October 12, 2013

Telangana river waters, irrigation & agriculture-9 (Interpretation of Indian water legislation)

Atma Linga Reddy & Ors v. Union of India & Ors, 2008

In the case of Atma Linga Reddy & Ors v. Union of India & Ors, 2008, the petitioners owning lands in the RDS (Rajolibunda Diversion Scheme) ayacut approached the Supreme Court praying for a stay against construction of a power project in Karnataka. They contended that the bar on judicial intervention under section 11 does not extend to private individuals. Justice CK Thakker rejected the contention.

The court noted "another equally sustainable and well-founded reason for not entertaining the so-called grievance of the petitioners". The issue was already being considered by KWDT-II (issue 22A: "Whether the State of Karnataka is entitled to construct Mini Hydel Power Project from the common bondage of Rajolibunda Diversion Scheme without the consent of State of Andhra Pradesh?") and AP was acting as parens patriae in this matter. The subject matter was therefore clearly a water dispute taken up by an appropriate tribunal.

Justice Thakker took a dim view of AP's withholding information about KWDT-II's consideration of the issue. In his stricture, he wrote:

"The contesting respondents referred to those applications and the orders of the Tribunal. Respondent No. 3 is `State' and a public authority. This Court, therefore, obviously expects from such authority to place all the facts before this Court so as to enable the Court to consider them and to take an appropriate decision in accordance with law. In our considered opinion, the third respondent- State of Andhra Pradesh, in fairness, ought to have placed all facts subsequent to filing of the counter affidavit when the matter was heard by this Court. The State, however, failed to do so".

R. Krishnaiah v. Union of India, 1996

One R. Krishnaiah approached the AP high court under article 226 praying for implementation of the Bachawat Commission (sic!) award. The petitioner's primary interest was AP & Karnataka governments were among those impleaded as respondents.

On the question of the scope of section 11, Chief Justice Prabha Shankar Mishra wrote: "The Supreme Court or any other Court, if its jurisdiction is not otherwise barred, can always issue a direction to the Central Government to perform its duty and to restrain other States who are likely to violate the award/decision of the Tribunal".

Justice Mishra found AP had "maintained as vigorous if not more vigorous position as the petitioner". The learned judge accordingly rejected the leave for appeal to Supreme Court sought by the petitioner and held the issue has to be resolved between AP & Karnataka.

Explaining the rationale behind the decision, Justice Mishra wrote: "Parens Patriae status of the Government of the State under the scheme of our Constitution is indeed recognized as water disputes are not always raised on a just a cause and people arrayed on both sides take on many occasions very hard and uncompromising stands. While State Governments in their sovereign capacity are expected to protect and represent the interests of all its people they do not act as at adversaries in the usual sense".

Andhra Pradesh v. Karnataka & Ors, 2000

As a fallout of the R. Krishnaiah judgment, AP approached the Supreme Court (Andhra Pradesh v. Karnataka & Ors, 2000 i.e. the Almatti dam case) praying the court to "declare that the report/decision dated 24.12.1973 and the further report/decision dated 27.5.1976 of the Krishna Water Disputes Tribunal (KWDT) in their entirety are binding upon the three riparian States of Maharashtra, Karnataka and Andhra Pradesh and also the Union of India" and an injunction against the construction of several projects including the Almatti dam.

AP's case was the enbloc allocation to Karnataka "has to be read in the light of the relevant stand of the parties before the tribunal, the facts and figures produced before the tribunal and the ultimate basis on which the conclusion was arrived at". In other words, AP claimed KWDT allocated water to specific projects listed in the report. Interpreting sections 5 (2) and 6 of ISDA, the court rejected AP's contention that the entire tribunal report should be treated as equal to a judgment and the decision was similar to a decree. The phrase ""facts as found by it and giving its decision" in 5 (2) was interpreted as the report being ""facts as found by it" while the gazetted decision (award) was covered by "giving its decision".

