STATE OF KARNATAKA BY ITS CHIEF SECRETARY versus P. K. SINHA AND ANR.
[2018] 5 S.C.R. 1127, Supreme Court of India, 2018
Outcome: Disposed off
Segment: Body
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1127
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]
STATE OF TAMIL NADU
v.
P. K. SINHA AND ANR.
(Contempt Petition (Civil) No.  898 of 2018
In
Civil Appeal No. 2453 of 2007)
MAY 18, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D.Y. CHANDRACHUD, JJ.]
Inter-State Water Disputes:
Supreme Court by judgment dated 16.02.2018, while
modifying the award of the Cauvery Water Disputes Tribunal and
allocating waters of Cauvery river to the States of Tamil Nadu,
Karnataka and Kerala and Union Territory of Puducherry, directed
Central Government to frame a scheme u/s. 6A of Inter-State River
Water Disputes Act, 1956 – Central Government with a view to arrive
at a consensus for framing of the proposed Scheme, initiated
consultations with party States/Union Territory – To avoid further
litigation by the States, in respect of constitution and functions of
the proposed Board, Central Government filed interlocutory
application seeking certain clarifications – State of Tamil Nadu filed
contempt petition complaining about non-framing of the scheme by
the Central Government within a period of six weeks as granted by
Supreme Court – Another contempt petition was filed by private
party – Interlocutory applications were filed by State of Tamil Nadu
and Union Territory of Puducherry – Central Government produced
Draft Scheme before Supreme Court – Appropriateness of  Clauses
9(3)(i) and 9(3)(vii) as well as 9(3)(iii) in  the
Draft Scheme was
questioned by State of Karnataka – State of Kerala contended that
effect of the Scheme would impinge upon the rights of the States in
respect of conservation and use of water which was exclusively a
State subject covered by Entry 17 in List II of Seventh Schedule to
the Constitution – Held: The fact that the subject of water forms
part of Entry 17 of List II of the Seventh Schedule, cannot be the
basis to whittle down the efficacy of the Award passed by the
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Tribunal as modified by Supreme Court and in particular the Scheme
to ensure smooth, effective and efficient implementation of the Award
of the Tribunal as modified by Supreme Court – The Draft Scheme
has been drafted singularly for that purpose and the same will have
to be taken forward to its logical end in accordance with law with
promptitude – Award of the Tribunal qualifies the volume of river
water to be shared  and apportioned between the States – The parties
cannot be allowed to reopen the issues already settled in the Award
and as modified by Supreme Court, indirectly in the guise of
questioning the appropriateness of clause 9(3)(iii) in the Draft
Scheme – The Authority cannot be expected to issue directions
mechanically and that the Authority must have complete power to
enforce its directions so as to comply with the Award as modified by
Supreme Court – Draft Scheme is in consonance with the dictum
and directions in the Award and also in conformity with s. 6A of the
1956 Act – Draft Scheme to be taken to its logical and in accordance
with law – Contempt petitions and the IAs disposed of – Inter-State
Water Disputes Act, 1956.
CIVIL ORIGINAL JURISDICTION : Contempt Petition (Civil)
No. 898   of  2018 in Civil Appeal No. 2453 of 2007
From the Judgment and Order dated 16.02.2018 of this Hon’ble
Court in C. A. No. 2453 of 2007.
WITH
M.A. No.934/2018 in C.A. No. 2453 OF 2007
Contempt Petition (Civil) No. 1131 of
2018
M.A. No. 937/2018 in C.A. No. 2453 OF 2007
I.A. No.47065/2018, I.A. No.50562/2018 and
I.A. No.68455/2018.
K.K. Venugopal, AG, M. R. Naik, AG (Karnataka), Shekhar
Naphade, Rakesh Dwivedi, Subramonium Prasad, Shyam Divan, Jaideep
Gupta, A.S. Nambiar, Sr. Advs., G. Umapathy, C. Paramasivam,
K.V. Vijayakumar, Imtiaz Ahmed, Mrs. Naghma Imtiaz, Ahmed Zargham,
Ms. Amra Moosavi, Naresh Kumar (for M/s. Equity Lex Associates),
Mukesh Kumar Maroria, V. G. Pragasam, S. Wasim A. Qadri,
Mrs. Madhavi Divan, Rohit Bhat, Mohan V. Katarki, Brijesh Kalappa,
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1129
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]
R.S. Ravi, V. N. Raghupathy, Ranvir Singh, J.M. Gangadhar, Abdul
Azeem Kalebudde, G. Prakash, Jishnu M.L., Mrs. Priyanka Prakash,
Mrs. Beena Prakash, Vijay Shankar V.L., S. Prabu Ramasubramanian,
S. Manuraj, P.K. Manohar, Mrs. Shanta Vasudevan, Advs. for the
appearing parties.
The Order of the Court was passed by
A. M. KHANWILKAR, J. 1. This Court on 16th February, 2018
pronounced its judgment and final order in Civil Appeal Nos.2453/2007,
2454/2007 and 2456/2007 and directed the Central Government to frame
a scheme under Section 6A of the Inter- State River Water Disputes
Act, 1956 (for short, “1956 Act”), for smooth implementation of the
Award passed by the Tribunal and as modified by this Court for carrying
out the rights of the States with regard to allocation or sharing of water.
