THE REPORT OF THE CAUVERY WATER DISPUTES TRIBUNAL WITH THE DECISION IN THE MATTER OF WATER DISPUTES REGARDING THE INTER-STATE RIVER CAUVERY AND THE RIVER VALLEY THEREOF BETWEEN 1. The State of Tamil Nadu 2. The State of Karnataka 3. The State of Kerala 4. The Union Territory of Pondicherry VOLUME III AVAILABILITY OF WATER NEW DELHI 2007 ii VOLUME III Availability of Water (Issues under Group II) I N D E X Chapter Subject Page Nos. No 1 Surface Flows 1 - 79 2 What should be the basis on which the 80 - 101 availability of waters be determined for apportionment - whether at 50% or 75% 3 Ground Water - whether an additional/ 102 - 173 alternative resource ________ 1 Chapter 1 SURFACE FLOWS The yield of a river system is the annual virgin flows at its terminal site. The yield or the total available quantum of water in a river system depends upon rainfall pattern, catchment area characteristics including soil and vegetal cover, and various climatic parameters affecting evaporation and evapo-transpiration in the basin. The annual yield of a given basin varies from year to year depending upon the occurrence of the rainfall, its intensity and distribution in time and space. In a virgin river system, i.e., a river basin where the natural river flows have not been withdrawn for any use, the assessment of the total yield becomes easy, based on the gauge and discharge observations. However, such a situation is hard to come across, because practically in every river system, there have been withdrawals of water for different uses by man. Therefore, to assess the available yield in a river system, the observed flows at different gauge and discharge sites have to be considered along with the withdrawals of water for different uses like irrigation, hydro-power generation, domestic and industrial water use etc. above each such gauging station. The computation of total annual flow including upstream withdrawals at the terminal site is termed as yield of the river system. Since the annual yield of a river varies from year to year depending upon the rainfall distribution, consequent run-off and withdrawals etc., such data is collected for a number of years to assess the reliable yield. In order to take care of wet and dry cycles, and to even out their effect, it is preferred that data for as many years as is available should be considered, provided that data is homogeneous and reliable. 2 2. For more than a century disputes are being raised between the then States of Madras and Mysore now the States of Tamil Nadu and Karnataka in respect of sharing of the waters of river Cauvery. Such disputes are often raised when an inter-State river or international river passes through different States or nations. Courts are faced with the situation as to how to sort out the claim of each State or the nation, as the case may be, on some reasonable and rational basis. These disputes obviously are linked with more demand for the water of such inter-State or international rivers in connection with different development projects including generation of electricity. Each State or country through which inter-State or international river passes treats the water within their State or nation as a divine gift which has to be utilised by that State or nation exclusively for its development and to fulfil its necessities. In this process, the upper riparian States are in privileged position as upper riparian State claims exclusive right to utilise the water within its territory. This attitude is bound to affect the lower riparian State if the water in such river is not sufficient to cater the needs of all States through which such river passes. A booster came in the year 1895 to such claims and rights for exclusive use of the water of the river by a particular State irrespective of the necessity and need of the lower riparian States when the Attorney General Harmon of the United States put forward a doctrine that riparian States have exclusive or sovereign rights over the water flowing through their territories. There was a clear anomaly in this doctrine while implementing the same specially in cases where the water of such river was not sufficient for all the States through which it passed. In many cases, it was discovered that total appropriation of the water by upper riparian State led to 3 deprivation of the right to use of the water of such inter-State river by lower riparian State. The higher riparian State claimed its exclusive right to utilise the waters on basis of the aforesaid Harmon doctrine claiming that it had sovereign right to utilise the water in whatever manner it likes within its territorial jurisdiction. On the other hand, the lower riparian States asserted that they were entitled to water of such inter-State or international rivers in their natural flow without any interference or alteration in their character. Both types of claims and assertions by the upper riparian and lower riparian States created not only disharmony, but also anomaly. At different forums thinking started, that when the nature had provided such inter-State or international rivers for common benefit of the community as a whole through whose territory they flowed how any territory through which such rivers pass could be deprived or could be given the exclusive right to utilise the waters of such rivers. 3. In one of the earlier cases, in which the Supreme Court of United States had to consider this question is Kansas v. Colorado {206 U.S.46 (1906)} and the conflicting claims by upper and lower riparian States was resolved. That case and other cases which followed thereafter including the opinion of the Supreme Court in a reference under Article 143 of the Constitution by the President of India in connection with this very river Cauvery have been discussed in chapter under the heading ‘Principles of apportionment of waters of an inter- State river’. On the basis of those judgments now it can be said that it is almost settled that right of a State through which an inter-State river flows is subject to certain restrictions with respect to the quantity of water which the said State is entitled to receive or utilise. The other riparian States have the same right in 4 respect of the reasonable enjoyment of it. Each riparian State has a right of action in respect of any unreasonable use of the water by another riparian State. A higher riparian State must not use the water so as to cause any material injury to the lower riparian State which has the equal right to use of the water. The cardinal rule underlying between the different riparian States in respect of use of the water of an inter-State river is that of equality of right. Each State stands on the same level with all the rest. This principle is being described as the principle of equitable apportionment between the different riparian States in respect of the waters of an inter-State river. No doubt, the principle in respect of equitable apportionment of the water is settled, but what shall be the equitable apportionment in respect of different riparian States so far the water of such inter-State river is concerned is itself a big question. It becomes all the more complicated if the apportionment of the waters relates to a river which does not have enough water to cater the needs of different riparian States. Cauvery is one such river. If each riparian State starting from Kerala, Karnataka, Tamil Nadu and Union Territory of Pondicherry wish to utilise its water to their satisfaction and desire, it cannot fulfil their need and necessity. It is not in dispute that the total amount of water available in river Cauvery through surface flows and alternative resources are much less than what the different States claim and require for their irrigation, electricity, drinking water and to run different projects. In this background, the task of the Tribunal has become very difficult as to how to apportion the waters of river Cauvery between the different States so that river Cauvery remains a blessing and not a river of sorrow for these States. 5 4. In order to settle the dispute between the different riparian States like States of Kerala, Mysore, Tamil Nadu regarding sharing of the waters of the Cauvery and its tributaries, efforts were being made by the then Minister of Irrigation Dr. K.L. Rao and in that connection a meeting was held on 29th May 1972 at New Delhi between the Chief Ministers of Mysore, Tamil Nadu and Kerala. The Union Minister for Irrigation and Power alongwith others were present in the said meeting. The notes of discussions regarding Cauvery held on the said date were duly recorded and were signed by the Union Minister for Irrigation and Power and the three Chief Ministers of Mysore, Tamil Nadu and Kerala. It is advisable to reproduce the same which is as follows: “Union Minister for Irrigation and Power stated that river problems are best settled through negotiations and this was the course the Central Government was adopting for the last few years in settling the differences on the use of waters of Cauvery. Earlier, it was aimed to arrive at an interim agreement to be valid till 1974, when the earlier agreement of 1924 would have come up for review after 50 years, as provided in the agreement. Now, as 1974 is near, this attempt has been given up in favour of finding an overall approach to solve the problem amicably amongst the several States.