71

CHAPTER TWO

nil! : l;l!:^ESISOF C A U V L R Y W A I L R D I S P U T E

I. INTRODUCTION

The river Cauvery is one of the seven major rivers of India. It is the

fourth largest river in peninsular southern India after the Godavari, the Krishna

and the Mahanadi. The river Cauvery is a unique gift of the western ghats to

peninsular Southern India. It forms the economic lifeline for the people of

southern India. The industrial and agricultural prosperity of Kamataka and Tamil

Nadu could be attributed mainly to the perenial flow of the Cauvery.

The river Cauvery is famous for its traditional santity, picturesque

scenary and its utility for irrigation. The Cauvery is known as the "Dakshina

Ganga" or Ganges or "Bhagirathi of South India". It is one of the seven

sacred rivers of India. In Kodagu district, Cauvery is considered and worshipped

as "Nada or Kula Devate" (Guardian deity). The whole of its long journey is

considered as holy ground. In both Kamataka and Tamil Nadu the river Cauvery

has been the subject of Myth and Legend and has been celebrated in music,

poetry, literature and folklore. A number of ancient temples along the river

testifies to its religious and cultural significance. The river Cauveiy is an

inter-state river. All the four basin states namely Kamataka, Tamil Nadu,

Pondicherry and Kerala have an interest in the sharing of its water. Still

Kamataka in the upper and Tamil Nadu in the lower reaches are the two principal

co-riparians.

72

II. GEOGRAPHICAL FEATURES OF RIVER CAUVERY

1. ORIGIN AND LENGTH OF RIVER CAUVERY

The magiiificient river Cauvery takes its birth at "Talacauverl" in

the Brahmagiri range of hills, in the western ghats in the Coorg district of

Kamataka, at an elevation of i341m above main sea level.

The total length of the river is 802 Kms. Its total length in the Coorg

district is about 80 Kms. The river Cauvery flows for a length of 381 Kms, in

Kamataka, before reaching Kamataka and Tamil Nadu border. The boundary

formed by river Cauvery between Kamataka and Tamil Nadu is about 64 Kms.

The river travels a further distance of about 357 Kms in Tamil Nadu before

joining the Bay of Bengal.* Cauvery has 21 Principal tributaries. Of these

9 are located wholly or largely in Kamataka and 12 in Tamil Nadu. The course

of the river Cauvery, its tributaries and reservoirs in Kamataka and Tamil Nadu

are illustrated in the Cauvery River Basin Map.̂

2. COURSE OF RIVER CAUVERY AND ITS TRIBUTARIES IN

KARNATAKA

The river Cauvery has a number of tributaries in Kamataka. During its

long journey, the river passes through picturesque scenery, steep slopes and

bedrock througli westem ghats surrounded by thick jungle and coffee estates in

tlie district of Coorg and Hassan. The Cauvery is joined by the river Konnika

and Sangam at Bhagamandala. River Harangi, the first tributary joins the river

1. Before The Cauvery Water Disputes Tribunal, Statement Of Facts On Behalf Of The State Of Kamataka. 1990 (Bangalore, Government of Kamataka), pp. 3-5.

2. Map 1: Cauvery River Basin

73

Cauvery on the border of Coorg and Mysore district near Kudige. In addition,

smaller tributaries like Kakkabe, the Kadamur and the Kuinmahole also join the

river Cauvery in tliis district.

The river then enters the Mysore district and continues to flow

eastwards. In 1931, the Krishnarajasagar dam was constructed across the

Cauvery about 19 Kms from Mysore city. Two important tributaries namely, the

Hemavatliy on tlie left bank and tlie Lakshmanathirta on the right joins the river

Cauvery in the expanse of Krishnarajasagar reservoir.

The river Cauvery continues to flow from the reservoir eastwards for

about 15 Kms upto Srirangapatna and then changes its course south-eastwards.

