Paragraph numbers below are the court’s original numbering, recovered from the source text.
15. It will be pertinent at this stage also to note the true legal position about the inter-State river water and the rights of the riparian States to tl:ie CAUVERY WATER DISPlITES TRIBUNAL [SA WANT, J.] same. In State of Kansas v. State of Colorado, [206) US 46 the Supreme Court of the United States ha~ in this connection observed as follows: "One cardinal rule, underlying all the relations of the States to each other, is that of equality of right. Each State stands on the same level with all the rest. It can impose its own legislation on no one of the others and is bound to yield its own view to none". " …… the action of one State reaches, through the agency of natural laws into the territory of another State, the question of the extent and the limitation of the rights of the two States becomes a matter of justiciable dispute between them ….. this court is called upon to settle that dispute in such a way as will recognise the equal rights of both and at the same time estab- lish justice between them". c "The dispute is of a justiciable nature to be adjudicated by the Tribunal and is not a matter for legislative jurisdiction of one State … ". "The right to flowing water is now well settled to be a right incident to property in the land; it is a right publici juris, of such character that, whilst it is common and equal to all through whose land it runs, and no one can obstruct or divert it, yet as one of the beneficial gifts of Providence, each proprietor h~ a right to a just and reasonable use of it, as it passes through his land, and so long as it is not wholly obstructed or diverted, or no larger appropriation of the water running through it i's mad~ than a just and reasonable use, it cannot be said to be :wrongful or injurious to a proprietor lower down". "The right to the use of the flowing water is publici juris, and common to all the riparian proprietors; it is not an absolute, and exclusive right to all the water flowing past their land so that any obstruction would give a cause of action; but it is a. right to the flow and enjoyment of the water subject to a similar right in all the proprietors to the reasonable enjoyment ,..G of the same gift of providence. It is therefore only for an abstraction and deprivation of this common benefit or for an unreasonable and unauthorised use of it that an action will lie."
16. Though the waters'.of an inte.r-State river pass through tl~e territories of the riparian States such waters cannot be said to be located in any one · (1991] SUPP. 2 S.C.R. State. They are in a state of flow and no State can claim exclusive owner- ship of such waters so as to deprive the other States of their equitable share. Heni;e in respect of such waters, no State can effectively legislate for the use of such waters since its legislative power does not extend beyond its territories. It is further an acknowledged principle of distribu- tion and allocation of waters between the riparian States that the same has B. to be done on the basis of the equitable share of each State. What the ·equitable share will be will depend upon the facts of each case. It is against the background of these principles and the provisions of law we have already discussed that we have to examine the respective contentions of the parties. c
17. The Ordinance is unconstitutional because it affects the jurisdiction of the Tribunal appointed under the Central Act, viz., the Inter-State Water Disputes Act which legislation has been made under Article 262 of the Constitution. As has been pointed out above, while analysing the provi- sions of the Ordinance, its obvious purpose is to nullify the effect of the interim order passed by the Tribunal on 25th June, 1991. The Ordinance makes no secret of the said fact and the written statement filed and the submissions made on behalf of the State of .Karnataka show that since according to the State of .Karnataka the Tribunal has no power to pass any ·interim order or grant any interim relief as it has done by the order of 25th June, 199 l, the order is without jurisdiction and, therefore, void ab initio. This being so, it is not a decision, according to Karnataka, within the meaning of Section 6 and not binding on it and in order to protect itself against the possible effects of the said order, the Ordinance has been issued. The State of Karnataka has thus arrogated to itself the power to decide unilaterally whether the Tribunal has jurisdiction to pass the in- terim order or not and whether the order is binding on it or not. Secondly, the State has also presumed ~hat till a final order is passed by the Tribu- nal, the State has the power to appropriate the waters of the river Cauvery to itst:lf unmindful of and unconcemed with the consequences of such action on the lower riparian States. Kamataka has thus presumed that it has superior rights over the said waters and it can deal with them in any manner. In the process, the State of Karnataka has also presumed that the lower ripar in States have no equitable rights and It is the sole judge as to the share ot the other riparian States in the said waters. What is further, the State of Kamataka has assumed the role of a judge in its own cause. Titus, apart from the fact that the Ordinance directly nullifies the decision of the Tribunal dated 25th June,· 1991, it