The Central Government with a view to arrive at a consensus for framing
of the proposed scheme, initiated consultations with party States/Union
Territory.  The first meeting for that purpose was convened on 9th March,
2018 in which the modalities of the scheme including the composition of
the Authority were discussed. The party States then submitted responses
and in view of the divergent views expressed by the party States/U.T., it
was felt that if the Scheme was to be framed by the Central Government
itself, States may again approach this Court. To avoid further
litigations
by the States in respect of constitution and functions of the proposed
Board, the Central Government felt it necessary to seek clarification of
this Court for which I.A. No.47065/2018 was filed on 31st March, 2018
for the following reliefs:
“(a) Clarify whether it is open to the Central Government to
frame the Scheme under 6‘A’ at variance with the
recommendations contained in the report of CWDT regarding
Cauvery Management Board.
(b) Clarify that in case the Cauvery Management Board as
recommended in the report of CWDT is to be constituted, does
the Central Government have the following flexibility:
(i) To modify the composition of the Board to a mixture of
administrative & technical body, and not purely a technical
body as recommended by CWDT in its report, for effective
conduct of the business of the Board and considering overall
sensitivity of the issues involved.
STATE OF TAMIL NADU v. P. K. SINHA AND ANR.
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(ii) Clarify whether the Board framed by the Central
Government under 6A of ISWRD Act, 1956 can have functions
different from the ones recommended for Cauvery
Management Board by CWDT in its report.
(c)  Any other guidance or directions that Hon’ble Supreme Court
may like to give in the light of divergent views expressed by
party States/UT with regard to framing of the Schemes under
Section 6A of the ISRWD Act, 1956.
(d) Allow application for extension of time of Three months for
implementation of Order dated 16.02.2018 in this instant Civil
Appeal.
(e) Pass such other order/orders as this Hon’ble Court may deem
fit and proper in the facts and circumstances of the present case.”
2. On the same day i.e. 31st March, 2018, the State of Tamil
Nadu filed a contempt petition being Contempt Petition (Civil) No.898
of 2018, complaining about the non-framing of the scheme by the Central
Government within a period of six weeks as granted by this Court. The
State of Tamil Nadu also prayed for a direction to the respondents named
in the said contempt petition to forthwith frame a scheme in accordance
with the judgment of this Court dated 16th February, 2018 by providing
for Cauvery Management Board and Cauvery Water Regulation
Committee with all powers to give effect to the decision of the Tribunal
as well as the judgment of this Court. Besides the contempt petition filed
by the State of Tamil Nadu, another contempt petition
came to be filed
by a private party, namely, Mr. R.K.R. Anantaraman, Member of
Legislative Assembly on 3rd April, 2018.  On the same date, the matter
was mentioned by the counsel for the Union of India for taking up the
application filed by Union of India, for hearing.  This Court directed the
said application to be listed on 9th April, 2018. In the meantime, I.A.
No.50562 of 2018 came to be filed on behalf of the Union Territory of
Puducherry on 5thApril, 2018 for the following reliefs:
“(i) direct the Respondent/Government of India to take effective
steps to implement the judgment dated 16.02.2018 passed by
this Hon’ble Court in C.A. No.2453 of 2007 and other connected
appeals without further delay;
(ii) direct the Respondent/Government of India to frame a scheme
under Section 6-A of the Inter State Water Disputes Act
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STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]
constituting Cauvery Management Board (CMB) and Cauvery
Water Regulation Committee (CWRC) for effective
implementation of the directions of this Hon’ble Court without
further delay; and
(iii) to pass such other order or orders as may be deemed fit and
proper in the interests of justice.”
3. The aforementioned applications/contempt petition were listed
on 9th April, 2018 when this Court passed the following order:
“We have heard Mr. K.K. Venugopal, learned Attorney General
for the Union of India appearing in M.A. No. 934/2018, Mr.
Shekhar Naphade and Mr. Rakesh Dwivedi, learned senior
counsel alongwith Mr. G. Umapathy, learned counsel appearing
for the State of Tamil Nadu, Mr. Shyam Divan, learned senior
counsel alongwith Mr. Mohan V. Katarki, learned counsel for
the State of Karnataka, Mr. Jaideep Gupta, learned senior counsel
for the State of Kerala and Mr. A.S. Nambiar, learned senior
counsel for the Union Territory of Puducherry.
Regard being had to our judgment, we direct the Union of India
to file a Draft Scheme before this Court CONMT.PET.(C) 898/
2018 etc. 3 on or before 3.5.2018. We have so directed as we do
not want the controversy to continue before this Court. We request
learned senior counsel for the parties to convey to the competent
authorities of the respective States to maintain peace at this
juncture, so that this Court can put the final
stamp on the Scheme
after due deliberation.
Let the matter be listed on 3.5.2018.”
4. Again the matters were listed on 3rd May, 2018 when the Court
passed the following order:
“Let the matter be listed on 8.5.2018 to enable learned counsel
for the State of Karnataka to obtain instructions. Mr. K.K.
Venugopal, learned Attorney General for India alongwith Mr.
Tushar Mehta, learned Additional Solicitor General of India and
Mr. S. Wasim A. Qadri, learned counsel appearing for the Union
of India shall obtain instructions as to what steps have been taken
to frame the scheme, and the same shall be put forth by way of
an affidavit by the next date of hearing after serving a copy on
both sides. Call on date fixed.”
