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10. Mr. Andhyarujina, the learned senior counsel, appearing for the State of Maharashtra, Defendant No. 2 supported the stand of the State of Andhra Pradesh and contended that Scheme "B" cannot be held to be a decision of the tribunal. According to the learned Counsel, what can be held to be a decision of the tribunal is what the tribunal himself considered to have binding effect and. in this view of the matter, the tribunal having itself said that it is Scheme "A" which formed the part of the Final Order and which can be implemented, immediately on being notified, it is abundantly clear that the tribunal did not think Scheme "B" to be its 'decision' though in course of proceedings, it might have discussed about the feasibility of such a scheme and its efficacy. Mr. Andhyarujina, the learned senior counsel, ultimately urged that it is only the Final Order of the tribunal, containing Scheme "A", which can be held to be the decision of the tribunal.

12. Before examining the rival stand of the parties on this contentious issues in the light of the pleadings as well as the documents referred to, it may be necessary to indicate the scheme of the Act. The Inter-State Water Disputes Act, 1956, referred to as 'the Act' has been enacted by the Parliament in the seventh year of the republic as the law providing for adjudication of any dispute or complaint with respect to the use, distribution or control of the water in any inter-State river, as envisaged under Article 262(1) of the Constitution. Section 2(c) defines water dispute and Section 3 of the Act provides under what conditions, a State can make a complaint and request to the. Central Government for referring a dispute to a tribunal for adjudication. Section 4 provides for Constitution of the tribunal by the Central Government and Section 5 provides for adjudication of the dispute by the tribunal. Section 5(2) empowers the tribunal to investigate the matters referred to it and then forward to the Central Government, a report, setting out the facts as found by it and giving its decision of the matters referred to it. Thus the report required to be given by the tribunal after investigation under Section 5(2) of the Act must contain the facts as found by it as well as the decision of the matters referred to the tribunal. A distinction, therefore, has been drawn by the legislature on the two expressions used in Section 5(2) of the Act, namely 'facts as found' and 'decision of the matters referred to'. The crucial question which has to be answered in the aforesaid three issues, which have been taken together is whether Scheme "B" considered and evolved by the tribunal would come within the expression 'facts as found' or the 'decision of tribunal on the matter referred to'. It is in this context, what was the 'matter referred to the tribunal' assumes great significance. The Government of India in its letter dated 10th of April, 1969 made a reference to the tribunal for adjudication of the water dispute regarding the inter-State river Krishna and the river valley thereof emerging from the letters of the Mysore Government dated the 29th January, 1962 and the 8th July, 1968, the letters of the Maharashtra Governments dated the 1lth June, 1963 and the 26th August, 1968 and the letters of the Andhra Pradesh Government dated the 21st April, 1968 and the 21st January, 1969. The tribunal in Chapter II of its report, summarised the complaints of each of the Government and formulated the point of dispute for adjudication to the effect "that the parties want an equitable apportionment of the Krishna waters for their beneficial uses, so that they may know the limits within which each can operate and may plan their water resources development accordingly" and it further stated as to how and on what basis the equitable apportionment should be made. On the basis of the rival stand of the parties, the tribunal framed issues and sub-issues on 14th of April, 1971 and for the present discussion, we are concerned with issue No. II, as Issue No. 1 relates to the question whether there was any concluded agreement regarding allocation of the waters of river Krishna and whether such agreement was enforceable and was still subsisting and operative upon the States concerned. Issue No. II framed by the tribunal is to the effect that what directions if any, should be given for the equitable apportionment of the beneficial use of the waters of Krishna river and the river valley. Under the said issue, there are as many as eight sub-issues and sub-issue 8 was to the effect "what machinery if any, should be set up to make available and regulate the allocation of water, if any, to the states concerned or otherwise to implement the decision of the tribunal". This Issue No. II has been discussed in Chapter IX of the Report dated 24th of December, 1973, which has been marked as Exhibit PK1 and one of the sub- issue namely, on what basis should the available water be determined?, the tribunal considered at length the several data and finally an agreement between the parties was arrived at that 75% dependable yield of the river Krishna up to Vijaywada is 2060 ' TMC, which has been indicated in Chapter IX itself. The tribunal then proceeds with embarking up to the difficult and delicate task of division of waters of river Krishna and what directions ultimately could be given for equitable apportionment of the beneficial use of the waters of Krishna river and the river valley. In Chapter XIV of the report dated 24th of December, 1973, Exh. PK1, the tribunal ultimately summarised as to how each State claimed equitable share in the dependable flow and also in the water in excess over the dependable flow. It also considered the evidence of expert witness, adduced by the parties, indicating the advantage that will accrue by carry over storage, made in the Krishna basin. The tribunal also thought over the matter as to whether the scheme for division of water should endure forever or there should be a room for review and ultimately was of the opinion that a review and modification of the allocation may become necessary to keep pace with the changing conditions. It also provided for a review of the order of