also challenges the decision g~ted 26th April, 1991 of this Court which has ruled that the Tribunal had power to consider the question of granting interim relief since it was specifically referred to it. The Ordinance further has an extra-territorial i r CAUVERY WATER DISPUfES TRIBUNAL [SA WANT, J.] 55l operation insasmuch as it interferes with the equitable rights of Tamil Nadu and Pondicherry to the waters of the Cauvery river. To the extent that the Otdinance interferes with the decision of this Court and of the Tribunal appointed under the Central legislation, it is clearly unconstitu- tional being not only in direct conflict with the provisions of Article 262 of the Constitution under which the said enactment is made but being also in conflict with the judicial power of the State. In this connection, we may refer to a decision of this Court in Municipal Corporation of the City of Ahmedabad etc. v. Ne:.V Shot,ock Spg. & Wvg. Co., Ltd. etc., [1971] l SCR 288. The facts in this case ~ere that the High Court as well as this Court had held that property tax collected for certain years by the Ahmedabad Municipal Corporation was illegal. In order to nullify the effect of the decision, the State Government introduced Section l 52A by amendment to the Bombay Provincial Mu- nicipal Corporation Act the effect of which was to command the Munici- pal Corporation to refuse to refund the amount illegally collected despite the orders of this Court and the High Court. This Court held that the said provision makes a direct in road into the judicial powers of the State. The legislatures under the Constitution have, within the prescribed limits, power to make laws prospectively as well as retrospectively. By exercis~ of ; those powers a legislature can remove the basis of a decision rendered by a competent court thereby rendering the decision ineffective. But no legis- lature in the country has power to ask the instrumentalities of the State to disobey or disregard the decisions given by the courts. Consequently, the provisions of sub-section (3) of section 152A were held repugnant to the Constitution and were struck down. To the same effect is another decision of this court in Madan Mohan Pathak v. Union of India & Ors. etc., [1978] 3 SCR 334. In this case a settlement arrived at between the Life Insurance Corporation and its employees had become the basis of a deci- sion of the High Court of Calcutta. This settlement was sought to be F scuttled by the Corporation on the ground that they had received instruc- tions from the Central Government that no payment of bonus should be made by the Corporation to its employees without getting the same cleared by the Government. The employees, therefore, moved the High Court, and the High Court allowed the petition. Against that, a Letters Patent Appeal was filed and while it was pending, the Parliament passed the Life Insur- ance Corporation (Modification of Settlement) Act, 1976 the effect of which was to deprive the employees of bonus payable to them in accord- ance with the tenns of the settlement and the decision of the Single Judge of the High Court. On this amendment of the Act, the Corporation with- drew its appeal and refused to pay the bonus. The employees having approached this Court challenging the constitutional validity of the said H (1991) SUPP. 2 S.C.R. legislation, the Court held that it would be unfair to adopt legislative procedure to undo a settlement which had become the basis of a decision of the High Court. Even if legislation can remove the basis of a decision, it has to do it by alteration of general rights of class but not by simply excluding the specific settlement which had been held to be valid and enforceable by a High Court. The object of the Act was in effect to take away the force of the judgment of the High Court. The rights under the judgment would be said to arise independently of Article 19 of the Consti- tution. c Yet another decision of this Court on the point is P. Sambamurthy & Ors. etc. etc. v. State of Andhra Pradesh & Anr., (1987] 1 SCR 879. In this case what was called in question was the insertion of Article 371-D of the Constitution. Clause (5) of the Article provided that the order of the Administrative Tribunal finally disposing of the case would become effec- tive upon its confirmation by the State Government or on the expiry of three months from the date on which the order was made, whichever was earlier. The proviso to the clause provided that the State Government may by special order made in writing for reasons to be specified therein, modify· oi annul any order of the Administrative Tribunal before it became effec- tive and in such a case the order of the Tribunal shall have effect only in such modified form or be of no effect. This court held that it is a basic principle of the rule of law that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but must also be in accordance with law, and the power of judicial review is conferred by the constitution with a view to ensuring that the law is observed and there is compliance with the requirement of the law on the part of the executive and other authoritie"s. It is through the power of judicial review conferred on an independtnt institutional authority such as the High Court that the rule of law is maintained and every organ of the State is kept within the limits of the law. If the exercise of the power of