Here the river splits into two arms and flows around this island town and

rejoins at Sangam downstream of Srirangapatna. The river Lokapavanani joins

the river Cauvery after Srirangapatna on the left at its 248th Kms. Another

important tributary, river Kabini which takes its origin in the western ghats in

Kerala, joins the river Cauvery on its right bank at Trimakudalu Narasipura."*

Another tributary Suvamavathi joins the river Cauvery from the riglit

about 25 Kms down stream and the Gundal river joins the Cauvery on the right

side upstream of Dhanagere Anient. The river then takes a north easterly

direction and is joined by the river Shimsha from the left below Shivanasamudra.

Here again the river divides itself into two branches and falls through a height

of 91 mts in a series of falls and rapids. The two major falls are "Gaganachukki

and Barachukki''. The fall at Gaganachukki has been utilised for the generation

of hydroelectric power. After the falls the two branches join and before it

3. Before tlie Cauvery Disputes Tribunal. Statement of Facts on behalf of the State of Kamataka, 1990. Op.Cit. pp.1-2.

4. Ibid., pp. 2-3. Also see Mohammed Fakhruddin. "Behind TheCauvery Imbroglio", March of Kamataka. February 1996, p. 4.

74

reaches Mekedatii. another tributary Arkavathy joins the river Cauvery and

then enters the Stale of lamil Nadu. The Cauvery continues its eastward

journey and forms tlie boundary between Kamataka and Tamilnadu. On the

right bank, another stream Uduthorehalla joins the river Cauvery.^ The major and

medium irrigation projects existing, ongoing and proposed projects in Kamataka

across river Cauvery and its tributaries are shown in the Map.**

3. COURSE OF RIVER CAUVERY AND ITS TRIBUTARIES IN

TAMILNADU

In Tamihiadu, the Cauvery continues to flow eastwards and forms a

boundary between Salem and Coimbatore. The river takes a southemly course at

Hogenakal falls and enters the Mettur reservoir which was constructed in 1934.'

The river emerges from the eastern ghats below the Mettur reservoir and

continues southwards. On the right bank, about 45 Kms below the Mettur

reservoir, the river Bhavani joins the Cauvery and from here it takes an easterly

course to enter the plains of Tamilnadu, where it is joined on the right by two

more tributaries, the Noyil and the Amaravathi and enters Thiruchinapally. The

river splits into two branches, the northern branch being called the Coleroon and

the southern branch retaining the parent name.

The upper Anient was constructed in 1836 at this point to facilitate

diversion of the supplies of the river into the Cauvery delta. The two rivers

join again at 16 Kms below near Srirangam. Again in Thanjavnr district where

the Grand Anient was constructed, further splits into two branches, the Cauvery

5. The course of thq river Cauvery and its tributaries is well presented in Kannada Encyclopedia. Vol. 4 (Mysore, Institute of Kaimada Studies, University of Mysore, 1972), pp.655-660.

6. Map 2: Cauvery River Basin - Major And Medium Irrigation Projects In Kamataka. 7. MeM'rJ?atnXapa<yty.Js__94_TMC.

75

and the Vennar. These branches intum divide and subdivide into innumerable

smaller branches distributing the Cauvery water in the vast irrigation system and

some branches ultimately find their way into the sea. The branch which retains

the name of the Cauvery enters the Bay of Bengal as an insignificant stream at

Kaveripatnam about 13 Kmsnorthof Tranqubar. The Coleroon river enters the

sea near Chidambaram." The Cauvery river delta, projects and irrigated areas in

Tamilnadu are illustrated in the Map.'

4. Districts covered by the Cauvery Basin

In Kamat?ika, the Cauvery basin covers the districts of Kodagu

(Coorg), Mysore, Mandya, Hassan, Bangalore, Tumkur, Chikkamagalore and

Kolar. In Kerala, tlie districts of Wynad, Idukki and Palghat. In Tamil Nadu

the districts of Nilgiris, Periyar, Coimbatore, Salem, Dharmapuri, Aima,

Thiruchinapalli, Thanjavur, Pudukottai and South Arcot and in Pondicherry it

covers the lone district of Karaikal.