Justice Gopal Ballav Pattanaik wrote: "At the outset we are unable to accept the contention of Mr. Ganguli that the decision of the Tribunal which is ultimately notified under Section 6 of the Act can be held to be a decree of a suit and the report being the judgment and, therefore, the decided case laws on which reliance has been placed has no application at all. The inter-State Water Disputes Act having been framed by the Parliament under Article 262 of the Constitution is a complete Act by itself and the nature and character of a decision made thereunder has to be understood in the light of the provisions of the very Act itself".

Justice Pattanaik also decided "Under Section 6 of the Act the Central Government is duty bound to publish the decision of the Tribunal in the Official Gazette whereafter the said decision becomes final and binding on the parties to the dispute and has to be given effect to, by them. The language of the provisions of Section 6 is clear and unambiguous and unequivocally indicates that it is only the decision of the Tribunal which is required to be published in the Official Gazette and on such publication that decision becomes final and binding on the parties".

AP's request that all riparian states are duty bound to disclose to each other & the central government details of projects taken up after 1973 was denied. Justice Pattanaik ruled: "Though it may be fully desirable for all the States to know about the developments of the other States but neither the law on the subject require that a State even for utilization of its own water resources would take the consent of other riparian States in case of an Inter-State river".

In a separate but related issue, the learned judge rejected AP's contention that AP's concurrence was required for the Almatti dam. He held: "Neither there exists any law which compels any State to get the concurrence of other riparian States whenever it uses water in respect of inter-State river nor the decision of the Tribunal which allocates the water in the Krishna Basin on the basis of 75% dependability which figure was in turn arrived at by an agreement of parties puts any condition to have the concurrence of other riparian State".

Justice Shailesh Majmudar in his concurring opinion held the dispute related to execution of KWDT decision and therefore not a water dispute under section 3. He ruled: "The grievance of the plaintiff State is that though the decision is binding on the upper riparian States namely, defendant nos. 1 and 3, the executive action of the concerned States amount to flouting and violation of the binding decision of the Tribunal. This clearly raises a question of execution and implementation of an already adjudicated water dispute. Once that conclusion is reached, it becomes obvious that Article 262 would be out of picture and only Article 131 will remain operative for being invoked by the disputant State against the defendant States, as it would certainly raise a dispute regarding execution and implementation of binding award of the Tribunal and, therefore, a contest does arise between two or more States on this score".

Karnataka filed a counter case that was decided at the same time. Karnataka's contention scheme B was a part of KWDT decision was also rejected on the same interpretation of section 6 as above.

Cauvery presidential reference, 1991

Tamil Nadu (TN) petitioned CWDT to prevent Karnataka from impounding or utilizing water in excess of beyond the past extent. TN followed up by praying for release of 20 TMC as an emergency relief. Karnataka & Kerala objected arguing the tribunal had a limited jurisdiction without any inherent powers. The tribunal refused to grant relief on the ground that interim relief was not included in its reference.

TN & Pondicherry approached the supreme court. The apex court held the interim relief was under the purview of the dispute and directed the tribunal to decide the interim relief request on merit. The tribunal accordingly considered the request on merit and granted relief to TN. Karnataka passed an ordinance in an attempt to nullify the tribunal's order. The central government raised a presidential reference seeking supreme court's opinion under article 143.

Before going further, it may be noted the jurisdictional bar in section 11 of ISDA was not deemed to prevent the supreme court from hearing the case. This firmly establishes section 11 is limited to inter-state water disputes referred or liable to be referred to a tribunal.

Karnataka argued the ordinance was covered under entry 17 and, in the absence of a river board setup under RBA, a state retained full legislative powers under entry 17. It also submitted that ISDA envisaged only one decision and therefore the impugned interim award could not termed as a "decision" under section 5 (2).

TN inter alia argued that a tribunal had "inherent jurisdiction" to grant interim relief and such a decision would be a "decision" under section 5 (2). TN also contended the impugned ordinance was extra-territorial and therefore Karnataka had no right under entry 17.

