2444

DETERMINATION OF WATER REQUIREMENTS OF THE THREE PARTY-STATES CONTD..…..

STATE OF MAHARASHTRA

1187. The Government of Maharashtra, in its “Letter of Complaint under Section 3 of the Inter State River Water Disputes Act, 1956, Read with Inter-State Water Disputes Rules 1959” vide letter No. Mandvi-2010/CR-247/WRP dated 13.10.2010 addressed to the Secretary to the Government of India, Ministry of Water Resources (pages 41-47, Volume 1), has not indicated any specific quantum of water of Mahadayi river basin as the demand of the State of Maharashtra. However, various paras which directly or indirectly refer to the issue of the demand of water or equitable apportionment of the water of Mahadayi river basin, in the above mentioned letter of complaint of the State of Maharashtra are reproduced hereunder.

Para 3(I)(b), page 43, Volume 1 “(b) What would be the share of each State on equitable apportionment of water of the Inter State River Mandovi?”

Para 3(II), page 45, Volume 1 2445

“II) Subject to the leave of the Tribunal the State of Maharashtra reserves it’s right as under:- a. To file statement of case. b. To submit additional schemes in the form of projects to benefit it’s habitant. c. To oppose or contest the claims of State of Karnataka and Goa. d. To file the Master Plan for utilization of Mandovi River Basin Water in Maharashtra. e. To file correspondence, minutes of the meeting, documents, maps studied, project reports, any other technical material or data besides leading oral evidence in support of it’s case.”

Para 5(a), page 46, Volume 1 “(a) Maharashtra State having an equitable share in the water of Mandovi River has proposed Virdi Project and several other projects within it’s territory. The State of Goa in the C.M’s meeting of the two States on 26/4/2006, permitted the State of Maharashtra to construct Virdi project.”

1188. Through the “Further Amended Statement of Case of the State of Maharashtra” filed on 20.4.2015 (Volume 127), the State of Maharashtra has sought following reliefs in respect of the water demand and equitable apportionment of waters of the inter-State river Mahadayi and its valley: “Water needs of Maharashtra from Mandovi river basin. 2446

3.5.1 The agricultural needs of Maharashtra have been assessed vide para 3.1.9 as 132.27 M.Cum

3.5.2 As enumerated in the forgoing paras the water needs for agriculture, drinking and industrial area in part of Mandovi river and adjoining part of Tilari basin have been determined and the break up of the proposed utilization is given hereunder:

1) Irrigation needs of - 132.27 Mm3 Maharashtra 2) Drinking water needs in part - 1.65 Mm3 of Mandovi river basin 3) Drinking water needs in - 2.00 Mm3 adjoining uncommanded area of Tilari basin 4) Industrial water needs in part - 1.00 Mm3 of Mandovi river basin 5) Industrial water needs in - 1.10 Mm3 adjoining uncommanded area of Tilari basin 6) Provision for future - 25.00 Mm3 development 7) Evaporation losses 10 % - 16.30 Mm3 Grand Total - 179.32 Mm3 Say - 180.00 Mm3”

2447

1189. In view of the information included in the Statement of Claims of the State of Maharashtra and related documents, following Issues related to demand of waters of Mahadayi river basin by the State of Karnataka for various purposes, were finally framed for determination vide Tribunal’s Order dated 17.7.2015. “57. Whether the State of Maharashtra proves that it is entitled to allocation of 180.00 mcm water from total yield of river Mahadayi?

58. Whether the State of Maharashtra proves that it is entitled to divert the water of river Mahadayi outside the basin for meeting projected requirements in Tilari basin?”

Present Utilization of Water of Mahadayi River Basin by the State of Maharashtra

1190. The State of Maharashtra has not reported any scheme or project through which the waters of Mahadayi river basin is being presently utilized in the State of Maharashtra. Therefore, the existing utilization of waters of Mahadayi river basin by the State of Karnataka is considered as negligible.

2448

Projected Demand of Water of Mahadayi River Basin by the State of Maharashtra for various Purposes

1191. The Tribunal observes that the State of Maharashtra had earlier filed the “Master Plan of Mahadayi Basin” as Annexure – 20 to the Statement of Case of the State of Maharashtra (Volume 52D) on 17.10.2013. The projected demand of water for various purposes as mentioned at Para 6.5, page 3 of the Master Plan of Mahadayi basin (Volume 52D) are as under.

“… Thus to utilize 177 M. Cum (6.25 TMC) of available water in the basin the Master Plan of Mahadayi Basin is prepared.

1. For Irrigation (In basin for : 55.00 M. Cum 4600 Hect) 2. Drinking purpose (In basin) : 5.00.M. Cum 3. Hydro Power Generation : 15.00 M. Cum 4. For Industrial : 25.00 M. Cum 5. For Irrigation in Tilari Basin : 80.00 M. Cum Total : 180.00 M. Cum”

1192. Subsequently, the Witness of the State of Maharashtra, Shri B. C. Kunjir filed “A Study in respect of Water 2449

Needs of Maharashtra in Mahadayi Basin” as Annexure-2 to his Affidavit dated 27.10.2017 (Exh. MAH/MW-2/1), wherein the projected needs in respect of the water of Mahadayi river basin for various purposes are indicated at page 27 as under. “Thus, the total needs of Mahadayi basin along with nearby Tillari valley villages is summarized in the following table: figures in Mcum Sr. Particulars As per Study No. In Basin Outside Total (Mahadayi) Basin (Tillari) 1 Irrigation use 80.00 65.00 145.00 2 Drinking 2.00 3.00 5.00 3 Industrial 9.00 3.00 12.00 4 Evaporation 9.00 9.00 18.00 losses 5 Hydro Power 0.00 0.00 0.00 Generation (Non- consumptive) Total 100.00 80.00 180.00”

1193. The State of Maharashtra has projected future demand of water of Mahadayi river basin in the State of Maharashtra as 180 Mcum for various purposes, i.e., for irrigation, drinking water, industrial uses, hydropower generation within the Mahadayi river basin as well as outside the Mahadayi 2450

river basin i.e., in Tillari basin. However, it is found that there are variations in the projected quantum of water use for various purposes indicated in different documents filed by the State of Maharashtra. The variations are illustrated in Table-1. Table-1: Projected Quantum of Water Use (in Mcum) for Various Purposes by the State of Maharashtra in respect of Water of Mahadayi River Basin Sl. Purpose As per As per As per Study by No. Master Statement Shri Kunjir, the Plan of Case Witness of State (Vol.52D) (Vol.127) of Maharashtra (Vol.205) 1 Irrigation a. Within basin 55 80 b. Outside basin 80 65 Sub-total 135 132.27 145 2 Drinking water a. Within basin 5 1.65 2 b. Outside basin - 2.00 3 Sub-total 5 3.65 5 3 Industrial uses a. Within basin 25 1.00 9 b. Outside basin - 1.10 3 Sub-total 25 2.10 12 4 Hydro-power 15 - - development 5 Evaporation losses - 16.30 18 6 Future development - 25.00 - Total 180 179.32 180 Say, 180 2451

1194. From the above, it is apparent that there are considerable variations in the projected quantum of water of Mahadayi river basin for use by the State of Maharashtra for various purposes. It is noticed by the Tribunal that the variations mentioned above have not been explained by the State of Maharashtra in any of the documents filed by it. It is also noted that at Para 2.1, page 4 of his Affidavit dated 27.10.2017, Shri B. C. Kunjir, the Witness of the State of Maharashtra, it is mentioned about the projected future needs of the State of Maharashtra in respect of water of Mahadayi river basin as included in the “Master Plan of Mahadayi Basin” (Volume 52D) and as mentioned in the “Further Amended Statement of Case of the State of Maharashtra” (Volume 127). Subsequently at Para 3.5, page 8 of his Affidavit dated 27.10.2017, Shri Kunjir mentioned about his assessment of projected future needs of the State of Maharashtra in respect of water of Mahadayi river basin, which is quite different than that included either in the “Master Plan of Mahadayi Basin” (Volume 52D) or as mentioned in the “Further Amended Statement of Case of the State of Maharashtra” (Volume 127). However, Shri Kunjir has also not explained the reasons for variations. 2452

1195. In this regard, Shri B. C. Kunjir, Witness of the State of Maharashtra was asked question No. 2 on 1.12.2017 by the Tribunal. The question and the answer thereof are reproduced hereunder.

“Q.No.2. Table under Para 3.5 at page 8 of your Affidavit dated 27.10.2017 (Vol. 205), provides the water demand of State of Maharashtra in Mahadayi basin for various purposes. We find that in many cases, the demands of water as per your study are different from the one indicated by the State of Maharashtra at Para 3.5.2, Pages 23-24 of the “Further Amended Statement of Case of the State of Maharashtra” (Vol.127) and also reported at Para 2.1, page 4 of your Affidavit. The variations are summarized hereunder.

a. Your study indicates water needs for irrigation as 145.00 Mcum against 132.27 Mcum mentioned in the Statement of case of Maharashtra. b. Your study indicates water needs for drinking purposes as 5.00 Mcum against 3.65 Mcum mentioned in the Statement of case of Maharashtra. c. Your study indicates water needs for industries as 12.00 Mcum against 2.10 Mcum mentioned in the Statement of case of Maharashtra. d. Your study indicated evaporation losses as 18.00 Mcum against 16.30 Mcum mentioned in the Statement of case of Maharashtra. 2453

Further, there is provision of 25 Mcum for future development in the Statement of Case of the State of Maharashtra. However, you have not kept any provision for future development.

Please explain the reasons for variations in water demand for different purposes estimated by you and that included in the Further Amended Statement of Case of the State of Maharashtra.

Ans. I have no comments to offer to various parts of the question.” [Emphasis supplied]

Thus, it stands established that variations in assessment of projected quantum of water of Mahadayi river, totally remain unexplained and cannot be relied upon by the Tribunal, at all.

1196. In the above backdrop, it is found that various assessments of projected water demands in respect of water of Mahadayi river basin by the State of Maharashtra are not based on thorough investigation of all related issues including the surveys etc. of the potential projects sites for utilization of water. This is evident from Para 3.1.7, page 21 of the “Statement of Case of the State of Maharashtra for Mahadayi Water Dispute 2454

Tribunal” (Volume 27) filed on 2.1.2013, wherein following has been stated.

“3.1.7. Govt. of Maharashtra vide letter dated 30.9.2011 sought the survey and investigation for additional projects which could be taken in Mandovi Basin for utilisation of its share of waters. (Annexed hereto and marked Annexure 11 is the copy of the said letter) Accordingly following sites have been identified and survey & investigation for preparing report is in progress.” [Emphasis supplied]

1197. It is evident that the State of Maharashtra has made an effort to project the available water at 75% dependability as the utilizable water and hence the future water demand. This is apparent from the statement of the State of Maharashtra in the “Master Plan of Mahadayi Basin” (Volume 52D), which is reproduced hereunder.

“6.5 As per this report the 75 % & 50 % dependable yield of Mahadayi basin in Maharashtra is as follows. (Enclosed as Annexure - IP. No. 5 To 46)

Sr. Yield Yield Yield No. Calculations by Calculations of Inglish formula Halter & from 25 Years Dicholim Nalla 2455

Data of Virdi from 40 Years Station Rainfall Data by establishing Rainfall-Rainfall & Rainfall- Runoff co- relation A. 75% 211.98 M. Cum 177.208 M. Cum dependable Yield B. 50% 243.75 M. Cum 191.268 M. Cum dependable Yield

Thus to utilize 177 M. Cum (6.25 TMC) of available water in the basin the Master Plan of Mahadayi Basin is prepared.

1. For Irrigation (In basin for : 55.00 M. Cum 4600 Hect) 2. Drinking purpose (In basin) : 5.00.M. Cum 3. Hydro Power Generation : 15.00 M. Cum 4. For Industrial : 25.00 M. Cum 5. For Irrigation in Tilari Basin : 80.00 M. Cum Total : 180.00 M. Cum” [Emphasis supplied]

1198. In view of above, it would not be appropriate at all to accept the projected future demand of 180 Mcum by the State of Maharashtra in respect of water of Mahadayi river basin, which is almost equal to water availability from the catchment area of 2456

Mahadayi river basin in the territory of the State of Maharashtra at 75% dependability. The assumption of the State of Maharashtra that all the available water at 75% dependability can be considered as utilisable water is not well founded either actually or legally. This becomes evident, at once, if one refers to the information provided by the State of Maharashtra in respect of water availability estimated at 75% dependability and the proposed annual utilization in respect of four identified projects which are indicated in the “Compilation of Pre-Feasibility Report and Salient Features of Proposed Projects in Mahadayi Basin” [Volume 113(b)]. The related informations are summarized in Table-2, compiled by the Tribunal using the information provided by the State of Maharashtra in Volume 113(b).

Table-2: Projects proposed by the State of Maharashtra Sl. Proposed Projects Water Proposed No. availability at Annual 75% Utilization (in dependability Mcum) (in Mcum) 1. Virdi (Morachi Rai) 14.78 8.95 Minor Irrigation Project 2. Virdi B Minor 6.72 4.49 2457

Irrigation Project 3. Dhangarwadi Minor 9.97 7.86 Irrigation Project 4. Ambadgaon Minor 8.31 0.54 Irrigation Project

1199. The Tribunal is, of the firm opinion that the approach for planning the available water resources without going into the realistic demand would lead to non-optimal planning of the available water resources. The National Water Policy 2012 has laid due emphasis on the demand management at para 1.3 (viii), which is reproduced hereunder.

“(viii) Given the limits on enhancing the availability of utilizable water resources and increased variability in supplies due to climate change, meeting the future needs will depend more on demand management, and hence, this needs to be given priority, especially through (a) evolving an agricultural system which economizes on water use and maximizes value from water, and (b) bringing in maximum efficiency in use of water and avoiding wastages.”

1200. While addressing the issues related to ADAPTATION TO CLIMATE CHANGE, the need for demand management has, 2458

further, been emphasized in the National Water Policy 2012 at Para 4.3, which is reproduced hereunder.

“4.3 The adaptation strategies could also include better demand management, particularly, through adoption of compatible agricultural strategies and cropping patterns and improved water application methods, such as land leveling and/or drip / sprinkler irrigation as they enhance the water use efficiency, as also, the capability for dealing with increased variability because of climate change. Similarly, industrial processes should be made more water efficient.”

In view of above conclusions, it is difficult for the Tribunal, to take into consideration and / or to accept the demand for projected quantum of water of Mahadayi river basin made by State of Maharashtra and therefore, the said demand is hereby rejected.

Proposal for Diversion of Water of Mahadayi River Basin to Tillari Basin

1201. From Table-1 under Para 7, pages 6-7, it is apparent that the State of Maharashtra has proposed to divert considerable quantum of water of Mahadayi river basin to Tillari 2459

basin. As per the “Master Plan of Mahadayi Basin” (Volume 52D), the quantum of water of Mahadayi river basin proposed to be diverted to Tillari basin is 80 Mcum (2.82 tmc) out of total projected demand of 180 Mcum (6.35 tmc). However, as per the study included in the Affidavit dated 27.10.2017 of Shri B. C. Kunjir, Witness of the State of Maharashtra (Volume 205), the quantum of water of Mahadayi river basin proposed to be diverted to Tillari basin is 71 Mcum (2.51 tmc) out of total projected demand of 180 Mcum (6.35 tmc).

1202. In this regard, it is relevant to notice that the existing Tillari Project which was implemented and is being managed jointly by the States of Maharashtra and Goa, provides for diversion of water of Tillari basin to Mahadayi basin. At para 4.6, page 21 of his affidavit dated 15.9.2015 [Volume 163(a)], Shri S. N. Huddar, Witness for the State of Maharashtra has stated that out of the Goa’s share of 459.68 Mcum in the Tillari project, the utilization in Mandovi basin is 261.33 Mcum. The State of Goa has also mentioned at para 2(d), page 3, of the “Affidavit in Answer Submitted on behalf of State of Goa to the Interrogatories administered by State of Maharashtra on 03/04/2014” (Volume 102) that the total quantum of water from 2460

the Tillari irrigation project used in Mahadayi basin is 261.33 Mcum out of the State of Goa’s share of 459.68 Mcum, Thus, the diversion from Tillari basin to Mahadayi basin is 261.33 Mcum i.e. 9.22 tmc. Obviously, therefore, the Tillari basin cannot be considered as water-deficient or water-short basin, at all.

1203. Further, at Para 5.1, page 11 of his Affidavit dated 27.10.2017 (Volume 205), Shri B. C. Kunjir, Witness of the State of Maharashtra has stated that as per availability per capita and availability per unit land, both basins are abundant. The relevant Para 5.1 is reproduced hereunder.

“5.1 I state that the use in Tillari basin, though a diversion by definition, is most natural, because the higher level cultivable fields in Tillari basin, can be then irrigated by gravity canals. Secondly, this will at least partially compensate for the diversion already made by State of Goa to Mandovi basin from Tillari basin. (261.33 Mcum by State of Goa – Reference Document Volume No. 102, page 3). As per availability per capita and availability per unit land both basins are abundant as seen from Maharashtra Water & Irrigation Commission Report, Volume I – APPROACH, June 1999, pages 144 to 146 and page 516 of the said report. These relevant pages are annexed hereto and marked as Annexure – 3 (Colly). It may also be noted that the current level of 2461

consumption in entire Mahadayi basin is abysmally low.”

1204. In Para 5.1 of his Affidavit, Shri Kunjir has also stated that the diversion of Mahadayi water to Tillari basin “will at least partially compensate for the diversion already made by State of Goa to Mandovi basin from Tillari basin. (261.33 Mcum by State of Goa – Reference Document Volume No. 102, page 3)”. Apparently, this statement of Shri Kunjir is out of context as the Tillari project was jointly implemented by the State of Maharashtra and the State of Goa and that the agreement for this purpose does not provide for any compensation, whatsoever. This is an obvious attempt made by State of Maharashtra, to back out from the agreement entered into between State of Maharashtra and State of Goa, and such a course cannot be permitted to be adopted by this Tribunal. In this regard, the learned Advocate General of the State of Goa asked the question No. 1 on 1.12.2017 to Shri Kunjir. The question No. 1 and the answer thereof are reproduced hereunder.

2462

“Q.No.1. Please refer to para 5.1, at page 11 of your Affidavit dated 27.10.2017 (Vol. 205), wherein you have stated as under: “Secondly, this will at least partially compensate for the diversion already made by State of Goa to Mandovi basin from Tillari basin. (261.33 Mcum by State of Goa- Reference Document Volume No.102, page3).” In this regard, I draw your attention to MARK- MAH/3(Colly.), namely, Agreement dated, 06.04.1990, entered by and between the Government of the State of Goa and the Government of the State of Maharashtra. Can you cite or show any clause of this Agreement, which contemplates or provides for compensating the share of water of Tillari basin, given to the State of Goa under the Agreement, to be compensated by any water from Mahadayi basin?

Ans. I would like to answer this question in two parts. a. I am aware that no such clause exists in the aforesaid Agreement. b. The word ‘compensation’ refers to any derogatory effects, if any, of transfer of water from Tillari (Chapora basin), caused due to the effect of the above Agreement.”

1205. Further, Shri Kunjir has stated in Para 5.1 of his Affidavit dated 27.10.2017 (Volume 205) that “the use in Tillari basin, though a diversion by definition, is most natural, because 2463

the higher level cultivable fields in Tillari basin, can be then irrigated by gravity canals”, it is not explained by Shri Kunjir as to why the area of the Tillari basin of the State of Maharashtra which is proposed to be provided irrigation through the Virdi Large MI Project by diverting the water of Mahadayi river basin, was not considered for irrigation at the time of planning and implementation of the Tillari Project itself. Even if case put forth by Shri Kunjir is taken on its face value, the whole process speaks of fragmented approach to planning of water resources without considering all aspects in proper perspective. Such fragmented approach, can never be approved by this Tribunal.

1206. In view of above, the Tribunal is of the firm opinion that the proposal of the State of Maharashtra for diversion of water of Mahadayi river basin to Tillari basin for irrigation or for industrial uses cannot be accepted and is hereby rejected.

Identification of Projects / Schemes

1207. The Tribunal finds that while indicating the future projected needs of water of Mahadayi river basin for various purposes, Shri Kunjir has not made specific mention of the 2464

projects / schemes for utilization of the water of the Mahadayi river basin. The identification of various projects / schemes is considered a bare minimum necessity because, only then, it will be possible to assess the “utilizable water” out of “available water”. However, it is noted that the “Master Plan of Mahadayi Basin” of the State of Maharashtra (Volume 52D) has identified the ongoing and the proposed projects in Mahadayi river basin at Para 7.0, page 4. Para 7 of the Volume 52D is reproduced hereunder.

“7.0 ONGOING & PROPOSED PROJECTS IN MAHADAYI BASIN (MAHARASHTRA): The on-going & proposed projects in the basin are as below. (Map enclosed on P. No. 48) Sr. Projects On- Proposed Total No. going storage proposed project in storage in in M.Cum M.Cum M.Cum 1. Virdi M.I. 14.819 13.381 28.20 Project (Addition- al) 2. Virdi (Morachi - 31.41 31.41 Rai) M.I.P. 3. Virdi – ‘B’ - 8.00 8.00 M.I.P. 4. Virdi – ‘C’ - 3.23 3.23 2465

M.I.P. 5. Talekhol - 4.50 4.50 M.I.P. 6. Dhangaerwad - 7.00 7.00 i M.I.P. 7. Vazare M.I.P. - 3.50 3.50 8. Ambadgaon - 3.50 3.50 M.I.P. 9. K.T. Weirs - 11.00 11.00 Total Storage 14.819 85.521 100.34 Proposed

Note:- The preparation of D.P.R. of above projects is in progress.”

1208. The Tribunal finds that except for Virdi Large Minor Irrigation Project, the DPR of none of the proposed projects are finalized by the State of Maharashtra, at all.

1209. It is worth noticing by the Tribunal that the State of Maharashtra, in its “Statement of Case of the State of Maharashtra for Mahadayi Water Dispute Tribunal” (Volume 27) filed on 2.1.2013 has also mentioned about the present and investigated plan at paras 3.1.5 to 3.1.7, pages 20-21. It is, however, noticed that in Volume 27, the name of K.T. Weirs does not appear in the list of ongoing and proposed projects.

2466

1210. It is further found by the Tribunal that following has been stated at Para 3.2, page 20-21 of the “Further Amended Statement of Case of the State of Maharashtra” (Volume 127).

“Status of storage and irrigation potential creation. 3.2 After preliminary surveys pre-feasibility reports of four projects are now prepared. Brief particulars of such projects are as follows. Sr. Name of Project Water use for CCA Irrigation Ha Mcum 1. Virdi (Morachi Rai) 8.95 370 MIP 2. Virdi B MIP 4.49 160 3. Dhangarwadi MIP 7.86 300 4. Ambadgaon MIP 0.54 25

A Compilation of these pre-feasibility reports is filed in a separate booklet and marked as Annexure-26.”

1211. However, in Para 3.2 of Volume 127, there is no mention of other identified projects / schemes, namely (i) Virdi – ‘C’ M.I.P., (ii) Talekhol M.I.P., (iii) Vazare M.I.P., and (iv) K.T. Weirs nor it is made clear whether these four projects / schemes [namely (i) Virdi – ‘C’ M.I.P., (ii) Talekhol M.I.P., (iii) Vazare M.I.P., and (iv) K.T. Weirs] have been found to be feasible / workable or not. 2467

1212. In view of above mentioned state of affairs, the Tribunal considers it more appropriate to restrict the examination of the issues related to water demand in respect of following projects / schemes of the State of Maharashtra which are finally included in the “Further Amended Statement of Case of the State of Maharashtra” (Volume 127). a. Virdi Large MI project – DPR at Volume 52A, 52B & 52C and revised DPR at 95(a) b. Virdi (Morachi Rai) MI project – Pre-Feasibility Report at Volume 113(b) c. Virdi B MI project – Pre-Feasibility Report at Volume 113(b) d. Dhangarwadi MI project – Pre-Feasibility Report at Volume 113(b) e. Ambadgaon MI project – Pre-Feasibility Report at Volume 113(b)

1213. The details in respect of Virdi Large MI Project are available in the detailed project report (DPR). In respect of other projects, the outline or broader features are provided in the feasibility report (FR).

2468

Examination of the Claims of the State of Maharashtra

Virdi Large Minor Irrigation Project

1214. The Tribunal finds that the State of Maharashtra has filed the detailed project report (DPR) of Virdi Large Minor Irrigation Project as Annexure 19 in three Volumes (i.e. Volume 52A, Volume 52B and Volume 52C) on 17.10.2013. The said DPR was apparently prepared in the year 2005. During the visit of the Tribunal to the project site on 14.12.2013, the State of Maharashtra made available a copy of the salient features of the Project to the Tribunal. Subsequently, “Revised Detailed Project Report of Virdi Large M.I. Project” – Annexure-22 [Volume 95(a)] was filed by the State of Maharashtra on 18.9.2014. It was noticed by the Tribunal that there were considerable variations in the content of the information made available from time to time to the Tribunal. In view of this position, the Tribunal by its Order passed in IA-28 of 2014 on 11.2.2015, had directed the State of Maharashtra as under. “… 6. On perusal of the record available with the Tribunal, the Tribunal finds as under: 2469

“The Government of Maharashtra has provided detailed project report (DPR) and information related to Virdi Large Minor Irrigation Project to the Tribunal from time to time. It is noted that DPR of Virdi Large Minor Irrigation Project was first filed by the State of Maharashtra on 17.10.2013 as Annexure – 19 of the Statement of Case. Subsequently, Salient Features of the Project were made available during the visit of the Tribunal to the site in December 2013. Later on, a revised DPR has been filed on 18.9.2014.

There are considerable variations in the content of the information made available from time to time as may be seen from the following Table. Important Information included in the features document filed / provided to the Tribunal in Oct. in Dec. in Sept. 2013 2013 2014 Location of On Haltara On Kattica On Kattica the Dam Height of the 40.33 50.38 61.98 dam meters meters meters Length of the 238 745 meters 810 dam meters meters Water 15.378 14.697 21.556 utilization million million million cubic cubic cubic meters meters meters Culturable 1405 1508 1979 Command hectares hectares hectares Area

2470

It is also interesting to note that the revised DPR filed by the State of Maharashtra on 18.9.2014 clearly states that “it was decided in the meeting of Governing Council of Kokan Irrigation Development Corporation held on 12.08.2011 to increase the scope of Virdi Project to provide irrigation facilities to the above village in Tilari valley”.

From above, it is apparent that the varying information were provided to the Tribunal and the Tribunal was not informed of the factual position.

7. As far as the facts which have been found by this Tribunal are concerned, the learned counsel for the State of Maharashtra seeks four weeks’ time to file an affidavit explaining the considerable variation in the content of the information made available to the Tribunal from time to time. The prayer for the grant of time is not opposed by the learned counsel for the State of Goa. Therefore, the said prayer is accepted and a time of four weeks is granted to enable the State of Maharashtra to file an affidavit explaining the variations indicated above. …”

1215. In compliance to the Order dated 11.2.2015 of the Tribunal, the State of Maharashtra filed the “Affidavit on behalf of the State of Maharashtra pursuant to the Order of this Tribunal on 11th February 2015” on 16.3.2015 (Volume 111). In view of the revision of the scope of the Virdi Large M.I. Project as 2471

contained in the “Revised Detailed Project Report of Virdi Large M.I. Project” – Annexure-22 [Volume 95(a)] and the clarifications provided in the Affidavit dated 12.3.2015, it is considered appropriate to examine the features in respect of Virdi Large M.I. Project as included in the “Revised Detailed Project Report of Virdi Large M.I. Project” – Annexure-22 [Volume 95(a)].

1216. As per the “Revised Detailed Project Report of Virdi Large M.I. Project” – Annexure-22 [Volume 95(a)], the total utilization is 21.556 Mcum (0.76 tmc) comprising: a. Irrigation demand within the Mahadayi river basin – 13.767 Mcum (0.48 tmc) b. Irrigation demand outside the Mahadayi river basin (i.e., in the adjoining Tillari basin) – 5.631 Mcum (0.20 tmc) c. Drinking water requirement – 0.218 Mcum (0.01 tmc) d. Industrial water needs within Mahadayi river basin – 0.730 Mcum (0.03 tmc) e. Losses – 1.210 Mcum (0.04 tmc) Total – 21.556 Mcum (0.76 tmc)

1217. There is a specific mention of irrigation demand within the basin and outside the basin. Similarly, it is also clearly 2472

stated that the industrial water demand is for Virdi command area i.e., for utilization within the Mahadayi river basin. However, it is not clearly mentioned whether the demand for drinking water is exclusively for utilization in the areas within the Mahadayi river basin or it is inclusive of both the areas within and outside the basin.

1218. The water availability at the Virdi Large MI Project is indicated as 22.7 Mcum (0.80 tmc). It is, however, found by the Tribunal that the quantum of water required for ecological needs immediately downstream of the project site or for the lower reaches of the river (including that in the territory of the State of Goa) has not been estimated in the form of the environmental flow and accounted for, to arrive at the rational value of the utilizable water, out of available water at the site.

1219. In this regard, an independent assessment of water availability at the project site has also been undertaken by the Tribunal. The water availability at 75% dependability as per the assessment made by the Tribunal, works out to be 21.37 Mcum (0.75 tmc) against the value of 22.7 Mcum (0.80 tmc) assessed by the State of Maharashtra. The Tribunal has also estimated the 2473

quantum of environmental flow in accordance with the provisions in the “Standard Terms of Reference (TOR) for EIA / EMP Report for Projects / Activities Requiring Environment Clearance under EIA Notification 2006” (MARK-37) of the Ministry of Environment, Forest and Climate Change published in April 2015 as under. a. Water Availability at 75% Dependability : 21.37 Mcum (as assessed by the Tribunal) b. Water Availability at 90% Dependability : 12.75 Mcum (as assessed by the Tribunal) c. Environmental Flow @ 30% of the Water : 3.83 Mcum Availability at 90% Dependability (the flow at proposed sites of diversion being only during the monsoon period) d. Upper Limit of the Quantum of Water : 17.54 Mcum that could be considered for Consumptive Uses within the basin and / or for Diversions outside the basin (i.e., the Water Availability at 75% Dependability – the Environmental Flow)

2474

1220. From the above, it is found by the Tribunal that after deducting the environmental flows, the maximum level of utilizable water at the Virdi Large MI Project could be 17.54 Mcum (0.62 tmc). However, after examining the requirements of water for various purposes projected by the State of Maharashtra, a total of 15.93 Mcum (0.56 tmc) comprising (a) proposed in-basin requirement of 13.767 Mcum (0.48 tmc) for irrigation, (b) proposed in-basin requirement of 0.730 Mcum (0.03 tmc) for industrial needs, (c) proposed requirement of 0.218 Mcum (0.01 tmc) for drinking water, and (d) losses of 1.210 Mcum (0.04 tmc), is permitted at the Virdi Large MI Project. The projected requirement of 5.631 Mcum (0.20 tmc) for irrigation demand outside the Mahadayi river basin (i.e., in the adjoining Tillari basin) is not granted in view of non-availability of adequate water, and also in view of the fact that at page 67 of the “Argument Notes by the State of Maharashtra” (Volume 221) filed by the learned Counsel for the State of Maharashtra on 15.1.2018, it is stated that the ‘State of Maharashtra has only one ongoing minor irrigation project with planned utilization of 0.5 tmc water’.

2475

The permission to the State of Maharashtra to plan Virdi Large MI Project for utilization of 15.93 Mcum (0.56 tmc) will be inclusive of all consumptive uses including the reservoir and other losses.