5. The Climate of Cauvery Basin

The climate of Cauvery basin is nonnally a tropical monsoon type which

can be grouped into four seasons. They include:

1. Cold weather period (January - February)

2. Hot weather period (March - May)

3. South West Monsoon period (June - September)

4. North West Monsoon Period (October - December)'"

8.0p. Cit.No.l.pp. 2-5. 9. Map 3: Cauvery River Delta And Irrigated Areas In Tamil Nadu. 10 Cauycix_WatciLPispu»c. 1992 (nangalorc. Irrigation Department, Ciovcrnmcnt of Karnataka),

p. 29.

76

6. Rainfall

Ouiiiig the Inst (wo seasons, the Cauvery basin area receives inaxiinutn

quantum of rainfall. The average quantum of annual rainfall is estimated to

about 82,269 mm3 (2905 TMC) of water. The volume of average rainfall over

the basin States is as follows."

State Volume of rainfall

Kamataka 32908 Mm3 (1162 TMC)

Tamil Nadu 40101 Mm3 (1416 TMC)

Kerala 9062 Mm3 (320 TMC)

Pondicherry 198 Mm3 (7 TMC)

The total availability of water in the Cauvery basin upto lower celeroon

Anicut in Tamilnadu is estimated to 790 TMC. The statewise contribution is.'^

Kerala 3200 Mm3 133 TMC 14.3%

Kamataka 12036 Mm3 425 TMC 53.8%

Tamil Nadu 7139 Mm3 252 TMC 31.9%

(This yield is worked out only upto lower Coleroon Anicut and does not include

the surface flow that accrue from the range in the delta).

11. Ibid., pp. 39-42. 12. Ibid., p. 9.

77

The figures given above indicate that the contribution of Kamataka to

livcM (^auvciy is iiciiily 54"o while I'niniltimlu'H contribiilioii is 3?.%.

Agriculturally, the basin area of Kamataka is dependent only on South-West

monsoon, whereas Tamilnadu is dependent not only on South-West monsoon

but also gets the advantage of North-East Monsoon.

7. Cropping Pattern

The crops that are normally grown in the rainfed Cauvery basin

includes ragi, jowar, sesame, groundnut, red gram and short duration pulses.

However under irrigation area, rice and sugarcane are the main crops. In

Tamilnadu, rice is the major crop and specially after the construction of the

Mettur dam two crop system is cultivated. This two crop system is cultivated in

an area of 30% to 40% of the delta and in the remaining area a long duration single

crop of rice is cultivated. Accordidng to report of the National Commission on

Agriculture (1976) nearly 71% of the irrigated crop area in Tamilnadu is under

nee.

8. Soils

Soil and geological conditions have an important bearing on ground water

availability. The relatively porous soils of the delta facilitate the retention of

moisture and the rechange of the river while hard soils in Kamataka allow water

to run off.

Along the Cauvery basin soil types vary. Generally red soil predominates

in the southern Kamataka plateau and in Coimbatore and Salem districts of

Tamilnadu. While the clay red soil found in Coimbatore is fertile, sandy soil

13. Ibid., pp. 36-38.

78

found in parts of Mysore plateau does not retain moisture well and are unable

to sustain pood crop after the main rainy season. The best soil endowment,

loamy alluvium is found in some parts of Mysore but mainly in the belt along the

river in Tiruchinapalli district and in the Thanjavur delta. In the coastal areas,

soils are less fertile on account of salinity.