the tribunal at any time after 31st of May, 2000. After making such general observations, it proceeded to consider the scheme of division of water and it did notice the agreed views of all the three states, submitted on 4th of May, 1973, indicating that there should be a mass allocation of utilisable dependable flow at 7-5% and there should be allocation on percentage basis of water in surplus as well as deficit years with certain restrictions with regard to the use to be decided by the tribunal and, there should be a joint control Body to give effect to the decision of the tribunal. The tribunal indicated the merits and demerits of the schemes given by each of the states consisted of two parts and part II related to the Constitution and powers of the Monitoring Authority, called the Krishna Valley Authority and though initially, the counsel for the parties had agreed upon the Constitution of Krishna Valley Authority, but after the matter was heard again, the State of Andhra Pradesh categorically indicated that no consent can be given to set up Krishna Valley Authority. After noting the rival contentions of the parties on the question of constituting an authority and the best tradition as to how the Federal Structure functions and how the states are bound to obey the law made by the Parliament, it also came to the finding that the matter of setting up of an authority becomes the back- bone of the decision and an integral part of it and unless that can be given effect to, it will be of no use to have a decision as envisaged under Scheme "B" for equitable allocation of water amongst the three riparian states. The tribunal in no uncertain terms, came to the conclusion that it will not be proper to set up any authority without the consent of the parties, and, therefore, the so-called document Exh. MRK-340 provided no assistance notwithstanding the fact that it was agreed to by the counsel of all the three states on 4th of May, 1973. Having failed in its attempt to reach a decision, containing the principle of allocation, envisaged under the agreed document Exh. MRK 340, the tribunal thought it appropriate to evolve the two schemes called Scheme "A" and Scheme "B" and at Page 166 of Exh. PK1, the tribunal itself made it crystal clear that Scheme "A" will come in operation on the date of publication of the decision of the tribunal in the Official Gazette under Section 6 of the Inter-State Water Disputes Act, 1956, and Scheme "B" may be brought into operation in case the States themselves constitute an Inter-State Administrative Authority, which may be called the Krishna Valley Authority by agreement between them or in case, such an authority is constituted by legislation made by Parliament. The aforesaid conclusion of the tribunal, unequivocally indicates that it is Scheme "A" alone which has been made the decision of the tribunal and the tribunal nomenclature the same to be the Final Order, which order in its turn has been notified in the Official Gazette by the Central Government under Section 6 of the Act. At Page 182 of the Report Exh. PK1, the tribunal itself has given a complete picture to facilitate further discussion by setting out different clauses of the Final Order which according to the tribunal embodies all the provisions on the subject of apportionment of the water of river Krishna between the states of Maharashtra, Mysore and Andhra Pradesh and then it is stated "these provisions of the Final Order cover all matters mentioned in Issue No. Wand its sub-issues and issue No. II, is, therefore, decided as provided in these clauses of the Final Order." After deciding issue No. II, as aforesaid, and thereafter deciding issue (IV)(B) in the next paragraph, the tribunal then proceeds to examine the efficacy of Scheme "B". It is no doubt true that Scheme "B" is more beneficial and provides for more beneficial and fuller utilisation of waters of river Krishna but the tribunal itself has not considered the same to be a part of its decision, which could be implemented by a notification under Section 6 of the Act. It may be noticed at this stage that in Cauvery Water Dispute Case 1993 (Suppl.) 1 SCC 96 while considering the question as to what formed the decision of the Tribunal under Section 5(2) of the Act this Court examined the interim order which had been passed by the Tribunal and came to the conclusion that if the order is not meant to be merely declaratory in nature but is meant to be implemented and given effect to by the parties, then it would constitute a decision within a meaning of Section 5(2) and is required to be published by the Central government under Section 6 of the Act. Applying the aforesaid ratio to the case in hand and in view of the unequivocal statement made by the Tribunal while deciding Issue No. II to the effect that Issue No. II and its sub-issues are decided as per the clauses of the final order which contains Scheme 'A', it is difficult to sustain the argument of Mr. Nariman, appearing for the plaintiff-State that Scheme 'B' also is a decision of the Tribunal. As has been indicated earlier that in course of the proceedings before the Tribunal all the party States, no doubt, have consented to the points of dispute to be resolved by the Tribunal as per Exhibit MRK 340. But the Tribunal itself records the finding that on account of non-argument between the parties it has not been possible to reach a decision on the principle of allocation agreed to under MRK 340 and, therefore, the Tribunal thought it fit to evolve Scheme 'A' which could be implemented on its own, the same being notified under Section 6 of the Act. In terms of the judgment of this Court in Cauvery Water Disputes case, Scheme 'B' had not been meant to be implemented and given effect to by the parties to the dispute and as such cannot be a decision of the Tribunal under Section 5(2) of the Act. It can be held to be 'facts found' in the report submitted. The Tribunal in considering different proposals submitted by the States came to hold "unless a joint control body or inter State authority was established, it would be difficult to divide the waters of river Krishna between the parties in every water year on the lines suggested by the parties." (at page 161 Ex. PK-1).