judicial review can be set at. naught by the State Government by over- riding the decision given against it, it would sound the death-knell of the rule of law. The rule of law "1ould be meaningless as it would be open to the State Government to d~fy the law and yet get away with it. The proviso to cl. (5) of Art. 371-D was therefore, violative of the basic structure doctrine. The principle which emerges from these authorities is that the legis- lature can change the basis on whi,ch a decision is given by the Court and thus change the law in general which will affect a class of per~o'ns, and events at large. It cannot, however, set aside an individual decisi\>n inter- parties and affect their rights and liabilities alone. Such an act on the part CAUVERY WATER DISPUTES TRIBUNAL [SA WANT, J.] of the legislature amounts to exercising the judicial power of the State and 1 to functioning as an appellate. court or Tribunal. The effect of the provisions of section 11 of the present Act, viz., the Inter-State Water Disputes Act read with Article 262 of the Constitu-. ti on is that the entire judicial power of the State and, therefore, of the courts including that of the Supreme Court to adjudicate upon original di~pute or complaint with respect to the use, distribution or control of the ! water of, or in any inter-State river or river valleys has been vested in the · Tribunal appointed under Section 4 of the said Act. It is, therefore, not possible to accept the submission that the question of grant of interim , relief falls outside the purview of the said provisions and can be agitated under Article 131 of the Constitution. Hence any executive order or a legislative enactment of a State which interferes with the adjudicatory :-:-· process and adjudication by such Tribunal is an interference witll. the judicial power of the State. In view of the fact that the Ordinance in question seeks directly to nullify the order of the Tribunal passed on 25th June, 1991, it impinges upon the judicial power of the State and is, there- fore, ulira vires the Constitution. Further, admittedly, the effect of the Ordinance is to affect the flow of the waters of the river Cauvery into the territory of Tamil Nadu and Pondicherry which are the lower riparian States. The Ordinance has, therefore, an extra-territorial operation. Hence the Ordinance is on that account beyond the legislative competence of the State and is ultra vires. the provisions of Article 245 (l) of the Constitution. The Ordiance is also against the basic tenets of the rule of law · inasmuch as the State of Karnataka by issuing the Ordinance has sought to ' take law in its own hand and to be above the law. Such an act is an invitation to lawlessness and anarchy, inasmuch as the Ordinance is a manifestation of a desire on the part of the State to be a judge in its own cause and to defy the decisions of the judicial authorities. The action forebodes evil consequences to the federal structure under the Constitu- tion and opens doors for each State to act in the way it desires disregard- ing not only the rights of the other Stafes, the orders passed by instrumentalities constituted under an Act of Parliament but also the pro- visions of the Constitution. If the power of a State to issue such an Ordinance is upheld it will lead to the break down of the Constituticmal mechanism and affect the unity and integrity of the nation. c
18. In view_ of our findings as above on the unconstitutionality of the Ordinance, it is not necessary for us to deal with the contention advanced 1 H c SUPREME CO~T REPORTS [i 991] SUPP. 2 S.C.R. on behalf of Tamil Nadu and Pondicherry that the Ordinance is unconsti- tutional also because it is repugnant to the provisions of the River Boards Act, 1956 which is admittedly enacted under Entry 56.
19. We also do not propose to deal with the contentions advanced on · behalf of both sides with reference to Articles 19 (I) (g) and 21 of the Constitution. On behalf of Kamataka the said Articles are invoked to support the Ordinance contending that the Ordinance has been issued to protect the fundamental rights of its inhabitants guaranteed to them by the said Articles which rights were otherwise been denied by the Tribunals' order of 25th June, 1991. As against it, it was contended on behalf of Tamil Nadu that it was the Ordinance which was designed to deny to its inhabitants the said rights. Underlying the contentions of both is the pre- sumption that the Tribunal's order denies to Kamataka and ensures to Tamil Nadu the equitable share in the river water. To deal with the said contentions is, therefore, to deal with the factual merits of the said order which it is not for us to examine. Of the same genre are the contentions advanced on behalf of Kamataka, viz., that the order creats new rights in favour of Tamil Nadu and leads to inequitable consequences so far as Kamataka is concerned. For the same reasons, we cannot deal with these contentions either. · Question No. 3 :