III. ORIGIN OF THE CAUVERY WATER DISPUTE

The dispute relating to the sharing of the Cauvey water between

Kamataka and Tamilnadu is a very old dispute. The Cauvery water dispute

differs from other major river water disputes in India, including those relating

to the Narmada, the Krishna and the Godavari. While these disputes were mainly

about tlie inter-state utilisation of hitherto untapped surplus waters, the dispute in

the case of the Cauvery relates to the re-sharing of waters that are aheady being

almost fully utilised in tlieir totality.'"*

The State of Tamilnadu has been using Cauvery waters right from ancient

times. It has been mentioned in "SHABDA MANI DARPANA" - a Kannada

Grammar Book, dating back to 13th century.'^ The Cauvery Water dispute

between Kamataka and Tamilnadu dates back to historical period. Cauvery was a

vexed problem between the Hoysala and Chola Kingdoms. To settle score with

Chokkanath Naik of Madurai Kingdom, Chikkadeva Wodeyar of Mysore

attempted to stop the flow of Cauvery into Tamil region by building a mole

across the river in the 11th century.'*' Historically, Tamilnadu has been

advantageously placed with regard to the creation of irrigation infrastructures.

14. S. Guhan, The Cauvery Water Dispute - Towards Conciliation (Madras, A Frontline Publication, 1993), p. 5.

15. Ramesh Hullukere, Cauvery Jalavivada (in Kannada)., (Mandya, Vikshaka Prakasana, 1991)., p.9.

16. Rcvathi Shiva Kumar, "But Unquiet Flows the Cauvcry", Dcccan Herald, 27 January, 1996

79

while Kamataka unfortunately had no such advantage. The history of irrigation

development in Cauvery basin goes back to 2nd century A.D. when the Grand

Aiiicut is reported to have been constructed across Cauvery by KarikaJa Cliolan.

It has a very large canal system, with 36 distributaries covering a total length of

1600 Kms, 1500 main Channels are fed covering 5600 Kms length and 28000

branches and sub-channels supplying water for irrigating a total length of 19000

Kms. It covered over 14 lakh acres accounting for 47 per cent of river and

canal irrigation of entire Tamilnadu.

Right from the beginning, development of irrigation in Kamataka was

through tanks and Anicuts only. Due to several wars between the Mysore and

Madurai kingdoms, a number of tanks had been destroyed in the Mysore

region. Diwan Poomayya of Mysore ventured to restore these tanks and

initiated a few irrigation works in the Cauvery basin in 1800 A.D, which the

Madras province did not favour."'

For Tamilnadu, tlie major problem in the earlier period was, in fact, not

so much one of supply as of abundance, since the unrestrained flow of the river

made die delta prone to frequent floods. The Grand Anient, which with

subsequent injprovements functions to this day, was the earliest attempt to

control flooding. The other major divisionary and regulatory structure, the Upper

Anicut, planned and constructed by Sir Arthur Cotton in 1836-39, was also for

flood protection.'^ Despite these works, in the period prior to the construction of

17. S. Guhan, The Cauver>' Water Dispute - Towards Conciliation, Op. Cit.. p.2. 18. Revathi Shivakumar, "But Unquiet Flows The Cauvery", Op. Cit. 19. Arthur Cotton (1803-1839) was responsible for the planning and e.xecution of a number of

major irrigation works in South India, notably the upper and Lower Anicuts and the Dowlcshwaram Anicut across the Godavari.

80

the Krishnaraja Sagar reservoir, serious floods were recorded in tlie Cauvery in

1858, 1896, 1906, 1911, 1920 ami 1924.^"

The differences regarding the use of water of the Cauvery between

Mysore and Madras are said to have arisen since 1807, when the then Mysore

State started developing the irrigation projects and the then Madras

Government objected to these developments on the ground that they had acquired

easementary rights and these rights would be affected if the Mysore

Government were allowed to build new irrigation works in the Cauvery basin.

This contention was strongly rejected by the memorandum submitted to

the then Resident of Mysore, by Sir Seshadri Iyer, the tenth Dewan of Mysore.

