Court that the advisory opinion is entitled to due weight and respect and normally it will be followed
The said view holds the field today and may usefully continue to do so till a more oppor tune time
565 C D