The court opined the ordinance was an "an extra-territorial operation, and is thus beyond the legislative competence of the State and is ultra vires the provisions of Article 245(1) of the Constitution". The court passed severe strictures against Karnataka stating "it has assumed the role of a judge in its own cause". Karnataka was also held to have challenged the apex court's order directing CWDT to consider the interim relief on merit.

Karnataka's claim that interim award was not a part of the tribunal reference was negated: "Sub-section (1) of Section 5 expressly empowers the Central Government to refer to the Tribunal not only the main water dispute, but any matter appearing to be connected with or relevant to it. 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".

Karnataka's contention that the interim award was not a decision was rejected: "It is not correct to say that since the Order does not say that it is a report and decision it is not so under Section 5 (2) of the Act. 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. The contents of the order clearly show that it is a report and a decision within the meaning of Section 5 (2)".

It should be noted that the supreme court's response to a reference under article 143 is an "opinion". The foregoing should be read accordingly. Having said this, there are no known cases where such an "opinion" was treated as being inferior to a judgment insofar as stare decisis is concerned.

Tribunal interpretations

KWDT asserts (volume I, page 100) "The decision of the Tribunal overrides all repugnant State legislation and executive action. In this manner, the plenary powers of a State over the waters of the inter-State river and river valley within its jurisdiction are regulated and controlled by the decision of the Tribunal". This is based on the phrase "final and binding on the parties" in section 6 of ISDA and the fact that state legislation is covered by section 3 (a).

On the same page, KWDT states "If there is competent legislation by Parliament on the subject of the apportionment of the waters of an inter-State river and river valley, that law binds all the States and there is no room for an inconsistent apportionment. The Tribunal has no power to override the paramount Central Legislation". While the source of this assertion is apparently based on Arizona v. California, 373 U.S. 546 (1963), ISDA does not provide any such right to a tribunal. Only state legislation is covered by section 3 (a).

KWDT (volume I, page 105) states: "However, the Union Government and the Planning Commission have no statutory authority to allocate the water resources among the States or to fix the order of priorities for their projects. If a water dispute arises and the same cannot be settled by negotiations, a reference has to be made to a Tribunal appointed under the Inter-States Water Disputes Act, 1956, for adjudication of the dispute". The phrase "has to be" is based on "shall" used in section 4 (1) of ISDA.

ISDA section 6 (A)

KWDT report text (volume II, pages 42-47) relates to the proposed Krishna Valley Authority (KVA). The first draft of the proposed water sharing formula (Scheme B) is provided in pages 64-65 of the same volume. This was modified in response to Karnataka's clarification III after the final request was submitted. Scheme B as finalized is provided in pages 32-39 of volume IV.

Maharashtra, Karnataka & AP filed a document (exhibit MRK-340) before the KWDT. This inter alia envisages the setting up of "a joint control body to give effect to the decision of the Tribunal". While the states differed on the water volume to be apportioned and percentage shares, this was left to the tribunal's adjudication. The tribunal accordingly submitted drafts of the scheme for the parties to consider.

After considering the drafts, Maharashtra agreed to the proposal while Karnataka while agreeing suggested certain modifications. AP, on the other hand, made a U-turn stating "Andhra Pradesh is unable to give its formal consent to set up the Krishna Valley Authority having the constitution and powers as mentioned in Part II".

Maharashtra objecting to AP's volte face submitted that AP's acceptance was not necessary. Relying on the word "final and binding" in section 6 and the jurisdictional bar cited in section 11, the state argued "A final and binding adjudication of a water dispute can only be made by the Tribunal which has power to make its decision effective by setting up, if necessary, a controlling body or authority which would implement the decision of the Tribunal". Maharashtra, in short, sought to apply the principle "ubi aliquid concediture, concediture etiam id sine quo res ipsa non esse potest" (a duty imposed or a power granted by Parliament carries with it the power necessary for its performance or execution).

Maharashtra also stressed other grounds including the argument that MRK-340 constituted an agreement. Karnataka pleaded the proposed KVA "is a necessity which cannot be avoided".