He pleaded that it was "collect and store casual and intermittent supply of rain

water which falls upon the Mysore lands." He further stated that one of the

fundamental rules of the general principles of law is that a state has a greater

right of control over water falling on the surface of its own lands and entering

into a defined chamiel than it would in a case of streams rising outside its

frontier and merely flowing through it.^' In fact, even Colonel Sankeys, in his

letter favoured Mysore where he viewed Mysore's developments as nothing but

a new method of securing what tlie old system secured in a different way (old

tank system).

But during (his period, Madras was a British Province directly

governed by Paramountcy. Mysore was a Princely State. Obviously Madras was

20. S. Guhan, The Cauvery Water Dispute Towards Conciliation, Op. Cit., p. 7. Also read K.S. Muncgowda, "Ilic Cauvcry Water Dispute", in V.K. Natraj, M.N. Sastry Ed., New Perspectives In Centre State Relations In India (Mysore, Prasaranga, University of Mysore, 1975). pp. 281-304.

21. M. Basheer Hussain. The Cauvery Water Dispute (Mysore, Rao and Raghavan, 1972), pp. 1-2. 22. Ibid, p. 4.

81

enjoying a more powerful political status. The relationship between the two

was similar to that of a sovereign power and a feudal unit. Because of these

reasons, the then British Govermnent favoured Madras. In 1890, the

representatives of both Mysore and Madras met in a conference to sort out the

differences. Due to a number of conditions posed by Madras which adversely

affected tlie development of irrigation in Mysore, the Conference failed to

arrive at a conclusion satisfactory to both parties.

Thereafter, Mysore represented to the Government of India for redress.

At the instance of tlie Government of India further discussion took place

between the two Governments, which ultimately led to the General Agreement

of 1892.

IV. INTER-STATE AGREEMENTS OF 1892 AND 1924 ON CAUVERV

RIVER WATER

A. BACKGROUND TO THE AGREEMENT OF 1892

As early as 1807, there was correspondence between Madras and

Mysore on the latter's use of waters in the Cauvery and in its tributaries. 1 his

was the period (1800-1810) when a number of minor irrigation works were

initiated in Mysore. During 1831-1881, when the Mysore administration was

taken over by the British, schemes for irrigation development continued and a

Public Works Department was established in 1856.

In 1866, Col. R.J. Sankey prepared a plan for the restoration,

extension and improvement of irrigation works in Mysore, to fully use the

23. H.M. Channabasapa, Water Rights And Cauverv Dispute (Bangalore: Government of Kamataka, 1975), pp. 14-15.

82

rainful over the Mysore Plateau and to secure the whole of the territory against

drought and famine. This plan was approved by the Government of India and

the Secretary of State in 1872. A separate department of irrigation was created to

implement the plan. However financial stringency and the famine that followed

in 1877-78 prevented the plan from being carried forward. The plan was

revived again witli tlie restoration of tlie Maharaja's administration in 1881.

The steady investment and regulating work undertaken by Mysore

raised apprehensions in Madras about the possible implications to it, as a

lower riparian. In 1870, the Madras Government voiced its concern with the

Mysore Government. In the years that followed there was inconclusive

exchange of correspondence and the Mysore Government signed an Agreement

witli the Madras Government in 1892, inspite of the plea of the then Dewan of

Mysore Sri Seshadri Iyer.

1892 AGREEMENT

The Agreement is entitled, "Rules defining the limits within which no

new irrigation works are to be constructed by Mysore State without previous

reference to Madras Government." This Agreement consists of only six rules.^''

The title itself indicates that this Agreement imposes restrictions on

Mysore without any corresponding obligations on Madras. Apart fi"om imposing

severe restrictions on Mysore on the utilisation of waters of river Cauvery and

its tributaries for development of irrigation, the 1892 Agreement made it

practically obligatory for Mysore to obtain prior consent of the then Madras

Presidency before taking up any irrigation works. No corresponding restrictions

24. For a fiill text of the 1892 Agreement, see Appendix HI. Only the relevant portions of the 1892 Agreement are recalled here.