STATE OF TAMIL NADU v. P. K. SINHA AND ANR.
[A. M. KHANWILKAR, J.]
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5. On 8th May, 2018, a request was made by Mr. K.K. Venugopal,
learned Attorney General for India for some more time as the draft
scheme was ready but it was yet to be placed before the Cabinet of
Ministers. This Court after hearing the parties for some time, passed the
following order:
“It is submitted by Mr. K.K. Venugopal, learned Attorney General
for India that the draft Scheme is ready, but it shall be placed
before the Cabinet as expeditiously as possible. The same is
seriously opposed to by Mr. Shekhar Naphade, learned senior
counsel appearing for the State of Tamil Nadu on many a ground.
Regard being had to delay, we direct the Secretary, Ministry of
Water Resources, River Development & Ganga Rejuvenation,
Government of India, to remain personally present with the draft
Scheme, as directed by this Court in the judgment, before this
Court at 10.30 a.m. on 14th May, 2018. We have directed for
personal appearance of the aforesaid Secretary so that the
authorities under the Scheme can implement the judgment passed
by this Court as the same has the status of the decree. Call on
the date fixed.”
6. In the meantime, the State of Karnataka filed I.A. No.68455
of 2018 to place on record an affidavit showing the status of the total
water in the Water Year 2017-18 and in particular, during the months of
March and April, 2018.  All the I.As. and the contempt petitions were
again taken up on 14th May, 2018 in terms of the
order dated 8th May,
2018. The draft scheme framed by the Central Government was
produced before this Court. The counsel appearing for the States
requested the Court for a copy of the draft scheme so that they would
be able to make submissions as to whether the scheme was in
consonance with the judgment of this Court. This Court passed the
following order on 14th May, 2018:
“In pursuance of our earlier order, Mr. U.P. Singh, Secretary,
Ministry of Water Resources, River Development and Ganga
Rejuvenation is personally present. He has filed the draft Scheme
framed by the Central Government. Mr. Shekhar Naphade, Mr.
Jaideep Gupta and Mr. A.S. Nambiar, learned senior counsel
appearing for the States of Tamil Nadu, Kerala and Union
Territory of Puducherry respectively, would submit that they may
be given copies of the draft Scheme only to examine whether
the said Scheme is in consonance with the judgment of this Court.
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STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]
The copies of the Scheme be given in the course of the day. Let
the matter be listed on 16.5.2018. The personal appearance of
the Secretary, Ministry of Water Resources, River Development
and Ganga Rejuvenation is dispensed with.”
7. On 16th May, 2018, Mr. Shekhar Naphade, learned senior
counsel appearing for the State of Tamil Nadu, Mr. Jaideep Gupta, learned
senior counsel appearing for the State of Kerala and Mr. A.S. Nambiar,
learned senior counsel appearing for the Union Territory of Puducherry
made submissions regarding the appropriateness of some of the clauses
in the said draft scheme. Mr. Shyam Divan, learned senior counsel
appearing for the State of Karnataka expressed his inability to offer any
comments for want of instructions. He submitted that due to the recent
developments due to elections to the Karnataka Legislative Assembly, it
was not possible for the Advocate on Record for the State, who was
instructing him, to take instructions from the State Government. This
Court made it clear that as long as the Advocate on Record for the State
of Karnataka was not discharged, it was open to him to assist the Court
as an officer of the Court and offer his comments on the draft scheme,
if so advised.
8. After due deliberations, Mr. K.K. Venugopal, learned Attorney
General for India requested this Court to defer the matter till 17th May,
2018, so as
to make necessary changes in the draft scheme in deference
to the observations made by this Court.  Accordingly, the matter was
deferred till 17th May, 2018.  On 17th May, 2018, the learned Attorney
General produced the corrected copy of the draft scheme after duly
incorporating necessary changes in the concerned clauses of the draft
scheme to bring it in line with the observations made by this Court on the
previous date of hearing.
9. With reference to the corrected copy of the draft scheme, Mr.
Shyam Divan, learned senior counsel appearing for the State of
Karnataka submitted his objections in writing.  Mr. Jaideep Gupta, learned
senior counsel appearing for the State of Kerala maintained his objections
taken on the earlier occasion that the effect of the scheme would impinge
upon the rights of the States in respect of the conservation and use of
water which was exclusively a State subject, covered by Entry 17 in
List II of the Seventh Schedule to the Constitution. In addition, he also
supported the objections raised by the State of Karnataka in respect of
clauses 9(3)(i) and 9(3)(vii) as well as 9(3)(iii).
STATE OF TAMIL NADU v. P. K. SINHA AND ANR.
[A. M. KHANWILKAR, J.]
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10. Mr. Venugopal, learned Attorney General countered the
objections raised by the State of Karnataka and State of Kerala. He
submits that the dispensation envisioned in the concerned clauses is
essentially to ensure smooth and effective implementation of the scheme.
He submits that the implementation of the scheme will be strictly in
accordance with the distribution of water to the respective States/U.T.
in consonance with the Award of the Tribunal as modified by this Court.