AP rejected the argument that MRK-340 was an agreement claiming only Parliament can create such a body and also on grounds of implementation shortcomings. The state also argued KVA was a Corporation and setting this up falls in the jurisdiction of Parliament, not tribunal. It was also submitted that "power to adjudicate is different from the power to execute the decision and in the absence of conferment of any express power on the Tribunal to pass an executable order the Tribunal cannot exercise this power".

KWDT rejected AP's contention on the limitations of adjudication. The tribunal did not accept Maharashtra's argument that MRK-340 constituted an agreement due to the implementation shortcomings pointed out by AP. While rejecting AP's "corporation" argument, KWDT did not elaborate as it gave up the KVA idea. Interestingly the tribunal did not delve into Maharashtra's "duty carries with it necessary powers" argument. This is not surprising given the importance given to the wider encompassing concept of "judicial intent" in Indian jurisprudence.

Concluding the matter, KWDT wrote: "After deeply pondering over the matter we have come to the conclusion that it would be better if we devise two schemes for the division of the waters of the river Krishna between the States of Maharashtra, Mysore and Andhra Pradesh. These schemes will be called Schemes A and B. Scheme A will come in operation on the date of the publication of the decision of this Tribunal in the Official Gazette under Section 6 of the Inter-State Water Disputes Act, 1956. Scheme B may be brought into operation in case the States of Maharashtra, Mysore and Andhra Pradesh constitute an inter-State administrative authority which may be called the Krishna Valley Authority by agreement between them or in case such an authority is constituted by legislation made by Parliament". It noted "propriety of the matter rather than legality" as the prime factor behind this decision.

The subject came up again after the final report was submitted. The central government in its clarification 6 requested for a modus operandi for water sharing in deficit year. KWDT replied: "Scheme ' B ' which provides for sharing of both surplus and deficiency in the entire Krishna river basin could not be implemented for reasons given in the Report and on account of the opposition by Andhra Pradesh, In the scheme of allocation embodied in the Final Order, Andhra Pradesh will be at liberty to use the excess flow in surplus years and at the same time will have to bear the burden of the deficiency in lean years save as indicated in this Report".

Karnataka's clarification II requested for implementation of scheme B. The tribunal in response outlined the previous initiatives in this direction and wrote (volume IV, page 30):

"However, one of the States did not agree to Part II of the Scheme, see Report Vol II pages 521-522 We have pointed out that it, is unwise and impractical to impose an administrative authority by a judicial decree without the unanimous consent and approval of the parties, see Report Vol II page 539 Even to day, the State of Andhra Pradesh is opposed to the implementation of Scheme 'B' and to the constitution of Krishna Valley Authority Consequently the Krishna Valley Authority which includes a nominee of Andhra Pradesh as envisaged by the common draft of Part II of Scheme 'B' cannot be constituted Unless the Krishna Valley Authority is constituted, Scheme ' B' cannot implemented". The tribunal reiterated that the best way to setup the authority was agreement among the parties or central legislation.

Justice Umesh Chandra Banerjee in his concurring judgment in Andhra Pradesh v. Karnataka & Ors, 2000 touched upon the subject. He initially expressed surprise that KWDT chose to take upon itself the framework of scheme B without the necessary power to constituite KVA. Going into the KVA related discussions at KWDT, he comes to "an unmistakable conclusion that the Tribunal wanted to provide certain guidelines to the Krishna Valley Authority as and when it is so constituted and significantly, the Tribunal itself has left it to the good sense and better appreciation of the parties or the legislative intent for the formation of such an authority".

Justice Pattanaik in Karnataka's counter case dwelt into the matter at some length stating: "While placing Scheme 'B' in its Report the idea was that the labor of the Tribunal in evolving the Scheme would not be totally lost and that is why it hoped that the parties may agree for constituting an authority or if they fail to agree the Parliament also could make a law but unfortunately, neither of the two contingencies has happened".