83

were imposed on Madras. The terms of Agreement gave the lower ripanion

states a veto power over all the irrigation works of an upper riparian state

whether or not it suffered any damage.

Rule II of the Agreement provides, that the Mysore Government shall

not without previous consent of Madras Government, construct any new reservoir

in schedule 'A'. Schedule B'̂ ^ is a long list of streams specifying points below

which no irrigation works are to be imdertaken by Mysore.

Rule III states that, when the Mysore Government desires to construct

any "New Irrigation Reservoir" or any new Anicut requiring the previous

consent of the Madras Government under the last preceding rule, the full

information regarding the proposed work shall be forwarded to the Madras

Government and the consent of the Government shall be obtained previous to

the actual commencement of work. The Madras Government shall be found not

to refuse such consent except for the protection of prescriptive right already

acquired and actually existing, the existence, extent and nature of such right

and the mode of exercising it being in every case determined in accordance with

the law on the subject of prescriptive right to use of water and in accordance

with what is fair and reasonable under all the circumstances of each.

Rule IV envisages that, whenever there arises a difference of opinion

between Madras and Mysore Government in any case in which the consent of the

former is applied for.... the same shall be referred to the final decision either

to iiibitiniois, appoiiilcd by both (lovciiiinciils or uf'lhc (jovcniiiicnt oriiulin.

25. Schedule "A" refers to Cauvery, Hemavathi, Lakshmanathirtha, Kabini, Suvamavathi or HonnuhoUa, Yagachi (upto Belur bridge). Schedule "B" refers to a test of minor streams and Catchments in Mysore territory on which no new irrigation reservoir are to be built within the unit specified without previous reference to Madras Government.

84

The reason for Mysore accepting the unequal, one sided Agreement of

1892 could be found in the Constitutional position which Mysore was occupying

under the then British Government. It was being controlled by a British

Resident. He was the real ruler of the State. As Panikar rightly writes, "all

those who have direct experience of Indian States know that the whisper of the

regency is tlie tliunder of tlie States and there is no matter on which the Resident

does not feel qualified to give advice. His advice was usually an order or a

command. "̂ ^ At the same time, Madras Presidency was administered by a

Governor. His position in the pohtical set up of the country in those days was

only next to the Governor General. When compared to a Governor the status of a

Resident was quite inferior. Even the Dewans in those days were appointed with

the approval of Government of India.

In course of time both Mysore and Madras realised that the 1892

Agreement was against their interests. Mysore felt that irrigation development in

its territory was subjected to undefined Prescriptive Right of Madras. While

Madras felt that it had been deprived of any share in available surpluses over and

above its Prescriptive Right which might remain un-utilised for a long time and

thereby form part of its entitiement under the common law of natural flow. The

1892 Agreement thus left much scope for conflict.

B. CIRCUMSTANCES LEADING TO 1924 AGREEMENT

After signing the 1892 Agreement, no signiiicant irrigation development

took place in the Mysore State. It was in 1900, that Mysore mooted the first

proposal under the 1892 Agreement to set up a hydroelectric station at

Sivasamudram to supply power to the Kolar Gold Fields. Since it was a

run-of-the-river scheme tliat did not involve any irrigation or interception of

26. M. Basheer Hussain, The Cauvery Water Dispute, Op. Cit.. pp.6

85

water, Madras gave its concurrence. In 1910 Mysore prepared plans for the

construction of the Kannambadi dam below the Raraaswamy Anient on the

Cauvery and about 13 Kms upstream of Srirangapatna. The dam was proposed

to be built in two stages. The first stage would consist of the building of a dam

80 feet high to store 11 TMC ft water, to ensure continuous supply to the

Sivasamudram Hydro-electric Station which was the first of its kind in Asia.