1221. Considering the position elaborated in earlier paras, in respect of diversion of water of Mahadayi river basin outside the basin for utilization for different purposes other than the drinking water purposes, it is held by the Tribunal that the State of Maharashtra is hereby permitted to utilize a maximum of 0.56 tmc of water for Virdi Large MI Project which will include all consumptive uses and the reservoir and other losses, subject to strict condition that the State of Maharashtra must undertake revision of the project features and prepare a modified Detailed Project Report (DPR) to utilize a maximum of 15.93 Mcum (0.56 tmc) of water for various purposes within the basin.

1222. It is clarified in clear terms that such utilizations would necessarily require thorough review and modification of the detailed project reports by the Maharashtra State Government. It is also clarified that the proposals in the form of detailed project reports would be considered for implementation 2476

only: (a) after technical appraisal of the proposed projects by the central agencies; and (b) after obtaining all mandatory clearances as required.

Proposed Virdi (Morachi Rai) Minor Irrigation Project, Virdi B Minor Irrigation Project, Dhangarwadi Minor Irrigation Project, and Ambadgaon Minor Irrigation Project

1223. In addition to the ongoing project namely, Virdi Large MI project, the State of Maharashtra has also identified four more projects, namely (i) Virdi (Morachi Rai) Minor Irrigation Project, (ii) Virdi B Minor Irrigation Project, (iii) Dhangarwadi Minor Irrigation Project, and (iv) Ambadgaon Minor Irrigation Project in the “Further Amended Statement of Case of the State of Maharashtra” (Volume 127). The State of Maharashtra has not filed the detailed project report (DPR) of these four projects, but the broader features are indicated in the “Compilation of Pre- Feasibility Report and Salient Features of Proposed Projects in Mahadayi Basin” Annexure – 26 [Volume 113(b)] filed by the State of Maharashtra on 6.4.2015.

2477

1224. Two important features i.e., water availability estimated at 75% dependability and the proposed annual utilization in respect of four projects are summarized in Table-2 under Para 1198.

1225. It is found that the extent of utilization proposed by the State of Maharashtra is relatively lower than the water availability at 75% dependability assessed by the State of Maharashtra. However, an independent assessment of the water availability at 75% dependability at the four proposed project sites has also been made by the Tribunal. The Tribunal has also computed the environmental flow in accordance with the provisions in the “Standard Terms of Reference (TOR) for EIA / EMP Report for Projects / Activities Requiring Environment Clearance under EIA Notification 2006” (MARK-37) of the Ministry of Environment, Forest and Climate Change published in April 2015. The assessment made by the Tribunal in respect of (a) water availability at 75% dependability, (b) the environmental flow, and (c) the upper limit of the quantum of water that could be considered for consumptive uses within the basin are indicated in Table-3.

2478

Table-3: Water Availability at 75% dependability (in Mcum), and Environmental Flow (in Mcum) Assessed by the Tribunal in respect of Four Proposed Projects of the State of Maharashtra

Sl. Description Virdi Virdi B Dhanga- Ambad- No. (Morachi MI rwadi MI gaon MI Rai) MI Project Project Project Project 1. Water Availability at 13.91 6.32 9.38 7.82 75% Dependability (as assessed by the Tribunal) 2. Water Availability at 8.30 3.77 5.60 4.67 90% Dependability (as assessed by the Tribunal) 3. Environmental Flow 2.49 1.13 1.68 1.40 @ 30% of the Water Availability at 90% Dependability (the flow at proposed sites of diversion being only during the monsoon period) 4. Upper Limit of the 11.42 5.19 7.70 6.42 Quantum of Water that could be considered for Consumptive Uses within the basin and / or for Diversions outside the basin 2479

(i.e., the Water Availability at 75% Dependability – the Environmental Flow)

1226. Thus it is found by the Tribunal that the quantum of water proposed to be utilized by the State of Maharashtra at the proposed three projects namely (i) Virdi (Morachi Rai) Minor Irrigation Project, (ii) Virdi B Minor Irrigation Project, and (iii) Ambadgaon Minor Irrigation Project are relatively much lower than the upper limit of the quantum of water that could be considered for consumptive uses after taking into consideration the environmental flows. In case of fourth project namely, Dhangarwadi Minor Irrigation Project, the annual utilization has been indicated as 7.86 Mcum which reasonably matches with the upper limit of the quantum of water that could be considered for consumptive uses assessed by the Tribunal.

1227. In view of the above, the Tribunal finds that the four proposed projects can be planned by the State of Maharashtra with the annual utilization as under. Sl. Projects / Schemes Proposed by the Permissible No. State of Maharashtra Annual Utilization

2480

a. Virdi (Morachi Rai) Minor Irrigation : 8.95 Mcum Project = 0.32 tmc b. Virdi B Minor Irrigation Project : 4.49 Mcum = 0.16 tmc c. Dhangarwadi Minor Irrigation Project : 7.70 Mcum = 0.27 tmc d. Ambadgaon Minor Irrigation Project : 0.54 Mcum =0.02 tmc

A total of 0.77 tmc of water can be granted and is hereby granted in respect of 4 proposed projects, i.e. (a) 0.32 tmc for (Morachi Rai) Minor Irrigation Project, (b) 0.16 tmc for Virdi B Minor Irrigation Project, (c) 0.27 tmc for Dhangarwadi Minor Irrigation Project, and (d) 0.02 tmc for Ambadgaon Minor Irrigation Project, subject to following rider.

1228. It is clarified in clear terms that such utilizations would necessarily require thorough review and modification of the detailed project reports by the State Government. It is also clarified that the proposals in the form of detailed project reports would be considered for implementation only: (a) after technical appraisal of the proposed projects by the central agencies; and (b) after obtaining all mandatory clearances as required, by law. 2481

1229. For the foregoing reasons, the Statement of Claims, filed by State of Maharashtra partly succeeds. In all, the State of Maharashtra is granted 1.33 tmc of Mahadayi water for meeting the in-basin needs in respect of five projects i.e., (a) 0.56 tmc for Virdi Large MI project (b) 0.32 tmc for (Morachi Rai) Minor Irrigation Project, (c) 0.16 tmc for Virdi B Minor Irrigation Project, (d) 0.27 tmc for Dhangarwadi Minor Irrigation Project, and (e) 0.02 tmc for Ambadgaon Minor Irrigation Project, which will be inclusive of all consumptive uses including reservoir and other losses. Rest of the claims of the State of Maharashtra are hereby rejected.

STATE OF GOA

1230. The Government of Goa, in its “Request for appointment of a River Water Disputes Judicial Tribunal under Section-3 of the Inter-State Water Disputes Act, 1956 as amended” vide its letter No. 68-4/CE-WRD-DO-2002-03/208 dated 09/07/2002 addressed to the Secretary, Union Ministry of Water Resources, Government of India, had mentioned about, the water demands in Paras 12.7, 12.8 and 13.0 of the said letter. 2482

Government of Goa had also emphasized, the issues relating to adverse environmental impact and water needed to address those issues, in Para 15.0 of the said letter. The relevant Paras are reproduced hereunder.

“12.7 Therefore, Goa Government appointed a “Panel of Experts” for preparation of Master plan for the long term needs of water potential of the Mandovi river basin in Goa. This Panel submitted its report to Goa Government on 31.01.1999. A copy of this Master Plan was supplied to Karnataka Government on 10.01.2000 and the NWDA on 08.02.2000. A copy of the Executive Summary of this Master Plan is at Annexure-9.

12.8 The main observations and recommendations of the above “Panel of Experts” are: i. Out of the total geographical area of 3702 Sq.km. of Goa state the Mandovi river basin occupies 1580 Sq.km. – i.e., 43% of the area of the State, spreading over six talukas of Sattari, Bicholim, Bardez, Tiswadi (Panjim), Sanguem and Ponda. There are 192 villages in the Mandovi river basin in Goa state with a cultivable land of 91072 ha. ii. The water requirement of Goa state from the Mandovi river basin by 2051 AD at 75% (for irrigation) to 100% (for water supply) would be as under. a) Domestic water supplies 208 M.cum b) Industrial water supplies 208 M.cum c) Irrigation 2050 M.cum 2483

d) Salinity control 158 M.cum e) Forest management 50 M.cum Total Requirement Of Goa State 2674 M.cum iii. Against the above projected annual requirement of 2674 M.Cum of water by 2051AD the water resources actually available in the Mandovi basin for conservation and utilization is only 1531 M.cum. This 1531 M.cum includes the entire 75% dependable waters generated in the upper reaches of the basin in Karnataka (584 M.cum) and Maharashtra (120 M.cum) and from 530 Sq.km. foothill zone of Goa state (827 M.cum). iv. Water resources from the remaining portions of the Mandovi river basin in the final tidal and saline reach and the coastal plains cannot be practically conserved and regulated. v. Thus the Mandovi Basin is a water deficient basin in the perspective of water resources development planning. As such it is obvious that there is absolutely no scope for any diversion of water outside the basin to Malaprabha River. vi. Goa state has to substantially depend on the water resources generated in the upper reaches of the basin in Karnataka & Maharashtra even to meet 1531 M.cum, which is only a part of its projected need of 2674 M.cum. … 13.0 Hydro power generation

13.1. Goa state has no power generation project of its own at present and is totally dependent on other states for its power needs – domestic, industrial, irrigation (lift) and tourism. Goa state, at present, 2484

therefore, has a most inadequate, erratic and undependable power supply.

13.2 There is scope for substantial cheap, environmentally clean hydro power generation at places along the Mandovi river and its tributaries within the Goa state which would make Goa state less dependent on supply from neighbouring states and improve the quality, quantity and economics of power supply in Goa state. This would help in improving the overall economy and development of Goa state.

13.3 The proposed outside-the-basin diversion of the Mandovi river and its tributaries by Karnataka will mean not only loss of valuable, limited water resources and its beneficial uses in Goa state, but also a total loss of cheap and environmentally clean hydro power potential available within the state. After valuable hydropower generation within the basin in the state, the same water would be beneficially used for domestic, industrial and tourism water supply needs and for irrigation and to sustain existing navigation. Outside-the-basin diversion of Mandovi river waters by Karnataka deprives Goa of this cheap and locally available hydropower potential and a total loss of water to the detriment of the basin needs. … 15.0 Adverse environmental impact

2485

15.1 The Mandovi is a short length river on the West coast of India in a very fragile environment. There is existing navigation on the river for about 40 kms of the river in the final reaches and sufficient flow and draft (depth) is needed for the survival of this established navigation. There is a very fragile balance between the fresh water flow and the sea tidal ingress and salinity. There is the important natural Goa Harbour, whose survival depends upon the delicate balance between sea and fresh water, siltation etc. There is also the existing fishing – an important and major economic activity of the people of Goa, which is dependent on the level of salinity, the sustenance of the river flows etc. There are also other environmental factors. It is apprehended that the proposed diversion of the Mandovi river waters by the Karnataka Govt. will have an adverse impact on all these well-established socio- economic activities in Goa with disastrous environmental consequences.

15.2 The Karnataka Govt. had got an Environmental Impact Assessment done by NEERI. One of the terms of reference of the EIA Studies was that the NIO (National Institute of Oceanography) should be associated with the EIA Studies along with NEERI. However, the NIO was not associated in preparation of EIA Report by NEERI. The Goa Govt. got this report from NEERI examined by its Panel of Experts. The Panel sought certain clarifications on the said NEERI report, which was sent to Karnataka Government on 29.06.1999. 2486

Karnataka Govt. has not given satisfactory clarifications. Hence Goa Govt. has not accepted NEERI’s environmental impact assessment studies based on incomplete and erroneous basic data fed by Karnataka Govt. and non-association of the NIO with the studies.”

1231. The Tribunal notes that in its “Request for appointment of a River Water Disputes Judicial Tribunal under Section – 3 of the Inter-State Water Disputes Act, 1956 as amended”, the State of Goa had indicated, its water demand, in quantitative terms, only in respect of (a) domestic water supplies, (b) industrial water supplies, (c) irrigation, (d) salinity control and (e) forest management, as per the recommendations of the Panel of Experts. Specific demands, in quantitative terms, in respect of other aspects, particularly the environmental needs, requirements for hydropower development (even though non- consumptive in nature), navigation etc. were not mentioned.

Statement of Case of the State of Goa

1232. The State of Goa has filed the “Statement of Case by the State of Goa before Mahadayi Water Dispute Tribunal” (Volume 28) on 4.2.2013. The water demands for various 2487

purposes, have been indicated in Para 189, on page 145 and Para 190, pages 145-146 of Volume 28. The State of Goa has, mentioned the demands of water, as per the recommendations of the Panel of Experts. Paras 189 and 190 of the “Statement of Case by the State of Goa before Mahadayi Water Dispute Tribunal” (Volume 28) are reproduced hereunder.

“189. According to the Master Plan prepared by the Panel of Experts for Mandovi basin area in the State of Goa, the projected water requirement of the State of Goa, by 2051 AD would be as under:

a) Domestic water supplies 208 M.cum b) Industrial water supplies 208 M.cum c) Irrigation 2050 M.cum d) Salinity control 158 M.cum e) Forest management 50 M.cum Total Requirement of Goa State 2674 M.cum

190. It is stated that as against the above projected annual requirement of 2674 MCM of water by 2051 AD, the water resources actually available in the Mandovi basin for conservation and utilization would be only 1531 MCM. This 1531 MCM, includes the entire 75% dependable waters generated in the upper reaches of the basin in Karnataka (584 MCM) and Maharashtra (120 MCM) and from 530 Sq. km foothill zones of Goa State (827 MCM). It is not possible to conserve practically or regulate the water resources from the 2488

remaining portions of the Mandovi river basin in the final tidal and saline reach and the coastal plains. Thus the Mandovi River Basin is a water deficient basin in the perspective of its needs and anticipated water resources development. As such, there is no scope for diversion of any water outside the Mandovi River basin to Malaprabha River in Karnataka. Goa substantially depends on all the water resources generated in the upper reaches of the basin in Karnataka & Maharashtra even to meet its 1531 MCM, need which is only a part of its projected over all need of 2674 MCM.”

1233. The Tribunal notices that, even in the “Statement of Case by the State of Goa before Mahadayi Water Dispute Tribunal” (Volume 28), the demands of water of Mahadayi river basin by the State of Goa were confined, to the recommendations of the Panel of Experts.

1234. Subsequently, the State of Goa filed the “Amended Statement of Case of the State of Goa” (Volume 65) on 7.3.2014. In the “Amended Statement of Case of the State of Goa” (Volume 65), an additional Para 18D is included which reads as under.

“18D. It is therefore submitted that with the advances in the environmental and hydrological sciences, the State of Goa is in the process of undertaking more detailed studies and individual DPRs (Detailed Project Reports) 2489

relating to the aforesaid Irrigation Schemes in order to arrive at revised quantum of long term water requirement.”

1235. In the “Amended Statement of Case of the State of Goa” (Volume 65), the projected requirements of water, however, were indicated as 2674 MCM at Para 189, which is same as indicated in its earlier “Statement of Case by the State of Goa” (Volume 28). However, it is worth noting that, additional Paras 190A, 190B and 190C are included in Volume 65, which are as under.

“190A. It is submitted that the Government of Goa appointed a “Panel of Experts” for preparation of a Master Plan for the long term needs of water potential of the Mahadayi river basin in Goa. The Panel submitted its Report to Goa Government on 31/05/1999. However, many changes have occurred in the landscape and the hydro-meteorology during the 15 years since then. The main changes are: . 208 Sq. Kms. of area in Mandovi river basin has been declared as a wild life sanctuary called Mhadei Wildlife Sanctuary in the Year 1999. This has brought in additional restrictions on hydrologic intervention which could not have been foreseen in 1999. . In 2010, the Union Ministry of Environment and Forests constituted an expert panel called “Western Ghats Ecology Expert Panel”, under the 2490

Chairmanship of Prof. Madhav Gadgil to study the ecology of Western Ghats, which includes Mandovi basin, to, inter alia, assess the current status of ecology of the Western Ghats region, and to make recommendations for the conservation, protection and rejuvenation of the Western Ghats Region. The Panel has submitted their report in 2011 and has made recommendations on land and water use in Western Ghats, which includes Mandovi basin, which can have far reaching implications on hydrologic intervention, implications which could not have been foreseen in 1999. . In 2012, the Union ministry of Environment and Forests further constituted a High Level Working Group under the Chairmanship of Dr. K Kasturirangan to, inter-alia, study the report by the “Western Ghats Ecology Expert Panel”, and to study the preservation of the ecology, environmental integrity and holistic development of the Western Ghats in view of their rich and unique biodiversity. The said High Level Working Group has submitted their report in 2013 and has made recommendations on land and water use in Western Ghats, which includes Mandovi basin, which can have far reaching implications on hydrologic intervention, implications which could not have been foreseen in 1999. . The knowledge of effect of global warming, climate change, and its implication on rainfall and water resources, was relatively less known in 1999. During the 15 years since then, considerable research has taken place in the science of climate change and this research has advanced mankind’s 2491

understanding of these complex natural phenomenon, which can have far reaching implications on hydrologic intervention and such implications could not have been foreseen in 1999. . Mankind’s understanding of aquatic ecology and environmental flows was relatively less known in 1999. During the 15 years since then considerable research has taken place in the science of environmental flows and this research can have advanced mankind’s understanding of the aquatic ecology, which can have far reaching implications on hydrologic intervention, implications which could not have been foreseen in 1999.

190B. The Panel of Experts in the said Report also had not taken into account requirements of water for navigation, environmental flows, depletion of marine resources, wildlife & sanctuary needs etc.

190C. For all these reasons aforestated, it is necessary to revisit the Master Plan prepared in 1999. The State of Goa has launched many new studies towards this objective and after these studies are completed the water requirement would be worked out afresh.”

1236. From Para 18D and Para 190C of the “Amended Statement of Case of the State of Goa” (Volume 65), it is apparent that the State of Goa intends, to work out the long term water requirements afresh after completion of new studies launched by the State of Goa and the finalization of more 2492

detailed studies and detailed project reports (DPRs) relating to various irrigation schemes.

Inconsistencies in Data / Information in Document filed by the States

1237. The aspects of inconsistencies, in data / information relating to water availability and water requirements, projected by the States of Goa, Karnataka and Maharashtra through the Statements of Case / Statement of Claims and related documents were examined in detail by Tribunal and the Tribunal passed an Order on 3.9.2014. The extracts from the Order dated 3.9.2014, which pertain to the State of Goa, in respect of water requirements, are reproduced hereunder.

“1. Today, during the course of hearing of the matter, the Tribunal has handed over copies of the “Brief Note on Inconsistencies in Data/Information related to Water Availability and Water Requirements projected by the States of Goa, Karnataka and Maharashtra through the Statements of Case/Statement of Claims and Related Documents” to the learned counsel appearing in the matter. Even copies of the draft order, which the Tribunal proposes to pass on the basis of the Brief Note, were also handed over to the learned counsel appearing in the matter. The Brief Note reads as under: 2493

1.Two basic inputs essentially required during the course of decision making process of judicious allocation of share of waters among the various stakeholders and for different purposes are: (a) water availability assessed at various locations; and (b) water requirements for meeting the present and future demands of water for various purposes. In addition, information related to prioritization of water use keeping in view the socio- /economic profile of the areas are also considered necessary. Though the legal issues are undoubtedly very important but rational assessment of water availability and water requirements for various purposes on a sound and accepted principles remain basic inputs.

2. The statements of case / statement of claims, written statements and rejoinders submitted by the three co- basin States along with the related documents provide some information relating to these two basic inputs, the examination of the documents provided by the three States indicates that in many cases, the information provided by the respective States are not consistent and in some cases are contradictory. Some inconsistencies were also observed by the Tribunal during the visit to various projects / sites etc. in the States of Goa, Karnataka and Maharashtra in December 2013 which are indicated in the report on the visit. Obviously, inconsistent informations cannot be the basis of meaningful arguments during the process of arriving at reasonable assessment of the available water resources and judicious allocation of share of waters among the various stakeholders and for different purposes.

2494

3. Without going into the merits of the facts as provided through data and informations included in the documents filed by respective State Governments and without comparing the data / information provided by one State with that of other States at this stage, some specific cases of inconsistencies in data / information appearing in the documents are cited as under.

4. In Para 72, page 49-50 of the Statement of Case of Goa, it has been mentioned “that total 75% yield from the whole of Goa Region of Mandovi / Madei Basin is 86.80 TMCft. (2460 MCM)”. It has further been indicated in the same Para that “the total availability of water resources for developmental purpose could be only 54 TMCft (1531 MCM)”. The total projected demand of water by the year 2051 has been reported by Goa as 2674 MCM in Para 189 on page 145 of the Statement of Case of Goa. The projection of demand of 2674 Mm3 against the utilizable available water of 1531 Mm3, in itself appears to be quite illogical. Following pertinent inconsistencies / contradictions are also observed from the Statement of Case and related document submitted by Goa.

a. Goa has raised serious objections on the hydrological data observed at Ganjim on river Mahadayi and Colem on river Khandepar (a tributary of river Mahadayi) which has been used by Central Water Commission (CWC) as well as National Water Development Agency (NWDA) for assessment of water availability. The issue of unreliability of data observed at Ganjim was also raised by Goa during the visit of the Tribunal to 2495

various projects / sites in the State of Goa, Karnataka and Maharashtra in December 2013. However, the Tribunal noted that neither Central Water Commission nor Water Resources Departments of Government of Goa, Government Karnataka and Government of Maharashtra undertook detailed studies for consistency checks of the observed data at the site. Any conclusion about reliability or otherwise of observed hydrological data without proper consistency checks would not be appropriate. b. In its Statement of Case, Goa has also adversely commented on the assessment of water availability by National Water Development Agency (NWDA). Goa has mentioned in Para 178, page 130 that “these NWDA’s water resources assessments are now revealed to be based on erroneous assumption of basic hydrological data such as rainfall, river discharge data………”. Goa, on the other hand, appointed a “Panel of Experts” for preparation of Master Plan for the long term needs of water potential of Mahadayi river basin in Goa and has referred to the report of the “Panel of Experts” time and again. It is, however, noted that the studies of the “Panel of Experts” relating to water availability are primarily based on the findings of the technical study of NWDA as can be observed from Para 179, page 130 of the Statement of Case of Goa. This presents a contradictory situation.

2496

c. Goa has not agreed with the results of the studies of Central Water Commission regarding the assessment of water availability and has stated in Para 30, page 33 of “Reply by the State of Goa to Statement of Claims filed by the State of Karnataka before Mahadayi Water Dispute Tribunal” that “…… Goa will submit its case of quantification of useful and reliable yield available in Mandovi Basin before this Hon’ble Tribunal for its perusal and decision in due course.” Further, in the Amended Statement of Case filed by Goa on 7.3.2014, it has been mentioned at Para 18D, page 15-16 that “it is therefore submitted that with the advances in environmental and hydrological sciences, the State of Goa is in the process of undertaking more detailed studies and individual DPRs (Detailed Project Reports) relating to the aforesaid Irrigation Schemes in order to arrive at revised quantum of long term water requirements”. However, Goa has not indicated any timeframe for completion of detailed studies and individual DPRs. Therefore, at present, the projected demand of 2674 Mm3 of water for various purposes by Goa cannot be treated as final projection.

…

4. In view of the important issues highlighted in the “Brief Note on Inconsistencies in Data/Information related to Water Availability and Water Requirements projected by the States of Goa, Karnataka and Maharashtra through the Statements of Case/Statement of Claims and Related Documents” (“Brief Note”, for 2497

short), which have been brought to the notice of the learned counsels representing the three States and in view of the consensus about some data/information in various documents being inconsistent and/or incomplete, the Tribunal proposes to exercise the powers conferred on it by Sections 9(1)(ba), 9(2) and 9A of the Act and give directions to the three party States as well as the Central Government, with a view to secure required material, data as well as carry out surveys and investigations and to produce relevant data before it to enable the Tribunal to decide the two basic inputs essentially required during the course of decision making process of judicious allocation of share of waters among the various stake holders, which have been highlighted in the “Brief Note”.

(1) The State of Goa is directed to submit its case of quantification of useful and reliable yield available in Mandovi Basin before the Tribunal for its perusal and decision in due course, on or before 2.12.2014.

(2) The State of Goa is directed to complete the process already undertaken by it for more detailed studies and preparing individual Details Project Reports (DPRs) relating to the irrigation schemes in order to arrive at revised quantum of long term water requirements, on or before 2.12.2014.

…”

1238. In response to the above said Order of the Tribunal, the State of Goa filed the compliance report on 22.12.2004 2498

through “Submission of the State of Goa in Compliance with Paragraph 4 of the Order dated 03/09/2004 passed by this Honourable Tribunal” (Volume 101). The response of the State of Goa to paragraph 4(2) of the said Order is reproduced hereunder.

“15. At the outset, it is clarified that the long-term water requirement is estimated not only for irrigation. Water is also required for hydro-power, drinking purpose, industrial use, environmental flows, inland navigation, salinity control and maintenance of appropriate river morphology. A Detailed Project Report (DPR) can be prepared only for a ‘project’ and that too involving irrigation, hydro-power and drinking-water purpose. DPRs cannot be prepared for the use which is not a “project” viz. industrial use, environmental flows, inland navigation and for maintenance of appropriate river morphology. Therefore it is respectfully submitted that Goa’s long term water requirement cannot be determined only by what is stated in the DPR. Moreover, even for the irrigation, hydro-power and drinking water purpose, it is standard practice that the DPRs are prepared only when the project is to be taken up for construction. Estimation of water needs is not done by preparing DPRs and therefore estimation of water needs cannot be restricted to the quantum reflected in the DPRs.

16. As a matter of fact, State of Goa is in the process of undertaking one more study for ascertaining the water requirement for environmental flow, salinity control, inland navigation and river morphology. The State of 2499

Goa craves leave to refer to and rely upon copy of the said study report once the same is completed.”

1239. From the above said statement of the State of Goa in response to paragraph 4(2) of the said Order dated 3.9.2014 of the Tribunal, it is apparent that the projected water requirements of the State of Goa, were not ascertained fully, till the submission of the response to the Tribunal’s Order dated 3.9.2014. It is found by the Tribunal that the content of reply of the State of Goa at Para 16 of the “Submission of the State of Goa in Compliance with Paragraph 4 of the Order dated 03/09/2004 passed by this Honourable Tribunal” (Volume 101), virtually contradicts, the assertions made by the State of Goa, in Para 18D of the “Amended Statement of Case of the State of Goa” (Volume 65), wherein it is stated that the State of Goa is in the process of undertaking more detailed studies and individual DPRs (Detailed Project Reports) relating to the aforesaid Irrigation Schemes, in order to arrive at revised quantum of long term water requirements. Para 18D of the “Amended Statement of Case of the State of Goa” (Volume 65) is once again reproduced hereunder.

2500

“18D. It is therefore submitted that with the advances in the environmental and hydrological sciences, the State of Goa is in the process of undertaking more detailed studies and individual DPRs (Detailed Project Reports) relating to the aforesaid Irrigation Schemes in order to arrive at revised quantum of long term water requirement.” [Emphasis supplied]

1240. It is noticed by the Tribunal that, the State of Goa filed “Affidavit in answer submitted on behalf of State of Goa to the interrogatories administered by State of Karnataka on 24/01/2014” (Volume 103) on 24.12.2014. Alongwith the said Affidavit, the State of Goa submitted the detailed project reports (DPRs) in respect of 59 projects, mentioned in Annexure-18 of Master Plan for Madei / Mandovi River Basin.

1241. The State of Goa revised its Statement of Case and filed the “Amended Statement of Case of the State of Goa (Volume 131) on 23.4.2015. It is observed by the Tribunal that there are no changes in respect of the projected water requirements of the State of Goa, and that the contents of Paras 189, 190, 190A, 190B and 190C of the “Amended Statement of Case of the State of Goa” (Volume 65) filed on 7.3.2014 and that of the “Amended Statement of Case of the State of Goa filed 2501

before the Mahadayi Water Disputes Tribunal” (Volume 131) filed on 23.4.2015, are exactly the same.

1242. It is, however, noticed by the Tribunal that Paras 15 and 16 of the compliance report i.e., “Submission of the State of Goa in Compliance with Paragraph 4 of the Order dated 03/09/2004 passed by this Honourable Tribunal” (Volume 101), have been included, as additional paragraphs 18D(i) and 18D(ii) in the “Amended Statement of Case of the State of Goa filed before the Mahadayi Water Disputes Tribunal” (Volume 131).

1243. It is also found by the Tribunal that, additional 36 paragraphs i.e., Para 190C(i) to Para 190C(xxxvi), have been included in the “Amended Statement of Case of the State of Goa filed before the Mahadayi Water Disputes Tribunal” (Volume 131). However, the Tribunal finds that these additional paragraphs, do not help in quantification of the long term water requirements of the State of Goa, in respect of Mahadayi water.

1244. The State of Goa has not informed the Tribunal whether the studies referred to in Para 18D and Para 190C of the “Amended Statement of Case of the State of Goa filed before the 2502

Mahadayi Water Disputes Tribunal” (Volume 131), have been completed or not. Similarly, the State of Goa has not informed the Tribunal about the Changes in the water requirements, as a result of the finalization of the detailed project reports (DPRs) of the 59 projects, which have been filed by the State of Goa in response to the interrogatories administered by the State of Karnataka.

Existing Utilizations

1245. The Tribunal notes that the State of Goa, has not specifically reported, details of the existing utilization of water of Mahadayi river basin. However, on the basis of the information provided by the State of Goa, particularly in response to the interrogatories administered by the State of Karnataka, the Tribunal finds that the State of Karnataka has estimated the existing utilization of water of Mahadayi river basin by the State of Goa as 9.395 tmc. The figure of existing utilization of 9.395 tmc by Goa, has not been contested by the State of Goa. Therefore, the existing utilization of water of Mahadayi river basin by the State of Goa is taken as 9.395 tmc by the Tribunal.

2503

Changes Suggested by the Witnesses Appearing on Behalf of State of Goa

1246. The Tribunal observes that, although the State of Goa has not informed, about the outcome of the additional studies or the changes emerging out of the finalization of the detailed project reports (DPRs) of the 59 projects, the following witnesses appearing on behalf of the State of Goa have mentioned about the quantity of water required for some specific purposes.

a. Shri Paresh Porob (AW-2) b. Shri Rajendra P. Kerkar (AW-4) c. Shri Subrai T. Nadkarni (AW-5)

1247. At para 10 on pages 5-6 of his Additional Affidavit dated 17.11.2017 (Volume 214), Shri Paresh Porob has stated as under. “10. I state that in so far as forest management is concerned, 50 MCM is stated to be the requirement which is as per the Master Plan of Madei basin, dated May 1999 (Vol. No. 62C, Annexure 120, Volume-I), prepared by the Panel of Experts (“PoE”). I state that same finds mention on page 53, at paragraph 5.5.0 which reads as under:- 2504

“Since large forest area falls in the command area for the forest management and irrigated forest an area of 100 SqKms is considered. With a delta of 0.50 m, the requirement for this purpose works to 50 MCM.”

It is apparent that Shri Paresh Porob has merely quoted from the Report of the Panel of Experts without mentioning his views, as an expert, about adequacy or otherwise about the projected water requirement for forest management. Subsequently, in para 11 on page 6 of his Additional Affidavit dated 17.11.2017 (Volume 214), Shri Porob has stated that the figure of 50 Mcum excludes the water requirement of wildlife in Madei Wildlife Sanctuary. The para 11 on page 6 of Volume 214 is reproduced hereunder.

“11. I state that when the Panel of Experts prepared the Report in the years March 1998 to May 1999, Madei, Wild Life Sanctuary was not declared. I state that the Wildlife sanctuary have a completely different requirements of their own. I state that the figure of 50 MCM excludes the water requirement of wildlife in Madei wildlife Sanctuary.”