Issue # 8 in Karnataka's counter case reads: "8. Whether insertion of Section 6A in 1980 in the ISWD Act, 1956, ipso facto entitles Karnataka to seek implementation of Scheme 'B' as referred to in the reports of the Tribunal by framing a scheme? (Karnataka as modified by AP)". The court did not take up the issue on merit as scheme B & KVA have already been held not to be a part of the KWDT decision. This is based on the phrase "necessary to give effect to the decision of a Tribunal" in 6 (A) (1).

It is pertinent to note here that the amendment of 1980 inserting section 6 (A) was enacted after the KWDT-I decision came into force after the due process of gazette notification.

KWDT-II notes (pages 828-829): "it is the duty of each State to the dispute to act in accordance with the decision rendered by the Tribunal. The decision given by the Tribunal is to be followed and given effect to by the parties without there being anything else to happen or to be provided for. But for the purposes of better implementation of the provisions made in the decision, it may be helpful to have a machinery to do so. It may be helpful to the parties to the dispute also as they would be getting assistance in giving effect to the decision. We find that under sub-section (1) of section 6A of the Act, the Central Government has also been authorized to frame a scheme, if it so chooses to do, for implementation of the decision of the Tribunal". Accordingly the tribunal finalized a scheme for setting up of Krishna Waters Decision- Implementation Board (KWD-IB). This was included in clause XVIII of the decision with the details of the scheme together with Appendix-I of the decision.

"The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written": Chief Justice John Marshall in Marbury v. Madison, 5 U.S. 137 (1803)

October 07, 2013

Telangana river waters, irrigation & agriculture-8 (Indian water regime-an overview)


The previous chapter focused on the Indian trans-boundary legislation. We will now turn our attention to the overview, interpretation & criticism of the legislative regime. The present chapter will cover a broad overview of ISDA and the role of prior agreements in the legal landscape.

The language of the applicable legislation provides several pieces of interesting information.

The definition of "water disputes" in section 2 (c) of ISDA refers to three types of disputes. Trans-boundary water sharing is not explicitly included as a "water dispute": it is only covered through sections 2 (c) (i). More over, other types of disputes are specifically included. This leads to the inference that ISDA's primary role is the adjudication of water disputes including but not limited to water sharing. The very title of the act reinforces this inference.

ISDA title change through 2002 amendment may be interpreted to clarify the exclusion of lakes and ground water (excluding sub-surface streams) from the scope of the legislation. Lahiri notes "It became the Inter-State River Water Disputes Act, 1956 only after the 2002 Amendment on and from August 6, 2002".

Section 3 of ISDA empowers state governments to raise water disputes. This (together with the title itself) can be inferred to bar individuals and other non-state players such informally defined "regions". Only a state government can pray for remedy if aggrieved.

Section 3 (and indeed ISDA itself) relates only to inter-state disputes. This is evident from both the language and the title. Taken together it is not possible for any one other than a state government (e.g. a regional council) to escalate a water dispute against another district, region or state. Distribution of water within a state (i.e. entry 17 rights) is clearly out of bounds.

I emphasize some of the above assertions are based on the sum total of my understanding after going through hundreds of pages of case law, tribunal reports & scholarly works. I realize I am not backing up some of these "on the spot" but this is to avoid increasing the pages of this work.

Commission, tribunal & courts

A commission appointed under section 130 of the 1935 act is limited to an advisory role. The Governor-General had wide discretionary power as confirmed in section 131 (9). He has the authority to take decisions or modify decisions he has already taken. The arbitrariness in his role as well as possible conflict with "his Majesty in Council" appear to be the main reasons why KWDT suspected "political considerations". The situation did not appear to have improved much from the pre-1935 period when the Griffin arbitration award was overturned by executive action.

Another distinction relates to the composition and appointment. Section 131 (1) of the 1935 act permits a commission to include individuals "having special knowledge and experience in irrigation, engineering, administration, finance or law", as decided by the Governor-General. The Indus Commission consisted of two members apart from the Chairman Justice BN Rau: both were engineers.