While the second stage would raise the capacity to 41.5 TMC ft. Besides being

a back-up reservior to ensure steady power supplies to the Kolar Gold Fields, the

dam was also intended for irrigation. The chief architect of this prestigious

project was engineer-visionary Sir. M. Visveswarayya.^'

On the Madras side, investigations had begun in 1856 itself on sites and

schemes for a reservoir on the Cauvery to contain floods, ensure better

regulation in the delta, and extend irrigation. In 1906 a proposal was

formulated under which irrigation was to be provided by channels taking off at

Kattalai above the Upper Anient. Later in 1910, a Canal fi-om Grand Anient to

irrigate the dry taluks of Soutliem Thanjavur was decided. This was tlie

genesis of the Cauvery - Mettur Project (the Krishnarajasagar (KRS) dam,

being the Mysore Cauvery project).^*

Proposals for both the Mysore and the Madras Projects were formulated

simultaneously at the end of 1910. This was followed by the correspondence

between the two Governments on the one hand and between each one of them and

tlie Govermnent of India (GOl) on the otlier. Mysore urged the iimnediate

clearance of the first stage of the Kannambadi Project retaining the option to

27. K.S. Munnegowda, "The Cauvery Water Dispute", in V.K. Natraj, M.N. Sastry, Ed, New Perspectives in Centre-State Relations in India, Op. Cit.. p. 283.

28. For histories of the Cauvery - Mettur Project, See C.G.Barber History of Cauvery-Mettur Project (Madras, Government of Madras, 1940) and S.Y. Krishnaswamy, Rural Problems in Madras Presidency (Madras, Government of Madras, 1947).

86

take up tlie second stage at a later stage. While consenting to the first stage

of tlie Kannambadi project, Madras objected to tlie second stage of construction

on tfie plea that it would affect the existing irrigation in tlie Cauvery delta. Madras

also urged the Government of India to delink the Government of India's clearance

for the Madras Project, fi-om Madras concurrence with the Mysore Project.^'

The Government of India was not willing to delink the two proposals and

prefetTcd the differences between Mysore and Madras to be settled bilaterally.

This was found to be not possible during the exchanges since 1910 onwards.

Thereupon in 1913, the Government of India appointed a Court of Arbitration

presided over by Sir.Henry Griffin, judge of the Allahabad High Court. He was

assisted by Nethersole, Inspector General of Irrigation in India. The Award of

the Court known as the "Griffin Award" was given in 1914. It interpreted the

1892 Agreement to entitle Madras to such right as it had acquired by

prescription and as were fair and reasonable, and held that a 20 year period

was requisite to earn a title by prescription. It found that the construction and

working of the proposed Kannambadi reservoir to its full height (124 ft) and

capacity (41.5 TMC) would not necessarily interfere with the prescriptive

rights of Madras. Specifically, the Griffin Award fixed the requirements of

Madras for its existing irrigation at 22,750 cusecs equivalent to a gauge reading

of 6.5 ft at the Upper Anient. The arbitrator held that the scheme of regulation

could be reviewed, revised and readjusted by mutual agreement.^"

The "Griffin Award" was not accepted by the Madras Government

which went on representation against it to the Government of India (GOI) in 1915.

The representation stated that Madras should be assured of a higher inflow at the

29. H.M. Channabasappa, Water Rights And Cauvery Dispute, Op. Cit.. pp. 16-17. 30. The Cauvery Arbitration Award. 1914 (Mysore Representative Assembly Proceedings), p. 27.

87

Upper Anicut (26,750 cusecs and 7 ft on the gauge instead of 22,750 cusecs and

6.5 ft allowed in the Award). It also stated that the system of regulation,

which under the Award was diflerent from that proposed by either party, should

be modified to one acceptable to both and that tlie Award afforded inadequate

protection to Madras in respect of surplus waters of the river and of future

extensions of irrigation.

