The position taken by the Centre that the Supreme Court has no power to judicially review the Cauvery tribunal's 2007 award is tantamount to giving the tribunal “absolute, uncontrolled, uncanalised and unguided judicial power which negates the rule of law”, the Tamil Nadu government said on Tuesday.
In detailed written submissions filed in the apex court, the State government challenged the Centre's position, asking if the Supreme Court could review the decisions of a constitutional authority like a State Governor, what prevents the top court from hearing appeals challenging a decision of a mere tribunal formed under a statute.
“The established legal position is that this Court has the power to examine the validity of not only the statutory enactments but also Constitutional amendments. It is inconceivable that the framers of the Constitution denied such power of judicial review in respect of decisions of the Tribunal constituted under 1956 Act,” the State submitted through advocates G. Umpathy and B. Balaji.
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The Centre had vehemently opposed the Supreme Court hearing appeals filed by Tamil Nadu, Karnataka and Kerala against the tribunal decision. Attorney-General Mukul Rohatgi, for the Centre, had submitted that the Supreme Court was barred under Article 262 (3) and provisions of the Inter-State Water Disputes Act, 1956 from entertaining appeals under Article 136 against the Cauvery tribunal's award.
Mr. Rohatgi had argued that the tribunal's award was final and had the force of the Supreme Court. He had urged the court to dismiss the appeals. A Bench led by Justice Dipak Misra had reserved the question of jurisdiction for judgment on October 19 and ordered Karnataka to continue release of 2000 cusecs of water till further orders.
“The tribunal in its original jurisdiction adjudicates the original dispute while this Court under Article 136 does not adjudicate the original dispute but examines only the question whether the tribunal acted in accordance with the law or not. The aforesaid jurisdictions are absolutelydifferent,” Tamil Nadu countered the Centre's position.
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The State also separately filed its objections to the Central Water Commission chief G.S. Jha-led Cauvery High Level Team's report on the ground realities in the river basin.
The State alleged that the team neither visited the unauthorised schemes nor did Karnataka take an effort to show them to it during the visit.
Tamil Nadu rejected Karnataka's statement that 42 out of its 48 taluks in the Cauvery basin were drought affected.
The State submitted that the utilisable storage in the Mettur reservoir as on October 13 was only 26.66 TMC ft, while the gross storage available in Karnataka’s four major reservoirs was 32.12 TMC ft, that too, after Karnataka had utilised about 85 TMC ft for irrigation and drinking.Tamil Nadu has drawn only 23.566 TMC ft. for irrigation.
“As per the estimation made by the team, the total expected availability in Karnataka at the end of May, 2017 is 89.16 TMC ft, while its requirement during the corresponding period is only 47.62 TMC ft. There will be a balance of 41.54 TMC ft, which can be released to Tamil Nadu,” the State submitted.
Tamil Nadu sought the court to direct Karnataka to make good the shortfall as on October 13 as per the tribunal award, and further, ensure release of water till the end of irrigation season till January 2017 to save its single Samba crop.