11. Mr. A.S. Nambiar, learned senior counsel appearing for the
Union Territory of Puducherry emphasized that the authority constituted
for implementation of the scheme must be invested with complete power
for ensuring smooth implementation of the scheme in accordance with
the Award passed by the Tribunal and as modified by this Court.
12. For completion of record, we deem it apposite to reproduce
the draft corrected scheme produced by the learned Attorney General
before this Court.  The same reads thus:
“DRAFT
CAUVERY WATER MANAGEMENT SCHEME
(MINISTRY OF WATER RESOURCES, RIVER
DEVELOPMENT AND GANGA REJUVENATION)
New Delhi, the May, 2018
S. O.  ………..Whereas the Central Government, in exercise of
the powers conferred upon it by Section 4 of the Inter-State
River Water Disputes Act, 1956 (33 of 1956) (hereinafter referred
to as ‘the Act’;) had constituted by notification number S.O.
437(E), dated 2nd June, 1990, the Cauvery Water Disputes
Tribunal
(CWDT) (hereinafter referred to as ‘the Tribunal’) to
adjudicate upon the water dispute regarding the Inter-State river
Cauvery and the river valley thereof among the States of
Karnataka, Kerala, Tamil Nadu and Union Territory Puducherry
(then Pondicherry;
And whereas the Tribunal investigated the matters referred to it
and forwarded to the Central Government a Report under Sub-
Section (2) of Section 5 of the said Act, on 05.02.2007. The
party States filed Special Leave Petitions (SLPs) in the Supreme
Court against the 5(2) Report of the Tribunal. The Supreme Court
converted the SLPs filed by the party States into Civil Appeals.
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STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]
On 04.02.2013, the Supreme Court directed the Government of
India to notify the 5(2) Award of the Tribunal. In pursuance of
which, the Government of India notified the 5(2) Award of CWDT
dated 05.02.2007 vide S.O.404 (E) dated 19.02.2013.
And whereas Supreme Court pronounced its judgment and final
order in Civil Appeals 2453/2007, 2454/2007 & 2456/2007 on
16.02.2018 and directed the Central Government to frame a
“scheme” under Section 6 A of the Act to implement the Tribunal
Award further modified by the Supreme Court order dated
16.02.2018.
Now, therefore, in exercise of the powers conferred by Section
6A of the said Act, the Central Government hereby frames the
scheme, inter-alia, constituting the Cauvery Water
Management Authority (hereinafter referred to as the
“Authority”) and the Cauvery Water Regulation Committee
(hereinafter referred to as ‘the Committee’) to give effect to the
decision of the Cauvery Water Dispute Tribunal as modified by
the Supreme Court in its order dated 16.02.2018, namely:-
(1) This Scheme may be called the Cauvery Water Management
Scheme, 2018,
(2) It shall come into force on the date of its publication in the
Official Gazette.
I. Establishment of Cauvery Water Management Authority
1. Name of the Authority: It shall be called as Cauvery
Water Management Authority
2. Status and Constitution of the Authority:
1. The Authority
shall be a body corporate having perpetual
succession and a common seal and shall sue and be sued.
2. Composition of the Authority : The Authority shall
consist of the following members:
(a) Chairman- To be appointed by the Central Government
amongst serving  officers:
(i) Who is a senior and eminent engineer with wide experience
in water resource management; handling of inter-State water
STATE OF TAMIL NADU v. P. K. SINHA AND ANR.
[A. M. KHANWILKAR, J.]
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sharing issues; construction, operation and maintenance of
irrigation projects; or
(ii) an All India Service Officer, in the rank of Secretary or
Additional Secretary to the Government of India with experience
in wate resources and inter-State water sharing issues.
Chairman shall have tenure of 5 years or till 65 years of age,
whichever is earlier.
(b) Two whole time Members- To be appointed by Central
Government for a term of three years extendable to five years.
(i) One Member (Water Resources) – an engineer not below
the rank of Chief Engineer from the Central Water Engineering
Services (CWES) cadre.
(ii) One Member (Agriculture) – not below the rank of a
Commissioner from the Ministry of Agriculture & Farmers’
Welfare.
(c) Two Part Time Members – Representatives of the
Central Government of the rank of Joint Secretary to be
nominated by Ministry of Water Resources,
River Development & Ganga Rejuvenation and Ministry of
Agriculture and Farmers’ Welfare respectively.
(d) Four Part Time Members from States –
Administrative Secretaries in charge of Water Resource
Departments of each State Government of Kerala,
Karnataka, Tamil Nadu and Union Territory of Puducherry
who shall be nominated by their respective State Governments.
3. Secretary of the Authority:
The Authority shall have a Secretary who shall be an
engineer to be appointed by the Central Government for a term
of three years extendable to five years not
below the rank of
Chief Engineer from the CWES cadre. He shall not have any
voting rights.
4. Quorum and Voting: Six Members shall form a Quorum
and the concurrence of the majority shall be necessary for
transaction of the business of the Authority except such business
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as the Authority may from time to time prescribe as routine. The
Members shall have equal powers.
The next meeting will be held within three days if the meeting
is postponed for want of quorum and for that meeting quorum
will not be necessary.