20. Question 3 is intimately connected with Question 2. However, Ques- tion 3 itself has to be answered in two parts, viz., whether a Water Dis- putes Tribunal constituted under the Act is com.l'etent to grant any interim relief (i) when no reference for grant of interim relief is made to the Tribunal, and (ii) when such reference is made to it. It was contended on behalf of Karnataka and Kerala that the answer to the second part of the question will also depend upon the answer to the first part. For if the Tribunal has no power to grant interim relief, the Central Government would be incompetent to make a reference for the purpose and the Tribu- nal in turn will have no jurisdiction to entertain such reference, even if made. And if the Tribunal has no power to grant interim relie(then the order made by the tribunal will not constitute a report and a decision within the meaning of Section 5 (2) and hence it would not be required to be published by the Central Government under Section 6 of the Ac~ in order to make it effective. Further if the Tribunal has no such powet to grant interim relief then the order passed 1:Jy the Tribunal on 25th June, 1991 will be void being without jurisdiction and, therefore, to that I extent the Ordinance issued by the State of Kamataka will not be in conflict with the provisions of the Act, viz., the Inter-State Water Disputes Act, 1956. '1-" CAlNERY WATER DISPUTES TRIBUNAL [SAWANT, J.] 55(
21. This Court by its decision of April 26, 1991 has held, as pointed out above, .that the Central Government had made a reference to the Tribunal for the 1 consideration of the claim for interim relief prayed for by the' Stat~ of Tamil Nadu and hence the Tribunal had jurisdiction to consider the said request being a part of the Reference itself. Implicit in the said decision is, the fin~ing that the subject of Interim relief is a matter connected with or relevant to. ~he water dispute within the meaning of Section 5 (I) of the: B Act. Hence· the Central Government could refer the matter of granting, interim relief to the Tribunal for adjudication. Although this Court by the said decision ~as kept open the question, viz., whether the Tribunal has ~ incidental, ancillary, inherent or implied power to grant the interim relief when no reference for grant of such relief is made to it, it has in terms concluded the second part of the question. We cannot, therefore, counte- ' C nance a situation whereby Question 3 and for that matter Questions I and ' 2 may be so construed as to invite our opinion on the said decision of this Court. That would obviously be tahtamount to our sitting in appeal on the said decision which it is impermifsible for us to do even in adjudicatory · jurisdiction. Nor is it competent for the President to invest us with an . appellate jurisdiction over the said1decision through a Reference tinder ' D Article 143 of the Constitution. Shri Nariman, however, contended that the President can refer any question of law under Article 143 and, therefore, also ask this Court to reconsider any of its decisions. For this purpose, he relied upon the Ian- , guage of clause (I) of Article 143 which is as follows: "143. Power of president to consult Supreme Court- : (I) If at any time it appears to the President· that a question of . law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to ' F obtain the opinion of the Supreme Court upon it, he may refer· the question to that Court for consideration and the Court may,. after such hearing as it thinks fit, report to the President its opinion thereon." In support of his contention he also referred us to the opinion ex- pressed by this Court in re: The Delhi Laws Act, 1912, The Ajmer-Merwara (Extension of Laws) Act, 1947 and the Part C States (Laws) Act, 1950 . [1951) SCR 747. For the reasons which follow, we are unable to accept this contention. In the first in~tance, the language of clause (I) of Article 143 far from supporting Shri Nariman's contention is opposed to it. The said clause empowers the President to refer for this Court's opinion a question of law or fact which has arisen or is likely to arise. When this (1991) SUPP. 2 S.C.R. Court in its adjudicatory jurisdiction pronounces its authoritative opinion on a question of law, it cannot be said that there is any doubt about the question of law or the same is res integra so as to require the Pl'esident to know what the true position of law on the question is. The decision of this Court on a question of law is binding on all courts and authorities. Hence under the said clause tha President can refer a question of law only when this Court has not decided it. Secondly, a decision given by this Court can be reviewed only under Article 137 read with Rule I of Order XL of the Supreme Court Rules 1966 and on the conditions mentioned therein. When, further, this Court overrules the view of law expressed by it in an earlier case, it does not do so sitting in appeal and exercising an appellate jurisdiction over the earlier decision. It does so in exercise of its inherent power and only in exceptional circumstances such as when the earlier decision is per incuriam or is delivered in the absence of relevant or material facts or if it is manifestly wrong and productive of public mis- chief. See: The Bengal Immunity Company Ltd. v. The State of Bihar & Ors., [1955] 2 SCR 603. Under the Constitution such appellate jurisdic- tion does not vest in this Court; nor can it be vested in it by the President under Article 143. To accept Shri Nariman's contention ~ould mean.that the advisory jurisdiction under Article 143 is also an appellate jurisdiction of this Court over its own decision between the same parties and the executive has a power to ask this Court to revise its decision. If such power is read in Article 143 it would be a serious