1248. On a closer examination of para 5.5.0 on page 53 of Volume – I of the Report of the Panel of Experts, the Tribunal notices that the specific reference is about “large forest area” falling in the command area and that the projected requirement of 50 Mcum primarily relates to “irrigated forests”, covering 100 square kilometres of the forest area falling in the command area. 2505

1249. The Tribunal also notices that in subsequent para i.e., para 13, Shri Porob states that “the water requirement for Madei Wildlife Sanctuary is shown in Table 1.1”. The Table 1.1 included in the Additional Affidavit of Shri Porob is reproduced hereunder.

“Table No. 1.1 below shows the Type of Requirement in Surla and Madei River (In MCM) Type of Requirement Surla River Madei Stem (IN MCM) (IN MCM) Domestic 0.325 22.521 requirement Livestock 0.05 3.38 consumption Irrigation 79.92 1162.43 Environment flow 124.51 411.20 (Source: Water Balance Study by Mr. S. T. Nadkarni Chief Engineer Water Resources Department, Government of Goa)”

1250. The Tribunal notes that Shri Porob has stated that “the water requirement for Madei Wildlife Sanctuary is shown in Table 1.1”. However, the Table 1.1 prepared by Shri Porob includes: (a) domestic requirement; (b) livestock consumption; (c) irrigation; and (d) environmental flow. It is noticed that the 2506

requirements for various purposes mentioned in Table 1.1, are same as assessed by Shri Nadkarni and reported in Table 12 on page 64 of his Affidavit dated 14.11.2017 (Volume 208). Shri Porob has not explained as to why the irrigation requirement or domestic need or livestock consumption or environmental flow assessed by Shri Nadkarni in respect of two sub-basins namely Surla and Madei stem are to be considered as “the water requirement for Madei Wildlife Sanctuary”. In this context, it is also noticed that in the Table 12 on page 64 of his Affidavit dated 14.11.2017 (Volume 208), Shri Nadkarni has separately indicated a provision of 50 Mcum towards forest management. Therefore the contention of Shri Porob in para 13, about “the water requirement for Madei Wildlife Sanctuary” cannot be accepted.

1251. Interestingly, Shri Porob has assessed the demand of water for wildlife management in Mahadayi basin and that for nurseries for forests in Mahadayi river basin and discussed the same in para 24 and para 25 respectively of his Additional Affidavit (Volume 214). The detailed computations are furnished by Shri Porob in Table 1.3 on pages 15-16 and Table 1.4 on page 17 of his Additional Affidavit dated 17.11.2017 (Volume 214).

2507

1252. Shri Paresh Porob has indicated the water requirement for meeting the demand of water for wildlife management in Mahadayi river basin in Table No. 1.3, on pages 15-16 of his “Additional Affidavit in Evidence of Shri Paresh Porob, Witness of the State of Goa Deposing on Wildlife and Forest” (Volume 214). The water demands, indicated by him are as under.

a. Quantity of water required for = 11400 Cum present Water Holes (17 nos. in or 0.0114 Mcum Madei Wildlife Sanctuary, 13 nos. or 0.0004 tmc in Bhagwan Mahavir Wildlife Sanctuary and 8 nos. in Bondla Wildlife Sanctuary) b. Quantity of water required for = 28800 Cum Water Holes envisaged in 2050 (40 or 0.0288 Mcum nos. in Madei Wildlife Sanctuary, or 0.001 tmc 48 nos. in Bhagwan Mahavir Wildlife Sanctuary and 8 nos. in Bondla Wildlife Sanctuary)

1253. Shri Porob has also assessed the water requirement for maintenance of the nurseries for forests in Madei Wildlife Sanctuary and Bhagwan Mahavir Wildlife Sanctuary in the Mahadayi river basin. In the Table 1.4, on page 17 of the 2508

Additional Affidavit in Evidence of Shri Paresh Porob (Volume 214), he has mentioned about the water demands of the State of Goa in respect of nurseries for forests in Madei Wildlife Sanctuary and Bhagwan Mahavir Wildlife Sanctuary in the Mahadayi river basin. The water demands indicated by him, for this purpose are as under.

a. Quantity of water required for = 19200 Cum present nurseries (6 nos. in Madei or 0.0192 Mcum Wildlife Sanctuary and 2 nos. in or 0.0007 tmc Bhagwan Mahavir Wildlife Sanctuary) b. Quantity of water required for = 120000 Cum nurseries envisaged in 2050 (25 or 0.12 Mcum nos. in Madei Wildlife Sanctuary or 0.0424 tmc and 25 nos. in Bhagwan Mahavir Wildlife Sanctuary)

1254. The Tribunal notices that, Shri Rajendra P. Kerkar has assessed, the water requirements for environmental flows for different sub-basins as also for the main Mahadayi river under Recommendation 5, on pages 40-42 of the “Affidavit in Evidence of Shri Rajendra P. Kerkar, an Expert Witness of the State of Goa Deposing on Environment, Ecology and Forest” (Volume 211). 2509

Shri Kerkar has concluded that the preferable level of water requirements, for environmental flows, for the entire Mahadayi basin, should be 1417.8 Mcum (50.1 tmc). He has also stated that, the water requirements, for environmental flows, for the entire Mahadayi basin, should not be less than 809.0 Mcum (28.6 tmc).

1255. Shri Subrai T. Nadkarni, witness of the State of Goa, has revised the assessment of the water requirements for irrigation, domestic and industrial uses by using the basic data provided in the Master Plan prepared by the Panel of Experts. In Para 18,on page 42 of the “Affidavit in Evidence of Shri Subrai T. Nadkarni, Deposing as a State Witness on behalf of the State of Goa” (Volume 208), he has stated as under.

“18. The water requirement for irrigation, domestic and industrial uses has been estimated for each sub-basin and also for the main Mahadayi basin using the basic data provided in the Master Plan by the Panel of Experts.”

1256. The detailed water requirements for various purposes are indicated in Table-12 on page 64 of the “Affidavit in Evidence 2510

of Shri Subrai T. Nadkarni, Deposing as a State Witness on behalf of the State of Goa” (Volume 208).

1257. The Tribunal finds that, in Table-12, on page 64 of Volume 208, Shri Nadkarni has, taken the requirements, for environmental flows, as per the assessment made by Shri Rajendra P. Kerkar and indicated in Recommendation 5, on pages 40-42 of the “Affidavit in Evidence of Shri Rajendra P. Kerkar, an Expert Witness of the State of Goa Deposing on Environment, Ecology and Forest” (Volume 211).

1258. It is, however, found by the Tribunal that, Shri Subrai T. Nadkarni, has not considered and adopted the requirements of water, for wildlife management and forest management as per the assessment made by Shri Paresh Porob and indicated in Table No. 1.3, on pages 15-16 and Table 1.4, on page 17 respectively, of the “Additional Affidavit in Evidence of Shri Paresh Porob, Witness of the State of Goa Deposing on Wildlife and Forest” (Volume 214). Shri Porob has assessed (i) the quantity of water required for Water Holes envisaged in 2050 (40 nos. in Madei Wildlife Sanctuary, 48 nos. in Bhagwan Mahavir Wildlife Sanctuary and 8 nos. in Bondla Wildlife Sanctuary) as 0.0288 2511

Mcum, and (ii) the quantity of water required for nurseries, envisaged in 2050, (25 nos. in Madei Wildlife Sanctuary and 25 nos. in Bhagwan Mahavir Wildlife Sanctuary), as 0.12 Mcum only. However, Shri Nadakarni has adopted a value of 50 Mcum for forest management. The Tribunal notes that, Shri Nadkarni has not stated the reason for adopting a value different from what has been mentioned by Shri Paresh Porob, the Expert Witness.

1259. The Tribunal further observes that, there are considerable variations, in the assessment of the water requirements, made by Shri Subrai T. Nadkarni and that indicated by the Panel of Experts. Based on the information available in Para 189 of Volume 131 and the Table-12, on page 64 of Volume 208, the comparative statement has been prepared by the Tribunal and the same is shown in the following Table-1.

Table-1: Comparison of Water Requirements (in Mcum) assessed by POE and Shri Nadkarni Sl. Purpose As per Panel of As per assessment No. Expert (as by Shri Nadakarni, indicated at Para (Table-12, Vol. 208) 189, Vol. 131) 1. Domestic water 208.00 41.36* supply 2512

2. Industrial water 208.00 96.42 supply 3. Irrigation 2050.00 2451.73 4. Salinity control 158.00 - 5. Forest 50.00 50.00 management 6. Tourism - 23.07 7. Environmental - 808.94 needs Total 2674.00 3471.52 [* including water requirements for livestock]

1260. As indicated in Para 1257, Shri Nadkarni has adopted the recommendations of Shri Rajendra P. Kerkar, in respect of the environmental needs. However, the recommendations of Shri Rajendra P. Kerkar have been examined by the Tribunal separately, while examining the claims of the State of Karnataka from Para 1035 to Para 1037 under the section “Environmental Considerations in Water Resources Planning”. In view of the position that has emerged, during the examination of the recommendations of Shri Kerkar, the Tribunal concludes that, the recommendations of Shri Rajendra P. Kerkar, witness of the State of Goa, in respect of environmental flow, cannot be accepted. 2513

1261. From the Table-1, it is found by the Tribunal that, the water requirements assessed by Shri Subrai T. Nadkarni in respect of drinking water supply and industrial needs are on lower side. On the other hand, Shri Nadkarni has assessed, relatively a higher requirement of water for irrigation.

1262. The irrigation water requirements assessed by Shri Nadkarni is relatively higher than the irrigation water requirements assessed by the Panel of Experts, mainly because Shri Nadkarni has adopted irrigation intensity of 150%, whereas the Panel of Experts, has considered the irrigation intensity of 125%, as is apparent from the statement of Shri Nadkarni in Para 19 at page 42, Para 23 at pages 43-44 and Table 11 at page 64 of the “Affidavit in Evidence of Shri Subrai T. Nadkarni, Deposing as a State Witness on behalf of the State of Goa” (Volume 208).

1263. What is important to notice is that both, Shri Nadkarni as well as the Panel of Experts have assumed that, all the cultivable area could be brought under irrigation by development of projects on rivers or its tributaries which has no factual basis, at all. The factors such as (a) topography of the area, (b) specific 2514

location of the project site, and (c) the availability of water at the project site, decide the command area to be irrigated through any project. In addition, lift irrigation schemes can also be considered. However, the lift irrigation schemes will require detailed investigations including the availability of power needed for operation of such schemes and the economic aspects of such proposals. It is noticed that, these aspects have not at all been examined – either by Shri Nadkarni or by the Panel of Experts.

1264. The Tribunal observes that, the irrigable area of 39773 Ha only is shown in the Annexure 18, page 125 of the “Master Plan for Madei / Mandovi River Basin (Volume II)”, although the total of the irrigable area of 61 projects has been worked out by the Tribunal as 45675 Ha. The Tribunal also observes that the total irrigable area of 53543 Ha has been reported by the State of Goa in the “Affidavit in answer submitted on behalf of State of Goa to the interrogatories administered by the State of Karnataka on 24/01/2014” (Volume 103), on the basis of the detailed project reports (DPRs) of the 61 projects filed by the State of Goa.

2515

1265. At Para 5.6.2, page 54 of the “Master Plan for Madei / Mandovi River Basin (Volume I)”, the Panel of Experts have stated as under.

“5.6.2. There seem to be no justification to voluntarily limit the ultimate area of irrigation in the Mandovi river basin just to 60% of culturable area as done by NWDA. The Mandovi river basin has adequate water resources but limited culturable area. As the land potential cannot be increased the only alternative left to increase the food and other agricultural production in Goa is to increase the production per hectare by intensive irrigation by double or triple cropping over the entire culturable area to the extent possible. The NWDA itself contemplates lift up to 120 metres and transportation of water over long distance as may be required. This will be in tune with the National need for maximising agricultural production for the perspective population of India. The present concept of projects based on gravity canals or very small lifts may not be the practice in the long term when population and food needs increase rapidly. The ultimate reality may be intensive irrigation of atmost the entire culturable area of 91,072 ha. (Annexure 17)” [Emphasis supplied]

1266. It is noted by the Tribunal that, the Panel of Experts opines that the Mahadayi river basin has adequate water resources. Apparently, the panel of Experts suggested the 2516

intensive irrigation by double or triple cropping, with the objective of maximising the use of the ‘adequate water resources’. Another point worth noting is the Statement of the Panel of Experts that ‘this will be in tune with the National need for maximising agricultural production for the perspective population of India’. It is evident that, the planning for irrigation is not to meet the demand of the State of Goa in respect of agricultural produce but to maximise the utilization of available water resources.

1267. Relevant Paras from Annexure 17, page 124 of the “Master Plan for Madei / Mandovi River Basin (Volume II)”, are reproduced hereunder.

“Working out the requirement of water projectwise after carrying out detailed survey, investigation and colleting hydrological data for sufficient long time is not possible considering the short time available for the POE to finalise the Master Plan for use of water potential in the Mandovi river basin.

Considering the above aspect and secondly since this planning is to be done for the ultimate use of land available for cultivation by providing irrigation facilities in the Mandovi river basin, the details of cultivable land available in each village falling within the river basin 2517

have been collected from the Land Survey Department. …” [Emphasis supplied]

1268. Shri Subrai T. Nadkarni has proposed to increase the irrigation intensity from 125% adopted by the Panel of Experts to 150%. Para 23, pages 43-44 of the “Affidavit in Evidence of Shri Subrai T. Nadkarni, Deposing as a witness on behalf of the State of Goa” (Volume 208) is reproduced hereunder.

“23. The Panel of Experts has estimated the irrigation water requirement at a delta of 1.5 mts. and 20% losses. The intensity of irrigation assumed by the Panel of Experts was 125%. However, this is now outdated and the intensity of irrigation of projects in command like Anjunem is 220% and Tillari is 145%. Accordingly an intensity of irrigation of 150% has been adopted which is normally the case for minor irrigation projects in this State too. …”

1269. The Tribunal finds that, the irrigation intensity cannot be adopted simply by looking at the values which were adopted in respect of other projects. Apart from the soil characteristics from view point of agricultural produce, social preferences for various crops and economy, a very important aspect related to the availability of utilizable water at different identified project 2518

sites have to be taken into consideration. The Tribunal is of the view that any planning for cropping pattern, without looking at the availability of utilizable water at different identified project sites, is meaningless. Shri Nadkarni has not at all examined and explained, the various aspects, particularly the aspect of availability of utilizable water at different project sites, identified by the Panel of Experts.

1270. The Tribunal also finds that, at Para 18D of “Amended Statement of Case of the State of Goa filed before the Mahadayi Water Disputes Tribunal” (Volume 131), the State of Goa has submitted that “with the advances in the environmental and hydrological sciences, the State of Goa is in the process of undertaking more detailed studies and individual DPRs (Detailed Project Reports) relating to the aforesaid Irrigation Schemes in order to arrive at revised quantum of long term water requirement”. Further, at Para 190C of “Amended Statement of Case of the State of Goa filed before the Mahadayi Water Disputes Tribunal” (Volume 131), the State of Goa indicates that the “State of Goa has launched many new studies towards this objective and after these studies are completed, the water requirement would be worked out afresh”. 2519

1271. The Tribunal notices that, while presenting his case for revised assessment of water requirement, Shri Subrai T. Nadkarni has not at all mentioned about any new studies indicated by the State of Goa in Para 18D and Para 190C of the “Amended Statement of Case of the State of Goa filed before the Mahadayi Water Disputes Tribunal” (Volume 131).

1272. The Tribunal further finds that, Shri Subrai T. Nadkarni has neither undertaken any scientific study nor mentioned about the scientific studies undertaken by the State of Goa or by him, to examine the claims of the State of Goa in respect of (a) impact of diversion of water outside the basin and / or abstraction of water within the basin by co-basin States, including the State of Goa, for meeting the demand of water for various purposes (such as, drinking water, irrigation, power generation, industrial needs, etc.) on navigation, (b) impact of diversion of water of Mahadayi river basin on irrigation in the State of Goa, (c) impact of diversion of water of Mahadayi river basin on sea level increase and increased salinity ingress in coastal areas of Mahadayi river with due consideration of the scientifically predicted global warming, (d) impact of reduction in 2520

flow in river Mahadayi, if any, due to diversion of water of Mahadayi river basin on the process of sedimentation, (e) effect of diversion of water of Mahadayi river basin on the agriculture in Mahadayi River Basin in the State of Goa, and (f) impact of diversion of water by States of Karnataka and Maharashtra, on the ground water flow pattern. This is apparent from answers to question Nos. 1, 8, 13, 15, 16 and 17 put to Shri Subrai T. Nadkarni by the Tribunal. The question Nos. 1, 8, 13, 15, 16 and 17 and the answers thereof are reproduced hereunder.

“Q.No.1. At Para 28, page 13 of your Affidavit dated 14.11.2017 (Vol. 208), you have stated as under:

“28. Hence inland waterways being a way of life and lifeline of Goa, diversion or abstraction by the State of Karnataka of any water will severely affect the navigational traffic.”

In this regard, please answer the following:

a. Has any scientific study been undertaken and/or completed by the Government of Goa to examine the impact of diversion of water outside the basin and / or abstraction of water within the basin by co-basin States, including the State of Goa, for meeting the demand of water for various purposes (such as, drinking water, irrigation, power generation, industrial needs, etc.) on navigation? 2521

b. Is there any study which indicates the impact of diversion / abstraction of water for various purposes on navigation in quantitative terms?

Ans. Before submitting the Statement of Claim and the Amended Statements of Claim, I had read each sentence and all paragraphs of the said Statement of Claim and Amended Statements of Claim, respectively, and I reiterate and standby each sentence and paragraph in the said Statements. The said Statements/Pleadings may be considered as my evidence on oath.

The State of Goa made attempts to examine the impact of diversion/ abstraction of water outside the basin by all the States on navigation. However, due to absence of data on sedimentation, as Ganjim G&D site did not measure any such data, inferences could not be drawn from the studies, especially as regards to navigation. However, there would be definitely some effect if water is diverted to outside the basin, as utilization in the basin itself will result in return flows in the river. [Emphasis supplied]

Q.No.8. At Para 23, pages 43-44 of Annexure II of your Affidavit dated 14.11.2017 (Vol. 208), you have stated as under:

“… The global warming and climate change are expected to impact the irrigation water requirement in several ways. Because of increased atmospheric temperature the evapo-transpiration will increase, and the losses by direct evaporation from water bodies, reservoirs, canal surfaces and farms will also increase. …” 2522

We observe that you have indicated about the likely impact of global warming and climate change on irrigation water requirement. However, you have not at all mentioned about the impact of global warming and climate change on the overall water availability of Mahadayi basin.

In this regard, please answer the following:

a. What are the likely impacts of global warming and climate change on water availability of Mahadayi basin and the quantity of likely increase or decrease in the waters of Mahadayi basin, say by 2050AD? b. What is the estimated quantity of the losses due to increase in evapo-transpiration, direct evaporation from water bodies, reservoirs, canal surfaces and farms, etc.?

Ans. I will answer this question in two parts:

a. Though there would be impact of global warming on the water availability in the Mahadayi basin, the State of Goa has not estimated the same. b. The estimated quantity of losses in each project, due to increase in evapo-transpiration, direct evaporation from water bodies, reservoirs, canal surfaces and farms, etc. has also not been estimated. [Emphasis supplied]

2523

Q.No.13. Has the Government of Goa carried out any scientific studies related to sea level increase and increased salinity ingress in coastal areas of Mahadayi river with due consideration of the scientifically predicted global warming? If so, what are the findings?

Ans. No such scientific study has been conducted by the Government of Goa. [Emphasis supplied]

Q.No.15. Has the Government of Goa examined and conducted any scientific studies related to impact of reduction in flow in river Mahadayi, if any, on the process of sedimentation? If such studies have been conducted, what are the findings thereof?

Ans. The State of Goa had commissioned a Study through DHI. However, due to lack of data on sediment flow in the river, the study on sedimentation could not come to a logical conclusion. [Emphasis supplied]

Q.No.16. Has the Government of Goa examined and/or undertaken scientific studies about the effect of diversion of water by States of Karnataka and Maharashtra on the agriculture of Mahadayi River Basin in the State of Goa? If such studies have been undertaken, what are the findings thereof?

Ans. No such study has been conducted by the State of Goa. [Emphasis supplied] 2524

Q.No.17. Has the State of Goa commissioned any scientific studies regarding the impact of diversion of water by States of Karnataka and Maharashtra on the ground water flow Pattern? If such studies have been commissioned, what are the findings thereof?

Ans. No such study has been conducted by the State of Goa, through any external agency. However, the Water Resources Department of the State of Goa had analyzed some of the effects at its own level.” [Emphasis supplied]

1273. Thus, it is found by the Tribunal that, the studies by Shri Subrai T. Nadkarni have not been undertaken with due consideration of all aspects, particularly (a) the water availability that can be utilised for the benefit of the society, and (b) the needs projected by the co-basin States. In this regard, the question No. 4 put to Shri Nadkarni by the Tribunal and the answer thereof are relevant and are, therefore, reproduced hereunder.

“Q.No.4. In the Table at Para 30, pages 14-15 and in the Table 13, page 65 of your Affidavit dated 14.11.2017 (Vol. 208), you have indicated the sub-basin wise availability of water (in Mcum) at 75% dependability in the second column. In the third column, you have 2525

indicated the recommended demand and the fourth column shows the minimum required demand of water.

In this regards, please answer the following:

a. From perusal of the contents of Para 17 to Para 30 of Annexure II of your Affidavit dated 14.11.2017 (Vol. 208), it is apparent that you have computed the demand of water for various purposes for the State of Goa only. Therefore, your study indicating the water balance of different sub-basin of Mahadayi basin, cannot be considered as correct representation of the water balance of the sub- basin. For proper appreciation of the water balance of different sub-basins of the Mahadayi basin, it is essential to assess the water availability for each of the sub-basin (after considering the total area of the sub-basin) as also the complete demand of water for each of the sub-basins, irrespective of the State boundaries. Why did you not choose to consider the total area of the sub- basin (falling in all the co-basin States) for assessment of water availability as well as demands of water for various purposes? b. Without going into the reliability and accuracy of the figures indicated in the Table on Page 15 or Table 13 on page 65 of your Affidavit (Vol. 208), we find that the overall demand for water is more than the availability of water. Obviously, all the identified demands cannot be fully met. How do you plan to address such a situation, particularly with reference to prioritization of different projected demands, keeping in view the provisions 2526

of the National Water Policy 2012 and / or State Water Policies?

Ans. I will answer this question in two parts: a. My study was basically to study the demands of each sub-basin. The in-basin demands of Karnataka were 1.857 TMC and that of Maharashtra were 3.53 TMC, as envisaged in their respective, Statements of Claim. I tried to find out sub-basin wise details, which I could not find in the documents. Hence, I restricted myself to the in- basin demands of the State of Goa itself. b. The demands in Goa itself being more than 75% dependable flow in the river Mahadayi, confirms that the basin is deficient. National Water Policy 2012 recommends sensitization of the demands within a basin and it should be the need of the hour that the aforesaid National Policy is followed in letter and spirit and any water is not diverted outside the basin. The prioritization of meeting the demand should be as per the National Water Policy 2012.

If demand is more than the available water, we may have to drop some of the hydro-power schemes.”

1274. The suggestion of Shri Nadkarni that “if demand is more than the available water, we may have to drop some of the hydro-power schemes” is irrelevant as the use of water for hydropower development is non-consumptive in nature.

2527

1275. From the discussion made above, it is apparent that the studies of Shri Subrai T. Nadkarni are lop-sided without taking into consideration all essential factors. In view of ever increasing demand of water for various purposes and by different stakeholders, it is necessary to examine all the aspects and undertake in-depth scientific evaluation of the issue of prioritization of various uses of water. This is more so when the water availability is found to be less than the demand, which is the case of the State of Goa, in respect of Mahadayi river basin. However, it is noticed by the Tribunal that, no such evaluation has been undertaken by Shri Nadkarni, as is apparent from his reply to question No. 14 put by the Tribunal. The question No. 14 and the reply thereof are reproduced hereunder.

“Q.No.14. Have you undertaken in-depth scientific evaluation of the issue of prioritization of various uses of water with due consideration to social, economical and environmental aspects, and particularly in the context of prioritization among in-basin uses and utilizations through extra basin diversions? If such in- depth scientific evaluation has been undertaken, what are the findings thereof?

Ans. The in-depth scientific evaluation of prioritization has not been undertaken by me but the prioritization 2528

will be followed as per the National Water Policy 2012 or any other policy in force at the relevant time.” [Emphasis supplied]

From above, it is apparent that the contents of the Report of Shri Nadkarni cannot be relied upon.

1276. In reply to question No. 6, put to Shri Nadkarni by the Tribunal, he informed the Tribunal that the State of Goa intends to meet the demands for major uses through the 61 projects identified by Panel of Experts. The question No. 6 and the reply thereof, are reproduced hereunder.

“Q.No.6. We find that your Affidavit dated 14.11.2017 (Vol. 208) includes the demand for various sub-basins. However, you have not indicated the names of the identified projects / schemes for meeting the identified demands as was done by the Panel of Experts, constituted by the State of Goa. We feel that the identification of projects / schemes is necessary because, only then, it will be possible to assess the “utilizable water” out of the “available water”.

Please tell us the names of the various projects/schemes identified by you and the quantum of utilizable water through such projects/schemes.

Ans. The State of Goa intends to meet the demands for major uses through the 61 projects identified by Panel of Experts. However, in case of some of the demands, it is not possible to prepare the DPRs, such as, 2529

environment demands, tourism demands, etc. However, attempts are being made to identify more projects, especially like abandoned mining pits, construction of bandharas, etc. for fulfilling the demands.” [Emphasis supplied]

Detailed Project Reports (DPRs) Filed by the State of Goa

1277. As indicated in Para 1240 above, the State of Goa has submitted the detailed project reports (DPRs) of 59 proposed projects, out of 61 projects, listed in the Report of the Panel of Experts. The remaining two projects, namely, Anjunem and Amthane projects are the existing projects. Important features of the 61 projects are summarized in the Annexure 1-1, Annexure 2-1 and Annexure 2-2 of the “Affidavit in answer submitted on behalf of State of Goa to the interrogatories administered by the State of Karnataka on 24/01/2014” (Volume 103).

1278. From examination of the detailed project reports (DPRs) of the 59 projects filed by the State of Goa, it is found by the Tribunal that, none of the DPRs have been prepared in accordance with the “Guidelines for Preparation of Detailed Project Report of the Irrigation and Multipurpose Projects” 2530

(MARK-5). Specific aspects required to be included in the detailed project reports (DPRs) and to be checked are clearly specified in Section I – Check List at pages 1 to 17 of the “Guidelines for Preparation of Detailed Project Report of the Irrigation and Multipurpose Projects” (MARK-5) under major heads namely, (i) General Data, (ii) Planning, (iii) Interstate and International Aspects, (iv) Surveys, (v) Geological Investigations, (vi) Seismic Investigations, (vii) Foundation Investigations, (viii) Construction Material Surveys, (ix) Hydrological and Meteorological Investigations, (x) Hydrology, (xi) Land Acquisition and Resettlement of Oustees, (xii) Designs, (xiii) Irrigation and Command Area Development, (xiv) Flood Control and Drainage, (xv) Navigation, (xvi) Power, (xvii) Construction Programme and Plant and Manpower Planning, (xviii) Foreign Exchange, (xix) Financial Resources, (xx) Estimate, (xxi) Revenue, (xxii) B. C. Ratio, (xxiii) Ecological Aspects, (xxiv) Colonies and Buildings, (xxv) Public Participation and Cooperation, and (xxvi) Soil Conservation.

1279. It is found that even the basic informations relating to General Layout/Plan showing the project location, the catchment area up to the project site and the command area, are not 2531

included in as many as 30 detailed project reports (DPRs) namely, (i) Sonal [Volume 103(a)], (ii) Khadki weir [Volume 103(c)], (iii) Shelpi [Volume 103(d)], (iv) Bimbal [Volume 103(f)], (v) Ganje weir [Volume 103(g)], (vi) Ganjem [Volume 103(h)], (vii) Usgao [Volume 103(i)], (viii) Mandovi Nanoda [Volume 103(j)], (ix) Nandran – I [Volume 103(y)], (x) Jamboli [Volume 103(z)], (xi) Udalshem [Volume 103(ae)], (xii) Kumbharwada [Volume 103(af)], (xiii) Shivde [Volume 103(ag)], (xiv) Paikul [Volume 103(ah)], (xv) Melavali [Volume 103(ai)], (xvi) Sonawali – I [Volume 103(aj)], (xvii) Sonawali – II [Volume 103(ak)], (xviii) Karanzol [Volume 103(am)], (xix) Khandepar [Volume 103(an)], (xx) Ghatakwada [Volume 103(ao)], (xxi) Nayawada [Volume 103(ap)], (xxii) Kharamol [Volume 103(ar)], (xxiii) Kharmol – II [Volume 103(as)], (xxiv) Matujanwada [Volume 103(at)], (xxv) Kajumol [Volume 103(au)], (xxvi) Suktoli [Volume 103(av)], (xxvii) Tatodi [Volume 103(aw)], (xxviii) Nirankal [Volume 103(ax)], (xxix) Kodar [Volume 103(az)], and (xxx) Advalpal [Volume 103(bb)].

1280. Further, the Tribunal finds that, there is no indication about location of the projects i.e., longitude and latitude of the project sites in respect of as many as 24 projects, in the DPRs 2532

filed by the State of Goa. 24 projects whose longitude and latitude are not indicated in the respective DPRs are (i) Sonal [Volume 103(a)], (ii) Khadki weir [Volume 103(c)], (iii) Bimbal I [Volume 103(f)], (iv) Ganje weir [Volume 103(b)], (v) Ganjem [Volume 103(h)], (vi) Usgao [Volume 103(i)], (vii) Nandran – I [Volume 103(y)], (viii) Jamboli [Volume 103(z)], (ix) Udalshem [Volume 103(ae)], (x) Kumbharwada [Volume 103(af)], (xi) Shivde [Volume 103(ag)], (xii) Paikul [Volume 103(ah)], (xiii) Melavali [Volume 103(ai)], (xiv) Sonawali – I [Volume 103(aj)], (xv) Sonawali – II [Volume 103(ak)], (xvi) Ghatakwada [Volume 103(ao)], (xvii) Nayawada [Volume 103(ap)], (xviii) Kharmol – II [Volume 103(as)], (xix) Matujanwada [Volume 103(at)], (xx) Kajumol [Volume 103(au)], (xxi) Suktoli [Volume 103(av)], (xxii) Tatodi [Volume 103(aw)], (xxiii) Kodar [Volume 103(az)], and (xxiv) Advalpal [Volume 103(bb)].

1281. However, the Tribunal has examined and analysed, whatever little information is made available through the DPRs filed by the State of Goa. Some of the important facts emerging out of the data / information provided in the DPRs are as under.

