MANU/SC/0097/1992

Equivalent/Neutral Citation: AIR1992SC 522, 1991 INSC 304, JT1991(4)SC 361, 1992-2-LW51, 1991(2)SC ALE1049, 1993Supp(1)SC C 96,
[1991]Supp2SC R497

IN THE SUPREME COURT OF INDIA

Special Reference No. 1 of 1991
Decided On: 22.11.1991
In the Matter of : Cauvery Water Disputes Tribunal Vs.
Hon'ble Judges/Coram:
Ranganath Misra, C.J.I., K.N. Singh, A.M. Ahmadi, Kuldip Singh and P.B. Sawant, JJ.
Counsels:
For Intervenor: A.K. Sen, Venkataraman and C.S. Vaidyanathan, Advs
Case Note:
Constitution - validity of Ordinance - whether Ordinance made on inter State
water dispute in conformity with Constitution and is capable of giving interim
relief to parties to dispute - held said Ordinance is beyond legislative
competence of State and therefore ultra vires of Constitution - Tribunal
constituted under Act is competent to grant any relief to parties to disputes
when referred to by Central Government.
ORDER
P.B. Sawant, J.
1. On July 27, 1991 the President, under Article 143 of the Constitution, referred to this
Court three questions for its opinion. The Reference reads as follows.:
Whereas, in exercise of the powers conferred by Section 4 of the Inter-State
Water Disputes Act, 1956 (hereinafter referred to as "the Act"), the Central
Government constituted a Water Disputes Tribunal Called "the Cauvery Water
Disputes Tribunal" (hereinafter called "the Tribunal") by a notification dated 2
June, 1990, a copy whereof is annexed hereto, for the adjudication of the Water
Dispute regarding the Inter-State River Cauvery;
WHEREAS on 25 June 1991, the Tribunal passed an interim Order (hereinafter
referred to as "the Order"), a copy whereof is annexed hereto;
WHEREAS, differences have arisen with regard to certain aspects of the Order;
WHEREAS, on 25 July 1991, the Governor of Karnataka promulgated the
Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 (hereinafter
referred to as "the Ordinance"), a copy whereof is annexed hereto;
WHEREAS, doubts have been expressed with regard to the constitutional
validity of the Ordinance and its provisions;
WHEREAS, there is likelihood of the constitutional validity of the provisions of
the Ordinance, and any action taken thereunder, being challenged in Courts of