inroad into the inde- pendence of judiciary. So far as the opinion expressed by this Court in re The Delhi Laws Act, 1912 (supra) is concerned, as the Reference itself makes clear, what was referred was a doubt expressed by the President on the decision of the Federal Court in Jatindra Nath Gupta v. The Province of Bihar & Ors., [1949] FCR 595 which was delivered on 20th May, 1949. The Federal Court at that time was not the apex court. Upto 10th October, 1949, the appeals from its decisions lay to the Privy Council including the appeal from the decision in question. The decisions of the Federal Court were not binding on the Supreme Court as held in Hari Vishnu Kamath v. Syed Ahmad lshaque & Ors., (1955) l SCR 1104. Hence it was not a case where the President had referred to this Court for its opinion a decision which had become a law of the land. Hence the case in re The Delhi Laws Act, I 912 (supra) does not support the contention. The provisions of clause (2) of Article 374 of the Constitution also do not help Shri Nariman's contention since the said provisions relate to the transitional period and the "judgments and orders ofthe·Federal Court" referred to therein are obviously the interim judgments and orders in the CAUVERY WATER DISPlITES TRIBUNAL [SA WANT, J.] suits, appeals and proceedings pending in the Federal Court at the com- mencement of the Constitution· and which stood transferred to the Su- , preme Court thereafter. This is also the view taken by a Division Bench of Bombay High Court in State of Bombay v. Gajanan Mahadev Badley, , AIR [1954] Bombay 351. This view has been confirmed by this Court in· Delhi Judicial Service Association, Tis Hazari Court. Delhi etc. v. State of Gujrat & Ors. etc. JT 1991 (3) SC 617. Paragraphs 32 to 37 of the ' B judgment deal with this subject specifically.
22. Both Shri Parasaran and Shri Venugopal requested us not to answer the first part of Question 3 on the ground that the said part of the question is purely theoretical and general in nature, and any answer given would be academic because there will be no occasion to make any further interim order or grant another interim relief in this Reference. According to him, the recitals of the order of Reference have bearing only on Questions l and 2, and the second part of Question 3. They have no bearing on the first part of Question 3 and since the Reference has been made in the context of particular facts which have no connection with the theoretical part of Question 3, the same should be returned unanswered as being D factually unwarranted. · 23. On behalf of karnataka and Kerala, however as pointed out above, it was urged that we should answer the said part of the question for· the · reasons stated there. Shri Shanti Bhushan in this connection relied upon the decision of this Court in A.R. Antulay v. R.S. Nayak & Anr,. [l <J88] . E · Suppl. l SCR l. He pointed out that by the said decision the directions given by this Court in its earlier decision were held to be void being without jurisdiction and the same were quashed. In view of this precedent, he submitted that a similar course is open to this Court and the decision dated April 26,1991 given by this Court may also be declared as being without jurisdiction and void. In A.R. Antulay's case (supra) two ques- tions were specifically raised, viz., (i) whether the directions given by this Court in R.S. Nayak v; A.R. Antulay, [1984] 2 SCR 495, (hereinafter referred to as 'R.S Nayak's case') withdrawing the Special Case No.24 of 1982 and Special Case No.3 of 1983 arising out of a complaint filed by a private individual pending in the court of Special Judge, Greater Bombay and transferring the same to the High Court of Bombay in breach of G ..,. .Section 7 (l) of the Criminal Law Amendment Act, 1952 (which man- ·- – _; dates that the offences as in the said'..case shall be tried by a Special Judge only) thereby denying at least one right of appeal to the appellant, was violative of Articles 14 and 21 of the Constitution and whether such directions were at all valid or legal and, (ii) if such directions were not valid or legal, whether in view of the subsequent orders passed by this H c 56-0 Co)lrt on 17th of April, ·I 984 in a writ petition challenging the validity of the, order and judgment of this Court in R.S. Nayak's case whereby.this Court had dismissed the writ petition without prejudice to the right of the pet~tk .. !r to approach this Court with an appropriate review petition or to file any other application which he may be entitled in law to file, the appeal filed was sustainable and the grounds of the appeal were justiciable. The latter question was further explained by stating that the question was whether the directions given in R.S. Nayak's case jn a·proceydings inter- parties were binding even if bad in law or violative of Articles 14 and 21 of the Constitution and as such were immune from correction by this Court even though they caused prejudice and did injury. It may be stated here that the said proceedings had come before this Court by way of a special leave petition against an order passed by the learn~d Judge of the High Court to whom the said case came to be assigned subsequently in pursuance of the directions given in R.S. Nayak's case. By the order passed by the learned judge, as many as 79 charges were framed.against the appellant and it was decided not to proceed