2533

a. As per information in Annexure 1-1, Annexure 2-1 and Annexure 2-2 of the “Affidavit in answer submitted on behalf of State of Goa to the interrogatories administered by the State of Karnataka on 24/01/2014” (Volume 103), the water requirements for irrigation through 59 proposed projects and 2 existing projects are 616.98 Mcum, against the projected demand of 2050 Mcum for irrigation by the State of Goa indicated in Para 189, page 239 of “Amended Statement of Case of the State of Goa filed before the Mahadayi Water Disputes Tribunal” (Volume 131). The irrigation requirements mentioned at Annexure – 18, page 125 of the “Master Plan for Madei / Mandovi River Basin, Volume II”, prepared by the Panel of Experts is 855.16 Mcum. b. As per information in Annexure 1-1, Annexure 2-1 and Annexure 2-2 of the “Affidavit in answer submitted on behalf of State of Goa to the interrogatories administered by the State of Karnataka on 24/01/2014” (Volume 103), the demand for water supply, through 59 proposed projects and 2 existing projects, is 97.26 Mcum against the projected demand of 208 Mcum for water supply by the State of Goa indicated in Para 189, on page 239 of 2534

“Amended Statement of Case of the State of Goa, filed before the Mahadayi Water Disputes Tribunal” (Volume 131). The requirement for domestic water supply mentioned at Annexure – 18, page 125 of the “Master Plan for Madei / Mandovi River Basin, Volume II”, prepared by the Panel of Experts is 458.48 Mcum. On the other hand, Shri Nadkarni has indicated the requirement for domestic water supply including that for livestock as 41.36 Mcum in Table 12, on page 64 of his Affidavit (Volume 208). In addition, Shri Nadkarni has also indicated the water requirement for tourism as 23.07 Mcum. c. The industrial water requirements have not been indicated in the in Annexure 1-1, Annexure 2-1 and Annexure 2-2 of the “Affidavit in answer submitted on behalf of State of Goa to the interrogatories administered by the State of Karnataka on 24/01/2014” (Volume 103), although 208 Mcum has been indicated as the demand for industrial water use, by the State of Goa in Para 189, on page 239 of “Amended Statement of Case of the State of Goa filed before the Mahadayi Water Disputes Tribunal” (Volume 131), on the basis of recommendations of the Panel of Experts. The requirement for industrial water has also not 2535

been indicated at Annexure – 18, page 125 of the “Master Plan for Madei / Mandovi River Basin, Volume II”, prepared by the Panel of Experts. Shri Nadkarni has indicated the water needs for industries as 96.42 Mcum at Table 12, page 64 of his Affidavit (Volume 208).

These differences in figures of water requirements are neither noticed by Shri Nadkarni nor explained, by the State of Goa.

1282. Some other facts emerging from the analysis of the data included in the DPRs of 59 projects filed by the State of Goa and summarized in Annexure 1-1, pages 9-11 of the “Affidavit in answer submitted on behalf of State of Goa to the interrogatories administered by the State of Karnataka on 24/01/2014” (Volume 103) are as under.

a. The information about the catchment area and / or the water availability at 75% dependability in respect of three projects, namely, Khadki weir, Ganjim weir and Ganjem are not indicated in the Annexure 1-1. Total water availability at 75% dependability in respect of remaining 56 projects is 2536

3431.22 Mcum with total catchment area of 1094.87 sq.km. For limited purpose of comparison, the average value of water availability at 75% dependability has been computed by the Tribunal by dividing the total water availability of 3431.22 Mcum with the total catchment area of 1094.87 sq.km. which works out to be 3.134 Mcum/sq.km. i.e., 3134 mm/sq.km. b. The project wise water availability at 75% dependability has also been computed by the Tribunal in mm/sq.km. from the value of water availability at 75% dependability indicated in 4th column and the catchment area indicated in the 3rd column of Annexure 1-1 of Volume 103 and the same is indicated in the following Table.

Sl. Name of the Catchment 75% 75% No. Project Area Dependable Dependable (Col. 3 of Yield Yield in mm Annexure 1- (Mcum) per sq.km. 1 of Vol. (Col. 4 of ( i.e., 103) Annexure 1- Col. 4*1000 1 of Vol. /Col.3) 103) 1 2 3 4 5 1 Kodal 15.90 35.54 2235 2 Sonal 2.09 5.93 2837 2537

3 Sonal-I 426.00 1407.03 3303 4 Sonal-II 33.85 75.67 2235 5 Shelpi 11.50 30.77 2676 6 Gavane 2.32 6.16 2655 7 Bimbal 11.13 31.20 2803 8 Usgao 2.29 6.12 2672 9 Surla-II 24.80 94.37 3805 10 Surla-III 30.20 114.92 3805 11 Derode-I 75.20 265.00 3524 12 Derode-II 6.60 21.75 3295 13 Mandovi 119.06 302.62 2542 14 Iverekhurd 1.51 4.00 2649 15 Charawane 4.36 11.61 2663 16 Goleli 8.86 25.00 2822 17 Thane 6.68 18.20 2725 18 Dongurwada 6.97 20.00 2869 19 Thane-I 2.26 6.23 2757 20 Naneli-I 6.66 19.00 2853 21 Pali 1.02 3.00 2941 22 Naneli-II 2.65 7.00 2642 23 Zarme 5.97 16.50 2764 24 Ragada-I 18.06 59.00 3267 25 Ragada-II 5.58 15.00 2688 26 Nandran 8.90 22.00 2472 2538

27 Avardo 14.55 39.00 2680 28 Nandran-I 6.44 18.26 2835 29 Jamboli 3.38 9.60 2840 30 Satpal 7.61 25.00 3285 31 Fatiyagal 5.19 14.28 2751 32 Ragada-III 26.06 87.00 3338 33 Udalshem 3.81 10.82 2840 34 Kumbarwada 2.83 8.04 2841 35 Shivde 4.97 14.11 2839 36 Paikul 4.05 11.50 2840 37 Melavali 4.31 12.22 2835 38 Sonawali-I 4.85 17.33 3573 39 Sonawali-II 9.06 32.36 3572 40 Mayda 15.05 51.18 3401 41 Karanzol 5.60 19.42 3468 42 Khandepar 37.54 149.36 3979 43 Ghatkawada 2.50 8.67 3468 44 Nayawada 2.26 7.84 3469 45 Dongurli 3.50 12.00 3429 46 Kharamol 32.85 70.11 2134 47 Kharamol-II 2.42 8.39 3467 48 Matujanwada 3.55 12.36 3482 49 Kajumol 18.03 60.07 3332 50 Suktoli 2.92 10.13 3469 2539

51 Tatodi 7.08 24.55 3468 52 Nirankal 6.22 21.57 3468 53 Ponsule 2.23 7.73 3466 54 Kodar 2.55 8.82 3459 55 Keri 5.29 15.00 2836 56 Advalpal 7.75 20.88 2694

It is found that the same varies from 3979 mm/sq.km. in respect of the proposed Khandepar Project to 2134 mm/sq.km. in respect of Kharamol Project.

1283. It is noticed by the Tribunal that, Shri Chetan Pandit, the Expert Witness of the State of Goa, in his “Affidavit of Examination-in-Chief of Shri Chetan Pandit” (Volume 191) has indicated the water availability at 75% dependability for the entire catchment of 2032 sq.km. as 4372.4 Mcum i.e., 2152 mm/sq.km. Against this value of 2152 mm/sq.km., the average value of the water availability at 75% dependability in respect of the 56 projects as worked out by the Tribunal, is found to be about 3134 mm/sq.km. [indicated in Para 1282(a) above], which is relatively very high.

2540

1284. Further, Shri Chetan Pandit has also assessed the water availability at 75% dependability in respect of 9 proposed project sites in Karnataka in the upper reaches of the Mahadayi river basin. The results as given in Table 1 Summary of Results, page 4-5 of the “Additional Affidavit of Examination-in-Chief of Shri Chetan Pandit” (Volume 196) is reproduced in columns 1 to 3 of the Table-2 as under. The water availability at 75% dependability in mm/sq.km. has been computed by the Tribunal and the same is given in column 4 of the Table-2.

Table-2: Water Availability for Various Proposed Projects in Karnataka Project Catchment Water Water Area (in Availability at availability at sq.km.) 75% 75% Dependability Dependability (in tmc) (in mm / sq.km.) computed by the Tribunal 1 2 3 4 Kotni dam 93.19 6.5881 2003 (independent catchment) Bhandura dam 32.25 1.4961 1314 2541

Bail nadi 32.33 1.7667 1548 Kalasa (including 25.50 1.9767 2196 Haltara and Surla diversions) Irti diversions 8.78 0.3968 1280 Irti pickup dam 9.91 0.8089 2312 Katla-Palna diversion 22.50 1.5174 1910 Diggi diversion 15.6 1.0521 1911 Viranjole diversion 9.50 0.7320 2183

1285. It is further found by the Tribunal that, as per the assessment made by Shri Chetan Pandit, the water availability at 75% dependability in upper reaches in the State of Karnataka is far less than the water availability at 75% dependability at various proposed project sites in the State of Goa.

1286. In this regard, the Tribunal has noted that, the learned Senior Counsel for the State of Goa during his arguments on 8.2.2018 [Ref: page 16, Volume 237 filed on 21.2.2018] stated as under.

2542

“30. The State of Goa submits that, each of these 12 proposed projects / dams are in the core-catchment area of Mahadayi River and Basin which has a mountainous topography and that all 12 proposed projects are on top of the mountain, where the precipitation / rainfall is the highest which can be evidenced through the dense forests in the area. If all the said 12 projects are allowed to be set up in the core- catchment area it will have disastrous environmental consequences in the entire Mahadayi River basin.” [Emphasis supplied]

1287. The facts emerging from the results in respect of assessment of water availability at 75% dependability by Shri Pandit in respect of the projects in Karnataka in upper reaches and that indicated in the DPRs for the projects in Goa do not corroborate the above quoted statement of the leaned Senior Counsel for the State of Goa.

1288. From the foregoing discussion, it is apparent that the assessment of water requirements for various purposes in the Mahadayi river basin by the State of Goa are not made with due consideration to all the aspects. The detailed project reports (DPRs) prepared and filed in respect of 59 projects are not in accordance with the “Guidelines for Preparation of Detailed 2543

Project Report of the Irrigation and Multipurpose Projects” (MARK-5).

1289. Further, the State of Goa has failed to establish through scientific studies that any diversion of water outside the basin would adversely impact: (a) the water resources including ground water resources; (b) river morphology; (c) agriculture; (d) irrigation; and (e) navigation, etc.

1290. Similarly, the State of Goa has not established conclusively through scientific studies that the impact of climate change and global warming would adversely impact the water resources of Mahadayi river basin and consequently impact all related issues such as, river morphology, agriculture, irrigation, and navigation, etc.

1291. The Tribunal finds that the profile in respect of the identified 59 project sites, presented through detailed project reports (although, cannot be considered as the “detailed project reports”), particularly in respect of availability of water at the project sites, availability of utilizable water etc. and the projected utilization for various purposes are, apparently, not based on 2544

proper field investigations and requisite studies. However, the Tribunal feels that the identification of 59 project sites for development of water resources of Mahadayi river basin in Goa and preparation of general features of these projects by the State of Goa, is a step in the positive direction.

1292. In the absence of any other reliable action plan, the Tribunal permits the State of Goa to go ahead with: (a) undertaking proper investigations and studies; (b) preparing the detailed project reports (DPRs); (c) seeking clearances from central agencies; (d) obtaining all mandatory clearances from the competent authorities; and (e) implementing the projects for maximum consumptive utilization (including drinking water requirements for both human beings and livestock, municipal water needs, irrigation water requirements and industrial water demands) of 668 Mcum (24 tmc) of water of Mahadayi river basin at 75% dependability through aforementioned 59 identified projects. The Tribunal does not wish to put any restriction on non-consumptive use of water of Mahadayi river basin through the identified 59 projects including that for hydropower generation. Needless to say that the permission of the Tribunal to the State of Goa to plan for utilization of 24 tmc 2545

of water at 75% dependability, is over and above the existing utilization of 9.395 tmc.

1293. The permission to the State of Goa to plan and utilize a maximum of 24 tmc of water at 75% dependability, as in-basin needs would be subject to:

a. Re-assessment of availability of water at 75% dependability and assessment of the utilizable water at the aforementioned 59 sites after duly accounting for the environmental flow in accordance with “Standard Terms of Reference (TOR) for EIA / EMP Report for Projects / Activities Requiring Environment Clearance under EIA Notification 2006” of the Ministry of Environment, Forest and Climate Change published in April 2015 (MARK-37); b. Technical appraisal of the detailed project report (DPR) of each of the aforementioned 59 projects by the Central Agencies; and c. Mandatory clearances for each of the aforementioned 59 projects by the competent authorities.

2546

DECISIONS ON ISSUES FRAMED FOR DETERMINATION

Issues Related to Data Availability and Quality of Data

1294. Issue Nos. 1, 4, 6, 15, and 54 relate to aspects of availability, quality and adequacy of hydro-meteorological, hydrological and other data necessarily required for assessment of water availability. All related aspects have been examined and addressed in detail in the various paras on the subject of ‘Hydrology and Water Availability” and there is no need of examining all related issues separately. These issues stand answered accordingly.

Issues Related to Hydrological Analysis and Methodology for Assessment of Water Availability

1295. Issue Nos. 9, 24, and 41 relate to aspects of hydrological analysis and methodology for assessment of water availability. All related aspects have been examined and addressed in detail in the various paras on the subject of ‘Hydrology and Water Availability” and there is no need of examining all related issues separately. These issues stand answered accordingly. 2547

Issues Related to Dependability for Assessment of Water Availability

1296. Issue Nos. 7, 8, 10, 33, 34, 35, 36, 37, 53, 55, and 56 relate to aspects of dependability at which the water availability should be determined. All related aspects have been examined and addressed in detail in the various paras on the subject of ‘Hydrology and Water Availability” and there is no need of examining all related issues separately. These issues stand answered accordingly.

Issues Related to Water Utilization for Various Purposes, Projected Demand of Water by the Respective States, and their Allocations

1297. Issue Nos. 12, 13, 14, 17, 28, 29, 40, 42, 43, 44, 45, 46, 47, 49, 57, and 58 relate to aspects of water utilization for various purposes and projected demand of water by the three party States, namely Goa, Karnataka and Maharashtra, and their allocations. All related aspects have been examined and addressed in detail in the various paras on the subjects of ‘Demand of Mahadayi Water by the State of Karnataka’, ‘Demand of Mahadayi Water by the State of Maharashtra’ and ‘Demand of 2548

Mahadayi Water by the State of Goa’ and there is no need of examining all related issues separately. These issues stand answered accordingly.

Issues Related to (a) Ecology, Global Warming and its Impact, and (b) Adverse Impact of Development of Water Resources on Ecology etc.

1298. Issue Nos. 5, 11, 16, 18, 19, 21, 22, 23, 30, 32, and 60 relate to aspects of ecology, global warming and its impact on water resources, adverse impact of development of water resources on ecology etc. All related aspects have been examined and addressed in detail in the various paras on the subject of ‘Ecology’ and there is no need of examining all related issues separately. These issues stand answered accordingly.

Issues Related to Navigation

1299. Issue Nos. 3, 20, and 50 relate to navigation on river Mahadayi. All related aspects have been examined and addressed in detail in the various paras on the subject of ‘Navigation’ and there is no need of examining all related issues separately. These issues stand answered accordingly. 2549

Issues Related to Effect of Deletion of Para 28(iv) and 28(v) from Pleadings of the State of Goa

1300. All aspects of Issue Nos. 38 and 39 have been examined and addressed in detail in the various paras on the subject of ‘Effect of Deletion of Para 28(iv) and 28(v) from Pleadings of the State of Goa’ and there is no need of examining all related issues separately. These issues stand answered accordingly.

Issues Related to Need for Prior Consent of Co-basin States for Undertaking Projects / including Projects for Diversions outside Mahadayi Basin

1301. Issue Nos. 2, 25, 26, 31, 48 and 59 relate to various aspects which are directly or indirectly mentioned with reference to the need for prior consent of co-basin States for undertaking projects, including projects for diversions outside Mahadayi Basin. These aspects are also examined with reference to the provisions of the Forest (Conservation) Act, 1980 and the Wild Life (Protection) Act. All related aspects have been examined and addressed in detail under the respective sections 2550

and there is no need of examining all related issues separately. These issues stand answered accordingly.

Issue Related to Sharing of the Water and Benefits out of the Water Allocated for Utilization Outside the Basin

1302. Issue Nos. 51, 52, 62 and 63 relate to sharing of water and benefits out of the water allocated for utilization outside the basin and related matters. These issues framed in view of specific pleadings of the State of Maharashtra and examined hereunder.

1303. The issue No. 51 is as under.

“51. Whether the determination of share of Maharashtra State or any other co-basin State as a result of augmentation of waters in Krishna basin (due to transfer of water from river Mahadayi) should be undertaken while examining the claims of co-basin States?”

This Issue was framed in view of the specific pleadings of the State of Maharashtra at para 5.1.5 to para 5.2.2 which are reproduced hereunder.

2551

“5.1.5 The Krishna Water Dispute Tribunal, while making the equitable distribution of Krishna Basin waters amongst Maharashtra, Karnataka and Andhra Pradesh, has held that any water diverted from other river to augment supplies in the Krishna basin would be legal and the other riparian states would be entitled to the proportionate share of such augmentation. (Annexed hereto and marked Annexure 16 is the copy of the said part of the Report) 5.1.6 The Godavari Water Dispute Tribunal has permitted the Andhra Pradesh to divert water from river Godavari near Polavaram Project to Krishna Delta Project of Andhra Pradesh to an extent of 80 TMC. By an agreement, the Maharashtra and Karnataka have been permitted to have an additional share of 14 TMC and 21 TMC respectively in their allocated share of Krishna Basin Waters. (Annexed hereto and marked Annexure 17 is the copy of the said part of the Report)

Share of Maharashtra State in Krishna Basin due to proposed diversion of Karnataka.

5.2.1 The Krishna Water Dispute Tribunal as stated herein above have upheld the legality of transbasin diversion of waters and right of riparian states to have it's proportionate additional share in the event of augmentation of supplies to the basin. In the light of these provisions the action of State of Karnataka in diverting waters of Mahadayi/ Mandovi Basin to Malprabha River in Krishna Basin will entitle the State of Maharashtra to have additional share in the allocated water of Krishna Basin. 2552

5.2.2 This Hon'ble Tribunal is requested to determine and grant the additional share of Maharashtra in Krishna Basin from the proposed diversion of 7.56 TMC by the State of Karnataka from the water of Mahadayi / Mandovi River to Malprabha River in Krishna Basin.”

However, it is found by the Tribunal that this aspect has not at all been addressed by the State of Maharashtra either by leading any evidence or through the arguments by the learned Counsel for the State of Maharashtra. It is also found that the subject matter of the Issue has not been addressed by the State of Goa or by the State of Karnataka either by leading any evidence or through the arguments by the learned Counsel.

The Tribunal is of the firm view that the matter i.e., sharing of water of Krishna basin, which has been raised by the State of Maharashtra, is beyond the purview of the Mahadayi Water Disputes Tribunal.

Keeping in view the above position, the Issue No. 51 is answered in negative.

2553

1304. Issue Nos. 52, 62 and 63 are as under.

“52. Whether the State of Maharashtra or any other State would be entitled to have share from the additional power that would be generated by the State of Karnataka as a result of augmentation of waters in the Kali basin due to diversion of water to Kali Hydro Power Project?”

“62. Whether the State of Maharashtra proves that the State of Karnataka is not justified in diverting waters of the inter-State river Mahadayi and its valley to the Kali river for augmenting the generation of electricity under the existing Kali Hydro Power Project?

63. Whether the State of Maharashtra proves that its share of power should be determined on the basis of the additional power that would be generated by the State of Karnataka as a result of augmentation in the Kali basin due to diversion of waters to Kali Hydro Power Project?”

These Issues was framed in view of the specific pleadings of the State of Maharashtra at para 5.3.1 to para 5.3.3 which are reproduced hereunder.

2554

“Diversion of water from Mahadayi/Mandovi basin to Kali Basin

5.3.1 The State of Karnataka vide it’s letter No. WRD/08/KDM/2009 Dt. 22nd June, 2010 has submitted the letter of complaint under section 3 of the Interstate Water Disputes Act, 1956, read with Interstate Water Dispute Rules 1959, to the Ministry Of Water Resources, Govt. of India. While dealing with specific matters in dispute the State of Karnataka has requested this Hon. Tribunal to consider whether, the State of Karnataka would be justified in diverting waters of the interstate river Mahadayi (Mandovi) and it’s valley to the Kali River for augmenting the generation of electricity under the existing Kali Hydro Power Project and If so, what extent of diversion is just and reasonable? The map accompanying the letter of complaint reveals the proposal of State of Karnataka for diversion of waters to Kali Basin from Viranjole Diversion Scheme, Katla and Palna Diversion Schemes and Digi Diversion Scheme to Kali Basin. At present the entire proposal of diversion of waters from Mahadayi / Mandovi Basin to Kali Basin has not been disclosed by the State of Karnataka.

5.3.2 As stated hereinabove the Krishna Water Dispute Tribunal has upheld the diversion of water outside the basin as legal and has also held the right of riparian States to claim additional share. In the present case, by the proposed action of the State of Karnataka the diversion of Mahadayi/Mandovi River water through various schemes to Kali Basin results in augmentation of supplies to Kali Hydro Electric Project (outside Mahadayi Basin) of the State of Karnataka and thereby results in 2555

additional production of the power by the State of Karnataka.

5.3.3 It is submitted that on the principle enumerated above the other riparian States are entitled for a share in the power generated by Karnatka. Therefore the State of Maharashtra requests this Hon'ble Tribunal to adjudicate and grant a share in the power to the State of Goa and the State of Maharashtra due to proposed diversion from Mahadayi/Mandovi Basin to Kali Basin.”

However, it is found by the Tribunal that these aspect have not at all been addressed by the State of Maharashtra either by leading any evidence or through the arguments by the learned Counsel for the State of Maharashtra. It is also found that the subject matter of the Issue has not been addressed by the State of Goa or by the State of Karnataka either by leading any evidence or through the arguments by the learned Counsel.

Further, it is noted by the Tribunal that the proposal of the State of Karnataka for diversion of water of Mahadayi basin to Kali Hydro Power Project has not been found as acceptable one. This makes the suggestion of the State of Maharashtra through Issue Nos. 52 and 62 as redundant.

2556

Keeping in view the above position, the Issue Nos. 52, 62 and 63 are answered in negative

Issues relating to Adverse Impact of the Proposed Projects of the State of Karnataka on the proposed Projects of State of Maharashtra

1305. Issue Nos. 60 and 61 relate to adverse impact of the proposed Kalasa-Bhandura Projects of the State of Karnataka on the proposed projects of the State of Maharashtra.

1306. The issue Nos. 60 and 61 are as under.

“60. Whether the State of Maharashtra proves that the diversion of water of Haltara nalla by the State of Karnataka through construction of dam on Haltara would adversely affect the flows in Haltara Nalla particularly in the post monsoon season and more so in summer season and that this would jeopardise water supplies to the inhabitants of Virdi village and would sound death knell for the flora and fauna, survival of which is dependent on the waters of nalla.

61. Whether the State of Maharashtra proves that the State of Karnataka is not entitled to execute the Kalasa- Bhanduri project (Drinking Water Project) and divert 7.56 tmc of water as claimed by it every years of the inter-State river Mahadayi to the Malaprabha river in 2557

the Krishna basin to the prejudice of the existing and contemplated projects of Maharashtra, including the Virdi (Morachi Rai) project?”

These Issues were framed in view of the specific pleadings of the State of Maharashtra at para 3.4 (B) and para 3.4 (C) and relief sought at para (ea) which are reproduced hereunder.

“3.4 (B) Inhabitants of village Virdi in Maharashtra have historically been and are presently dependent on the perennial flows of Haltara Nalla for meeting their water needs. Similarly the flora and fauna in that area are also dependent on the flows of Haltara Nalla for their survival. 3.4 (C) The catchment area of Haltara nalla in the State of Karnataka almost entirely contributes to the flows in the nalla near village Virdi. Major catchment area in Karnataka is proposed to be dammed and diverted by Karnataka near village Chorla. Such a diversion would cut off flows from substantial contributing catchment area and therefore would adversely affect the flows in Haltara Nalla particularly in the post monsoon season and more so in summer season. This would jeopardise water supplies to the inhabitants of Virdi village and would sound death knell for the flora and fauna, survival of which is dependent on the waters of nalla. Halatara nalla flowing through the States of Karnataka, Maharashtra and Goa, and its catchment areas are shown on the map marked as Annexure-21.” 2558

“RELIEFS SOUGHT BY THE STATE OF MAHARASHTRA …

(ea) That in the event of trans-basin diversion being allowed to the State of Karnataka, this Hon'ble Tribunal may be pleased to direct the State of Karnataka to maintain minimum flows in Haltara nalla in the post monsoon period so that the sustenance of the inhabitants, flora and fauna in the State of Maharashtra is not jeopardised. …” However, it is found by the Tribunal that this aspect has not at all been addressed by the State of Maharashtra either by leading any evidence or through the arguments by the learned Counsel for the State of Maharashtra. It is also found that the subject matter of the Issue has not been addressed by the State of Goa or by the State of Karnataka either by leading any evidence or through the arguments by the learned Counsel.

Keeping in view the above position, the Issue Nos. 60 and 61 are answered in negative

2559

Issues Relating to Over-the Year Storages / Carry Over Storages by the Upper Riparian State and Timely Releases from the Projects

1307. The issue Nos. 27, 66 and 67 are as under.

“27. Whether the State of Goa establishes that specific restraints or restriction be placed on the upstream riparian States with regard to construction and regulation of their projects, during each water year for beneficially using their allocated equitable share of Mandovi river basin waters?”

“66. Whether the upper riparian States can construct over-the-year storages / carry over storages?

67. Whether there should be clear directions for timely and periodic releases from projects in upper reaches to enable the lower riparian State to realize its allocations or designed success rate of its projects, without affecting success rate of the projects / allocation of the upper riparian States?”

The Tribunal finds that the learned Counsel for the State of Maharashtra has addressed Issue Nos. 66 and 67 along with six other issues in the Argument Notes filed by him on 15.1.2018 2560

(Volume 221). Relevant extract from the Argument Notes are reproduced hereunder.

“The State of Maharashtra submits that in the present dispute the in-basin utilization so far has reached around 10 tmc i.e., about 5% of the water availability. The State of Maharashtra has only one ongoing minor irrigation project with planned utilization of 0.5 tmc water. Only when this Hon’ble Tribunal decides the allocation of the water to different party States, the planning of projects, in real sense will be taken up by the States. As far as State of Maharashtra is concerned, considering the topography of the terrain, the nature of the projects would be either in the category of minor irrigation projects or at the most, large minor irrigation projects. Further, Maharashtra State is of the opinion that none of the States have led any evidence on these issues. Therefore, in the present circumstances, it would be premature to put any restriction on any State.

The State of Maharashtra, therefore, prays that all the six issues may be answered in the negative.” [Emphasis supplied]

The Tribunal finds that the arguments of the leaned Counsel of the State of Maharashtra in respect specific Issue Nos. 66 and 67 are rather vague. However, the State of Maharashtra has prayed that the issues be answered in negative.

2561

The Tribunal also finds that this aspect has been examined by Shri Chetan Pandit (AW1) in his Additional Affidavit filed on 12.9.2016 (Volume 192). Relevant extracts from the Additional Affidavit of Shri Pandit are reproduced hereunder.

“118. As regards, the capacity of the storages in the upstream, the storages should have capacity only to meet the "during the year" requirement of each project. Providing carry over storage for the next year creates a potential for the upstream State to store and use excess water over and about their allotted share, thereby causing distress to the downstream State.

Another consideration is that as the storage capacity increases, the submergence area and the number of people displaced also increases. While submergence and displacement is not very welcome anywhere, it is particularly unwelcome in the Western Ghats which are identified as areas with very rich bio-diversity. Any storage will cause some harm to the bio-diversity and the objective should be to minimize the damage.

119. For the above reasons, in my opinion there should not be any water conservation over and above the allocated shares of the States.”

These issues have not been specifically addressed by the State of Karnataka. Neither the State of Karnataka has led any 2562

evidence to substantiate its claim, nor did the learned Counsel for the State of Karnataka argue on this subject.

Keeping in view all related aspects, the above issues stand answered in negative.

Issues Relating to Project-wise Restrictions on Storages etc.

1308. The issue Nos. 64 and 65 are as under.

“64. Whether project-wise restrictions should be placed on the storages and utilization of waters of river Mahadayi?”

“65. Whether storages of projects of upper riparian States should be determined to meet their allocation?”

The aforesaid issues were framed in view of the specific pleadings of the State of Goa. In its letter No. 68-4/CE-WRD-EO- 2002-03/208 dated 9.7.2002 addressed to the Secretary, Union Ministry of Water Resources, New Delhi, (pages 5-28, Volume 1), the Government of Goa, inter-alia, had requested to adjudicate and decide specific restraints or restrictions to be placed on the upstream States with regard to construction and regulation of 2563

their projects, during each water year for beneficially using their allocated equitable share of the Mandovi river basin waters. The aspect is also described in detail, in the para 224 of the Statement of Case filed by the State of Goa (Volume 131). Relevant portion is extracted hereunder.

“… It is submitted that after this Hon’ble Tribunal gives their award and places project wise restrictions on the storages & utilization of waters of river Mahadayi …”

In support of the above, Shri Chetan Pandit (AW-1) in his Affidavit filed on 12.9.2016 (Volume 192) has stated as under.

“113. In any basin, a downstream State is placed in a geographically disadvantageous position and is at the mercy of the upstream state for release of water. Mahadayi basin is a special case because of its encompassing four wild life sanctuaries and one bird sanctuary, and generally being in the eco-sensitive zone of very rich bio-diversity. Therefore, it is not sufficient to be allotted a certain total quantity of water on an annual basis. It is equally important to get the said water at specified times when it is required for irrigation etc. and also to get it at specific locations.

Not only the main river Mahadayi, but some of its tributaries also, originate in the State of Karnataka or Maharashtra and flow down to the State of Goa. Projects for consumption of water for irrigation, drinking water, 2564

industrial use are located on all these branches / tributaries. A downstream state is concerned about getting its share not only in the basin as a whole but also in each of the inter-state tributaries, and at specified times. For this reason, in the event and if at all, the Tribunal is pleased to permit any project on this interstate river, then, it is essential that the Award may give detailed instructions regarding the quantity of water to be used by the upstream State not only in each project but also at various periods of time.

114. It is also necessary to give instructions to the upstream State for timely release of water to the downstream State for human consumption and also for the environment flow.

115. It is also necessary that the water sharing formulae be spelt out for three scenarios namely (a) Normal year, (b) Wet Year and (c) Dry year.

116. Whether the year as a whole is normal / wet / dry will be known only at the end of the Monsoon season. But the water withdrawal and release decisions have to be taken throughout the year at regular intervals. Therefore, it is also necessary that the Award may contain detailed instructions on how to measure the inflow and at what locations, at what times, thereby to periodically assess whether the Monsoon is progressing as normal/wet / dry year.

2565

Whatever rainfall is to occur in a year, it is not uniformly distributed over all the monsoon months. It is quite possible that the year starts in one way but then the rains may withdraw or increase and the complexion of the year as Normal / Wet / Dry may change. Therefore, detailed instructions are necessary to the upstream States as to how, where and when to observe the flow and how to assess the year and thereby take water management decisions.

117. Detailed instructions are also necessary to the upstream States about the procedures for water accounting, to determine without any ambiguity how much water is available and how much has been used by who, at various times.

118. As regards, the capacity of the storages in the upstream, the storages should have capacity only to meet the "during the year" requirement of each project. Providing carry over storage for the next year creates a potential for the upstream State to store and use excess water over and about their allotted share, thereby causing distress to the downstream State. Another consideration is that as the storage capacity increases, the submergence area and the number of people displaced also increases. While submergence and displacement is not very welcome anywhere, it is particularly unwelcome in the Western Ghats which are identified as areas with very rich bio-diversity. Any storage will cause some harm to the bio-diversity and the objective should be to minimize the damage.”

2566

It is found by the Tribunal that the aforesaid aspect has not been addressed by the State of Maharashtra or by the State of Karnataka by leading any evidence. However, The Tribunal finds that the learned Counsel for the State of Maharashtra has addressed this specific issue along with six other issues in the Argument Notes filed by him on 15.1.2018 (Volume 221). Relevant extract from the Argument Notes are reproduced hereunder.