5. Disposal of Business by the Authority:
(a) On the following matters, the Authority shall record its decision
by a resolution at a meeting in which the Chairman and all the
Members from the party States are present:-
(i) Framing of Rules of Business;
(ii) Delegation of functions to a Member or Secretary or
any official of the Authority;
(iii) Categorizing any part of the business of the Authority
as of a formal or routine nature;
(iv) Any other matter which any of the four party States
require that it shall be
decided at a meeting of the Authority.
(b) Chairman of the Authority can invite representatives from
Central Water Commission, National Institute of Hydrology,
Indian Agricultural Research Institute (IARI) and/or any other
agency including universities as special invitees
to attend the
Authority meetings or otherwise, in carrying out the functions
specified under this scheme.
(c) Subject to the foregoing provisions, the Authority shall frame
its own rules for the conduct of its business.
6. Indemnity of Members:
No Member, officer or employee of the Authority shall be liable
for loss, injury or damages
resulting from:
(a) action taken by such Member, officer or employee in
good faith and without malice under the apparent authority of
the orders, even though such action is later determined to be
unauthorised, or
(b) the negligent or wrongful act of omission of any other
person employed by the Authority and serving under such
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Member, officer or employee unless such member, officer, or
employee failed to exercise due care in the appointment of such
other person or the supervision of his work.
7. Officers and Servants of the Authority:
The Authority may from time to time appoint or employ such
and so many officers and employees as it thinks fit and remove
or dismiss them, under the rules and regulations applicable to the
appointment, removal and dismissal of the Central Government
officers and employees. All such officers and employees shall
be subject to the sole control of the Authority. The Authority
may, with the previous approval of the Central Government, make
regulations to regulate conditions of service of all such officers
and employees in respect of the residential accommodation, house
rent allowance, travelling allowance, daily allowance, conveyance
allowance and medical reimbursement. The scales of pay and
the other service conditions shall be as applicable to Central
Government employees.
Persons employed in the services of the three States and the
Union Territory of Puducherry may be appointed or employed
by the Authority in such proportions as the Authority may deem
fit. The Authority shall arrange with the State Government/Union
Territory to spare the services of the persons employed in the
State Government/Union Territory for whole time employment
with the Authority, or for the performance of any work or services
for the
Authority. The Authority may also make direct recruitment
of any personnel or obtain the same from the Centre or other
sources as considered appropriate.
8. Administrative and Field Organisation Costs:
(i)
All expenses of the Authority (including salary and other
expenses of the Chairman and independent Members) shall be
borne by the State Governments, in the ratio of Kerala – 15%
Karnataka – 40%, Tamil Nadu – 40%; and Union Territory of
Pondicherry – 5%. The expenses pertaining to Member
representing a State shall be borne by the State concerned.
(ii)
The cost of maintaining, operation and controlling of gauging
and other hydrological systems for communicating data shall be
borne by the State concerned. The cost of construction and
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maintenance of the storages, power installations, diversion works,
head-works and canal networks shall be borne wholly by the
State Government in whose territory the works are located.
9. Powers, Functions and Duties of the Authority:
1. The Authority shall be charged with the power and shall be
under a duty to do any
or all things necessary, sufficient and
expedient for securing compliance and implementation of the
final decision and directions of the Tribunal further modified by
Supreme Court Order dated 16.02.2018 including:
(i) Storage, apportionment, regulation and control of
Cauvery waters.
(ii) Supervision of operation of reservoirs and with
regulation of water releases therefrom with the assistance of
Regulation Committee.
(iii)Regulated release by Karnataka, at the inter-State
contact point presently identified as Billigundulu gauge and
discharge station, located on the common border of Karnataka
and Tamil Nadu.
2. The Authority may constitute one or more sub-committees
and assign to them such of its functions and delegate such of its
powers as it thinks fit.
3. In particular and without prejudice to the generality of the
foregoing functions, the Authority shall perform inter-alia, the
following functions:
(i) The Authority at the beginning of the water year, i.e. first
June each year would determine the total residual storage
in the specified
reservoirs. As, it is not possible to know the
amount of season-wise river flows which will be available
during a season; it will be assumed that the inflows will be
according to 50% dependable year (yield 740 TMC). The
share of each State will be determined on the basis of the
flows so assumed together with the available carry over
storage in the reservoirs. The withdrawals will be allowed
during the first time interval of ten days of the season on
the basis of the share worked out for each party State,
limited to the water requirements during the same period
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indicated by each State by placing an indent of water
demand with Cauvery Water Regulation Committee.
(ii)
The Authority will take stock of the actual yield in the basin
at the end of the previous time interval as well as the
utilization/releases and storage built up during the interval
and assess the trend of inflows and authorize withdrawals
to the States for the subsequent time interval accordingly.
For giving effect to the aforesaid provision, the Authority
may have to repeat this exercise for two or more time
intervals.
(iii) The Authority shall ensure the implementation of the Award
of the Tribunal modified by the Supreme Court order dated
16.02.2018 including the carry -over storage during good
year and the water releases for environmental purposes.
The Authority through the Regulation Committee and with
the help of CWC, and other Central/State organizations as
necessary will identify situations of distress in the basin.
Distress caused by diminution of water flows during the
period will be shared by the party States after the distress
conditions and their extent is determined by the Authority,
keeping in view water shares allotted to parties.