against other named co- conspirators. In the special leave petition filed to challenge the said order, two questions which we have stated above were raised and leave was granted. This Court in that case held that (i) the directions given by this Court in R.S. Nayak's case were violative of the limits of jurisdiction of this Court since this Court could not confer jurisdiction on a High Court which was exclusively vested in the Special Judge under the provisions of the criminal Law Amendment Act of 1952; (ii) the said directions de- prived the appellant of his fundamental rights guaranteed under Articles 14 and 21 of the Constitution since the appellant had been treated differ- ently from other offenders and he was deprived of a right of appeal to the High Court; (iii) the directions were issued without observing the princi- ple of audi alteram partem and (iv) the decision given was per incuriam. Shri Shanti Bhushan urged that since in that case this Court had quashed its own earlier directions on the ground that the High Court had no juris- v diction to try the offence and this Court could not confer such jurisdiction on it, in the present case also the decision of the Court dated April 26, 199 l may be ignored for having proceeded on the basis that the Tribunal had jurisdiction to pass interim relief when it had no such jurisdiction. We are afraid that the facts in A.R. Antulay's case (supra) are pecu- liar and the decision has to be confined to those special facts. As this court has pointed out in the said decision, in the first instance, the direc- tions which were given for withdrawing the case from the Special Judge to the High Court were without hearing the appellant. Those directions deprived the appellant of a righLof appeal to the High Court and thus were prejudicial to him. There was, therefore, a manifest breach of the ,__ ,._ CAUVERX WATER DISPUTES TRIBUNAL [SAWANT, J.) rule of audi alteram partem. Secondly, while giving the impugned direc- , A I tions, the Court had not noticed that under the said Act of 1952, the i Special Judge had an exclusive jurisdiction to try the offence in question • and this being a legislative provision, this court could not confer the said jurisdiction on the High Court. The Court also pointed out that to the extent that the case was withdrawn from the Special Judge and sent to the High Court, both Articles 14 and 21 were violated. The appellant was discriminated against and the appellant's right of appeal which was an aspect of Article 21 was affected. It would, thus, appear that not only the directions given by this Court were without jurisdiction but they were also per incuriam and in breach of the principles of natural justice. They were further violative of the appellant's fundamental rights under· Artieles 14 and 21 of the Constitution. None of the said defects exists in the decision of this Court dated April 26, 1991. It cannot be said that this Court had , not noticed the relevant provisions ofthe Inter-State Water Disputes Act. · The Court after perusing the relevant provisions of the Act which were undoubtedly brought to its notice, has come to the conclusion that the Tribunal had jurisdiction to grant interim relief when the question of granting interim relief formed part of the Reference. There is further no violation of any of the principles of natural justice or of any provision of the Constitution. The decision also does not transgress the limits of the juri::;diction of this Court. We are, therefore, of the view that the decision being inter-parties operates as. res judicata on the said p~int and it cannot be reopened. 24. We, however, agree with the contentiOn that it is not necessary to answer the first part of Question 3. The context in which all the questions are referred to as and the preamble of the Reference amply bear out that the questions have been raised against the background a particular set of facts. These facts have no bearing on the first part of Question 3 which is theoretical in nature. It is also legitimate to conclude that this part of the question was not prompted by the need to have a theoretical answer to comprehend situations in general. Our answer to the second part of the question should meet the exigencies of the situation. Question No. 2 : 25. Coming now to Question 2, although the question is split into two parts, they deal with the same aspect of the subject inasmuch as the answer to the first part would automatically answer the second part of the question. This situation, like the first question, relates to the specific order of the Tribunal dated June 25, 1991. Hence, our opinion will have to be on the legal merits of the said order. .G c (1991] SUPP. 2 S.C.R. Sub-section (1) of Section 5 expressly empowers the Central Gov- ernment to refer to the Tribunal not only the main water dispute but any matter appearing to be connected with or relevant to it. It cannot be disputed that a request for an interim relief whether in the nature of mandatory direction or prohibitory order, whether for the maintenance of status quo or for the grant of urgent relief or to prevent the final relief being rendered infructuous, would be a matter connected with or relevant to the main dispute. In fact, this Court, by its said decision of April 26, 1991, has in terms held that the request of the State of Tamil Nadu for granting interim relief had been referred by the