“The State of Maharashtra submits that in the present dispute the in-basin utilization so far has reached around 10 TMC i.e., about 5% of the water availability. The State of Maharashtra has only one ongoing minor irrigation project with planned utilization of 0.5 TMC water. Only when this Hon’ble Tribunal decides the allocation of the water to different party States, the planning of projects, in real sense will be taken up by the States. As far as State of Maharashtra is concerned, considering the topography of the terrain, the nature of the projects would be either in the category of minor irrigation projects or at the most, large minor irrigation projects. Further, Maharashtra State is of the opinion that none of the States have led any evidence on these issues. Therefore, in the present circumstances, it would be premature to put any restriction on any State.

2567

The State of Maharashtra, therefore, prays that all the six issues may be answered in the negative.” [Emphasis supplied]

The Tribunal finds that the arguments of the leaned Counsel of the State of Maharashtra in respect of specific issues are rather vague and not at all relevant.

The issues are answered in favour of the State of Goa. The Tribunal has examined all the projects proposals of the respective States keeping in view all the related aspects/matters. The issues relating to (i) utilization of specific quantum of water at the project sites, (ii) schedule for the storage / diversion of water, and (iii) releases of environmental flows downstream of the project sites, etc. have accordingly been examined and appropriate findings and direction recorded.

2568

NEED FOR AUTHORITY/BOARD FOR INTEGRATED PLANNING AND MANAGEMENT OF WATER RESOURCES OF MAHADAYI BASIN

Issues framed for Determination

1309. On 17th July 2015, on the suggestions of the party States, following two Issues (No. 68 and 69) were included in the revised list of issues while recasting the issues for determination by the Mahadayi Water Disputes Tribunal; which are re-produced as under:

“Issue No.68: Whether any scheme may be framed for conservation of water over and above the allocated shares of the States by constructing reservoirs wherever possible which may be regulated by a regulatory authority for the benefit of the three riparian States wherever there may be any shortfall?

Issue No.69: Whether any machinery should be set up to make available and regulate allocation of water to the States concerned or otherwise to implement the decision?”

1310. The Tribunal finds that response to the issues regarding any machinery or Regulatory Authority to be constituted, is given only by Shri Chetan Pandit, expert witness 2569

for the State of Goa, in his Additional Affidavit, filed on 12.09.2016 in paragraphs 121 to 125 (volume 192). He is the only witness who has made suggestions relating to the formation of a management board or authority, for implementation of report/award/final decision to be rendered by the Mahadayi Water Disputes Tribunal. The Tribunal further finds that neither the State of Karnataka, nor the State of Maharashtra, have either in their pleadings or through the evidence of witnesses examined by them, have indicated suggestions for constitution of a Management Board/ Authority for implementation of final decision made by Mahadayi Water Disputes Tribunal, at all. When specific issues have been framed as to whether any scheme should be framed for conservation of water, over and above the allocated shares of the States by constructing reservoirs, wherever possible, which may be regulated by a Regulatory Authority, for the benefit of the riparian States, and when a specific issue has been framed as to whether any machinery should be set up to make available and regulate allocation of water to the States concerned, or otherwise to implement the decision, this Tribunal expected the State of Karnataka and the State of Maharashtra to respond. It is noted by the Tribunal that the learned Counsel for the State of 2570

Karnataka did not mention these issues in his written submission nor during oral arguments. The learned Counsel for the State of Maharashtra has listed these two issues along with four other issues under “Common Issues” on page 66 of the ‘Argument Notes by the State of Maharashtra’ (Volume 221). In this regard, the learned Counsel for the State of Maharashtra has made following submission.

“The State of Maharashtra submits that in the present dispute, the in-basin utilization so far has reached around 10 TMC i.e. about 5% of the water availability. The State of Maharashtra has only one ongoing minor irrigation project with planed utilization of 0.5 TMC water. Only when this Hon’ble Tribunal decides the allocations of water to different party States, the planning of projects, in real sense will be taken up by the States. As far as the State of Maharashtra is concerned, considering the topography of the terrain, the nature of the projects would be either in the category of minor irrigation projects or at the most, large minor irrigation projects. Further Maharashtra State is of the opinion that none of the States have led any evidence on these issues. Therefore, in the present circumstances, it would be pre-mature to put any restrictions on any States.

The State of Maharashtra, therefore, prays that all the six issues may be answered in the negative.”

2571

Obviously, the response of the State of Maharashtra is not based on facts since the State of Goa has duly examined Shri Chetan Pandit as a witness on these issues. However, the Tribunal finds that no response has been received either from the State of Karnataka, or the State of Maharashtra, as to whether any machinery should be set up to make available and regulate allocation of water to the States concerned or otherwise to implement the decision. Probably such an attitude may indicate that those two States are not interested in the constitution of a Management Board/ Authority for implementation of the Report/ Final Decision rendered by the Tribunal. Such a recalcitrant, disobedient, obstinate, unwilling and indifferent attitude by the State of Karnataka and the State of Maharashtra can hardly be approved by the Tribunal.

1311. Recently a three Judge Bench of the Hon’ble Supreme Court of India, has interpreted, Section 6A of the Inter-State River Water Disputes Act, 1956, in the case of the State of Karnataka Vs. State of Tamil Nadu & Ors., reported in (2018) 4 SCC 1. After quoting the provisions of Section 6A of the said Act, the Hon’ble Supreme Court of India has held in para 444 - 445 as under:

2572

“444. We have already noted the submissions of the learned Solicitor General. His submission, in essentiality, is that the Court should not issue any direction to the Central Government and allow the discretion to be exercised by it as the provision uses the word may. The said argument, as we perceive on a first blush, may look quite attractive or for a while impressive but really cannot stand the substance test. In State of Karnataka (supra) while interpreting the said provision in the context of maintainability, we had held:-

“…The learned Senior Counsel for the respondent has drawn a distinction between the conferment and the exclusion of the power of the Supreme Court of India by the original Constitution and any exclusion by the constitutional amendment. Be that as it may, the said aspect need not be adverted to, as we are only required to interpret Section 6(2) as it exists today on the statute book. The said provision has been inserted to provide teeth to the decision of the Tribunal after its publication in the Official Gazette by the Central Government and this has been done keeping in view the Sarkaria Commission‘s Report on Centre-State Relations (1980). The relevant extract of the Sarkaria Commission‘s Report reads as follows: “17.4.19. The Act was amended in 1980 and Section 6-A was inserted. This section provides for framing a scheme for giving effect to a Tribunal‘s award. The scheme, inter alia provides for the establishment of the authority, its term of office and other conditions of service, etc. But the mere creation of such an agency will not be able 2573

to ensure implementation of a Tribunal‘s award. Any agency set up under Section 6-A cannot really function without the cooperation of the States concerned. Further, to make a Tribunal‘s award binding and effectively enforceable, it should have the same force and sanction behind it as an order or decree of the Supreme Court. We recommend that the Act should be suitably amended for this purpose. * * * 17.6.05. The Inter-State Water Disputes Act, 1956 should be amended so that a Tribunal’s award has the same force and sanction behind it as an order or decree of the Supreme Court to make a Tribunal’s award really binding.”‖ 74. The Report of the Commission as the language would suggest, was to make the final decision of the Tribunal binding on both the States and once it is treated as a decree of this Court, then it has the binding effect. It was suggested to make the award effectively enforceable. The language employed in Section 6(2) suggests that the decision of the Tribunal shall have the same force as the order or decree of this Court. There is a distinction between having the same force as an order or decree of this Court and passing of a decree by this Court after due adjudication. Parliament has intentionally used the words from which it can be construed that a legal fiction is meant to serve the purpose for which the fiction has been created and not intended to travel beyond it. The purpose is to have the binding effect of the Tribunal’s award and the effectiveness of enforceability. Thus, it has to be narrowly 2574

construed regard being had to the purpose it is meant to serve.”‖

445. We have referred to the aforesaid passages as the award of the Tribunal has to be treated as decree of the Supreme Court. It is so stated in Section 6(2) to give teeth to the award passed by the Tribunal so that none of the States can raise objection to the same and be guided by the directions of the Tribunal. The purpose of framing the scheme is exclusively for implementation of the award. The authorities cited by Mr. Ranjit Kumar, we are afraid, are of no assistance in the present context. It needs no special emphasis to state that the purpose of Section 6A is to act in the manner in which the award determines the allocation and decides the dispute with regard to allocation or sharing of water. Keeping that in view, we direct that a scheme shall be framed by the Central Government within a span of six weeks from today so that the authorities under the scheme can see to it that the present decision which has modified the award passed by the Tribunal is smoothly made functional and the rights of the States as determined by us are appositely carried out. When we say so, we also categorically convey that the need based monthly release has to be respected. It is hereby made clear that no extension shall be granted for framing of the scheme on any ground. …”

1312. In view of what is ruled by the Hon’ble Supreme Court of India, this Tribunal is of the firm opinion that once the Central 2575

Government is directed to constitute a Water Management Board or Water Management Authority, the Central Government has no option, but to constitute such Authority or Board.

1313. The Tribunal finds that the power conferred on the Central Government under section 6A of the Act is coupled with duty and, therefore, the word ‘may’ appearing in Section 6A of the Act will have to be construed as meaning ‘shall’. If above interpretation is not adopted, the whole exercise of – (i) consulting the Hon’ble Chief Justice of India to nominate a sitting Judge of the Supreme Court of India to act as the Chairman of the Tribunal and to recommend names of two sitting Judges of the High Courts, who shall act as Members of the Tribunal; (ii) the constitution of Water Disputes Tribunal by the Central Government; (iii) allotment of premises to the Tribunal; (iv) appointment of Assessors by the Central Government to advise the Tribunal on the matters relating to disputes between two or more States; (v) appointment of the staff; (vi) directions by the Tribunal to the party-States to file their respective claims, replies, rejoinders; (vii) engaging of Senior lawyers by the States concerned for advancing their respective cases and paying them hefty fees for arguing the case; (viii) recording of the evidence of 2576

the witnesses by the Tribunal; (ix) hearing the arguments advanced by the learned Senior counsel for the States concerned, over months together; (x) salary paid to the staff; (xi) making of Award by the Tribunal etc., would become an exercise in futility and not only the precious time of all concerned, including that of Central Government, but expenditure incurred by the three party-States and Central Government, would also go in vain. Further, the decision, which is treated to be a decree passed by the Hon’ble Supreme Court of India, would remain a paper decree and effective and meaningful implementation of the Report and Final Decision would become impossible unless and until the suggestion made by the Tribunal to constitute a Management Board is implemented by the Central Government. Therefore, the Tribunal expresses a strong view that the Central Government has no option but to form a Management Board or Authority for the purpose of implementing the Award that may be passed by an Inter-State Water Disputes Tribunal.

1314. It is worth noticing that the present reference, before this Tribunal, referred to by the Central Government u/s 4 of the Inter-State River Water Disputes Act, 1956, is virtually a suit, and but for the enactment of the said Act by the Parliament, in 2577

exercise of powers conferred by Article 262 of the Constitution, such disputes would have been normally resolved, by an ordinary Civil Court, having jurisdiction in the matter. However, Section 6(1) of the Inter-State River Water Disputes Act, 1956, inter alia, provides that once the decision of the Tribunal is published in the official Gazette, the decision shall be final and binding on the parties to the dispute and shall be given effect to, by them. Sub- section (2) of Section 6 of the said Act further provides that the decision of the Tribunal, after its publication in the official gazette by the Central Government under sub-section (1), shall have the same force as an order or decree of the Supreme Court.

1315. A conjoint and meaningful reading of the provisions of Section 6 read with Section 6A of the Act, makes it evident that it is the duty of the Central Government to frame a scheme to give effect to the decision of the Tribunal, as suggested / recommended, by the Tribunal. A machinery, for the implementation of the Award of the Tribunal relating to Inter- State River, is most essential component, in the resolution of the Inter-State River disputes. In fact, so critical is this issue, that the success or failure of the Award, rendered by a statutory Tribunal, depends primarily, on the successful operation of the said 2578

Machinery, which, in turn, depends on choosing a correct model for the said Machinery. Therefore, the Mahadayi Water Disputes Tribunal proposes to strongly recommend to the Central Government to form an Authority called ‘Mahadayi Water Management Authority’ (the ‘Authority’, for short), for implementation of its Report and Final Decision rendered, adjudicating the water disputes subsisting between the three party-States.

1316. Initially, no machinery was provided under the Act for implementation of the decision or orders passed by the Tribunal. The Narmada Water Disputes Tribunal realizing that there may be controversy in respect of implementation of its decision, and with the consent of party States gave several directions (Narmada Water Disputes Tribunal Report Volume No. II, Chapter XX, pages 152-158) and ordered to setting up of machinery for implementing the decision of the Tribunal namely, Narmada Control Authority. This had led to need of modifying the Inter- state Water dispute Act, 1956 by the Central Government. Accordingly, the Act was modified in 1980 as detailed below.

2579

Modified Inter-State River Water Disputes Act, 1956

1317. The Inter-State River Water Disputes Act, 1956 was modified in 1980 and a new Section 6A was introduced in the said Act, by Act 45 of 1980 with effect from 27.8.1980 for giving effect to the decisions of a Tribunal. The Section 6A is as follows:

“6A. (1) Without prejudice to the provisions of Section 6, the Central Government may, by notification in the Official Gazette, frame a scheme or schemes whereby provision may be made for all matters necessary to give effect to the decision of a Tribunal. (2) A Scheme framed under sub-section (1) may provide for: (a) the establishment of any authority (whether described as such or as a committee or other body) for the implementation of the decision or directions of the Tribunal; (b) the composition, jurisdiction, powers and functions of the authority, term of office and other conditions of service, the procedure to be follow-by and the manner of filling vacancies among the members of the authority; (c) the holding of a minimum number of meetings of the authority every year, the quorum for such meetings and the procedure there at; (d) the appointment of any standing, ad hoc or other committees by the authority; 2580

(e) the employment of a Secretary and other staff by the authority, the pay and allowances and other conditions of service of such staff; (f) the constitution of a fund by the authority, the amounts that may be credited to such fund and the expenses to which the fund may be applied; (g) the form and the manner in which accounts shall be kept by the authority; (h) the submission of an annual report by the authority of its activities; (i) the decisions of the authority which shall be subject to review; (j) the constitution of a committee for making such review and the procedure to be followed by such committee; and (k) any other matter which may be necessary or proper for the effective implementation of the decision or directions of the Tribunal. (3) In making provision in any scheme framed under sub-section (1) for the establishment of an authority for giving effect to the decision of a Tribunal; the Central Government may, having regard to the nature of the jurisdiction, powers and functions required to be vested in such authority in accordance with such decision and all other relevant circumstances, declare in the said scheme that such authority shall, under the name specified in the said scheme, have capacity to acquire, hold and dispose of property, enter into contacts, 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. (4) A scheme may empower the authority to make, with the previous approval of the Central Government, 2581

regulation for giving effect to the purpose of the scheme. (5) The Central Government may, by notification in the Official Gazette, add to, amend, or vary, any scheme framed under sub-section (1). (6) Every scheme framed under this section shall have effect notwithstanding anything contained in any law for the time being in force (other than this act) or any instrument having effect by virtue of any law other than this Act.”

1318. The Tribunal has examined the matter having regards to the following aspects: i. How such issues were addressed by various Tribunals in the past? ii. What are provisions of Inter-State River Water Disputes Act, 1956? and iii. What are the activities essentially required to be performed by the Authority?

1319. Before making recommendation to form an Authority, for implementation of the Report/Final Decision, this Tribunal has taken into consideration the recommendations made by Shri Chetan Pandit as well as recommendations made in the judgments of the Hon’ble Supreme Court of India and those 2582

included in the final decisions, rendered by different Water Disputes Tribunals. They are as under:

Recommendations made by Shri Chetan Pandit

1320. Shri Chetan Pandit in his Additional Affidavit (Vol.192) pleaded that a machinery for implementation of the Inter-State agreement or the Tribunal Award is a most essential component in the resolution of interstate dispute. He has stated that the success or failure of such agreement/ award depends primarily on the successful operation of the aforesaid mechanism, which in turn, depends upon choosing a correct model for the said machinery, typically called a River Board or Authority. He has also raised the points (i) whether such Board should be an autonomous body or a subordinate office of the Union Ministry of Water Resources and (ii) the Board should have own cadre or the staff may be appointed on deputation.

1321. He has further pointed out that, where the projects are owned and operated by the State Government wherein these are located and the Management Board merely issues instructions to the concerned State for release of water in a 2583

particular manner, there is a possibility that upper riparian State may not comply with the directions of the Management Board. Shri Pandit asserts that, in case of Cauvery River, despite of an interim award given by the Tribunal for release of water to the lower riparian State, the upper riparian party State did not comply with directions given by Cauvery Water Disputes Tribunal and the lower riparian State has often rushed to Hon’ble Supreme Court for implementation of the decision. He has also pointed out that the operation of any water resources structure, whether it is a dam or barrage, requires considerable technical knowledge of the electro-mechanical equipment and the personnel of the Board may not have the necessary knowledge to operate such equipment. Finally, he has stated that a Management Board in line of Bhakra Beas Management Board (BBMB) and Tungabhadra Board for operation of Tungabhadra Dam may be an answer to such difficulties [paragraph 131 of Additional Affidavit of Examination-in-chief of Shri Chetan Pandit, dated 12.09.2016 (Volume 192)].

1324. Besides the above, Shri Chetan Pandit in Para 113 of his Additional Affidavit (Vol. 192) has also stated that in an Inter- State River Basin, a lower riparian State is always placed in a 2584

geographically dis-advantageous position and at the mercy of the upper riparian State for release of water, and more so, to get the said water at specified time when it is required for irrigation etc. and also to get at specific location. Therefore, according to him, the State of Goa being the lower riparian State in Mahadayi River Basin would be concerned about securing its share not only in the basin as a whole but also in each of its tributaries at specified time. Therefore, he has suggested that the Tribunal should give detailed instructions regarding the quantity of water to be used by the State of Karnataka not only in each project but also at various points of time. Shri Chetan Pandit has also pleaded in Para 115 of his Additional Affidavit that the water sharing formula may be spelt out in all the situations viz. (a) normal year (b) wet year and (c) dry year. In the para 118 (Volume 192), Shri Chetan Pandit has also touched upon the issue of the storage capacities to be built by the upper riparian States, to meet the water requirement in a year only or should the upper riparian State cannot carry over storage to store and use excess water over and above their allocated share.

1325. The State of Karnataka has not pleaded or argued, either in favour or otherwise, on the issue of constitution of the 2585

Management Board/ Authority for Mahadayi River Basin in final written submissions of the case. The State of Maharashtra in its written submission has opined that the issue should be answered in negative.

Narmada Control Authority

1326. The Narmada Water Disputes Tribunal submitted its award as “Final Order and Decision of the Tribunal” on December 12, 1979. In the final order, there are sixteen clauses, and Clause XIV relates to ‘Setting up of Machinery for Implementing the Decision of the Tribunal’. The relevant extract of the Clause XIV of Narmada Water Disputes Tribunal is reproduced below:

“Clause XIV:- Setting up of Machinery for Implementing the Decision of the Tribunal.

We make the following orders with regard to setting up of machinery for implementing the decision of the Tribunal:-

Sub-clause 1: Constitution of the Authority.

2586

1(1): An Inter-State, administrative authority to be called Narmada Control Authority (hereinafter referred to as the ‘Authority’) shall be established for the purpose of securing compliance with and implementation of the decision and directions of the Narmada Water Disputes Tribunal (hereinafter referred as the ‘Orders’).

1(2): The Authority shall consist of seven high-ranking Engineer Members of whom one each shall be of the rank of Engineer-in-Chief, Chief Engineer, or Additional Chief Engineer of the Irrigation Department, Power Department or the State Electricity Board appointed by the Government of each of the States of Madhya Pradesh, Gujarat, Maharashtra and Rajasthan and three other eminent Engineers of a rank not less than that of a Chief Engineer to be appointed by the Central Government in consultation with the party States. One of the three Independent Members shall be nominated by the Central Government, as the Chairman of the Authority with a deliberative vote at meetings where decisions are taken on any matter affecting the interest of more than one State and he will be in charge of the administrative work of the Authority. The Central or State Government, as the case may be, shall have the power to remove or suspend from the Authority any Member who, in its opinion, is not suitable to continue as Member.

1(3): Each Independent Member shall be a full-time Member and be appointed for a term not exceeding five years. The Members appointed by the State Government shall be part-time Members. The 2587

appointing authority for Independent Member or that for part-time Member, as the case may be, shall determine the terms and conditions of appointment in each case. As far as practicable, the first appointment of the seven members of the Authority shall be made within three months from the date of publication of the decision of the Tribunal in the Official Gazette. … Sub-clause 2 – Secretary of the Authority

The Authority shall employ a Secretary, who shall be an Engineer. He shall not be a Member of the Authority.

Sub-clause 3 – Quorum And Voting:

Five Members shall be quorum and the concurrence of the majority shall be necessary for the transaction of the business of the Authority except such business as the Authority may from time to time prescribe as routine. The Authority shall not prescribe as routine any business in which the interest of any two of the States are likely to be in conflict. For the transaction of routine business three Members shall be a quorum and in the absence of the Chairman of the Authority, the Chairman elected at the meeting shall have a deliberative vote and in the event of an equality of votes a casting vote also. Subject as aforesaid the members shall have equal powers.

Sub-clause 4 – Disposal Of Business By The Authority

4(1): Subject to the provisions of Sub-clause 4(2) below, the Authority may dispose of any matter before it either by circulation or by holding a meeting. 2588

However, it will be open to any Member of the Authority to require that a matter shall not be disposed of by circulation but at a meeting.

4(2): 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) Categorising any part of the business of the Authority as 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 where all the members from the party States are present.

However, if any particular item under this Sub-clause cannot be disposed of at two successive meetings owing to the absence of one or more Members from the party States, it shall be disposed of under Sub-clause 3 of Clause XIV.

4(3): Subject to the foregoing provisions, the Authority shall frame its own Rules for the conduct of its business.

4(4): The Authority shall cause proper minutes or records of all its proceedings to be kept as a permanent record. … Sub-clause - 8: Powers, Functions & Duties of the Authority 2589

8(1): The role of the Authority will mainly comprise coordination and directions. Normally all bilateral matters should be deal with mutually by the States concerned and referred to the Authority only if there is a dispute. 8(2): 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 the implementation of the Orders with respect to: (i) the storages, apportionment, regulation and control of the Narmada waters; (ii) sharing of power benefits from Sardar Sarovar Project; (iii) regulated releases by Madhya Pradesh; (iv) acquisition by the concerned State for Sardar Sarovar project of lands and properties likely to be submerged under Sardar Sarovar; (v) compensation and rehabilitation and settlement of oustees; and (vi) sharing of costs. … Sub-clause 13 – Decision of the Authority The decisions of the Authority on all matters covered under Sub-clause 8 shall be final and binding on the four party States. However, there shall be a Review Committee which may suo moto or on the application of any party State review any decision of the Authority. In urgent cases the Chairman of the Review Committee may, on the application of the party State, grant stay of any order of the Authority pending final decision on review. Sub-clause 14 - Review Committee 2590

14(1): The Review Committee shall consist of five members including a Chairman as under:- (i) Union Minister for Irrigation : Chairman (ii) Chief Minister of Madhya Pradesh : Member (iii) Chief Minister of Gujarat : Member (iv) Chief Minister of Maharashtra : Member (v) Chief Minister of Rajasthan : Member

The Secretary of the Union Ministry of Agriculture and Irrigation, Department of Irrigation shall be the Convener of the Review Committee but shall not have any voting right. In case there is President’s Rule in any of the States, the Governor of that State or his authorized representative will act as Member of the Review Committee.”

Cauvery River Authority (CRA)

1327. When the Cauvery Water Disputes Tribunal had issued an interim order dated June 25, 1991, the Central Government issued a Notification No. S.O. 675 (E) dated 11.08.1998 to give effect to the interim order issued by the Tribunal, for constituting the Cauvery River Authority, in exercise of the powers conferred by sub-section (1) of Section 6A of the ISWDT Act, 1956 as stated below: “2. CONSTITUTION OF THE CAUVERY RIVER AUTHORITY

2591

(1) There shall be an Authority under this scheme to be known as the Cauvery River Authority (hereinafter referred to as the Authority). (2) The Authority shall consist of the following: (a) Prime Minister of India -Chairperson (b) Chief Minister of Karnataka -Member (c) Chief Minister of Kerala -Member (d) Chief Minister of Tamil Nadu -Member (e) Chief Minister of Pondicherry -Member

(3) POWERS AND FUNCTIONS OF THE AUTHORITY:

. The role of the Authority shall be to give effect to the implementation of the interim order dated 25th June 1991 of the Tribunal and all its related subsequent orders. . The Authority shall frame rules and regulations for the conduct of its business. . The Authority may convene meetings as and when necessary.

(4) CAUVERY MONITORING COMMITTEE

Under the Authority, there shall be a Monitoring Committee with the following composition:

(a) Secretary-in-charge of the Ministry of Central Government dealing with water resource - Chairman,

(b) The Chief Secretaries to the Governments of Karnataka, Kerala, Tamil Nadu and Union Territory of Pondicherry – Member

2592

(c) Chairman, Central Water Commission – Member

(d) One officer each, not below the rank of Chief Engineer, to represent the State of Karnataka, Kerala and Tamil Nadu and the Union Territory of Pondicherry to be nominated by the respective State Governments or the Union Territory Commission – Members

(e) Chief Engineer, Central Water Commission – Member-Secretary

(5) ROLE AND FUNCTIONS OF THE MONITORY COMMITTEE:

a. The role of the Monitoring Committee will be to render assistance to the Authority to enable it to take decisions on issues under consideration. b. The Monitoring Committee shall assist the Authority in collecting information and data. c. The Monitoring Committee shall assist the Authority in monitoring the implementation of the decisions of the Authority. In case, any difficulty arises in implementation, the Monitoring Committee shall report the position to the Authority. d. The Monitoring Committee shall assist the Authority in setting up a well-designed hydro meteorological network in Cauvery basin along with a modern communication system for transmission of data and a computer based control room for data processing to determine the hydrological conditions.

2593

Cauvery Management Board

1328. While issuing its final award, the Cauvery Water Disputes Tribunal issued final order in 2007, wherein a Machinery for implementation of Final Decision/ Orders was suggested in Chapter 8 of the Volume V of the Report. In Para 2 of the Chapter 8, the Tribunal stated as under.

“From the records, it appears that from time to time, the parties to the dispute especially, the State of Tamil Nadu had to approach the Supreme Court for a direction against the State of Karnataka to comply with the interim order passed by this Tribunal fixing a schedule for release of water in different months of the year. It also appear that on most of the occasions, the State of Karnataka came up with the plea that because of the insufficient rainfall during the period concerned, it had not been possible for them to comply with the interim order strictly by releasing the quantity of water as directed.”

1329. The Cauvery Water Disputes Tribunal, in its order further mentioned that, the State of Tamil Nadu had urged the Tribunal that it should constitute an Authority having the power to monitor on day to day basis, the different reservoir in the States of Kerala, Karnataka and Tamil Nadu and to give 2594

appropriate directions in respect of the implementation of the decision of this Tribunal so far the share of the different riparian States are concerned. After the introduction of Section 6A of ISWDT Act, the situation has changed. Section 6A (1) in clear and unambiguous words says:

“6A(1) without prejudice to the provisions of section 6, the Central Government may, by notification in the Official Gazette, frame a scheme or schemes whereby provision may be made for all matters necessary to give effect to the decision of a Tribunal.”

1330. In view of the above, the Cauvery Water Disputes Tribunal suggested that an Inter-State forum to be called ‘Cauvery Management Board’ shall be established for the purpose of securing compliance and implementation of the final decision and directions of the Cauvery Water Disputes Tribunal. The Board shall be under the control of the Government of India, Ministry of Water Resources. The composition of the Cauvery Management Board shall be as under:

1. The Cauvery Management Board shall consist of a whole time Chairman and two whole time Members to be appointed by the Central Government. The post of whole 2595

time Chairman shall be held by an Irrigation Engineer of repute of the rank of Chief Engineer having not less than 20 years’ experience in the field of water resources management.

2. One whole time Member shall be an Irrigation Engineer of not below the rank of Chief Engineer having sufficient field experience in the operation of the reservoirs and management, maintenance and operation of large irrigation projects for a period of not less than 15 years.

3. The second whole time Member shall be an agriculture expert of repute especially in Agronomy with a field experience of 15 years.

4. Two representatives of the Central Government shall be of the rank of Chief Engineer/ Commissioner to be nominated by the Ministry of Water Resources and Ministry of Agriculture respectively. They shall be part time Members of the Board.

5. A representative each of the State Governments of Kerala, Karnataka, Tamil Nadu and Union Territory of Pondicherry 2596

shall be nominated by the respective Governments, they shall be part time Members of the Board. The State representative shall again be an Irrigation Engineer of the rank of Chief Engineer, Irrigation/ Water Resources/ Public Works Department as the case may be, nominated by the respective State Government.

Cauvery Water Regulatory Committee

1331. The Cauvery Management Board shall constitute a Committee known as ‘Cauvery Water Regulatory Committee’ with the following composition:

(1) Full Time Member Irrigation of the Board – Chairman (2) One representative each of the States of Kerala, Karnataka, Tamil Nadu and Union Territory of Pondicherry not below the rank of a Superintending Engineer – Member (3) One representative of IMD of the rank of Director – Member (4) One representative of Central Water Commission dealing with river gauging not below the rank of Superintending Engineer – Member 2597

(5) One representative of the Central Ministry of Agriculture not below the rank of Superintending Engineer – member (6) Secretary to Cauvery Management Board – Member Secretary.

Functions of the Regulation Committee

1332. The Regulation Committee shall ensure the implementation of the provisions contained in the final order of the Cauvery Water Disputes Tribunal in accordance with the directions of the Board namely: a. To collect daily water levels, inflows and storage position at each of the following reservoirs – Hemavathy, Harangi, Krishnarajasagara, Kabini, Mettur, Bhavani-sagar, Amaravathy and Banasurasagar. b. To ensure ten daily releases of water on monthly basis from the reservoirs as directed by the Board. c. To collect data of water released from the aforesaid reservoirs on 12 hourly basis. d. The Board’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 2598

discharge site and keep to give effect to the interim order issued by the Tribunal, the Board suitably informed. f. To compile 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 Board 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 Board as indicated below:-  South-West monsoon season: 1st June to 15th October,  North East Monsoon season: 16th October- 31st January,  Hot weather season: 1st February to 31st May.

Establishment of Cauvery Water Management Authority

1333. In pursuance to the Order of the Hon’ble Supreme Court, in the case of the State of Karnataka Vs. State of Tamil Nadu & Ors., reported in (2018) 4 SCC 1, the Government of India has established Cauvery Water Management Authority vide Gazette Notification dated 1st June 2018 [Ref: S.O. 2236(E)]. Important features of the Cauvery Water Management Authority are reproduced hereunder.

2599

“I. Establishment of Cauvery Water Management Authority 2. Constitution of the Authority—There shall be an Authority called as Cauvery Water Management Authority. 3. (1) The Authority shall be a body corporate having perpetual succession and a common seal and shall sue and be sued. (2) The Authority shall consist of the following members, namely: (a) Chairman - To be appointed by the Central Government, who shall have tenure of five years or till sixty-five years of age, whichever is earlier, amongst the serving officers, namely: - (i) who is a senior and eminent engineer with wide experience in water resource management handling of inter-State water 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 water resources and inter-State water sharing issues; (b) Two whole-time Members - To be appointed by the Central Government for a term of three years which may be extendable upto five years, as mentioned below: (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 and Farmers’ Welfare; (c) Two Part-Time Members – Representatives of the Central Government of the rank of Joint Secretary to be nominated by the Ministry of Water Resources, River 2600

Development and Ganga Rejuvenation and Ministry of Agriculture and Farmers’ Welfare respectively; (d) Four Part-Time Members from party 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 the State Governments and Union territory administration respectively. 4. 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 which may be extendable upto five years and not below the rank of Chief Engineer from the Central Water Engineering Services cadre and he shall not have any voting rights.