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under Article 143 and, therefore, also ask this Court to reconsider any of its decisions.
For this purpose, he relied upon the language of Clause (1) of Article 143 which is as
follows:
143. Power of president to consult Supreme Court-(1) If at any time it appears
to the President that a question of law or fact has arisen, or is likely to arise,
which is of such a nature and of such public importance that it is expedient to
obtain the opinion of the Supreme Court upon it, he may refer the question to
that Court for consideration and the Court may, after such hearing as it thinks
fit, report to the President its opinion thereon.
71. In support of his contention he also referred us to the opinion expressed by this
Court in re: The Delhi Laws Act, 1912, The Ajmer-Merwara (Extension of Laws) Act,
1947 and the Pan C States (Laws) Act, 1950 [1951] SCR 747. For the reasons which
follow, we are unable to accept this contention. In the first instance, the language of
Clause (1) of Article 143 far from supporting Shri Nariman's contention is opposed to it.
The said clause empowers the President to refer for this Court's opinion a question of
law or fact which has arisen or is likely to arise. When this Court in its adjudicatory
jurisdiction pronounces its authoritative opinion on a question of law, it cannot be said
that there is any doubt about the question of law or the same is res integra so as to
require the President to know what the true position of law on the question is. The
decision of this Court on a question of law is binding on all courts and authorities.
Hence under the said clause the President can refer a question of law only when this
Court has not decided it. Secondly, a decision given by this Court can be reviewed only
under Article 137 read with Rule I of Order XL of the Supreme Court Rules 1966 and on
the conditions mentioned therein. When, further, this Court overrules the view of law
expressed by it in an earlier case, it does not do so sitting in appeal and exercising an
appellate jurisdiction over the earlier decision, It does so in exercise of its inherent
power and only in exceptional circumstances such as when the earlier decision is per
incuriam or is delivered in the absence of relevant or material facts or if it is manifestly
wrong and productive of public mischief. See: The Bengal Immunity Company Ltd. v.
The State of Bihar and Ors., MANU/SC/0083/1955 : [1955]2SCR603 . Under the
Constitution such appellate jurisdiction does not vest in this Court; nor can it be vested
in it by the President under Article 143. To accept Shri Nariman's contention would
mean that the advisory jurisdiction under Article 143 is also an appellate jurisdiction of
this Court over its own decision between the same parties and the executive has a
power to ask this Court to revise its decision. If such power is read in Article 143 it
would be a serious inroad into the independence of judiciary.
7 2 . So far as the opinion expressed by this Court in re The Delhi Laws Act, 1912
(supra) is concerned, as the Reference itself makes clear, what was referred was a
doubt expressed by the President on the decision of the Federal Court in Jatindra Nath
Gupta v. The Province of Bihar and Ors. [1949] SCR 595 which was delivered on 20th
May, 1949. The Federal Court at that time was not the apex court. Upto 10th October,
1949, the appeals from its decisions lay to the Privy Council including the appeal from
the decision in question. The decisions of the Federal Court were not binding on the
Supreme Court as held in Hari Vishnu Kamath v. Syed Ahmad Ishaque and Ors.,
MANU/SC/0187/1954 : [1955]1SCR1104 . Hence it was not a case where the President
had referred to this Court for its opinion a decision which had become a law of the land.
Hence the case in re The Delhi Laws Act, 1912 (supra) does not support the contention.
73. The provisions of Clause (2) of Article 374 of the Constitution also do not help Shri
Nariman's contention since the said provisions relate to the transitional period and the
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considering even such decision may require an explanation or guidance from the
Tribunal as stated in the said provisions and such explanation and guidance may be
sought within three months from the date of such decision. The Tribunal may then
reconsider the decision and forward to the Central Government a further report giving
such explanation or guidance as it deems fit. In such cases it is the interim decision
thus reconsidered which has to be published by the Central Government under Section 6
of the Act and becomes binding and effective. We see, therefore, no reason why the
provisions of Section 5(3) should prevent or incapacitate the Tribunal from passing the
interim order. Once a decision, whether interim or final, is made under Section 5(2) it
attracts the provisions both of Sub-section (3) of that Section as well as the provisions
of Section 6 of the Act.
3 0 . As pointed out earlier, the present Order having been made pursuant to the
decision of this Court dated April 26, 1991 in C.As. Nos. 303-04 of 1991 on a matter
which was part of the Reference as held by this Court in the said decision, cannot but
be a report and a decision under Section 5(2) and has to be published under Section 6
of the Act to make it effective and binding on the parties. This legal position of the said
order is not open for doubt. To question its efficacy under the Act would be tantamount
to flouting it.
31. Before concluding we may add that the question whether the opinion given by this
Court on a Presidential Reference under Article 143 of the Constitution such as the
present one is binding on all courts was debated before us for a considerable length of
time. We are, however, of the view that we need not record our opinion on the said
question firstly, because the question does not form part of the Reference and secondly,
any opinion we may express on it would again be advisory in nature. We will, therefore,
leave the matter where it stands. It has been held adjudicative that the advisory opinion
is entitled to due weight and respect and normally it will be followed. We feel that the
said view which holds the field today may usefully continue to do so till a more
opportune time.
32. Our opinion on the questions referred to us is, therefore, as follows:
Question No. 1. The Karnataka Cauvery Basin Irrigation Protection Ordinance,
1991 passed by the Governor of Karnataka on 25th July, 1991 (now the Act) is
beyond the legislative competence of the State and is, therefore, ultra vires the
Constitution.

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