Central Government to the · Tribunal and directed the Tribunal to consider the request on merits, the same being a part of the Reference. Hence the o~der of the Tribunal will be a report and decisfon within the meaning of Section 5 (2) and would have, therefore, to be published under Section 6 of the Act in order to make it effective. · 26. One of the contentions advanced in this behal( was that the Order of the Tribunal dated June 25, 1991 does not purport to be and does not state to be a report and decision. It only states that it is an order. Secondly, the said order cannot be report and decision within the meaning of Section 5 (2) of the Act because: (i) the Tribunal can make report only after final adjudication of the dispute and there cannot be adjudication without investigation. There is no provision for interim investigation and interim finding and report; (ii) the Tribunal could not have made the report because its own showing: (a) pleadings were not complete, parties had not yet placed on record all their documents and papers etc.; (b) there was no investigation of the matters, the investigation could have been done only after disclosure of documents followed by a detailed h,earing, the evidence and arguments of the parties and judicial finding in conso- nance with natural justice; ( c) the assessors appointed to assess on the technical matters conducted their proceedings without consultation with the engineers of the State. Sometimes the engineers of Tamil Nadu were called for consultation in the absence of engineers of Karnataka. The summoning of documents and information by the assessors was also casual and did not conform to the principles of natural justice and fair-play. A copy of the advice given by the assessors to the members of the Tribunal was not made available to the parties; (d) the Tribunal has stated "at this stage it would not be feasible nor reasonable to determine how to satisfy, the needs of each State to the greatest possible extent with the minimum detriment to others". Such an approach is contrary to the concept of an investigation contemplated by the Act and hence no interim order (or,, _interim relief could be made on such investigation not contemplated under:> the Act before making any order; (ii) it is only the decision which finds) .\… CAUVERY WATER DISPt.TfES TRffiUNAL [SA WANT, I.] support from the report of the Tribunal which in tum must be the result of A a full and final investigation in full which is required to be published under Section 6 of the Act and not an order such as the one passed by the Tribunal. The present order is neither a decision nor an adjudication an'd hence cannot be published. 27. The contention that since the Order does not say that it is a report and decision and, therefore, it is not so under Section 5(2) of the Act is to say the least facetious. Either the Order is such a report and decision because of its contents or not so at all. If the contents do not show that it is such a report, it will not become one because the Order states so. As is pointed out a little later the contents of the Order clearly show that it is a report and a decision within the meaning of Section 5(2). Some of the aforesaid submissions relate to the merits of the Order passed and its consequences rather than to the jurisdiction and the· power of the Tribunal to pass the said Order. While giving our opinion on the present question, we are not concerned with the merits of the order and . with the question whether there was sufficient material before the Tribu- nal, whether ·the Tribunal had supplied the copies of the advice given by the assessor to the respective parties and whether it had heard them on the same before passing the Order in question. The limited question we are required to answer is whether the order granting interim relief is a report and a decision within the meaning of Section 5(2) and is required co be published in the official Gazette under Section 6 of the Act. It is needless to observe in this connection that the scope of the investigation that !l Tribunal or a court makes at the stage of passing an interim order is limited compared to that made before making the final adjudication. The extent and the nature of the investigation and the degree of satisfaction required for granting or rejecting the application for interim relief would depend upon the nature of the dispute and the circumstances in each case. No hard and fast rule can be laid down in this respect. However, no Tribunal or court is prevented or prohibited from passing interim order on the ground that it does not have at that stage all the material required to take the final decision. To read such an inhibition in the power of the Tribunal or a court is to deny to it the power to grant interim relief when Reference for such relief is made. Hence, it will have to be held that the Tribunal constituted under the Act is not prevented from passing an in- terim order or direction, or granting an interim relief pursuant to the reference merely because at the interim stage it has not carried out a complete investigation which is required to be done before it makes its final report and gives its final decison. It can pass interim orders on such mat"'rial RS according to it is appropriate to the 11ature of the interim order. —— c [1991) SUPP. 2 S.C.R. 28. The interim orders passed or reliefs granted by the Tribunal