5. Quorum and voting.—(1) 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 as the Authority may from time to time prescribe as routine. The Members shall have equal powers. (2) 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. 6. 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 part-time Members from the party States are present:— (i) framing of Rules of Business; 2601

(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 may be considered necessary by any of the part-time Members from party States 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 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. 7. 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 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. 8. Officers and servants of the Authority.—(1) 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 2602

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 the Central Government employees. (2) The persons who are employed in the services of the said 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 make arrangement with the State Government or the Union territory, as the case may be, to spare the services of the persons employed in the State Government or the 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 appoint any personnel by direct recruitment or obtain the same from the Centre or other sources, as considered necessary. 9. Administrative and field organisation costs.— (1) All expenses of the Authority (including salary and other expenses of the Chairman, whole-time Members and Secretary) shall be borne by the concerned State Governments and the Union territory of Puducherry in the ratio of Kerala–15%; Karnataka–40%, Tamil Nadu– 40%; and Union territory of Puducherry–5%. The expenses pertaining to Member representing a State or 2603

Union territory shall be borne by the State or Union territory concerned. (2) The cost of maintaining, operation and controlling of gauging and other hydrological systems for communicating data shall be borne by the State or Union territory concerned. (3) The cost of construction and maintenance of the storages, power installations, diversion works, head- works and canal networks shall be borne wholly by the State Government or Union territory in whose territory the works are located. 10. Powers, functions and duties of the Authority.—(1) The Authority shall exercise such power and shall discharge such duty to do any or all things necessary, sufficient and expedient for securing compliance and implementation of the Award of the Tribunal as modified by the Hon’ble Supreme Court vide Order dated the 16th February, 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, namely: - 2604

(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 indicated by each party 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 or 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 as modified by the Hon’ble Supreme Court vide Order dated 16th February, 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 Central Water Commission, and other Central or State organizations as necessary will identify situations of distress in the river basin. Distress caused 2605

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 river 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 days period throughout the year to meet the seasonal water requirements of the party 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. (vi) The Authority shall 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 Central Water Commission or any other Central or State Government organization. (vii) On the beginning of irrigation season which is 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 2606

(capacity 3 TMC and above) for the month of June broken in ten 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 Hon’ble Supreme Court vide Order dated 16th February, 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. (viii) 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 Hon’ble Supreme Court vide Order dated 16th February, 2018 for the designated crops. (ix) 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 which is 31st May of every year. (x) The Authority shall ensure that the respective State Governments should construct proper hydraulic structures at all important anicut sites in the river basin with a provision of appropriate regulation mechanism. Besides, regular monitoring of the withdrawals at such 2607

diversion structures on the part of the State would be necessary. (xi) 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. (xii) The Authority shall arrange collection of data for important rain gauge stations maintained by Indian Metrological Department or Central Water Commission or 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. (xiii) 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. (xiv) The Authority shall have power 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. (xv) The Authority may construct or make direction to construct additional gauging stations to the States concerned with the assistance of Central Government and Central Water Commission for implementing the decision of the Tribunal. (xvi) If the Authority finds that any Government of the party States, namely Tamil Nadu, Kerala, Karnataka and 2608

Union territory of Puducherry do not co-operate in implementing the decision or 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 vide Order of 16th February, 2018. (xvii) If any delay or 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. (xviii) The Authority shall advise 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. (xix) The Authority shall advise the party States to adopt efficient technologies for water conservation and preservation. (xx) The Authority shall comply with the directions of the Central Government issued from time to time with respect to composition, establishment and administration of the Authority. (xxi) The Authority may delegate such of its power, as it thinks fit, to Cauvery Water Regulation Committee. 11. Annual Report of the Authority.—The Authority shall prepare and transmit to each of the four party States as early as possible but not later than 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 party State on its request any information within its possession any time 2609

and always provide access to its records to the party States and their authorized representatives. 12. Records of the Authority and their location.—(1) The Authority shall keep a record of its 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. (2) The Head Quarters of the Authority shall be at New Delhi.

II. Cauvery Water Regulation Committee 17. Composition of the Cauvery Water Regulation Committee.—(1) There shall be a Cauvery Water Regulation Committee consisting of the following members, namely:- 1) Whole-Time Member (Water Resources) of the Authority - Chairman; 2) One representative each of the States of Kerala, Karnataka, Tamil Nadu and Union territory of Puducherry not below the rank of Chief Engineer. - Member; 3) One representative of India Meteorological Department, of the rank of Joint Secretary - Member; 4) One representative of Central Water Commission dealing with river gauging not below the rank of Chief Engineer - Member; 5) One representative of the Ministry of Agriculture & Farmers’ Welfare, Government of India not below the rank of Commissioner - Member; 2610

6) Secretary to the Authority - Member Secretary. (2) The Head Quarters of the Cauvery Water Regulation Committee shall be at Bengaluru. 18. Functions of the Cauvery Water Regulation Committee.—The Committee shall ensure the implementation of the provisions contained in the final Award of the Tribunal as modified by the Hon’ble Supreme Court vide Order dated the 16th February, 2018 with the directions to 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 twelve hourly basis; (d) the Authority’s representatives at each of the reservoirs shall monitor proper implementation of the regulation instruction issued by the Committee and in the event of any variation, the representative shall immediately inform the Member Secretary of the Committee for appropriate action; (e) to collect daily water flows passing through presently identified inter- State contact point 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 India Meteorological Department in order to be able to 2611

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 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:— (a) South-West monsoon season (inclusive of fortnight of October) — 1st June to 15th October; (b) North-East monsoon season — 16th October to 31st January; (c) Hot weather season — 1st February to 31st May. 19. Meetings of the Committee.—(1) The Committee shall meet once in ten days during the months of June and October when the south-west and north-east monsoon set in and 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 case of any exigency, a minimum of forty-eight 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 considered by the Committee: Provided that if the situation is such that it warrants to take immediate decision, then the Committee may decide the issue by majority vote even in the absence of representative from the affected State. 2612

(3) The quorum for meeting of the Committee shall be at least six. (4) All the Members including the Chairman and Member Secretary of the Committee shall have voting right and the Chairman shall also have a casting vote.”

Godavari and Krishna River Management Board

1334. The Godavari and Krishna River Management Board have been set up by the Central Government in 2014, after bifurcation of the State of Andhra Pradesh in two separate States, namely, Andhra Pradesh and Telangana under ‘The Andhra Pradesh Reorganisation Act, 2014. The relevant clause of the Act relating to Godavari and Krishna River Management Boards is covered under Part IX: Management and Development of Water Resources.

1335. The constitution and function of the River Management Board are mentioned under Clause 85 of the Act which is reproduced as under: “85. (1) The Central Government shall constitute two separate Boards to be called the Godavari River Management Board and Krishna River Management Board (to be known as the Board), within a period of sixty days from the appointed day, for the administration, regulation, maintenance and operation 2613

of such projects, as may be notified by the Central Government from time to time. (2) The headquarters of Godavari River Management Board shall be located in the successor State of Telangana and of the Krishna River Management Board shall be located in the successor State of Telangana and of the Krishna River Management Board shall be located in the successor State of Andhra Pradesh. (3) The Godavari River Management Board and Krishna River Management Board shall be autonomous bodies under the administrative control of the Central Government, and shall comply with such directions as may, from time to time, be given to them by the Central Government. (4) Each Board shall consist of the following Chairperson and Members, namely:- a. A Chairperson not below the rank or level of Secretary or Additional Secretary to the Government of India to be appointed by the Central Government; b. Two members, to be nominated by each of the successor States, of which one shall be the technical member not below the rank of Chief Engineer and the other administrative member to represent the concerned States; c. One expert to be nominated by the Central Government. (5) Each Board shall have a full-time Member Secretary, not below the rank of Chief Engineer in the Central Water Commission, to be appointed by the Central Government. 2614

(6) The Central Government shall create such number of posts of the rank of Chief Engineer in the Central Water Commission, as it considers necessary. (7) Each Board shall be assisted in the day to day management of reservoirs by the Central Industrial Security Force constituted under the Central Industrial Security Force Act, 1968 on such terms and conditions as the Central Government may specify. (8) The functions of each Board shall include- (a) the regulation of supply of water from the projects to the successor States having regard to- (i) awards granted by the Tribunals constituted under the Inter-State River Water Disputes Act, 1956; (ii) any agreement entered into or arrangement made covering the Government of existing State of Andhra Pradesh and any other State or Union territory; (b) the regulation of supply of power generated to the authority in charge of the distribution of power having regard to any agreement entered into or arrangement made covering the Government of the existing State of Andhra Pradesh and any other State or Union territory; (c) the construction of such of the remaining ongoing or new works connected with the development of the water resources ;projects relating to the rivers or their tributaries through the successor States as the Central Government may specify by notification in the Official Gazette; (d) making an appraisal of any proposal for construction of new projects on Godavari or Krishna rivers and giving technical clearance, after satisfying that such projects do not negatively impact the availability of water as per the awards of the Tribunal constituted under the Inter- 2615

State River Water Disputes Act, 1956 for the projects already completed or taken up before the appointed day; and (e) such other functions as the Central Government may entrust to it on the basis of the principles specified in the Eleventh Schedule.

Krishna Waters Decision – Implementation Board

1336. The Krishna Water Disputes Tribunal-II in his final order has recommended another scheme namely, Krishna Water Decision – Implementation Board and the details are appended as Appendix-I, Volume IV of the Report-2010. The relevant paragraphs relating to its composition, functions and powers are reproduced as under: “1. There shall be a permanent “Krishna Water Decision Implementation Board”, ‘hereinafter referred to as the Board’ which will have five Members out of which one Member each shall be appointed by the three riparian States and the remaining two Members shall be nominated by the Central Government (Government of India). 2. The riparian States shall appoint Members on deputation or on re-employment basis, a person who should be a High ranking Engineer not below the rank of Chief Engineer or has held the office of Chief Engineer having experience in the field of Irrigation Engineering, Hydrology and Water Management. 2616

3. The Central Government shall nominate two Members for the “Krishna Water Decision – Implementation Board” who shall be High ranking Engineer having experience in the field of Irrigation Engineering, Hydrology and Water Management from Central Government services or any organization under the Central Government, one of whom shall be holding or has held the post not below the rank of Joint Secretary and the other not below the rank of Additional Secretary to the Government of India. The latter shall be the Chairman of the Board. The nominated Members shall be either on deputation or on re-employment but shall be from any State other than the riparian States of the Krishna river basin and shall have no connection, direct or indirect, with any of the three States. 4. The services of the Members including the Chairman of the Board as well as Officers and employees of the Board shall be subject to the Service and Disciplinary Rules applicable to the Central Government Officers and employees except the Members and other Officers and employees serving on deputation who shall be governed by the Service Rules and Disciplinary Rules of the parent cadre of the concerned State. …

9. The Board in its meeting in which all the members are present shall frame its Rules of business, categorize any part of the business of the Board as of a formal or routine nature. 10. The permanent “Krishna Waters Decision – Implementation Board” with five Members as aforesaid shall be for implementing and carrying out effectively 2617

the decision/ orders and directions issued by this Tribunal including the decision/ orders and directions issued by K.W.D.T – I which have not been reviewed or modified by this Tribunal. … 19. The Board shall employ a Secretary who shall be an Engineer having experience in Hydrology and water management. The appointment shall be on deputation or on re-employment basis not beyond 65 years of age. … 21. The Board shall appoint a qualified and experienced Accounts Officer on deputation or on re-employment basis not beyond 65 years of age. 22. The Board shall ensure that the following data in respect of the flows and utilization of the waters of river Krishna are recorded and exchanged between the riparian States and a copy of the same shall also be furnished by the States to the Board in the same manner. 23. It shall also be ensured that the States furnish the copies of the Working Table at 10 daily basis and the Rule Curve to each other. The States shall also furnish such copies to the Board. The Board may vet the Rule Curve and the 10 daily Working Tables to check and ensure that they are prepared in consonance with the provisions of the decision of this Tribunal and the decision and directions of KWDT-I which have not been amended, modified or reviewed by this Tribunal. In case it is found that the 10 daily Working Tables or the Rule Curve does not conform to the decision, order and the directions of this Tribunal or the decision and directions of KWDT-I which have not been amended, 2618

modified or reviewed, the Board may make necessary modifications which shall be binding on all the parties. 24. The Board shall be charged with the power and shall be under a duty to do all things necessary and sufficient and expedient for the implementation of the order/ directions of this Tribunal including the decision/ orders and directions of K.W.D.T.-I which have not been reviewed or modified by this Tribunal with respect to:- (i) storage, apportionment and regulated control of the Krishna waters, (ii) regulated releases from the reservoirs as directed by this Tribunal including the decision and directions of K.W.D.T. - I which have not been reviewed or modified by this Tribunal. (iii) any other matter incidental to the carrying out and implementation of the order/ direction of this Tribunal including the decision and directions of K.W.D.T.-I which have not been reviewed or modified by this Tribunal. (iv) The Board shall make use of the data of the gauging sites already established or as may be established by the Central Water Commission or cause to be established either by itself or through the Central Water Commission. (v) Record shall be kept of the flow of the Krishna River at all stations considered necessary by the Board. …

27. The Board shall collect from the States concerned data for the areas irrigated by Krishna waters in each season of withdrawals for irrigation, domestic, 2619

municipal and industrial or any other purpose and of water going down the river from the project. …

29. The Board shall determine the volume of water flowing in the river Krishna and its tributaries in a water year i.e. 1st June to 31st May.

30. The Board shall check from time to time the volume of water stored by each State in its reservoirs and other storages and may for that purpose adopt any approved and tested device or method. …”

1337. The above referred scheme / board has not been notified by the Central Government.

Bhakra Beas Management Board

1338. The Bhakra Management Board was constituted on 1st October 1967 under the Punjab Re-organization Act, 1966 for administration, operation and maintenance of Bhakra-Nangal Project that was started on river Satluj, immediately after independence in the joint collaboration of the erstwhile State of Punjab and the State of Rajasthan. The works of Beas Projects were undertaken by the Beas Construction Board under the 2620

Punjab Re-organization Act, 1966. On completion, the Beas projects were also transferred to Bhakra Management Board on 15th May 1976 and it was re-named as Bhakra Beas Management Board (BBMB) as per the provisions of the Punjab Re-organization Act. The Board is working under the administrative control of the Union Ministry of Power, Government of India, New Delhi.

1339. The Bhakra Beas Management Board is headed by a whole time Chairman and two whole-time Members, i.e. Member (Irrigation) and Member (Power). Besides the above, two representatives from the Central Government of the rank of Joint Secretary/ Commissioner to be nominated by the Ministry of Water Resources and Ministry of Power respectively and another four representatives, one each from the State Governments of Punjab, Haryana Rajasthan and Himachal Pradesh are nominated as part-time Members of the Board.

1340. The functions of BBMB are as follows: . Administration, operation and maintenance of Bhakra-Beas Projects; . The regulation of supply of water from Bhakra Beas projects to the States of Punjab, Haryana and Rajasthan; 2621

. The regulation of the supply of power generated at Bhakra Beas Projects; . Any other function as the Central Government may assign after consultation with the Governments of States of Punjab, Haryana and Rajasthan.

Vansadhara Supervisory Committee

1341. The Vansadhara River originates in the State of Odisha and after flowing in between the two States, namely, States of Odisha and the State of Andhra Pradesh, enters sea in the Bay of Bengal. A dispute was arisen with regard to the use and management of the water of the said river between the aforesaid States. Therefore, a tribunal called Vansadhara Water Disputes Tribunal was constituted by the Central Government (the Union Ministry of Water Resources) vide Notification No. S.O. 465 (E) dated 24th February, 2010 under Section 4 of the ISRWD Act,1956 relating to water dispute regarding the Inter-State River Vansadhara and the river valley thereof. The main points for disputes are related to the Neradi Barrage Project and Side Weir Project proposed by the State Government of Andhra Pradesh on account of submergence of land in the State of Odisha. The 2622

Tribunal examined the issues raised by the party States and submitted its Report with Decisions in September, 2017.

1342. Under the Clause X of the Award, the Vansadhara Water Disputes Tribunal has ordered to set up a Supervisory Committee for implementing the decision of the Tribunal. The Clause X of the aforesaid Award is reproduced as under:

“Setting up of the Supervisory Committee We make the following orders with regard to setting up of Inter-State Regulatory Body (Supervisory Committee) for implementing the decision of the Tribunal. The composition, functions and powers of the Supervisory Committee are as follows: (1) A Supervisory Committee consisting of four members – two from the Central Water Commission; one from the State of Andhra Pradesh; and one from the State of Odisha shall be constituted to supervise the functioning of the Side Weir complex at Katragada and Neradi Barrage when constructed and also for implementation of the order of the Tribunal. (2) The composition of the Committee shall be: (i) Chief Engineer, CWC - Chairman (ii) Representative of - Member State of Andhra Pradesh (iii) Representative of - Member State of Odisha (iv) Superintending - Member Secretary 2623

Engineer / Director, CWC (3) The Committee shall have following functions and powers: (i) To supervise the operation of the gates, of the Head Regulator of Flood Flow Canal of Side Weir complex, including the closure of the same. (ii) To ensure that total drawal of water through Head Regulator of Flood Flow Canal of Side Weir complex, during the months of June to November in any year shall not in any Case exceed 8 TMC, constituting a part of 50% share of water of the State of Andhra Pradesh. (iii) To ensure that the gates of the Head Regulator of the Flood Flow Canal of Side Weir complex, shall open on 1st June and close on 1st December or earlier as soon as the total drawal of water equals to 8 TMC every year and the gates shall so remain closed till 31st May of next year. (iv) To maintain the record of the flow upstream of the Side Weir and also of the flow passing through the Head Regulator of Flood Flow Canal. When the Flood Flow Canal is operational, it may be ensured that the flow downstream of the Side Weir is equal to or more than 4000 cusecs. (v) To make periodical survey, as it deems necessary, for assessing aggradation and degradation in the river near the Side Weir and take appropriate steps thereto so as to ensure 2624

that the bed level of the Side Weir at all times shall be as per its original design. (vi) To keep a close watch on the river behaviour and to ensure that if there be any silting or sedimentation in front of the Side Weir at Katragada or upstream near the Neradi Barrage, the same shall be got cleared, as and when required, through the State Government of Andhra Pradesh. (vii) To ensure that the Side Weir is totally plugged and made completely non-functional immediately after commissioning of the Neradi Barrage. (viii) To supervise the regulation of flows from Neradi Barrage so as to ensure:

(a) that the water from Vansadhara river at Neradi Barrage is withdrawn by the State of Andhra Pradesh and the State of Odisha during the period from 1st of June to 30th of November every year. (b) that during the period from 1st December to 31st May every year, entire water reaching Neradi Barrage, flows down the river for use by both the States.

(ix) To visit the flood affected areas of Odisha, if any, impacted due to the backwater of Neradi Barrage beyond its pool level and make assessment for giving recommendations regarding compensation to be paid to the flood affected families/persons. For this purpose, the 2625

Committee may co-opt any member(s) as it deems fit.

(4) The Committee shall select the place for its office which shall be provided by the State of Andhra Pradesh. (5) The expenses for the maintenance of office and all expenses for conducting the monitoring activity shall be borne by the State of Andhra Pradesh.

The Central Government and the party States shall nominate members of the Supervisory Committee at the earliest, in any case, not later than 3 months from the date of publication of this decision in the official Gazette. No decision of the Supervisory Committee shall be invalid merely because of non-appointment of any member by any State or by reason of absence of any member.”

Hon’ble Supreme Court Judgment on Babhali Barrage Project reported in 1998 (7) SCC, P-303

1343. Hon’ble Supreme Court of India in a dispute arising over Babhali Barrage in the Godavari River basin between the State of Andhra Pradesh vs State of Maharashtra pronounced the judgment on 28th April, 2013 wherein, the Hon’ble Supreme Court has ordered to constitute a three Members Supervisory Committee to supervise the provisions of Inter-State Agreements dated 06.10.1975 and 19.12.1975 on Godavari waters. The suit 2626

was filed by Andhra Pradesh complaining violations by Maharashtra of the provisions of the said Inter-State Agreements dated 06.10.1975 and 19.12.1975.

1344. The Godavari River, which is the largest river in Peninsular India, originates in the Sahayadri hills at an altitude of 3500 ft in Nasik district of Maharashtra and flows for a length of about 1465 km through Maharashtra and Andhra Pradesh before joining the Bay of Bengal. After the river enters in the Andhra Pradesh, the State of Andhra Pradesh constructed a 140 ft high dam, at a distance of 764 km from its origin, known as Pochampad dam (Sriram Sagar Project) after the inter-state agreement signed on 06.10.1975 between the party States. The Sriram Sagar reservoir at its designed FRL spreads 55 kms inside the territory of Maharashtra in the upstream.

1345. In the year 1995, the Maharashtra Government started a medium irrigation scheme, called Babhali Barrage Project unilaterally to provide water to Rabi irrigation in Nanded district. The said barrage was located 7 kms upstream of Maharashtra – Andhra Pradesh border on the main Godavari having a storage capacity of 2.74 TMC water during non- 2627

monsoon period. The State Government of Andhra Pradesh objected to the said scheme as its location lies within the existing Pochampad dam reservoir. Learned senior counsel for Andhra Pradesh pleaded that Maharashtra would use the waters stored in the Sriram Sagar reservoir in their territory; for which they had no such right as per the interstate agreements. On the other hand, learned senior counsel for Maharashtra argued that the agreement dated 06.10.1975 between Andhra Pradesh and Maharashtra is an agreement for the equitable distribution of waters of Godavari river and they are entitled to construct new projects, within the overall cap of 60 tmc allocated to Maharashtra by the Tribunal, inside its territory.

1346. After examining the documents placed before the Court in the matter, the aforesaid original suit was disposed of by the Hon’ble Supreme Court of India with the following directions:

“83. However, a three member supervisory committee is constituted. The committee shall have one representative from the Central Water Commission and one representative each from the two States, Andhra Pradesh and Maharashtra. The representative of Central Water Commission shall be Chairman of the committee. The Committee shall select the place for its office which 2628

shall be provided by Maharashtra. Maharashtra shall bear the entire expenditure of the Committee. The powers and functions of the supervisory committee shall be as follows: (i) The Committee shall supervise the operation of the Babhali Barrage, and (ii) The Committee shall ensure that; a) Maharashtra maintains Babhali barrage storage capacity of 2.74 TMC of water out of the allocation of 60 TMC given to Maharashtra for new projects under the agreement dated 06.10.1975. b) The gates of Babhali barrage remain lifted during the monsoon season i.e, July 1 to October 28 and there is no obstruction to the natural flow of Godavari river during monsoon season below the three dams mentioned in Clause II(i) of the agreement dated 06.10.1975 towards Pochampad dam. c) During the non-monsoon season i.e., from October 29 till the end of June next year, the quantity of water which Maharashtra utilizes for Babhali barrage does not exceed 2.74 TMC of which only 0.6 TMC forms the common submergence of Pochampad reservoir and Babhali barrage. d) Maharashtra does not periodically utilize 2.74 TMC from time to time. …”

2629

Important Activities Essentially Required to be undertaken for Sustainable Development of Water Resources of Mahadayi Basin

1347. The Tribunal has noticed that all the party States namely, Goa, Karnataka and Maharashtra were unable to present before the Tribunal any comprehensive plan for sustainable development of water resources of Mahadayi basin for beneficial use by the society. The Tribunal finds that hydro-meteorological and hydrological data, which were produced before the Tribunal by the party States, were not consistent and reliable. The Tribunal also notices that the detailed project reports (DPRs) of various identified schemes / projects, were incomplete and not at all bankable / reliable. The three State Governments have presented several water related information and projections in respect of future plans etc. but such information provided by one party State were seriously contested by other party State(s). Further, in most of the cases, the information / future action plans are not supported by needed scientific investigations, research, studies, etc.

1348. The Tribunal is of firm view that environmental issues are very important and crucial in respect of Mahadayi river basin. 2630

However, it is noticed that except for providing general information, none of the party States have: (a) presented scientifically collected data / information; (b) undertaken object- oriented investigations; (c) carried out research / studies; and (d) prepared long term action plan to address the related issues.

1349. Keeping in view the serious differences of opinion amongst the party States, the Tribunal is of the firm view that an independent body i.e., ‘Mahadayi Water Management Authority’, must undertake following activities with the cooperation and active participation of the party States in respect of following. a. Collecting all water related data (including hydro- meteorological data and hydrological data) and preparation of water resources profile of the basin / sub- basin and in respect of various identified projects / schemes. b. Undertaking investigations / research / studies on all aspects of environmental issues, including that in respect of impact of climate change on water resources etc. and preparation of short term / long term action plans to address the issues. 2631

c. Preparation of comprehensive plan for sustainable development of water resources with active participation of States. d. Monitoring and regulation of existing as well as future projects / schemes.

Constitution of the Authority

1350. The Central Government shall constitute an Authority, called ‘Mahadayi Water Management Authority’ to implement the Report and final decision of Mahadayi Water Disputes Tribunal.

1351. The Authority shall own and operate the projects for diversion of Mahadayi waters, situated/ located in the State of Karnataka and State of Maharashtra.

1352. The Authority shall consist of seven high-ranking professional as members, of whom one each shall be of the rank of Engineer-in-Chief, Chief Engineer or Additional Chief Engineer of the Water Resources Department of each of the States of Goa, Karnataka and Maharashtra and four other eminent independent 2632

Engineers / Professionals, of a rank, not less than that of a Chief Engineer, to be appointed by the Central Government with expertise in the areas of (a) Hydrology, (b) Environmental Issues, (c) Water Resources Planning, and (d) Monitoring and Regulation of Water Resources Projects / Schemes. One of the four independent Members, to be appointed by the Central Government, shall be nominated by the Central Government as the Chairman of the Authority, with a deliberative vote, at meetings, where decisions are taken, on any matter affecting the interest of more than one State and he will be In-charge of the administrative work of the Authority. The Central Government or State Government, as the case may be, shall have the power to remove or suspend from the Authority any Member, who, in its opinion, is not suitable to continue as Member.

1353. Each independent Member appointed by the Central Government, shall be a full time Member and be appointed for a term not exceeding three years. The Members appointed by the State Governments shall be part-time Members of the Authority. The post of the Chairman of the Authority shall be a cadre post of Central Water Commission (CWC) so that the question of officers, if unwilling for deputation, is redeemed. Appointment of other 2633

Members of the Authority, by Central Government as well the party-States shall be by rotation. As far as practicable, the first appointment of the seven Members of the Authority shall be made within three months, from the date of publication of the decision of the Mahadayi Water Disputes Tribunal, in the Official Gazette.

Vacancies of Members

1354. On any vacancy occurring in the office of the four independent Members, the Central Government shall appoint a person to such vacant office, and on any vacancy occurring in the office of the three Members, other than the independent Members, the State Government by whom the Member, whose office falls vacant, was appointed, shall appoint, a person to the vacant office.

1355. In case of illness or absence, for any cause whatsoever, of a Member, the Central Government or State Government, by whom he was appointed, may appoint a person as an acting Member, during such illness or absence and such acting Member shall, while so acting, would have all the powers 2634

and perform, all the duties and be entitled to the indemnities of the Member in whose stead, he so acts, save and except that the next senior independent Member, appointed by the Central Government and not the acting Member, shall act as Chairman at business meeting of the Authority or as the Chairman of the Authority in the event of illness or absence of the Chairman of the Authority.

1356. The Authority shall employ a Secretary, who shall be an Engineer. He shall not be a Member of the Authority.

Quorum and Voting

1357. Five Members shall be the Quorum and the concurrence of the majority shall be necessary for the transaction of the business of the Authority, except such business, as the Authority may, from time to time, prescribe as routine. The Authority shall not prescribe, as routine, any business in which the interests of any two of the States are likely to be in conflict. In the transaction of routine business, three Members shall be the quorum and in the absence of the Chairman of the Authority, the Chairman allocated at the 2635

meeting, shall have a Deliberative vote, in the event of equality of votes a casting vote also. Subject to, as aforesaid, the Members shall have equal powers.

Disposal of Business by the Authority

1358. Subject to the provisions contained in para 1359 below, the Authority may dispose of any matter before it, either by circulation or by holding a meeting. However, it will be open to any Member of the Authority, to require that a matter shall not be disposed of by circulation but at a meeting.

1359. 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 a formal or routine nature; and 2636

(iv) Any other matter, which any of the three party-States require that it shall be decided at a meeting where all the Members from the party-States are present.

1360. However, if any particular item under the provisions of para 1359 above, cannot be disposed of at two successful meetings, owing to the absence of one or more Members from the party-States, it shall be disposed of as per the provisions under para 1357 above.

1361. Subject to the foregoing provisions, the Authority shall frame its own rules for the conduct of its business.

1362. The Authority shall cause proper minutes or records of all its proceedings to be kept as a permanent record.

Indemnity of Members

1363. No Member, officer or employee of the Authority shall be liable for losses, injury or damages resulting from:- 2637

(i) action taken by such Member, officer or employee in good-faith and without malice under the apparent authority or the orders, even though such action is later determined to be unauthorized or; (ii) the neglect or wrongful act or omission of any other person, employed by the Authority and serving under such 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.

Officers and Servants of the Authority

1364. The Authority may, from time to time, appoint or employ such and so many officers and servants, as it thinks fit, and remove or dismiss them, under the Rules and Regulations, applicable to the appointment, removal and dismissal of Central Government officers and servants.

1365. Persons employed in the service of the three States may be appointed or employed by the Authority in such proportions as the Authority may deem fit. The Authority shall 2638

arrange with the State Governments to spare the services of the persons employed in the State Governments 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 source as it considers appropriate.

1366. All such officers and servants shall, as such, be subjected to the sole control of the Authority. The scales of pay and other service conditions shall be as applicable to the Central government employees and/or State Government employees.

Administrative and Field Organisation Cost

1367. The expenses of the Authority (including the salary and expenses of the independent Members), shall be borne by the State Governments of Goa, Karnataka and Maharashtra in equal shares. The expenses pertaining to a Member, representing the State, shall be borne by the State concerned. The cost of maintaining, operating and controlling the office of Authority, gauging and other Hydrological stations, for each State, and 2639

telecommunication systems for communicating the data, shall be borne by the State concerned.

1368. The cost of construction of the storages, power installation, diversion works, hand works and casual need works, shall be borne wholly by the State Government, in whose territory the work is allocated.

Power, Functions and Duties of the Authority

1369. 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 the implementation of the Report/Final Decision/Award of the ‘Mahadayi Water Disputes Tribunal’, with respect to: a. Storage, apportionment, regulation and control of the waters of Mahadayi River. b. Regulate releases from the Mahadayi Basin, as directed by the Mahadayi Water Disputes Tribunal. c. Any other matter, incidental to the carrying out and implementation of the order/direction of the Mahadayi Water Disputes Tribunal. 2640

d. The Authority shall make use of the data of sites, already established or as may be established by the Central Water Commission or by the three State Governments or cause to be established either by itself or through some approved Agency. e. Records shall be kept of the flow of the Mahadayi river including the diversion of Mahadayi waters to other basins, and diversion of water from other rivers to Mahadayi basin, at all stations, considered necessary by the Authority. f. The Authority shall collect from all the three States concerned, all water related data, particularly the data for the areas irrigated by the Mahadayi waters in each season, data in respect of withdrawals for irrigation, domestic, municipal, industrial or any other purpose and of the water going down the river from various projects / schemes. g. The Authority shall determine the volume of water flowing in the river Mahadayi and its tributaries in a water year i.e. 1st June to 31st May; and prepare the Water Year Book(s). h. The Authority shall check from time to time the volume of water stored by each State in its reservoirs and other storages and shall, for that purpose, adopt any approved and tested devices or method/s. 2641

EQUITABLE APPORTIONMENT OF WATERS OF MAHADAYI RIVER

1370. The Government of Goa, in its “Request for appointment of a River Water Disputes Judicial Tribunal under Section-3 of the Inter-State Water Disputes Act, 1956 as amended” vide its letter No. 68-4/CE-WRD-DO-2002-03/208 dated 09/07/2002 addressed to the Secretary, Union Ministry of Water Resources, Government of India, had requested for adjudicating and deciding the equitable shares of Mahadayi water among the three co-basin States, in para 28(ii), which is reproduced hereunder.

