HYDERABAD: Continuing final arguments before the Brijesh Kumar Tribunal on Thursday, senior advocate Jaideep Guptha, appearing for Andhra Pradesh, said protections for existing utilisations cannot be redistributed and are governed by three layers: principles laid down in tribunal awards and international norms such as the Helsinki and Berlin Rules; national water policies and statutes including the Interstate River Water Disputes Act (ISRWD Act) and the AP Reorganisation Act (APRA); and specific tribunal awards.
Guptha referred the Tribunal to pages 98, 100 and 128 of the KWDT-I Award and page 683 of the KWDT-II Award to argue that existing allocations should not be disturbed. He also cited Clause IV of the KWDT-II Award in support.
Reading from KWDT-I on protection of existing uses, Guptha said protection meant preference to certain existing uses over contemplated uses while fixing equitable shares. It did not mandate that such uses must continue unchanged in future.
He cited Section 6(2) of the ISRWD Act, 1956, stating that a tribunal decision, once published, has the same force as an order or decree of the Supreme Court. The KWDT-I Award is therefore binding on successor states, Guptha argued.
Referring to the provision to Section 4(1) of the ISRWD Act, he said a dispute once settled by a tribunal cannot be reopened. “The provision speaks of disputes, not parties,” he said, adding that Telangana cannot seek reopening on the ground that it was not a party to KWDT-I. He said Telangana itself had placed this position before the Supreme Court earlier.
Guptha also argued provisions of the APRA, 2014, particularly Sections 84, 85(8) and 89, and paragraphs 4, 7 and 10 of the Eleventh Schedule. He stressed paragraph 4, which states that allocations made by the tribunal to the undivided Andhra Pradesh, based on assured waters, should remain unchanged.
On the en bloc concept, Guptha said it applied only within a state’s allocation under the KWDT-I Award and did not permit water transfer from Karnataka to Andhra Pradesh. Post-bifurcation, he said, the en bloc clause had lost relevance and allocations now had to be project-specific under Section 89. En bloc liberty, he added, could only allow reallocation within a state from its own share.
He added that if 299 tmcft is allocated to Telangana and 512 tmcft to Andhra Pradesh, project-specific allocations could still allow internal reallocation within each state’s share.
Guptha rejected Telangana’s contention that only a tribunal can allocate water and that Parliament lacks such power. Citing the Supreme Court’s Mullaperiyar judgment (2006 (3) SCC 643), he said water allocation in the context of state reorganisation can be provided for by Parliament under Articles 3 and 4 of the Constitution. He added that the Further Terms of Reference constitute executive action.
Senior advocate Umapathi, also appearing for Andhra Pradesh, addressed provisions of the Cauvery Water Disputes Tribunal (CWDT) Award and the Supreme Court’s judgment on Cauvery. He said the CWDT protected existing areas, including areas already developed or under development beyond the entitlements under the 1924 Agreement during 1974–1990.
Umapathi said curtailment applied only to double-cropped areas, while existing irrigation was protected. He referred to the tribunal’s scientific assessment of crop water requirements for optimal utilisation.
He concluded that the Cauvery judgment affirmed protection of existing irrigation and that protections under KWDT-I were not disturbed by KWDT-II.