(iv) The following important reservoirs in the basin namely:
Banasurasagar in Kerala, Hemavathy, Harangi, Kabini and
Krishnarajasagara in Karnataka and Lower Bhavani,
Amaravathy and Mettur in Tamil Nadu shall be operated in
an integrated manner by the concerned State
under the
overall guidance of the Authority for each ten day period
throughout the year to meet the seasonal water
requirements of the various States for irrigation, hydro-
power generation, domestic and industrial uses etc. The
remaining quantities of the surplus water shall be conserved
as far as possible and spillage of water shall be reduced to
the minimum.
(v)
The Authority shall maintain an account of cropping pattern,
area cropped and area irrigated for each party State. The
Authority shall also maintain an account of domestic and
industrial water usage by each party State.
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(vi) The Authority is to set up a well-designed communication
network in the Cauvery basin for transmission of data and
a computer based control room for data processing to
determine the hydrological conditions including distress, if
any. For this purpose, it may utilize the latest technology.
For operational purposes, this work may be entrusted by
the Authority to CWC or any other Central/State
Government organization.
(vii) At the start of irrigation season i.e. 1st June of every year,
all the party States through their representatives in the
Authority shall submit an indent for the supplies required
by them at each reservoir site (capacity 3 TMC and above)
for the  month of June broken in 10 daily intervals. The
Authority will examine reasonableness of the indents
keeping in view the cropping pattern and extent of area to
be irrigated and order releases keeping in view the overall
ceiling prescribed by the Tribunal and modified by the
Supreme Court Order dated 16.02.2018 for the month after
determining the available carry-over storage and taking into
consideration the likely inflows during the month. The
Regulation Committee shall release water on ten daily bases
as ordered by the Authority.
In case of deficiency in the water availability during any
month as reported by the Regulation Committee, the
Authority will consider reduction in the indent of
the parties
in proportion to the quantities allocated to each State by the
Tribunal as modified by the Supreme Court order dated
16.02.2018 for the designated crops.
The Regulation Committee shall keep a watch on the actual
performance of the monsoon during each ten daily interval
and report position to the Authority indicating therein the
extent of variation from the normal. The Authority on receipt
of such information will consider any change in the release
ordered by them earlier. Similar exercise will continue as
the monsoon progresses during the succeeding months till
the end of the water year i.e. 31st May of every year.
(viii) The Authority has to ensure that the State Governments
should construct proper hydraulic structures at all important
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anicut sites in the basin with provision of appropriate
regulation mechanism. Besides, regular monitoring of the
withdrawals at such diversion structures on the part of the
State would be necessary.
(ix) The Authority may direct party States to furnish data in
respect of carry-over storage in reservoirs, including inflows
and outflows, rainfall data, the area irrigated and water
utilized.
(x)
 The Authority shall arrange collection of data for important
rain gauge stations maintained by Indian Metrological
Department (IMD)/ Central Water Commission (CWC)/
States in the Cauvery basin; as also inflow data measured
at important nodal points on the Cauvery river system
through the Cauvery Regulation Committee which will
suitably compile the rainfall data for different monsoon
seasons along with the inflows measured at different sites.
(xi) the Authority or any Member or any representative thereof
shall have power to enter upon any land or property upon
which any hydraulic structure or any work of gauging or
measuring device has been or is being constructed, operated
or maintained by any agency in the Cauvery basin
(xii) To hold and dispose of property, enter into contracts, sue
and be sued and do all such acts as may be necessary for
the proper exercise and discharge of its jurisdiction, powers
and functions.
(xiii) To construct or make direction to construct additional
gauging stations to the States concerned with the
assistance
of Central Government and CWC for implementing the
decision of the Tribunal.
(xiv) If the Authority finds that any Government of the party
States namely Tamil Nadu, Kerala, Karnataka and Union
Territory of Pondicherry do not co-operate in implementing
the decision/direction of the Tribunal, it can seek the help
of the Central Government for implementation of the
Award of the Tribunal as modified by the Hon’ble
Supreme Court order of 16.02.2018.
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(xv) If any delay/shortfall is caused in release of water on
account of default of any party State, the Authority shall
take appropriate action to make good the deficiency by
subsequently deducting indented releases of that party State.
(xvi) The Authority will advice the party States to take suitable
measures to improve water use efficiency, by way of
promoting micro-irrigation (drip and sprinkler), change in
cropping pattern, improved agronomic practices, system
deficiency correction, command area development etc.
(xvii)The Authority will advice the party States to adopt efficient
technologies for water conservation and preservation.
(xviii)The Authority shall comply with directions with respect
to composition, establishment and administration that
the Central Government may provide time to time.
(xix) The Authority may delegate such of its power, as it thinks
fit to Cauvery Water Regulation Committee.
10. Annual Report of the Authority:
The Authority shall prepare and transmit to each of the
four parties as early as possible in any case before 30th
September of each year, an Annual Report covering the activities
of the Authority for the preceding year. The Authority shall make
available to each State on its request any information within its
possession any time and always provide access to its records to
the States and their authorized
representatives.
11. Records of the Authority and their Location:
The Authority shall keep a record of all meetings and
proceedings, maintain regular accounts, and have a suitable office
where documents, records, accounts and gauging data shall be
kept open for inspection by the Central Government and
Government of each of the party States and Union Territory or
their representatives at such time and under such regulations as
the Authority may determine.
