An award in sight

The Cauvery water dispute enters the last phase of arguments, and the Tribunal's final verdict is expected early next year.

THE denouement appears to be near in the 27-year-old Cauvery water dispute, with the final phase of arguments before the Cauvery Water Disputes Tribunal beginning in New Delhi on January 29. The cross-examination of witnesses cited by Tamil Nadu, Karnataka, Kerala and Pondicherry, the parties to the dispute, concluded in December 2001, after eight years. The arguments are expected to be completed by the end of 2002. The Tribunal, chaired by N.P. Singh, with S.D. Agrawala and N.S. Roy as members, may pronounce its final order in early 2003.

Three issues are likely to dominate the arguments: the 1892 and 1924 Agreements between the then Madras government and the Mysore durbar, the availability of water, and equitable apportionment of the water among the basin States. The 50 issues framed by the Tribunal are broadly classified under these three.

During cross-examination, nine witnesses cited by Tamil Nadu tendered evidence on the sharp fall in the inflow of Cauvery water into Tamil Nadu from the early 1980s, and the consequent drop in acreage under "kuruvai" paddy crop in the State. They also explained, among other things, how the State was using economically the water available to it. Tamil Nadu produced about 2,000 exhibits to support its case.

Karnataka cited eight witnesses. They contended that Tamil Nadu's water readings were wrong, that it wasted a lot of water and that it should forgo the kuruvai crop. Their depositions ran to about 6,000 pages. Said a Tamil Nadu official: "We had to do a detailed cross-examination to disprove what they said. It took eight years."

The witnesses cited by Kerala wanted diversion of water from the Cauvery basin for the generation of electricity. Tamil Nadu opposed it.

In a separate development, on February 12 Tamil Nadu opposed the move to entrust the Central Water Commission (CWC) with the task of devising a formula for sharing the water in a year of distress because of the failure of rain. Although the Tamil Nadu government accepted the CWC's draft guidelines on sharing water in a distress year, it emphasised that the final decision should vest with the Tribunal, which was set up by the Union government on June 2, 1990.

The Tribunal, in an Interim Order on June 25, 1991, directed the Karnataka government to release 205 tmc ft (thousand million cubic feet) of water to Tamil Nadu at the Mettur reservoir every water year from June to May and prescribed the weekly and monthly releases. Karnataka refused to accept the order and asked how it could release 205 tmc ft in a year of deficit rainfall.

On August 11, 1998, the Cauvery River Authority (CRA), comprising the Prime Minister and the Chief Ministers of Tamil Nadu, Karnataka, Kerala and Pondicherry, was formed. It was to decide how to share the water in a distress year, aided by a Monitoring Committee consisting of officials from the Union Water Resources Department and the Chief Secretaries and irrigation officials of Tamil Nadu, Karnataka, Pondicherry and Kerala.

Tamil Nadu officials pointed out that although it was initially agreed that the CRA would decide how to apportion water in a distress year, it later gave up that responsibility. Distress occurred, they said, when Karnataka was not able to provide 205 tmc ft at the Mettur dam. For instance, the water year 2001-2002 had been one of distress, they said. Tamil Nadu told the Monitoring Committee on February 12 that there was a shortfall of 42 tmc ft in the water released by Karnataka, but Karnataka stated that the deficit was only 3 tmc ft.

To back their stand that the Tribunal should decide the water-sharing formula in a distress year, Tamil Nadu officials referred to its order of April 3, 1992. The Tribunal, then headed by Chittatosh Mookherjee, had said: "...No interference is called for at this stage with our order dated 25th June, 1991. We may, however, make it clear that in case hereinafter there is any change of circumstances or undue hardship is caused in a particular year to any party, it will be open to such party to approach the Tribunal for appropriate orders."

When the Tribunal had categorically stated that the contending parties could approach it in a year of hardship, why should the CRA take up the job, especially after it relinquished it, asked the Tamil Nadu officials. One of them said, "The CRA has no experience in this. Its powers are limited. That being the case, why should it try its hand in the distress-sharing formula now?" He, however, said Tamil Nadu accepted with modifications the CWC's formula on distress-sharing. "But we said we will accept it only when it is decided by the Tribunal," he added. According to him, Tamil Nadu wanted the distress formula to be worked out every month or fortnight. "The 1924 agreement posed no problems because it was a day-to-day agreement," he said.