On the other hand, ISDA section 4 (2) limits the membership to serving (at the time of nomination) judges selected by the Chief Justice of India. Section 4 (3) relates to the appointment of assessors.

Unlike a commission setup under the 1935 act, a tribunal constituted under ISDA is empowered to pronounce a decision. This decision is binding on all the parties to the dispute as well as the central government. Tribunal decisions may not be questioned in a court of law. In practice this may not have worked out smoothly due to several reasons. Nevertheless a tribunal is a powerful adjudication institution.

Tribunals vs. courts

How do tribunals compare with courts? While a tribunal decision may not be challenged in any court, this relates only to the decision itself. This is not helpful in determining a tribunal's hierarchy insofar as stare decisis is concerned.

KWDT (volume IV, page 11) provides some clues:

"But a Tribunal constituted under a special statute has no common law or inherent power, see Kamaraja Nadar v. Kunju Thevar (1959) S.C.R. 583, 596 (Election Tribunal). However, if authorized by the statute by which it was constituted, it may review its decision, see Sree Meenakshi Mills Ltd. v. Their Workmen (1958) S.C.R. 878, 888 (Labor Appellate Tribunal under the Industrial Disputes Act, 1947); Mulla's Code of Civil Procedure 13th Edition, page 1669; and may correct an accidental omission, see Tulsipur Sugar Company Ltd v. State of U.P. (1970) 1 S.C.R. 35, 37, 41-45 (Labor Court under U.P. Industrial Disputes Act, 1947).

This Tribunal is set up under the Inter-State Water Disputes Act, 1956. Its powers are circumscribed by the provisions of that Act. It has no inherent powers. It has some trappings of a Court. Section 9 of the Act gives the Tribunal some powers of a Civil Court and also enables it to regulate its practice and procedure. But the powers under section 151, 152 or under section 114 or Order 47 Rule 1 of the Code of Civil Procedure have not been conferred on it. Section 5(1) of the Act provides for reference of a water dispute and any matter appearing to be connected with or relevant to the water dispute to the Tribunal for adjudication. Section 5 (2) directs the Tribunal to investigate the matters referred to it and forward to the Central Government a report setting out the facts as found by it and giving its decision on the matters referred to it.

At pages 512 to 513 of Vol. II of the Report we have pointed out that a Tribunal appointed under the Inter-State Water Disputes Act, 1956 is not a permanent body and it cannot retain jurisdiction to modify its decision, apart from its statutory power to do so upon a reference made to it under section 5 (3) of the Act within three months of the decision".

The above may be considered in view of the following:

·         Tribunals frequently cite both case law (Indian & international) as well as other tribunal reports
·         The converse does not appear to be true. The Indian case law I referred frequently cited the appropriate tribunal but this was only for understanding the reason behind a decision
·         I have not come across a single instance where an Indian court cited a different tribunal's report

Not withstanding the jurisdictional bar, it is therefore safe to conclude a tribunal's report has little if any precedential value outside of water dispute adjudication. Even this may be limited by context e.g. CWDT's approach on basin transfers may not be relevant to different situations.

Prior agreements

KWDT (volume I, page 101) reading sections 2 (c) (ii) and 3 (c) of ISDA together determined: "if there is an agreement between the States relating to the use, distribution or control of the waters, that agreement should be implemented". GWDT (page 109) also cites this. KWDT also cites the Indus Commission's views "The agreement determines their respective rights and obligations and furnishes the agreed "law" on the subject".

On a similar note, Lahiri states the Indus Commission held "where there was an agreement, the agreement itself determine the limits and any transgression of this agreement would make the transgression actionable".

It may be noted that section 3 (c) refers to any agreement "relating to the use, distribution or control of such waters". While water sharing agreements are included, this may also include other agreements relating to the use/distribution/control of waters. There is also no restriction on the modalities of sharing. Agreements signed for Godavari water sharing adopted several methods including specific projects, sub-basins or part thereof, TMC shares as well as combinations of these.