15. In its further report Ex. PK-2 after considering the question of abolition of Tungbhadra Board the Tribunal held:

In these circumstances we do not think it proper that Scheme B' should be implemented by our order.

16. The aforesaid findings of the Tribunal both in the Original report as well as the further report unequivocally indicate that the Tribunal never considered Scheme 'B' to form a part of its decision for being implemented even though there cannot be any doubt about the efficacy of the Scheme in question. A water dispute having arisen between the three riparian States in relation to sharing of water of river Krishna and the said dispute having been referred to the Tribunal for its adjudication and the Tribunal having investigated the matters referred to it and having submitted its report containing the facts found as well as its decision, it is that decision which conclusively decides the dispute referred and is capable of being implemented on its own can be said to be the decision of the Tribunal under Section 5(2). In the case in hand the Tribunal itself being of the opinion that it is unable to implement Scheme 'B' by its own order and having apportioned the water of river Krishna as per Scheme 'A', the said Scheme 'B' cannot be held to be a decision of the Tribunal.

26. Mr. Nariman, appearing for the plaintiff on the other hand contended that the State of Karnataka has all along been keen in requesting for implementation of Scheme "B", though in that letter PK 94, referred to by Mr. Andhyarujina, it has been merely stated that at that point of time it may not be necessary to have the Krishna Valley Authority. According to Mr. Nariman, rights in relation to sharing of water of river Krishna having been crystalised by formulation of both the schemes, that right cannot be negatived merely because it has not been operated for this length of time. Having considered several correspondence between the parties, we find that though initially the State of Karnataka had requested the Union Government for implementation of Scheme "B", thinking the same to be the decision of the tribunal and even though at one point of time the Union itself through its counsel Mr. Seyid Muhammad, had requested the tribunal itself to make Scheme "B" operative but later on each of the states began their water management projects on the basis of the mass allocation made under Scheme "A". Mr. Nariman is right in his submission that the states had no other alternative inasmuch as it was only Scheme "A" which was notified and was made binding between the parties but the fact remains that having planned their respective projects on the basis of mass allocation made by the tribunal, the State of Karnataka did think in the year 1993 in response to the letter from the Union Government for Constitution of the Krishna Valley Authority that the State does not think it proper to have the Authority at that point of time. Thus all the three states have made their respective planning for utilisation of the allocated water in their respective share by the tribunal under Scheme "A" which as until today continues to be effective but for the apprehension and dispute between the State of Andhra Pradesh and Karnataka, when Karnataka started construction of dam at Almatti and Andhra Pradesh went on with large projects like Telugu Ganga, Nagarjunasagar and other. In the matter of sharing of waters of inter-State river when the tribunal constituted under the Inter-State Water Disputes Act, evolved a scheme of mass allocation as under Scheme "A" and that scheme has remained operative for all these years and could be reviewed at any time after 31st of May, 2000 even as per the decision of the tribunal itself, the contention of the State of Maharashtra that direction to implement scheme "B" at this length of time should not be given effect to is of considerable substance. In a dispute of the present nature when the Court is in cession of the matter before issuing any direction, the Court is not examining merely the rights of the parties, if any, flowing from any earlier order of tribunal but also the question of the equitability and the question of the efficaciousness of any such direction. It is in this context, the submission of Mr. Parasaran, the learned senior counsel, appearing for the State of Andhra Pradesh to the effect that a tested scheme like Scheme "A" which has remained operative for all these years should not be given a go-bye, abruptly by directly implementation of Scheme "B", particularly, when it is an admitted fact that not only the back-bone of said Scheme "B", the Krishna Valley Authority, has not been constituted but also the States themselves have not been able to build-up their reservoirs for storage of surplus water, which is also a part of Scheme "B" itself. We, however need not further delve into this matter in view of our conclusion earlier that Scheme "B" is not a decision of the tribunal and as such the Court will not be justified in issuing any direction in implementation of the said scheme. This issue is answered accordingly.