“28.0 Therefore the MOWR, Govt. of India, is strongly urged to appoint immediately a Judicial Tribunal as provided for under Section-3 of the Interstate Water Disputes Act, 1956 as amended and refer the following matters for adjudication and decision. ii) To adjudicate and decide the equitable shares of the three co-basin states in the above quantity of water taking into consideration the long term in basin needs of the three States for the beneficial uses of water (water supply, irrigation, hydropower generation, navigation, pisciculture and environmental protection, etc.).” 2642

1371. The State of Goa has requested for determining and laying down the true and correct principles applicable for equitable use of waters from the Mahadayi River basin/Mahadayi River and for issuing appropriate directions at para 225 of the “Amended Statement of Case of the State of Goa filed before Mahadayi Water Disputes Tribunal” (Volume 131). The same are reproduced hereunder.

“225. In the light of the aforesaid facts and circumstances, the State of Goa prays for the following reliefs:- …

(C) Without prejudice to the prayer clauses (A) and (B) above and in the alternative,

(i) That this Hon’ble Tribunal be pleased to determine the true and correct principles applicable for equitable use of waters from the Mahadayi River basin/Mahadayi River and issue appropriate directions in that regard; (ii) That this Hon’ble Tribunal be pleased to determine the share of all the riparian States on the remainder waters of Mahadayi River, if any available, after assessing and deducting the same from the available waters of Mahadayi River, the water requirement of ecological sustenance of the River valley eternally, specifically giving due consideration of the 2643

scientifically predicted global warming, sea level increase, increased salinity ingress in coastal areas, etc.; (iii) That this Hon’ble Tribunal be pleased to direct the State of Karnataka and State of Maharashtra to declare their present upstream use including use by Rainwater Harvesting and such use may be counted against the share of State of Karnataka and State of Maharashtra.”

1372. The Government of Karnataka, vide its letter No. WRD/08/KDM/2009 dated 22.06.2010 filed as complaint under Section 3 of the Inter State River Water Disputes Act, 1956, read with Inter-State Water Disputes Rules 1959, addressed to the Secretary to the Government of India, Ministry of Water Resources, had inter-alia, made following specific references related to water demands and equitable apportionment. “… (d) On an equitable apportionment of the waters of the inter-State river Mahadayi and its valley, whether, the equitable share of the riparian State of Karnataka is not less than 45 tmc annually (consumptive use of 24.15 tmc)? …”

1373. In the Amended Statement of Claims filed on 20.4.2015 (Volume 129), the State of Karnataka has referred to 2644

the aspects of equitable apportionment of waters of the inter- State river Mahadayi and its valley, at paras 10.5, 11.1(c) & (d), 13.1(a) and 17.1(i) which are as under: “… 10.5 … However, the claims made by the riparian States even if considered in its entirety, there is no conflict requiring apportionment of the water. The State of Karnataka, in its Complaint has claimed its equitable share in Mahadayi as "not less than 45 tmc (consumptive utilisation restricted to 24.15 tmc”). … 11.1 The specific matters in dispute raised in its Complaint are:

(c) What is the contribution of water of each of the riparian States of Karnataka, Goa and Maharashtra to the available water of interstate river Mahadayi and its valley?

(d) On an equitable apportionment of the waters of the interstate river Mahadayi and its valley, whether, the equitable share of the riparian State of Karnataka is not less than 45 tmc annually (consumptive use of 24.15 tmc)? … 13.1 (a) As submitted above, Karnataka has claimed, as a part of its share on equitable apportionment, a consumptive utilisation of 24.15 tmc from the waters of Mahadayi basin, as stated in its Complaint dated 22.06.2010 filed under Sec.3 of the Act of 1956. ... 2645

17.1 Under the above circumstances, and having regard to the requirements of justice and equity, the State of Karnataka humbly prays before this Hon'ble Tribunal to: (i) Hold that Karnataka's share in the waters of inter- State river Mahadayi and its valley is not less than 24.15 tmc for consumptive utilisation; …”

1374. The Government of Maharashtra, in its “Letter of Complaint under Section 3 of the Inter State River Water Disputes Act, 1956, Read with Inter-State Water Disputes Rules 1959” vide letter No. Mandvi-2010/CR-247/WRP dated 13.10.2010 addressed to the Secretary to the Government of India, Ministry of Water Resources (pages 41-47, Vol. 1), has not indicated any specific quantum of water of Mahadayi river basin as the share of the State of Maharashtra. However, the para which directly or indirectly refers to the issue of the equitable apportionment of the water of Mahadayi river basin, in the above mentioned letter / complaint of the State of Maharashtra is reproduced hereunder.

“Para 3. Specific Matters in Dispute; (I) The following matters inter alia would arise for adjudication and consequent decision of the Tribunal. … 2646

(b) What would be the share of each State on equitable apportionment of water of the Inter State River Mandovi?

…”

1375. The Tribunal notes that neither the State of Goa nor the State of Karnataka, in their Statement of Case / Statement of Claims, have suggested the principles and/or methods to be adopted by the Tribunal, for equitable apportionment of the waters, of Mahadayi river, among the party States.

1376. However, the State of Maharashtra has discussed the aspects of equitable apportionment in Chapter 4 of its Statement of Case (Volume 127), which, inter-alia, covers the principles to be adopted for apportionment of water. Chapter 4 of the Statement of Case of the State of Maharashtra (Vol. 127), is reproduced hereunder.

“CHAPTER 4 EQUITABLE APPORTIONMENT OF WATERS OF RIVER MANDOVI

4.1.1 This Hon'ble Tribunal has been given the task of distribution of Waters of River Mandovi between the 2647

three riparian States i.e. Goa, Karnataka and Maharashtra. The apportionment has to be in respect of waters of the entire "Mandovi River Basin" in an equitable manner on the basis of the evidence adduced by the party States before this Hon'ble Tribunal.

4.1.2 The State's requirement of water would be for - 1. Irrigation 2. Power Generation 3. Drinking purposes 4. Industrial purposes 5. Navigation 6. Fisheries 7. Storages 8. Diversion of water outside basin 9. Competing priority between - i. Irrigation vs. Drinking water; ii. Rural vs. Urban demand; iii. Irrigation I Power generation vs. Flood moderation; iv. Cost of construction of uses vs. Maintenance of minimum flow; v. Irrigation vs. Fish culture; vi. Wet crop vs. Aqua culture; vii. Rice cultivation vs. Irrigated dry crop: viii. Irrigation vs. Hydropower generation; ix. Peak demand of Hydropower generation vs. Peak demand for Irrigation and; x. Tourism vs. Hydropower. 10. Any other beneficial use.

4.1.3 The equitable distribution does not have any straight jacket formula as each river basin has unique 2648

characteristics. Following factors amongst others would be relevant in determining the share while distributing waters equitably. 1. Population 2. Drainage contribution 3. Priority of various uses of water 4. Committed uses 5. Economic and social needs of riparian States 6. Geography, Hydrology and drainage area of the basin 7. Scarcity or drought prone area in the basin 8. Culturable area in the basin 9. Dependability at which water is distributable 10. Demands outside the basin

4.1.4 The State of Maharashtra will rely on the following Acts and authorities:-

1. The Inter-State Water Disputes Act, 1956 2. The River Board Act 1956 3. The Constitution of India 4. Report of the Indus Commission 5. Decisions of the Indian Courts, River Tribunals, Supreme Court of USA and other countries 6. International Law on Equitable Apportionment 7. Helsinki Rules of lnternational Law Association 8. Settlement of International and Inter-State Water Disputes In India 9. Any other relevant material on the subject.”

2649

1377. Although various aspects to be considered for equitable apportionment of water of a basin have been described in the Chapter 4 of the “Further Amended Statement of case of the State of Maharashtra” (Volume 127), the Tribunal does not find specific information and details relating to Mahadayi river basin which could be useful in deciding the equitable share. The Tribunal notes that the requisite details are not furnished by the State of Maharashtra in respect of Mahadayi river basin to which the stated principles for equitable apportionment of water of river Mahadayi among the party States, should be applied.

1378. Further, during his arguments on 19.2.2018, Shri D. M. Nargolkar, learned Counsel for the State of Maharashtra, discussed the aspects of Principles of Equitable Distribution of Waters and in particular, he referred to the Article IV and Article V of the Helsinki Rule and Articles 10 to 16 of the International Law Association, Berlin Conference (2004). Shri Nargolkar also referred to the observations of the Krishna Water Disputes Tribunal – I (KWDT-I), and concluded as under.

2650

“It is therefore, submitted that the available water, at 75% dependability, be distributed between all the three riparian States on the above mentioned principles for equitable distribution.”

1379. The Tribunal also notes that the learned Counsel for the State of Karnataka has, on different occasions, referred to the Helsinki Rule and International Law Association, Berlin Conference (2004).

1380. The Tribunal proposes to reproduce the relevant Articles from the Helsinki Rule which are as under.

“Article IV

Each basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin.

Article V

1. What is a reasonable and equitable share within the meaning of Article IV is to be determined in the light of all the relevant factors in each particular case. 2. Relevant factors which are to be considered include, but are not limited to: 2651

a) the geography of the basin, including in particular the extent of the drainage area in the territory of each basin State; b) the hydrology of the basin, including in particular the contribution of water by each basin State; c) the climate affecting the basin; d) the past utilization of the waters of the basin, including in particular existing utilization; e) the economic and social needs of each basin State; f) the population dependent on the waters of the basin in each basin State; g) the comparative costs of alternative means of satisfying the economic and social needs of each basin State; h) the availability of other resources; i) the avoidance of unnecessary waste in the utilization of waters of the basin; j) the practicability of compensation to one or more of the co-basin States as a means of adjusting conflicts among uses; and k) the degree to which the needs of a basin State may be satisfied, without causing substantial injury to a co-basin State. 3. The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable share, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.”

2652

The relevant Articles from the International Law Association, Berlin Conference (2004) (MARK-KA/16) are also reproduced hereunder.

Article 10 Participation by Basin States 1. Basin States have the right to participate in the management of waters of an international drainage basin in an equitable, reasonable, and sustainable manner. 2. Basin States shall define the waters to which an international agreement regarding the management of waters of an international drainage basin applies; such an international agreement may apply to all or part of the waters of an international drainage basin or to a particular project or use, except that a use by one or more basin States shall not cause a significant adverse effect on the rights of or uses in another basin State without the latter State’s express consent.

Article 11 Cooperation

Basin States shall cooperate in good faith in the management of waters of an international drainage basin for the mutual benefit of the participating States.

2653

Article 12 Equitable Utilization

1. Basin States shall in their respective territories manage the waters of an international drainage basin in an equitable and reasonable manner having due regard for the obligation not to cause significant harm to other basin States. 2. In particular, basin States shall develop and use the waters of the basin in order to attain the optimal and sustainable use thereof and benefits therefrom, taking into account the interests of other basin States, consistent with adequate protection of the waters.

Article 13 Determining an Equitable and Reasonable Use

1. Equitable and reasonable use within the meaning of Article 12 is to be determined through consideration of all relevant factors in each particular case. 2. Relevant factors to be considered include, but are not limited to: a. Geographic, hydrographic, hydrological, hydrogeological, climatic, ecological, and other natural features; b. The social and economic needs of the basin States concerned; c. The population dependent on the waters of the international drainage basin in each basin State; 2654

d. The effects of the use or uses of the waters of the international drainage basin in one basin State upon other basin States; e. Existing and potential uses of the waters of the international drainage basin; f. Conservation, protection, development, and economy of use of the water resources of the international drainage basin and the costs of measures taken to achieve these purposes; g. The availability of alternatives, of comparable value, to the particular planned or existing use; h. The sustainability of proposed or existing uses; and i. The minimization of environmental harm.

3. The weight of each factor is to be determined by its importance in comparison with other relevant factors. In determining what is a reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole. Article 14 Preferences among Uses 1. In determining an equitable and reasonable use, States shall first allocate waters to satisfy vital human needs. 2. No other use or category of uses shall have an inherent preference over any other use or category of uses.

2655

Article 15 Using Allocated Water in Other Basin States

1. Allocation by agreement or otherwise to one basin State does not prevent use by another basin State to the extent that the basin State to which the water is allocated does not in fact use of the water. 2. Use of a water for purposes of this Article includes water necessary to assure ecological flows or otherwise to maintain ecological integrity or to minimize environmental harm. 3. Use of water by a basin State other than the one to which the water is allocated does not preclude the basin State to which the water is allocated from using the water when it chooses to do so. Article 16 Avoidance of Transboundary Harm

Basin States, in managing the waters of an international drainage basin, shall refrain from and prevent acts or omissions within their territory that cause significant harm to another basin State having due regard for the right of each basin State to make equitable and reasonable use of the waters.

1381. While arguing on 21.2.2018, Shri Mohan V. Katarki, learned Counsel for the State of Karnataka, also mentioned about the three categories of river basins from the view point of 2656

apportionment of water resources of the basin. Relevant extracts from his note of arguments are reproduced hereunder.

“2.1 The equitable apportionment of interstate rivers broadly falls into three categories. These are (1) fully appropriated basin; (2) semi appropriated basin; and (3) virgin basin. 2.2 The case relied upon by Counsel for the State of Goa on 20.02.2018 namely State of Colorado vs. State of New Mexico (74 Led 2d 348) falls in the first category. Justice Marshal in the very first paragraph of his opinion (542 states that – “the water of the Vermejo River is at present fully appropriated by users in New Mexico”. He further states that “Colorado seeks to divert water for future uses”. In this context, Justice Marshal concluded that “….it is entirely appropriate to consider the extent to which reasonable conservation measures by New Mexico might offset the proposed Colorado diversion and thereby minimize any injury to New Mexico users. Similarly, it is appropriate to consider whether Colorado has undertaken reasonable steps to minimize the amount of diversion that will be required”. Therefore, the downstream State new Mexico was mandated to show the reasonable conservation measures taken by it to reduce the wastage. Similarly, the upstream Colorado State was also mandated to show whether it has undertaken reasonable steps to minimize the diversion or demands. 2.3 However, this principle cannot and should not be applied to the basins falling in Category 2 or 3 mentioned above in para 2.1. The interstate Mahadayi 2657

basin falls in category 2 if not category 3. The existing utilization in the basin are 9.395 tmc which is less than 10% of the water allegedly estimated by Mr. Chetan Pandit or 5% of the yield of 199.60 tmc as estimated by CWC in 2003 at 75% dependability. The rest of the water is all the determination of future uses of downstream Goa and upstream States of Maharashtra and Karnataka. Even in the determination of future uses of both the States, the question is whether the claims of three States can be accommodated within the available water. If it is possible to accommodate the claims of three States within the available water, then there is no need for either conservation in downstream Goa or minimization of demands in the up streams States of Karnataka and Maharashtra. If the process of conservation and minimization namely verification of the claims is undertaken and the claims are reduced or disallowed, it would not serve any purpose. The overriding consideration in any equitable apportionment is that the scrutiny of the riparian States should not result in allowing the water to go to Sea.”

1382. The issues relating to equitable apportionment and allocation of water to party States, have been examined in detail by the Hon’ble Supreme Court in case of Cauvery (2018) 4 SCC 1. Apart from references to the averments made by the learned Counsel for the party States, the Hon’ble Supreme Court has examined the aspect relating to equitable apportionment at paras 397 to 413. 2658

1383. Hon’ble Supreme Court has reproduced all the relevant factors to be considered for arriving at the reasonable and equitable share as identified in Article V of the Helsinki Rule in para 397 of its Judgment and the Hon’ble Supreme Court has laid emphasis on the following factors. a. The economic and social needs of each basin state b. The population dependent on the waters of the basin in each basin state c. The availability of other resources

1384. At para 398 of its Order, the Hon’ble Supreme Court, has, inter-alia, observed as under.

“… The above factors, although not exhaustive, have been construed to be of significant bearing to ascertain the reasonable and equitable share of waters in an international drainage basin. The said principles can be regarded as functional dynamics while equitable distributing the water in an inter-State river disputes. The salient feature of all these factors has to have inherent variability and inevitable flexibility thereof having regard to the local conditions, for it is difficult to ignore the undeniable and common emphasis necessary to ensure beneficial use of the available resources for a basin state and logically for its dependent populace 2659

warranted by the economic and social needs. Be it stated, while determining the said needs, amongst others, past and existing utilization of the water have to be borne in mind. To remain oblivious to the same would amount to playing possum with the doctrine of equitable distribution in praesenti. …”

1385. In view of above, the Tribunal considers it proper and necessary to examine all facts relating to apportionment of water of Mahadayi river basin in light of the relevant Articles of the Helsinki Rule and the International Law Association, Berlin Conference (2004) (MARK-KA/16) and particularly keeping in view the specific observations of the Hon’ble Supreme Court.

1386. The Tribunal notes that the information made available by the party States are not at all adequate to examine the various factors identified for arriving at the reasonable and equitable share as identified in Article V of the Helsinki Rule and the relevant Articles of the the International Law Association, Berlin Conference (2004) (MARK-KA/16). As a matter of fact, the information and details provided by the party States are neither (a) consistent, nor (b) based on proper investigation, nor (c) backed by scientific research, nor (d) supported by detailed 2660

analysis, nor (e) presented in the form of bankable project reports. The Tribunal also notes that none of the projects / schemes identified for utilization of water resources of the Mahadayi basin, have got mandatory clearances. In this regard, it is noted by the Tribunal that the above deficiencies remain un- addressed despite specific observations and direction of the Tribunal from time to time.

1387. The Tribunal along with legal and technical teams of the three co-basin States, visited various relevant projects / sites etc. in the States of Goa, Karnataka and Maharashtra during December 12-24, 2013. After completion of the last programme i.e., meeting with the officials of the Government of Karnataka on 23rd December 2013, where members of the legal and technical teams of all the three States were present, the Chairman, Mahadayi Water Disputes Tribunal made his concluding remarks. The Chairman, inter-alia- stated as under.

“… I would like to share with you some of the common observations which emerged during visit to various sites etc. in Goa, Karnataka and Maharashtra.

2661

Some important facts about basin features as also about water related points were highlighted by experts. But it emerged that many of the facts are neither included in the statement of case or statement of claims of the States nor adequately elaborated.

Another very important point relates to inconsistency in information and data. This was apparent at almost all the sites which were visited in Goa, Maharashtra and Karnataka.

It also emerged that in many cases, the information were not fully substantiated through facts, authentic information etc. such as detailed plan including contour plan, detailed drawings and construction drawings wherever applicable.

I am confident that the members of the legal and technical teams will take all necessary measures to ensure that the information and data are consistent and that these are duly substantiated through authentic sources, proper studies and related documents. This will help all of us in better appreciation of the issues. …”

1388. During the course of hearing on 3.9.2014, the Tribunal handed over copies of the “Brief Note on Inconsistencies in Data / Information related to Water Availability and Water Requirements projected by the States of Goa, Karnataka and Maharashtra through the Statements of Case / Statement of 2662

Claims and Related Documents” to the learned Counsel appearing in the matter. The relevant extracts from the Brief Note are reproduced hereunder.

“1. Two basic inputs essentially required during the course of decision making process of judicious allocation of share of waters among the various stakeholders and for different purposes are: (a) water availability assessed at various locations; and (b) water requirements for meeting the present and future demands of water for various purposes. In addition, information related to prioritization of water use keeping in view the socio- /economic profile of the areas are also considered necessary. Though the legal issues are undoubtedly very important but rational assessment of water availability and water requirements for various purposes on a sound and accepted principles remain basic inputs.

2. The statements of case / statement of claims, written statements and rejoinders submitted by the three co-basin States along with the related documents provide some information relating to these two basic inputs, the examination of the documents provided by the three States indicates that in many cases, the information provided by the respective States are not consistent and in some cases are contradictory. Some inconsistencies were also observed by the Tribunal during the visit to various projects / sites etc. in the States of Goa, Karnataka and Maharashtra in December 2013 which are indicated in the report on the visit. Obviously, inconsistent informations cannot be the basis 2663

of meaningful arguments during the process of arriving at reasonable assessment of the available water resources and judicious allocation of share of waters among the various stakeholders and for different purposes.

3. Without going into the merits of the facts as provided through data and informations included in the documents filed by respective State Governments and without comparing the data / information provided by one State with that of other States at this stage, some specific cases of inconsistencies in data / information appearing in the documents are cited as under.

…”

Thereafter, a detailed Order was passed by the Tribunal giving directions to the three party States as well as the Central Government with a view to securing the required material, data etc. to enable the Tribunal to decide the basic inputs essentially required during the course of decision making process of judicious allocation of share of waters among the various stakeholders.

1389. However, the Tribunal notes that despite clear directions, the respective States have failed to provide requisite information which are adequate and consistent, based on proper 2664

investigation, backed by scientific research and studies and supported by detailed analysis. In particular, the specific issues such as (a) the economic and social needs of each basin state, (b) the dependence of the population on the waters of the basin in each basin state, and (c) the availability of other resources, have not at all been examined by any of the States in scientific manner. In this regard, the Tribunal also notes that two important aspects, namely (a) sustainability, and (b) minimization of environmental harm, have not been scientifically examined by the States while presenting their case for future projection of water demand. In this regard, the relevant Articles from International Law Association, Berlin Conference (2004) (MARK-KA/16), are reproduced hereunder. “… Article 7 Sustainability States shall take all appropriate measures to manage waters sustainably. … Article 8 Minimization of Environmental Harm States shall take all appropriate measures to prevent or minimize environmental harm. …”

2665

1390. Apart from the fact that the requisite scientific studies are not on the record, the Tribunal has also come across serious issues of conflicting interpretation. The Tribunal notes that this aspect has also been flagged by the Hon’ble Supreme Court at para 379 of its Order. The relevant extract from the Judgment of the Hon’ble Supreme Court are reproduced hereunder.

“413. It needs to be stated that the gravamen of the rival assertions span from wrong application of the principles of equitable apportionment to the facts of the case, defective assessment of the materials on record bearing on the requirements registered by the competing States, faulty approach in the matter of evaluation of the parameters bearing in particular on the crop water requirement, ground water availability and use and unmerited rejection of various projects as testimony of rightful claims to resultant inaccurate allocation of the water of the inter-state river involved. …”

1391. In view of above, the Tribunal is constrained to take a view that the allocation of entire water of the Mahadayi basin among the three party States would not be appropriate at this stage. This is more so in view of the fact that present level of consumptive use of water resources in Mahadayi basin is relatively very very less. However, the Tribunal is fully aware of 2666

the importance of the development of water resources for meeting the ever-rising needs and aspirations of the people and therefore, the Tribunal has examined all the proposals put forward by the States and taken a view on their suitability or otherwise. The Tribunal, accordingly, has permitted the States to take up specific developmental activities. Further, the Tribunal is of the firm opinion that immediate action is required to be taken in respect of: (a) observation and collection of water resources data including hydro-meteorological and hydrological data in systematic and correct manner, (b) hydrological analysis; (c) studies in respect of environmental issues and likely impact of climate change; and (d) planning for sustainable development of water resources of the Mahadayi basin. The Tribunal therefore expresses the view that all these exercises must be undertaken by the “Mahadayi Water Management Authority” so that dependable information are available for equitable apportionment of water among the party States, which can be considered after 30 years from now.

2667

WATER SHARING MECHANISM

1392. After considering all the relevant facts put up by the party States before the Tribunal, the diversion of (a) a maximum of 1.72 tmc of Mahadayi water corresponding to 75% dependability from proposed diversion point on the Kalasa Nala by the State of Karnataka, (b) a maximum of 2.18 tmc of Mahadayi water corresponding to 75% dependability from proposed diversion point on the Bhandura Nala by the State of Karnataka, and (c) utilization of a maximum of 0.56 tmc of Mahadayi water corresponding to 75% dependability for consumptive uses from proposed Virdi Large Minor Irrigation Project by the State of Maharashtra have been permitted by the Tribunal. The permitted (a) diversion of 1.72 tmc from proposed diversion point on Kalasa Nala, (b) diversion of 2.18 tmc from proposed diversion point on Bhandura Nala, and (c) utilization of 0.56 tmc from proposed Virdi Large Minor Irrigation Project will be inclusive of reservoir losses, etc.

1393. In the water years when the inflow into the reservoir(s) at the proposed project site are less than that estimated one at 75% dependability, there shall be reduction in 2668

the quantum of diversion permitted, in order to ensure that reasonable quantum of water flows downstream of the proposed project(s) so that adequate flow for meeting environmental needs is maintained by the project authority.

1394. The proposed Mahadayi Water Management Authority (NWMA) and / or the Central Water Commission (CWC) will meticulously analyze the available data and develop an appropriate regulation model in consultation with the concerned State Governments.

1395. The Tribunal has permitted the State of Karnataka and the State of Maharashtra for consumptive uses of water by diversion at specific project sites corresponding to availability at 75% dependability either for in-basin use or uses outside the basin after taking into consideration the e-flow requirements which is corresponding to the 90% dependability. The Tribunal finds that in case two projects namely, Kalasa-Bhandura Project in Karnataka and Virdi Project in Maharashtra, the respective State Governments have, taken up the construction activities in respect of some components. The Tribunal has accorded permission for various projects subject to fulfilling specific 2669

directions that: (a) the State Governments shall undertake fresh planning and development of scheme for consumptive uses within the basin and / or diversion outside the basin including the reservoir losses etc. for not more than specified quantity; and (b) the proposals in the form of Detailed Project Reports would be considered for implementation only (i) after technical appraisal of the proposed projects by the Central Agencies, and (ii) after obtaining all mandatory clearances as required. In view of the fact that works on some components have already been taken up, the respective State Governments may expedite the process of preparation of revised Detailed Project Reports, their appraisal by Central Agencies and obtaining the mandatory clearances, and take up the works early.

1396. With a view to ensuring that soon after completion of the aforesaid projects, a reasonable quantum of water flows downstream of the proposed project(s) for meeting environmental needs, the Tribunal has examined the flow series generated at the various identified sites and it is found that the quantum of water corresponding to 30% of the 90% dependable flow, varies from about 18% to 25% of the 75% dependable flow. With a view to arriving at a sharing formula to be adopted for 2670

regulation of inflows at the control points, simulation study using flow series has also been carried out. It is found that necessary requirement of e-flow as well as the conditions of success rates in respect of the aforesaid three projects would be met with, by restricting the releases for diversion to 76% of the inflow, into the reservoirs.

1397. For the purpose of regulation of the diversion of Mahadayi waters, the water year will be considered to start from 1st June and end on 31st May. However, the diversion of water will be permitted only during the five months monsoon period i.e., from 1st June to 31st October. Even if, some inflows are observed into the reservoir(s) during the non-monsoon period, no diversion is permitted out of the inflow during the non- monsoon period starting from 1st November to 31st May.

1398. Till such time the regulation model is developed in consultation with the concerned State Government(s), following procedure shall be adopted for regulation of flow from the projects sites.

2671

a. The inflow at the three projects i.e., (i) proposed diversion point on the Kalasa Nala, (ii) proposed diversion point on the Bhandura Nala, and (c) proposed Virdi Large Minor Irrigation Project, would be observed by MWMA or by CWC on daily basis, and proper record of the same should be maintained. In addition, the estimate of the reservoir losses would also be made, by the project authorities and proper record of the same shall be maintained. In case, the concerned State Government proposes to depute its representatives to be present during the measurement of inflow, they shall be allowed to be present and witness the measurements. b. For each time-step adopted for regulation of the inflows / outflows, the sum total of (i) the diversion from the reservoir, (ii) change in the reservoir storage during the time-step, and (iii) the reservoir losses, shall not be more than 76% of the observed inflow into the reservoir. c. Proper record of the quantum of diversion on daily basis, shall be maintained. Simultaneously, the record of cumulative quantum of water diverted from the reservoir with effect from 1st June shall also be maintained. 2672

d. As soon as the cumulative quantum of diversion or utilization (including the reservoir losses) equals the permissible limit (1.72 tmc at proposed diversion point on the Kalasa Nala, 2.18 tmc at proposed diversion point on the Bhandura Nala and 0.56 tmc at proposed Virdi Large Minor Irrigation Project), no more diversion of water will be allowed and the gates will be closed and all inflows during non-monsoon period shall be allowed to flow downstream of the project.

RECOMMEDNATIONS MADE BY THE MAHADAYI WATER DISPUTES TRIBUNAL

Data Observation and Data Bank

1399. As per Section 9A(1), The Central Government has to maintain a data bank and information system at the national level for each river basin, which shall include data regarding water resources, land, agriculture, and matters relating thereto. Further, it stipulates that the State Government shall supply the data to the Central Government or to an agency appointed by the Central Government for the purpose, as and when required.

2673

1400. Section 9A(2) states that the Central Government shall have powers to verify the data supplied by the State Government, and appoint any person or persons for the purpose and take such measures as it may consider necessary. The said Sub-section further postulates that the person or persons so appointed shall have the powers to summon such records and information from the concerned State Government as are considered necessary to discharge their functions under this Section.

1401. The Tribunal has been informed that Central Water Commission (CWC) is responsible for observation of data in respect of gauge, discharge, sediment and water quality at key Gauging Stations throughout the country. The data so collected are processed and stored by the regional offices of CWC and are made available to the users’ agencies after following the prescribed procedures. Further, there is a ‘River Data Directorate’ at the CWC Headquarters. CWC also brings out ‘Water Year Book’ in respect of hydrological data of basins which are in public domain.

2674

In addition to collection of hydrological data by CWC from key Gauging Stations, hydrological data are also collected by the Water Resources Departments of the respective State Governments.

1402. The Tribunal is informed that Central Water Commission and ISRO have jointly developed Web-based India Water Resources Information System, which includes information related to Basins, River Network, Water Resources Projects, Water Bodies/Reservoirs along with Ground Water Resources data collected by Central Ground Water Board (CGWB), and information in respect of hydro-meteorological data such as rainfall, temperature etc. collected by the India Meteorological Department (IMD).

1403. This Tribunal notices that consequent upon approval of the Cabinet, National Water Informatics Centre (‘NWIC’ in short), has recently been created by the Ministry of Water Resources, River Development and Ganga Rejuvenation at New Delhi, vide notification dated 28th March 2018. NWIC is supposed to be a repository of nation-wide water resources data and would be headed by a Joint Secretary level officer. 2675

1404. In this backdrop, National Water Informatics Centre is expected to provide a ‘Single Window’ source of updated data on water resources and allied themes. It is further expected that the said Agency shall also provide value added products and services to all stake holders for its management and sustainable development.

1405. The experience of Mahadayi Water Disputes Tribunal is that there was no single source for supply of necessary data required for assessment of water availability. On the basis of information provided by the States of Goa, Karnataka and Maharashtra, the position in respect of source of related data is as under.