A highly placed Tamil Nadu official said Karnataka had already refused to accept the CWC's formula on distress-sharing. "Karnataka says it will accept the formula only when there is a consensus on it," he said.

THE Cauvery Water Disputes Tribunal was the country's first water tribunal to give an interim order. No other water tribunal, be it Narmada or Krishna, had passed interim orders. The 205 tmc ft that it awarded to Tamil Nadu was arrived at after taking into account the 10-year availability of water from 1981 to 1990. It ignored two good years and two bad years. The remaining six years were considered the base for arriving at the figure.

In the final arguments, counsel for Tamil Nadu A.K. Ganguly argued that since the Cauvery was "the lifeline of Tamil Nadu", the Tribunal should impose appropriate restrictions on Karnataka's use of water from the various tributaries of the river so that the flow received at Mettur could meet Tamil Nadu's requirements. Ganguly was assisted by State Additional Advocate-General R. Muthukumaraswamy and C. Paramasivam and G. Umapathy.

He recalled that the Madras government and the Mysore durbar considered each other's interests before they reached the water-sharing agreement in 1892. In June 1891 the Mysore durbar submitted a list of rules to the Madras government defining the limit, across 15 tributaries, within which it would not build any new irrigation works without prior reference to the latter. It accepted the minor changes suggested by the Madras government. This led to the 1892 agreement, which gave prescriptive rights to Madras in sharing the Cauvery water. (If a party is able to establish that it has been enjoying Cauvery waters for 20 years, it is presumed as having prescriptive rights over the waters.)

Ganguly said that from 1890 to 1910 the average irrigated area in the then Madras Presidency (most of it in Tamil Nadu now) was 10,13,344 acres in the Cauvery delta, 1,13,335 acres in the lower Coleroon anicut, and 1,76,334 acres in the Cauvery and its tributaries above the upper anicut, whereas the total area irrigated by the Cauvery and its channels in Mysore (now in Karnataka) was only 77,241 acres. This showed that Mysore gave preference to generating electricity for use by the Kolar Gold Fields over irrigation, Ganguly said.

He urged the Tribunal to treat the entire Cauvery basin, comprising Tamil Nadu, Karnataka, Kerala and Pondicherry, as one zone and evolve a formula for the equitable distribution of water as per the requirement of each. There should be proper rules and regulations for the distribution and utilisation of water by the four riparian States, he contended.

EVEN as the arguments were under way, farmers' associations in Tamil Nadu were shocked when Ganguly told the Tribunal that the 1924 agreement had expired in 1974. This went against the stand held by successive Tamil Nadu governments. The associations wonder whether the AIADMK government's official standpoint is that the 1924 agreement expired in 1974.

The associations are also angry over the replacement of Tamil Nadu's counsel K. Parasaran, who had been appearing until recently before the Tribunal and the Supreme Court in the Cauvery issue. K. Balakrishnan, general secretary, Tamil Nadu unit of All-India Kisan Sabha, which is affiliated to the Communist Party of India (Marxist), said the replacement of Parasaran had created confusion.

S. Ranganathan, secretary, Cauvery Delta Farmers' Welfare Association, regretted that the Karnataka government's attitude had not changed. It treated the Mettur reservoir as a drainage facility and released into it only surplus water that it was not able to store, he alleged. He refuted Karnataka's argument before the Supreme Court on February 12 that Tamil Nadu had sufficient water at Mettur to meet its current requirements. According to Ranganathan, the storage at the Mettur reservoir was 57.25 ft on February 19 against the full capacity of 120 ft. This did not augur well for the coming kuruvai paddy season because the kuruvai sowing would begin in May/June, he added.

Ranganathan described as wrong Karnataka's claim that Tamil Nadu had illegally increased the area under kuruvai to 3.2 lakh acres this year from 1.27 lakh acres in 1991. Prior to 1983, Tamil Nadu cultivated kuruvai on 4.5 to 5 lakh acres in the composite Cauvery delta, which comprised the Tiruchi, Thanjavur and Pudukottai districts in Tamil Nadu and the Karaikal region of Pondicherry. Owing to the non-availability of water from the Cauvery, the kuruvai crop was now raised only on 3.5 lakh acres, he said.

The arguments before the Tribunal will resume on February 27.