In an agreement signed on July 12, 1974 Madhya Pradesh (MP), Gujarat, Maharashtra & Rajasthan agreed on several aspects relating to the dispute then being adjudicated by Narmada Water Disputes Tribunal (NWDT). Apart from agreeing the water quantity available at 75% dependability as 28 MAF (million acre-feet), the parties agreed to set aside 0.25 MAF & 0.50 MAF respectively for Maharashtra & Rajasthan. NWDT accordingly allocated this water to the two states in clause III of the decision.

GWDT also refused to interfere with valid agreements between states. The central government in its clarification 5 requested the tribunal to provide for a review as water available may become scarce with the passage of time. The tribunal refused the request stating "The decision of the Tribunal is based on the Agreements between the parties and there is no stipulation in the Agreements for the review of the decision. As such, we do not find it necessary to amend the Final Order in this respect".

Interpreting agreements

Andhra Pradesh v. Maharashtra & Ors, 2013 (Babhali barrage case) provides an interesting case study on how agreements are to be drafted. The case centered to a great extent around clause II (i) of the agreement dated October 6, 1975, between the two states. This agreement was included in the award as Annexure II vide clause V (A) (b). The relevant text is shown below for ready reference.

"II. (i) From the waters in the area of the Godavari basin below Paithan dam site on the Godavari and below Siddheswar dam site on the Purna and below Nizamsagar dam site on the Manjira and up to Pochampad dam site on the Godavari, Maharashtra can utilize waters not exceeding 60 TMC for new Projects including any additional use over and above the present sanctioned or cleared utilization, as the case may be".

AP argued inter alia the phrase "up to Pochampad dam site" includes the entire storage area of the dam. Maharashtra argued the phrase had to be interpreted literally i.e. "up to the concrete structure of the dam" as this meaning was used in other clauses of the agreement. Any other interpretation, it argued "would result into absurdity and make other clauses unworkable".

Maharashtra also contended that there was no limitation in its rights in its territory: "If the intention of Andhra Pradesh was that Maharashtra should not utilize the waters of Pochampad reservoir in its territory, such limitation would have been provided expressly".

Justice Rajendra Mal Lodha agreed with Maharashtra holding: "We are in agreement with Mr. TR Andhyarujina that if the intention of Andhra Pradesh was that Maharashtra should not utilize the waters of Pochampad reservoir in its territory, such limitation would have been provided expressly. When an agreement is entered into between two or more states, they have assistance of competent legal and technical minds available with them. The states do not have lack of drafting ability. Such agreement is drafted by trained minds. An agreement such as inter-state water sharing agreement would not leave its interpretation to chance. In our view, in the absence of any express limitation, except quantity, on the use of water by Maharashtra within its territory in Clause II i), the interpretation put by Andhra Pradesh to this Clause cannot be accepted".

Justice Lodha rejected AP's interpretation of the phrase "dam site" and upheld Maharashtra's contention. "The contention of Mr. K. Parasaran, learned senior counsel for Andhra Pradesh that up to Pochampad dam site in Clause II (i) and Clause II (ii) means up to the spread area of Pochampad dam and not the concrete structure of the dam does not appeal to us. The common meaning of the word “dam” is the structure across the stream, including the abutment on the sides".

The learned judge agreed with Maharashtra that an expression must carry the same meaning at all places where it is used, unless expressly provided otherwise. He wrote: "If the meaning of Pochampad dam site is given meaning as spread area of Pochampad dam, Clause V does not make sense and leads to absurdity. Clause V becomes workable only when Pochampad dam site is understood to mean concrete structure of the dam".

While agreeing with AP that "generally there cannot be lake/pondage of a project of one state within the lake/pondage of the project of another state", the court held this was not the focus of the case in the absence of engineering and hydrographic testimony. As the arguments on either side were centered on the interpretation of II (ii), this alone was considered for the judgment. The learned judge held "Like any other agreement, the terms of inter-state agreement ordinarily must be found out from the actual words employed therein".

"All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void": section 10 (excerpt) of the Indian Contracts Act, 1872