Chennai, July 28: Terming as disappointing Union Minister of State for Jal Shakthi Raj Bhushan Chouddhry’s remarks on Mekedatu that Supreme Court has not explicitly stated Karnataka should obtain the consent of the lower riparian states to construct structures across River Cauvery, Tamil Nadu Chief Minister Vijay on Tuesday urged Prime Minister Narendra Modi that such remark without referring to the settled law and legal principles in interstate water issues should be withdrawn.
In a Demi-Official letter to Mr Modi, he said the disappointing reply from the Minister of State for Jal Shakti seems to have been made without taking into consideration the prevailing legal position and settled law with regard to the consent of the lower riparian states.
Citing the decisions of Constitution Bench of Supreme Court on Alamatti dam and Kerala’s Pambar hydro-electric project, he said Tamil Nadu’s considered opinion is that the proposed Mekedatu dam project could not be evaluated merely as an engineering proposal.
Its legal permissibility must first be examined in the context of the Final Award of the Cauvery Water Disputes Tribunal (CWDT), the February 16, 2018 judgment of the Supreme Court and the rights of the lower riparian States and it is pertinent that the Detailed Project Report submitted by Karnataka in 2019 was returned by the Central Water Commission for revision to ensure compliance with the Tribunal Award and applicable guidelines.
This itself demonstrates that compliance with the Award remains an indispensable precondition, Vijay said, and earnestly requested the Union Government to ensure that the reply given by the Union Minister in Rajya Sabha without referring to the settled law and legal principles in interstate water issues may be withdrawn.
Vijay urged Mr Modi to ensure that no statutory or administrative approval is granted to the Mekedatu Project unless it is demonstrably consistent with the CWDT award and the judgement of the Supreme Court; rights of the lower riparian States in relation to both quantum and regulated pattern of releases are fully protected and any future consideration of the project should be undertaken only after comprehensive technical and legal examination, taking into account the concerns of all lower riparian States.
Observing that River Cauvery was not merely a source of water but the lifeline of millions of farmers and citizens across southern India, the Chief Minister said protecting the integrity of the final award of the CWDT and the judgment of the Supreme Court was essential for maintaining confidence in the constitutional mechanism governing inter-State rivers and urged Mr Modi’s intervention in the larger interest of justice, federal harmony and faithful implementation of judicial decisions.
He drew the Prime Minister’s attention the decision of the Constitution Bench of the Supreme Court in the Alamatti case between State of Karnataka and Andhra Pradesh wherein it was ruled that the consent of the lower riparian state is absolutely necessary, Vijay said the relevant para of the Judgement in State of Karnataka Vs State of AP [2000(9)] SCC Page 572 at paragraph 100 states the“100….nor can Karnataka State be permitted to construct up to that height without the consent of all other riparian States as well as without the approval of the Central Government…”
As far as the CWDT award is concerned, the Supreme Court expressly affirmed Clause XVIII of the Tribunal Award, which preserves the power of each State to regulate waters within its territory only “in a manner not inconsistent with the order of the Tribunal.” Thus, any project that has the potential to affect the regulated flow regime established under the award necessarily requires scrutiny for consistency with the award.
Noting that the Tribunal itself has laid down important guiding principles, Vijay said in the case of Kerala’s Pambar Hydro-electric Project, involving only 0.1 TMC of consumptive use, it had directed that Kerala and Tamil Nadu should jointly agree upon the schedule of releases so that downstream irrigation is not adversely affected.
This demonstrates that the Tribunal attached paramount importance not merely to annual quantities but also to coordinated regulation of releases affecting lower riparian interests. Further, Clause XI of the Award specifically prohibits any upper riparian State from taking action affecting scheduled deliveries to downstream States except through mutual agreement and consultation with the regulatory authority. Clause XX similarly recognises that modifications of the Award can only be achieved through agreement among the party States, he pointed out.
TN’s considered opinion was that the proposed Mekedatu Project cannot be evaluated merely as an engineering proposaland that its legal permissibility must first be examined in the context of the Final Award of the CWDT, the Apex Court judgement and the rights of the lower riparian States.