Observed gauge and discharge data a. Observed discharge data at Ganjim and Collem Gauging Stations for the period from 1979 to 2012 by Central Water Commission b. Observed discharge data at Khadki, Daucond, Kudchire and Paikul for varying period from 2009 to 2013 by the Water Resources Department of the State of Goa 2676

c. Observed discharge data at Chapoli for the period from 1985 to 1991 and from 2000 to 2013 by the Water Resources Department of the State of Karnataka d. Observed discharge data at Virdi for the period from 1986 to 2004 and 2006 to 2011 by the Water Resources Department of the State of Maharashtra

Data in respect of rainfall Rainfall data have been collected by CWC as well as by the State of Goa from IMD. Further, the rainfall data in respect of Rain Gauge Stations maintained by the State of Goa, the State of Karnataka and the State of Maharashtra have also been made available by the respective State Governments.

Data in respect of sedimentation, evaporation, infiltration etc. were neither collected nor made available by any of the party States. Limited information in respect of utilization were made available by the respective State Governments. In respect of basin features, only general information about topography, geological features and soil characteristics etc. were included by the party States in the documents filed by them.

2677

1406. On examination of the data provided by the party States, the Tribunal found serious issues relating to variations in the data of same station for the same period reported in documents filed by two States, or reported in two different documents of the same State, particularly in respect of rainfall data. Further, the Tribunal noticed that consistency of the data was a serious issue. It was found by the Tribunal that proper consistency checks were not carried out by any agency which led to varying conclusions about the quality of data.

1407. The Tribunal noted that none of the party States had undertaken the exercise for external consistency despite the procedure being clearly identified in the “Guidelines for Preparation of Detailed project Reports of the Irrigation and Multipurpose Projects” (MARK-5) and considerable hydro- meteorological and hydrological data from several stations being available. Obviously, the decisions of experts considering the data of certain period of the particular station as ‘not acceptable’ or ‘acceptable after modification’ was not based on thorough examination of all aspects.

2678

1408. Under the circumstances, the Tribunal recommends that the NWIC must be charged with the following responsibilities.

a. All the States of Union of India as well as Union Territories should be directed to adopt a uniform methodology, for collecting data from Hydrological Observation Stations on various rivers or their tributaries. b. All the States of Union of India as well as Union Territories should be directed to follow the procedure for observation of rainfall data as laid down by IMD in respect of Rain Gauge Stations. c. All water related data, particularly (i) hydro-meteorological data, (ii) hydrological data, and (iii) water use data being observed by various agencies of the Central Government, State Governments or other Institutions, must be collected, thoroughly checked, processed and stored by the NWIC. d. The data in respect of water utilization should be comprehensive and must include all information, particularly those in respect of water supply from the sources, the water actually utilized and the losses at different stages. 2679

e. The data so collected must be checked properly for accuracy and consistency, and only those data, which are found to be: (i) observed as per prescribed procedure; (ii) consistent; and (iii) reliable, should be kept in public domain. f. The data found to be inconsistent and not observed properly should be referred for further detailed examination to the competent central agency with the objective of identifying the possible sources / causes of errors and rectifying the same and taking corrective measures for future observations including Advisories to the agencies responsible for observations.

Guidelines for Hydrological Analysis for Assessment of Water Availability and Training for Professionals

1409. The Tribunal notices that the Union Ministry of Water Resources has issued the “Guidelines for Preparation of Detailed Project Reports of the Irrigation and Multipurpose Projects” which inter-alia includes a chapter on ‘Hydrology’ describing various procedures including that for assessment of water availability.

2680

1410. However, the Tribunal found that none of the party States or the Experts who appeared as witnesses before the Tribunal, followed the procedure prescribed in the Guidelines. Most of the Experts considered hydrology as an in-exact science and chose to deviate from the Guidelines issued by the Ministry of Water Resources and adopted approach of their own likings. This has led to considerable variation in the process of assessment of water availability and hence the ultimate results. Some notable variations / contradictions noted by the Tribunal are as under.

a. Length of data used for development of rainfall runoff relation varied from 10 years to 34 years b. Length of data used for generation of time series of annual yield varied from 25 years to 85 years c. An expert opined that out of 34 years of observed discharge data at Ganjim by CWC, the data of only 5 years was acceptable. He modified the data of 22 years and ignored the data of 7 years for the purpose of his analysis on one ground or the other. d. Another expert opined that the observed discharge data of 34 years observed at Ganjim by CWC was consistent, but at 2681

the same time, he decided to ignore the data of 9 years for the purpose of development of Rainfall-Runoff relations. However, for the purpose of assessment of water availability at a project site, the Expert used the observed data of all the 34 years including those which were ignored by him for development of Rainfall-Runoff relations. The expert also opined that the data observed at Collem by CWC was not consistent and that he decided not to use the data in one of his Reports, but he used the data of Collem for estimation of yield at a proposed project site. e. Even CWC opined that the data of Ganjim were consistent but the data of 9 out of 20 years were ignored by CWC for the purpose of development of Rainfall-Runoff relation. f. Various Experts employed different methods for filling-in the missing rainfall data. g. The Experts chose different methods for estimating the average rainfall – sometimes the Thiessen Polygon Method was used while on other occasions, Arithmetic Mean Method was used.

1411. The Tribunal notes with concern that despite availability of considerable data, in respect of rainfall and runoff, 2682

no serious effort was made to examine the data as per the standard procedures included in the Guidelines, take a rational view after considering all aspects and develop an appropriate Rainfall-Runoff model which would represent the flow characteristics that would be useful in decision making process.

1412. Although the sources of most of data collected by the party States were same i.e., CWC in respect of river flow data at Ganjim and Collem, and IMD in respect of rainfall data at various stations in and around the basin, each of the three States have projected different figures relating to availability of water in Mahadayi Basin with very large variations. The estimated water availability at 75% dependability for the entire Mahadayi basin, which were reported by the party States and the experts, varied from 208.73 tmc to 145.05 tmc. One State would contend that Mahadayi Basin is a surplus basin whereas another State would contend that Mahadayi Basin is a deficient one. The result was that the Mahadayi Water Disputes Tribunal had to struggle a lot to arrive at an acceptable yield of Mahadayi Basin at 75% dependability, due to which, most of the time of the Tribunal was occupied only in determining the yield of Mahadayi Basin at 75% dependability. 2683

1413. The situation is undoubtedly very serious. This is more so in view of the fact that the Hydrology Studies Organization of CWC is fully devoted to hydrological analysis and a premier research institute namely, National Institute of Hydrology is in existence since 1978 with main objective of undertaking, aiding, promoting and coordinating systematic and scientific work in all aspects of hydrology. As per the web-site of the National Institute of Hydrology, the Institute is well equipped to carry out computer, laboratory & field oriented studies. Further, the Tribunal is also informed that a Hydrology Project with assistance of the World Bank is being implemented by the Union Ministry of Water Resources since 1995, that the Phase-I and Phase-II of the said project have since been successfully implemented and that the Phase-III of the project is currently under implementation with objectives “to improve the extent, quality and accessibility of water resources information, and to strengthen the capacity of water resources management institutions in India”.

1414. The Tribunal is baffled and also anguished that despite availability of considerable data, existence of expert organization and institutions and implementation of specific 2684

projects related to hydrological data, hydrological analysis and capacity building, the Tribunal had to struggle for arriving at an acceptable value of water availability at 75% dependability of the Mahadayi basin.

1415. Under the circumstances, the Tribunal feels it proper to recommend the Union Ministry of Water Resources, River Development and Ganga Rejuvenation as under.

a. The Union Ministry of Water Resources, River Development and Ganga Rejuvenation should undertake comprehensive and critical review of the existing Guidelines with the objective of identifying the reasons as to why the provisions related to assessment of water availability could not be and cannot be strictly adhered to. b. The Union Ministry of Water Resources should urgently prepare comprehensive Guidelines and Manuals with the objective of: i. introducing standard practices to be used under given conditions of data availability etc. by all agencies of the Central and State Governments associated with water resources planning and particularly in respect 2685

of planning for water resources of inter-State river basins; ii. minimizing the element of personal judgments by the expert; and iii. arriving at most rational and acceptable assessment of water availability. c. As observed earlier, the management of Water Resources and more particularly determining yield of a basin of an inter-State River, is highly complex and tedious task that involves expertise of multi-disciplinary domains etc. Therefore, the engineers, technicians etc. who are involved in determining the yield of a basin of an inter-State River, must be given sufficient training, particularly in the areas of data collection, processing of data, and assessment of water availability of the basin as a whole and at important locations in the basin. d. Refresher courses must be introduced at national level so that correct data is collected by the agencies of the Central and State Governments as per the standard practices and is beneficially used in hydrological analysis. e. The emphasis of the training and refresher courses should be on imparting knowledge to the professionals working in 2686

field formations and responsible for data observation and its analysis.

1416. Union Ministry of Water Resources, River Development and Ganga Rejuvenation should prepare Action Plan to ensure that the provisions of National Water Policy, 2012, are implemented by each State in spirit and letter and that ‘water for life’ i.e. the basic safe water requirements for realization of the fundamental right to life of each human being, including drinking, cooking, bathing, sanitation, personal hygiene and related personal or domestic uses, with additional requirement of human for their especial needs and water requirement for domestic lives, is made available to each citizen of India.

Suggestions for Reviewing the Provisions of the Inter-State River Water Disputes Act, 1956

1417. During the course of hearing of the disputes between the State of Goa, the State of Karnataka and the State of Maharashtra, this Tribunal found that there are certain basic lacunae in the provisions of the Inter-State River Water Disputes 2687

Act, 1956 and, therefore, following suggestions are made to the Central Government:

a. The Mechanism, dealing with inter-State water disputes, functions ineffectively because of several reasons. The most prominent problem faced by an inter-State Water Disputes Tribunal is that it does not have any effective authority or power or jurisdiction for the implementation of its Award/ Report/ Final Decision. The Tribunal can only give an Award, but cannot enforce its implementation. Therefore, appropriate amendment should be made in the Inter-State Water Disputes Act, 1956, conferring power and authority upon the Tribunal to implement its Award / Report / Final Decision. If necessary, the powers for punishment for contempt or non-compliance of Award / Report / Final decision must be conferred upon Inter-State Water Disputes Tribunals. b. This Tribunal finds that before constituting a Water Disputes Tribunal, the Central Government has to form an opinion that the water dispute cannot be settled by negotiations. It is essential that the legal frame work of the dispute-settlement mechanism should be constantly 2688

strengthened. It is noticed that the water disputes are merely seen as political issues and water management problems. Thus, for solving such disputes, interminable conferences attended by political representatives, bureaucrats and water management engineers, take place and legal aspects get pushed into the background. With legal aspects getting blurred, such conferences hardly lead to any settlement, with the result that the water disputes drag on. The consequent delay in the settlement of water disputes blocks the development of water resources and causes untold miseries to the concerned States and their people. It should be clearly understood that whenever there is an element of rights or interests of several contesting parties, the content of law automatically comes into play and its proper recognition and handling is a must. Apathy towards the legal aspects is bound to result in unwanted prolongation of the concerned disputes. c. In order to bring the parties to the Inter-State Water Disputes to the negotiating table, it may be helpful to constitute Joint Commissions or Boards under the River Boards Act, 1956. Such Boards can smoothen the process of negotiation between the contending parties. In case a 2689

Tribunal is set up for settling some inter-State water dispute, the Joint Commissions or Boards can assist the concerned Tribunal also in expediting the dispute- settlement process, by supplying necessary data. Such Commissions and Boards can also be helpful, after the conclusion of the negotiated agreement or the decision of the Tribunal, for the purpose of administering or implementing the agreement or the Award of the Tribunal, as the case may be. d. A convention should grow in such a way that the Central Government constitutes a Tribunal and refers the concerned dispute to it without any unreasonable or avoidable delay, after the receipt of a complaint in that regard. e. It has been noticed that there is quite often a long delay in the publication of the decision of the Tribunal. Such delays cause a great deal of inconvenience and hardship to the parties. The present provisions in the concerned Statute are very vague in this regard. Once the Tribunal has communicated the decision to the Central government and contestant parties, the decision of the Tribunal must be 2690

published in the official Gazette as early as possible so that its implementation is not delayed. f. On the basis of the provisions of the Water Prevention and Control of Pollution Act, 1974, the River Boards Act, 1956 and the Environment Protection Act, 1986, the Government should create Boards to monitor and prevent environment pollution including, of course, water pollution. g. Section 4 of the Inter-State Water Disputes Act, 1956, should be amended in such a way and / or manner as to prescribe therein that the States Concerned shall make their utmost endeavor to settle an inter-State water dispute through an Agreement and that such an agreement will be ratified within a specified period of time say three months. Further, there should be a provision in the said Act that on being ratified, such agreement will be deposited with the Ministry of Water Resources of the Central Government and thereafter the validity and authenticity of such agreement shall not be challengeable by way of amendment. A provision should be made that review of the Decision/Award of the Tribunal after the lapse of reasonable time, say twenty or thirty years, in the light of any substantial change in circumstances, is permissible. 2691

h. It should be specifically mentioned in the Inter-State Water Disputes Act, 1956, somewhere that the term “State Government” includes “Union Territory Government” also so that, the disputes by or with the Union Territories also could come within the purview of the said Act.

Participation of Union Government in the proceedings of the Tribunals

1418. The para 1.3 of the National Water Policy, 2012, inter- alia states as under.

“1.3 Public policies on water resources need to be governed by certain basic principles, so that there is some commonality in approaches in dealing with planning, development and management of water resources. These basic principles are:

(i) Planning, development and management of water resources need to be governed by common integrated perspective considering local, regional, State and national context, having an environmentally sound basis, keeping in view the human, social and economic needs. (ii) Principle of equity and social justice must inform use and allocation of water. (iii) Good governance through transparent informed decision making is crucial to the objectives of equity, 2692

social justice and sustainability. Meaningful intensive participation, transparency and accountability should guide decision making and regulation of water resources. …”

In view of the above, the Union Government has to play an important role in planning and management of water resources of the country, particularly in respect of (a) collection of necessary data / information, (b) independent examination of facts and needed studies, (c) research and training, (d) evaluation of proposals formulated by the States, and (e) monitoring of projects, etc. The role of the Union Government becomes vital in respect of inter-State River Basins.

The experience of this Tribunal is that data and studies of the Central Agencies and Guidelines / Manuals etc. prepared by the Union Government were very often referred to by the party States with varying interpretations. On many occasions, clarifications were needed to have true interpretations of the data / information and provisions of the Guidelines / Manuals etc. Therefore, this Tribunal is of the opinion that the presence of a representative of the Union Government during the proceedings before the Tribunal(s) will help considerably in 2693

timely disposal of the issues and arriving at the most rational decisions. Further, another very important aspect relates to concerns of the Union Government in specific matters, like, priority of uses, particularly when the States have varying priorities which are different from what emerges from the National Water Policy.

In view of above, it is recommended that the Union Government should also be represented appropriately during the proceedings of the Tribunal.

AWARD AND FINAL DECISION OF THE TRIBUNAL

1419. In view and on the basis of the discussions held and the findings recorded on the issues hereinbefore, the following order is passed.

Clause-I The river Mahadayi or river Mandovi or river Madei or river Mhadei is one and the same river system, specific name being used in a particular region, and river Mahadayi or Mahadayi river 2694

basin, referred to in this Order is for the entire river and river system.

Clause-II The Mahadayi river basin drains an area of 2032 sq.km., out of which an area of 375 sq.km. lies in the State of Karnataka, 77 sq.km. in the State of Maharashtra and rest in the State of Goa.

Clause-III For the purposes of this case, the water availability of the entire Mahadayi river basin (inclusive of all tributaries) with total catchment area of 2032 sq.km. i.e., runoff generated over the catchment area of 2032 sq.km. of Mahadayi river basin at 75% dependability is determined as 2621.8 Mcum (188.06 tmc). The water availability determined herein does not include the import of water to Mahadayi river basin from Tillari (Chapora) river through Tillari Irrigation Project.

Clause-IV For the purposes of this case, the water availability of the catchment area of the Mahadayi river including the tributaries of the Mahadayi river in the territory of the State of Karnataka (for 2695

the catchment area of 375 sq.km.) at 75% dependability is determined as 909.8 Mcum (32.11 tmc).

Clause-V For the purposes of this case, the water availability of the catchment area of the tributaries of the Mahadayi river in the territory of the State of Maharashtra (for the catchment area of 77 sq.km.) at 75% dependability is determined as 204.2 Mcum (7.21 tmc).

Clause-VI Having noted the facts that: (a) the present level of utilization of waters of Mahadayi river basin is not more than 5% of the water availability at 75% dependability; (b) the projection of the future requirements of waters of Mahadayi river basin by the respective party States for various purposes in the States is not fully justified as the projections are (i) not based on adequate and consistent data / information, (ii) not based on scientific research and studies, (iii) without proper evaluation and consideration of social, economic and ecological 2696

considerations, and (iv) without examining the sustainability of the resource; and (c) all the requisite data and information required for evaluation of the demands of the three States for equitable apportionment in light of various criteria, particularly those mentioned in either the Helsinki Rules or the Water Resources Law of International Law Association, Berlin Conference, 2004, are not provided by the respective States in their respective Cases / Claims; the Tribunal finds that equitable apportionment of Mahadayi waters amongst the party States is neither necessary nor feasible at this stage.

Clause-VII The Tribunal is of the firm view and hence decides that in the absence of any apportionment of water amongst the party States, the activities related to water resources development for the benefit of the society must not stop and people of the party State must not suffer. Therefore, the Tribunal, after examination of the various proposals submitted by the States and keeping in view all available information and particularly from the view point of (a) sustainability of the resource, and (b) ecological 2697

needs, permits the States to undertake specific activities as stated in Clause-VIII.

Clause-VIII The three party States viz. Karnataka, Maharashtra and Goa, are permitted to undertake specific water resources development activities in the Mahadayi river basin as under.

A. KARNATAKA i. The demand of the State of Karnataka for 42.5 Mcum (1.5 tmc) of water for in-basin consumptive use for drinking water and irrigation within the Mahadayi river basin, along with evaporation losses from the reservoir(s) through proposed Mahadayi Hydro-Electric Project (MHEP) is considered as reasonable and is hereby granted by the Tribunal. ii. Keeping in view the overall scenario related to water availability, water needs, water demands, essential requirements towards environmental flow, etc., the State of Karnataka is also permitted to divert 61.8 Mcum (2.18 tmc) of Mahadayi water at proposed Bhandura dam and 2698

48.7 Mcum (1.72 tmc) of water at proposed Kalasa dam, only subject to fulfilling the following directions: a. The State of Karnataka shall undertake fresh planning and development of schemes for consumptive uses within the basin and / or diversion of water outside the basin, including the reservoir losses, etc., for not more than 61.8 Mcum (2.18 tmc) at the proposed Bhandura dam site; and b. The State of Karnataka shall undertake fresh planning and development of scheme for consumptive uses within the basin and / or diversion of water outside the basin including the reservoir losses etc. for not more than 48.7 Mcum (1.72 tmc) at the proposed Kalasa dam site. c. Such utilizations shall necessarily require thorough review and modification of the Detailed Project Reports by the State Government of Karnataka. The State of Karnataka shall prepare modified Detailed Project Reports (DPRs) for diversion of water from the Mahadayi river basin. d. The proposals in the form of Detailed Project Reports would be considered for implementation only after 2699

technical appraisal of the proposed projects by the central agencies, and only after obtaining all mandatory clearances as required by law. iii. The State of Karnataka is permitted to develop the Mahadayi Hydro Electric Power Project at Kotni for hydropower generation, a non-consumptive use, in addition to the aforementioned consumptive use of 42.5 Mcum (1.5 tmc) of water within the basin for drinking water, irrigation, etc. However, the State of Karnataka shall modify the Detailed Project Report (DPR) of the proposed Mahadayi Hydro Electric Power Project adopting the water availability at 75% dependability at the proposed project site limiting to a maximum of 227.4 Mcum (8.02 tmc) i.e., the water availability at 75% dependability assessed by the Tribunal (from the catchment area of 93.19 sq.km. i.e., without the Bhandura catchment of 32.25 sq.km.) only. The State of Karnataka is directed in clear terms that such utilizations would be permissible only after thorough review and modification of the Detailed Project Reports and that the proposals in the form of Detailed Project Reports would be considered for implementation only: (a) after technical appraisal of the proposed projects by the 2700

Central Agencies; and (b) after obtaining all mandatory clearances as required by law. Until such exercises are completed, no amount of water shall be actually utilized by the State of Karnataka at the proposed Mahadayi Hydro Electric Power Project at Kotni. iv. The demand of the State of Karnataka for diversion of 156.6 Mcum (5.527 tmc) of water of Mahadayi river basin to the Supa reservoir of the Kali Hydro-Electric Power Project, for generation of hydro-power is not found justified by the Tribunal, and is therefore, rejected. v. The demand of the State of Karnataka in respect of proposed diversion of 198.3 Mcum (7 tmc) of surplus water from the proposed Kotni reservoir of the Mahadayi Hydro Electric Power (MHEP) Project, has also not been found justified and is hereby rejected by the Tribunal. B. MAHARASHTRA i. The Tribunal permits the State of Maharashtra limiting to 15.93 Mcum (0.56 tmc) of water for Virdi Large MI Project, which shall include all consumptive uses including reservoir losses, subject to the condition that the State of Maharashtra shall revise the project features and prepare a modified detailed project report (DPR) to utilize a maximum 2701

of 15.93 Mcum (0.56 tmc) of water for various purposes within the basin. ii. The Tribunal also permits the State of Maharashtra to use a total of 21.8 Mcum (0.77 tmc) of water in respect of four proposed projects, viz., (a) 0.32 tmc for (Morachi Rai) Minor Irrigation Project, (b) 0.16 tmc for Virdi B Minor Irrigation Project, (c) 0.27 tmc for Dhangarwadi Minor Irrigation Project, and (d) 0.02 tmc for Ambadgaon Minor Irrigation Project. iii. The aforesaid projects shall require thorough review and modification of the Detailed Project Reports by the State Government of Maharashtra before implementation and shall be undertaken only (a) after technical appraisal of the proposed projects by the Central Agencies; and (b) after obtaining all mandatory clearances as required, by law. iv. In all, the State of Maharashtra is permitted to utilize 37.73 Mcum (1.33 tmc) of Mahadayi water which will be inclusive of all consumptive uses including reservoir and other losses. Rest of the claims of the State of Maharashtra are not found justified and are hereby rejected.

2702

C. GOA i. The Tribunal finds that the profile of the identified 59 project sites, presented through Detailed Project Reports by the State of Goa (although these reports cannot be considered as the “Detailed Project Reports”), particularly in respect of availability of water at each of the project sites, availability of utilizable water, etc., and the projected utilization of water for various purposes, are not based on requisite field investigations and studies. But, the identification of 59 water resources development project sites by the State of Goa, is a step in the positive direction. In the absence of any other reliable action plan, the Tribunal permits the State of Goa to go ahead with: (a) undertaking proper investigations and studies; (b) preparing the detailed project reports (DPRs); (c) seeking clearances from central agencies; and (d) obtaining all mandatory clearances from the competent authorities for a maximum consumptive utilization (including drinking water requirements for both human beings and livestock, municipal water needs, irrigation water requirements and industrial water demands) of 668 Mcum (24 tmc) of water of Mahadayi river basin at 75% dependability through 2703

aforementioned 59 identified projects. The Tribunal does not put any restriction on non-consumptive use of water of Mahadayi river basin by the State of Goa. ii. The permission of the Tribunal to the State of Goa to plan for utilization of 668 Mcum (24 tmc) of water at 75% dependability, is over and above the existing utilization of 9.395 tmc by the State of Goa. iii. The State of Goa is permitted to plan and utilize a maximum of 24 tmc of water at 75% dependability, as in- basin needs subject to following conditions: a. Availability of water at 75% dependability and the utilizable water at each of the aforementioned sites shall be assessed after duly accounting for the environmental flow in accordance with “Standard Terms of Reference (TOR) for EIA / EMP Report for Projects / Activities Requiring Environment Clearance under EIA Notification 2006” of the Ministry of Environment, Forest and Climate Change published in April 2015; b. Technical appraisal of the detailed project report (DPR) of each of the aforementioned 59 projects shall be conducted by the Central Agencies; and 2704

c. Mandatory clearances for each of the aforementioned 59 projects by the competent authorities. Clause-X The Order passed by this Tribunal on 17.4.2014, while disposing I.A. No. 1 of 2012 filed by the State of Goa, will continue to be operative and will stand vacated and / or revoked only after: i. The State of Karnataka prepares revised Detailed Project Report (DPR) for consumptive uses within the basin and / or diversion of water outside the basin including the reservoir losses etc. for not more than 1.72 tmc at the proposed Kalasa dam site as permitted under Clause IX; ii. The revised DPR of Diversion Scheme at Kalasa Dam site is appraised by the Central Agencies and is duly cleared; iii. All mandatory clearances are obtained as per law; and iv. The State of Karnataka is allowed to take up works as per duly approved revised DPR either by the Mahadayi Water Management Authority or the Union Government. Clause-XI The Order passed by this Tribunal on 11.2.2015, while disposing I.A. No. 28 of 2012 filed by the State of Goa, will continue to be operative and will stand vacated and / or revoked only after: 2705

i. The State of Maharashtra prepares revised Detailed Project Report (DPR) of Virdi Large MI Project, limiting to consumptive use of 0.56 tmc of water including reservoir losses etc. as permitted under Clause IX; ii. The revised DPR of Virdi Large MI Project is appraised by the Central Agencies and is duly cleared; iii. All mandatory clearances are obtained as per law; and iv. The State of Maharashtra is allowed to take up works as per duly approved revised DPR either by the Mahadayi Water Management Authority or the Union Government.

Clause-XII The Central Government shall constitute an Authority, called ‘Mahadayi Water Management Authority’ to implement the Report and final decision of Mahadayi Water Disputes Tribunal with functions and compositions etc. as mentioned at para 1350 to para 1369 of this Report.

Clause-XIII At any time after 31st August 2048, the Award / Final Decision may be reviewed or revised by a Competent Authority or Tribunal, but such review or revision shall not as far as possible 2706

disturb any utilization that may have been undertaken by any State within the limits of allocation made to it.

Clause-XIV The Governments of Goa, Karnataka and Maharashtra shall bear their own costs for appearing before the Tribunal. The expenditure of the Tribunal shall be borne and paid by the aforesaid three States in equal shares.

Clause-XV Nothing contained herein shall prevent the alteration, amendment or modification of all or any of the Clauses by agreement between the Parties.

Clause-XVI This Award / Final Decision of the Tribunal shall come into operation on the date of publication in the Official Gazette as required by Section 6 of the Inter-State River Water Dispute Act, 1956. ACKNOWLEDGEMENT

The Tribunal has completed its task of preparation of the Report-cum-final-decision after completing the hearing of the 2707

reference made to the Tribunal by Central Government. This was indeed a very difficult task, but fortunately the Tribunal has been able to complete the same without any hassle and also before the stipulated time which is 20-08-2018. The Tribunal has received help, assistance and support from many quarters and therefore, the Tribunal would like to acknowledge the same with thanks. The Tribunal deeply appreciates the assistance and help of Shri Fali S. Nariman, Shri Ashok Desai, Late Shri Anil B. Divan, Shri Shyam Divan, Late Shri T.R. Andhyarujina, Shri Atmaram N.S. Nadkarani, Shri S.S. Javali, Shri P.S. Narasimha, Shri Madhusudan R. Naik, Advocate General for the State of Karnataka, Shri Mahesh Sonak, learned Senior Counsel, Shri Ravi Varma Kumar, former Advocate General for the State of Karnataka, Shri S. Vijay Shankar, former Advocate General for the State of Karnataka, Shri Dattaprasad Lawande, Advocate General for State of Goa, Smt. A. Subhashini, Shri P. Venugopal, Smt. Purna Bhandari, Shri Santosh Salvador Rebello, Smt. Nikita Nadkarni, Shri Amogh Prabhu Desai, Smt. Sneha Tendulkar, learned Advocates for the State of Goa, Shri Mohan V. Katarki, Shri Brijesh Kalappa, Shri Maruti B. Zirali, Smt. Anitha Shenoy, Shri Ranvir Singh, Shri Nishant Patil, Shri Kashi Vishweshwar, learned Advocates for 2708

State of Karnataka, and Shri D.M. Nargolkar, Shri Vijay Kadam, learned Advocates for State of Maharashtra who have very admirably conducted the matter for the State of Goa, Karnataka and Maharashtra with their able and persuasive advocacy. The Tribunal also acknowledges the assistance provided by all the Associate Advocates who all have worked with full dedication and have rendered assistance not only to their Seniors and Leading Counsel but also to the Tribunal. The Tribunal appreciates the assistance rendered by Shri M.E. Haque, and Shri S.P. Kakran, the two learned Assessors, in assisting the Tribunal to understand the intricacies of some of the technical issues and also in explaining the Tribunal about the technical part of the Report as well as for assistance rendered in preparation of Award. The Tribunal sincerely extends its thanks and gratefulness to both of them. Shri S.K. Sengupta, former Assessor and Shri Ravinder Singh, former Executive Engineer have also made useful contribution during the site visits and at the hearings of the matter before the Tribunal and the Tribunal acknowledges the same.

Shri Sunil Kumar Sinha, Executive Engineer of the Tribunal was also of immense help and particularly at the time of preparing calculations relating to the several aspects before 2709

finalizing the Report. The Tribunal hereby acknowledges the services rendered by him to the Tribunal. Shri M.R. Kondle, Registrar of the Tribunal and Shri Suraj Prakash, Assistant Registrar of the Tribunal, have rendered a great help in arranging the 350 Volumes presented before the Tribunal by the three party States as well as in editing major portion of the Report-cum-Decision. They were also responsible for co-ordinating the duties of the Stenographers etc. due to which the Report/final decision could be timely completed. Further, Shri M.R. Kondle and Suraj Prakash have been successful in creating a congenial atmosphere in the Tribunal due to which the whole staff of the Tribunal worked in harmony with each other. The Tribunal is thankful to them for yeoman services rendered to the Tribunal. The Tribunal also acknowledges the services rendered by Shri Jagdish Chander, former Registrar, Shri K.M. Kapur, former Assistant Registrar, Shri B.V. Sharma, former Registrar (Additional Charge), in establishing and smooth running of the Tribunal and for making nice arrangements for recording of evidence. The Tribunal also thanks Shri Vijay Kumar Nigam, Shri Sohan Lal Arya, Shri N.V. Pillai, Principal Private Secretaries to the Chairman and Members, Shri Madan Pal, Shri Mohan Lal, Court 2710

Masters, Smt. Rita Budhraja, Shri Vimal Jaitely, Private Secretaries to the Assessors, to whom lengthy dictations were given by the Chairman and two other Members of the Tribunal. They had not only taken the lengthy dictation given by the Chairman and two Members but had also obtained transcript of the same immediately due to which the Tribunal has been able to prepare the Report-cum-decision within the stipulated time. For the services rendered by them, the Tribunal expresses its sense of gratitude to them. The Tribunal also thanks Ms. Yashoda Sharma, Ms. Mamta Sharma and the other staff members of the Tribunal for their contribution and support in preparing the Report. The Tribunal further acknowledges the services rendered by Smt. Subhashini Thaper, Shri C.P. Mehta, former Court Masters who were of great help to the Tribunal while the evidence was being recorded and interim application filed by the State of Karnataka was being heard. Similarly the Tribunal acknowledges the services rendered by the Shri V.K. Sharma, Senior Joint Commissioner, Ministry of Water Resources, River Development and Ganga Rejuvenation, for his assistance provided at all the time, during pendency of the matter. 2711

The Tribunal must record that without the co-operation and assistance of the entire team in the Office of the Tribunal, it would not have been possible for the Tribunal to prepare the Report-cum-Decision and submit the same before the stipulated time. The Tribunal records its deep appreciation to all concerned and thank them all for their effective rendition of services and assistance.

J.M. Panchal J. CHAIRMAN

Viney Mittal J. MEMBER

P.S. Narayana J. MEMBER

New Delhi Dated: August 14, 2018