when they are not of purely procedural nature and have to be implemented by the partie·s to make them effective, are deemed to be a report and a decision within the meaning of Sections 5 (2) and 6 of the Act. The present Order of the Tribunal discusses the material on the basis of which it is made and gives a direction to the State ofKamataka to release water from its reservoirs in Karnataka so as to ensure that 205 TMC of water is available in Tamil Nadu's Mettur reservoir in a year from June to May. It makes the order effective from lst July, 1991 and also lays down time-table to regulate the release of water from month to month. It also provides for adjustment of the supply of water during the said period. It further directs the State of Tamil Nadu to deliver 6 TMC of water for the Karaikal region of the Union Territory of Pondicherry. In addition, it directs the State ofKarnataka not to increase its area under irrigation by the waters of the river Cauvery beyond the existing 11.2 lakh acres. It further declares that it will remain operative till the final adjudicati~n. of the. dispute. Thus the Order is not meant to be merely declaratory in,.;nafure but .is meant to be implemented and given effect to by the parties. Jien~e',"tbe order in question constitutes a report and a decision within the meaning of Section 5 (2) and is required to be published by the Central Government under Section 6 of the Act in order to be binding on the parties and to make it effective. 29. The contention that Section 5 (3) of the Act cannot apply to the interim orders as it is only the final decision which is meant to undergo the second reference to '1te Tribunal provided for in it has no merit. If t!te l'ribunal has, as held- above, power to make an interim decision when a reference for the same is made, that decision will also attract the said provisions. The Central Government or any State Government after considering even such decision may require an explanation or guidance from the Tribunal as stated in the said provisions and such explanation and guidance may be sought within three months from the date of such decision. The Tribunal may then reconsider the decision and forward to the Central Government a further report giving such explanation or guidance as it deems fit. In such cases it is the interim decision thus reconsidered which has to be published by the Central Government under Section 6 of the Act and becomes binding and effective. We see, therefore, no reason why the provisions of Section 5(3) should prevent or incapacitate the Tribunal from passing the interim order. Once a decision, whether interim or final, is made under Section 5(2) it attracts the provisions both of sub- Section (3) of that Section as well as the provisions of Section 6 of the Act. 30. As pointed out earlier, the present Order having been made pursuant to the decision of this Court dated April 26, 1991 in C.As. Nos.303-04 of .f. –'., CAUVERY WATER DISPlITES TRIBUNAL [SA WANT, I.] 1991 on a matter which was part of the Reference as held by this Court in the said decision, cannot but be a report and a decision under Section 5(2) and has to be published under Section 6 of the Act to make it effective and binding on the parties. This legal position of the said order is not open for doubt. To question its efficacy under the Act would be tantamount to flouting it. 31. Before concluding we may add that the question whether the opinion given by this Court on a Presidential Reference under Article 143 of ti,.e Constitution such as the present one is binding on all courts was debated before us for a considerable length of time. We are, however, of the view that we need not record our opinion on the said question firstly, because the question does not form part of the Reference and secondly, any opin- ion we may express on it would again be advisory in nature. We will, therefore, leave the matter where it stands. It has been held adjudicatively that the advisory opinion is entitled to due weight and respect and nor- mally it will be followed. We feel that the said view which holds the field today may usefully continue to do so till a more opportune time. 32. Our opinion on the questions referred to us is, therefore, as follows: Question No.1. The Karnataka Cauvery Basin Irrigation Protection Ordi- nance, 1991 passed by the Governor of Kamataka on 25th July, 19.91 (now the Act) is beyond the legislative competence of the State and is, therefore, ultr_a vires the Constitution. Question No.2. (i) The Order of the Tribunal dated June 25, 1991 constitutes report and decision within the meaning of Section 5 (2) of th~ Inter-State Water Disputes Act, 1956; (ii) the said Order is, therefore, required to be pub- lished by the Central Government in the official . Gazette under Section 6 of the Act in order to mii.ke it effective. Question No.3. (i) A Water Disputes Tribunal constituted under the Act is competent to grant any interim relief to the parties to .the dispute when a reference· for such relief is made by the C~ntral Government; (ii) whether the tribunal has power to grant interim relief when no reference is made by the Central. N.P.V SUPREME COURT REPORi'$ [1991) SUPP. 2 S.C.R. Government for such relief is a que,stion which does not arise in the facts and circumstances under which the Reference is made. Hence we do not deem it necessary to answer the same. Reference answered.