The headquarters of the Authority shall be at New Delhi.
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12. Contracts and Agreements:
The Authority shall enter into such contracts and agreements
as may be necessary and essential for the full and proper
performance of the functions and duties conferred or imposed
on it.
13. Financial Provision:
(i)
The Government of India shall initially contribute a sum of
Rs. 2 crores (two crores only) for the functioning of the
Authority.
(ii)
All the capital and revenue expenditure required to be
incurred by the Authority shall be borne by the State
Governments of Kerala, Karnataka, Tamil Nadu and
Union Territory of Pondicherry in the ratio of 15:40:40:5
respectively.
(iii) On the constitution of the Authority, the Governments of
the State of Kerala, Karnataka, Tamil Nadu and Union
Territory of Puducherry shall contribute Rupees two crores
in the ratio indicated in (ii) above, towards the fund of the
Authority in the first instance; and later on make advance
payments on a quarterly basis as demanded by the Authority
keeping in view the Annual Budget of the Authority.
(iv) The Authority shall maintain detailed and accurate accounts
of all receipts and disbursements and shall after the closing
of each financial year, prepare an annual Statement of
Accounts and send copies thereof to the Accountant
General and concerned basin States.
(v)
The accounts maintained by the Authority shall be audited
by the Comptroller and Auditor General of India or his
nominee, who shall certify, subject
to such observation as
he may wish to make on the annual accounts of the
Authority. The Authority shall forward to the Accountant
General, the Central Government and the concerned basin
States – the copies of the Report of the Comptroller and
Auditor General of India and shall include the same in its
Annual Report.
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(vi) To perform any other function which is supplemental,
incidental or consequential to all or any of the functions
specified in sub-paragraphs (i) to (v) above.
14. Decision of the Authority:
The decision of the Authority on all matters for the purposes
of implementing the award of the Tribunal as modified by the
Supreme Court order dated 16.02.2018 including but not limited
to the matters covered under paragraph 9, shall be final and
binding on all the party States/UT.
15. Constructions outside jurisdiction of the Authority:
Save and except to the extent otherwise prescribed in the
order of the Tribunal and judgment of the Supreme Court, the
planning, construction and maintenance of the projects will be
carried out by each State/UT Government through its own
agencies.
II Cauvery water Regulation Committee
1. Composition of the Cauvery Water Regulation
Committee:
There shall be a Cauvery Water Regulation Committee with the
following composition:
1)
Full-Time Member (Water Resources) of
: Chairman
the Authority
2)
One representative each of the States of
: Member
Kerala, Karnataka, Tamil Nadu and Union
Territory of Puducherry not below the rank
of Chief Engineer.
3)
One representative of IMD of the rank of
: Member
Joint Secretary
4)
One representative of Central Water
: Member
Commission dealing with river gauging
not below the rank of Chief Engineer
5)
One representative of the Central Ministry : Member
of Agriculture & FW not below the rank of
Commissioner
6)
Secretary to the Authority
: Member
                                                                          Secretary
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The headquarters of the Cauvery Water Regulation
Committee shall be at Bengaluru.
2. Functions of the Cauvery Water Regulation Committee:
The Regulation Committee shall ensure the implementation
of the provisionscontained in the final order of the Tribunal
further modified by the Supreme Court order dated 16.02.2018
in accordance with the directions of the Authority namely:-
a) to collect daily water levels, inflows and storage position
at each of the following reservoirs – Hemavathy, Harangi,
Krishnarajasagara, Kabini, Mettur, Bhavanisagar, Amaravathy
and Banasurasagar.
b) to ensure ten daily releases of water on monthly basis from
the reservoirs as directed by the Authority.
c) to collect data of water released from the aforesaid
reservoirs on 12 hourly basis.
d) the Authority’s representatives at each of the reservoirs
shall monitor proper implementation of the regulation instruction
issued by the Regulation Committee; in the event of any variation,
the representative shall immediately inform the Secretary of the
Committee for appropriate action.
e) to collect daily water flows passing through presently
identified inter-State contact point i.e., Billigundulu gauge and
discharge site and keep the Authority suitably informed.
f)to compile and reconcile monthly water account for each
reservoir.
g) to collect and compile weekly information about important
rain gauge stations of the IMD in order to be able to broadly
assess the position of monsoon and keep the Authority informed
about the status of the monsoon.
h) the State representative, in-charge of the major projects
will keep the Regulation Committee regularly informed about
the occurrence of the rainfall in the commands and whether
any change in the releases is required.
i) to prepare seasonal and annual report of the water account
and submit the
same to the Authority as indicated below:-
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• South-West monsoon season
- 1st June to 15th October
                             (inclusive of fortnight of October)
• North East Monsoon season
- 16th October to 31st January
• Hot weather season
- 1st February to 31st May
3. Meetings of the Regulation Committee:
1) The Regulation Committee shall meet once in ten days during
the months of June and October when the southwest and northeast
monsoon set in; after the monsoon has set in, the meeting will be
held at least once a fortnight but the Committee shall have the
powers to convene meetings as often as necessary. In the case
of any emergency situation, a minimum of 48 hours notice shall
be given for holding a meeting.
2) In case, the State which is likely to be affected is not
represented in the meeting, then the possibility of calling another
meeting will be examined by the Committee.
Provided that if the situation is such that it is not possible to
delay taking a decision, then the Committee may decide the issue
by majority vote even in the absence of representative from the
affected State.
3) The quorum for meeting of Regulation Committee shall be six
Members.
4) All the Members including the Chairman and Member
Secretary of the Committee shall have voting right; the Chairman
shall also have a casting vote.
Sd/-
U.P. Singh
Secretary
Ministry of Water Resources,
River Development & Ganga
Rejuvenation, Govt. of India
New Delhi-110001.”
13. As aforementioned, the comments on the draft corrected
scheme are mainly at the behest of State of Karnataka and State of
Kerala. No suggestion has been offered by the State of Tamil Nadu to
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the corrected draft scheme, except to submit that the implementation of
the scheme should be with utmost dispatch in consonance with the Award,
as modified by this Court, in its letter and spirit.  He submitted that there
is distress situation in the State of Tamil Nadu due to scarcity of water
which can be remedied to some extent by the effective implementation
of the scheme.
14. After hearing the parties, we are of the considered opinion
that the suggestions/objections of the State of Karnataka and State of
Kerala are devoid of merit.  The fact that the subject of water, that is to
say, water supplies, irrigation and canals, drainage and embankments,
water storage and water power, forms part of Entry 17 of List II of the
Seventh  Schedule to the Constitution, cannot be the basis to whittle
down the efficacy of the Award passed by the Tribunal and as modified
by this Court and, in particular, the scheme to ensure smooth, effective
and efficient implementation of the Award of the Tribunal, as modified
by this Court. The draft scheme has been formulated singularly for that
purpose and the same will have to be taken forward to its logical end in
accordance with law with promptitude.
15. Reverting to the specific grievance with regard to clauses
9(3)(i) and 9(3)(vii), the argument is that the same would compel the
States to furnish/place an indent for the supplies required by them on
each reservoir site. That is wholly
unnecessary as the Award passed by
the Tribunal quantifies the volume of river water to be shared and
apportioned between the States. This objection does not commend us
inasmuch as the necessity to furnish/place an indent of water demand
and about the total water reservoir is to work out the quantity of river
water to be released during the relevant period in consonance with the
proportion specified in the Award as modified by this Court and, in
particular, on the principles delineated in the decision of this Court under
Point No. X about the method and manner of apportionment to be
followed. That is to further the rights of the States/U.T. for just and
reasonable use of water from the allocable water on equitable basis and
not to impinge upon their rights and moreso for smooth and effective
implementation of the Award as modified by this Court.
16. Coming to the suggestion/objection in reference to clause
9(3)(iii) of the draft scheme, reliance has been placed on the
recommendation made by the Assessors to the Tribunal forming part of
the report of the Tribunal. The Assessors had advised that 10 TMC
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each as carry-over storage in the reservoirs of the two States may be
provided to take care of any delay in onset of South-West monsoon.
That may be the recommendation of the Assessors but the allocation
and distribution of river water will have to be in full conformity with the
Award as modified by this Court and as aforementioned on the principles
of apportionment to be followed as delineated in Point No. X of the
judgment of this Court.
17. Needless to observe, we cannot allow the parties to reopen
the issues already settled in the Award and as modified by this Court,
indirectly in the guise of questioning the appropriateness of clause 9(3)(iii)
in the draft scheme. The Authority constituted under the scheme will be
bound by the contours regarding apportionment of river water in terms
of the Award as modified by this Court and while doing so, is expected
to take into account all factors that may be relevant at the given point of
time, including to identify the situation of distress in the basin caused due
to identifiable factors before quantifying the water quantity for being
released or allotted to the party States/U.T. for the relevant period.
18. We appreciate the stand taken by Mr. Nambiar, learned senior
counsel appearing for Union Territory of Puducherry, that the Authority
cannot be expected to issue directions mechanically and that the
Authority
must have complete power to enforce its directions so as to comply with
the Award, as modified by this Court, in its letter and spirit, concerning
the apportionment of water between the party States/U.T. We say no
more.
19. Considering the fact that the Union of India has already
formulated the draft scheme and has also offered explanation in I.A.
No.47065 of 2018 and the affidavit filed on 7th May, 2018 in M.A. No.934/
2018 about the reasons which were beyond the control of the appropriate
authority dealing with framing of the scheme, we do not wish to continue
the contempt action any further. For the same reason, the directions
sought in I.As. filed by the concerned party also need not detain us. For,
the corrected draft scheme is in consonance with the dictum and directions
in the Award as modified by this Court and also in conformity with Section
6A of the 1956 Act. The draft scheme ought to be taken forward to its
logical end in accordance with law with utmost dispatch.
20. In view of the above,  we dispose of all the I.As., M.As. and
the contempt petitions by this common order, on accepting the assurance
given on behalf of the Union of India that the draft scheme will be taken
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to its logical end in accordance with law, with utmost dispatch. We hope
and trust that the draft scheme reproduced in paragraph 12 above, is
notified in the Official Gazette and given effect to with promptitude before
the onset of the impending monsoon.
21. Accordingly, all the I.As., M.As. and the contempt petitions
are disposed of.
Kalpana K. Tripathy                                                                         Matters disposed of.