It may be noted that at tiie time of the pronouncement of the Griffin

Award, die totd area irrigated in die Cauvery valley of the Mysore territory was

115,000 acres but the corresponding area in the lower reaches of the river within

the Madras State was 225, 500 acres. Further a large surplus flow into the river

goes to waste into the sea year after year, after meeting the needs of both Madras

and Mysore irrigation. The Mysore project was, intended to share only a small

portion of this surplus. Madras wanted not only the continuous flow of enough

water to meet its existing demand, but sufficient enough to fill a fiiture reservoir at

Mettur and to use it to extend irrigation to 300,000 acres of new area in the

Cauvery basin.''

The Government of India did not accept the contentions of Madras and

in 1916 conveyed its decision to ratify the Award without modification. The

Madras Government went on appeal to the Secretary of State against this

decision. In 1919, after consulting independent expert opinion, the Secretary of

State decided on procedural and substantive grounds, that there was a prima facie

case for not ratifying the Award, thereby upholding the appeal of Madras.

The Secretary of State then gave the Mysore Government one of three options

including (i) to appeal against the Secretary of State's decision, (ii) to enter

fresh arbitration or (iii) to arrive at a negotiated settlement with Madras.^^

31. M. Visveswaray>a, Memoirs Of My Working Life (Bombay. Caxton Press, 1951), p. 46. 32. Mysore State Gazetteer. Mandya District (Bangalore, Goyemment Press, 1967), p. 113.

88

The political status of native state was not one of real autonomy even in

inlcnial matters. Ihe extent of iiilerfereiice by the Secretary of State with

affairs of native states wasregulatednot by law but by considerations of policy.

Moreover, the economic development of native states was not the

responsibility of the British Government. Caught up in this situation, Mysore

choose tlie third mettiod as it wanted an early solution so that it could complete

the Krishnarajasagar dam.

hi tliis context, negotiations were initiated in 1920 at the level of Chief

Engineers of both States.'^ After several meetings between the Engineers, the

draft rules of regulations for KRS were finalised in July 1921. The rules were

based on month-wise varying liinit gauges at the Upper Anient during the

irrigation season of June to January, to reflect variations in the monsoon flows in

the river and the corresponding discharges (called limit flows) required at KRS to

maintain tliem. Ihese parameters, wliich were tabled in the draft were derived

from joint gauge readings during 1917-20 and were subject to final revision

after ten years i.e., in 1926. Any excess of the forecast flow at the Upper

Anient over the limit flow could be impounded by Mysore, with the forecast

flow at the Upper Anient to be estimated by applying a seasonally varying

proportion factor to the flow into KRS.

The significance of the 1921 draft rules was that they, for the first time

gave operational content to the "Prescriptive Right" of Madras. This was done

in terms of the formula for impounding flows at KRS only after liinit flows at

the Upper Anient were ensured. However, it must be noted that the regimen

of the rules did not guarantee any minimum or assured quantity of water at the

Upper Anicut. The limit flows at KRS assumed only that the natural flow upto

33. The Chief Engineers who took part in the 1920 negotiations were S. Cadambi, Chief Engineer, Mysore and W.J.J. Howley, Chief Engineer, Madras. They were assisted by J.R.J.Ward, Inspector General of Irrigation, Government of India.

89

the limit would be available to Madras and that only flows above this threshold

could be impounded by Mysore. On a day-to-day basis when natural flows

happened to be below the limit, Madras had to be content with a lesser quantity,

on days when they were above the limit, the surpluses could be fully unpounded

and retained by Mysore and need not be drawn down to make good the deficit in

subsequent days of naturally deficit flows.^

The draft rules were not acceptable to Mysore. The main objections

tliat were raised related to two clauses. Firstly, the proposed rules of regulation

were to prevail over the 1892 Agreement in the event of conflict betweem the

two. The second stated that nothing in the proposed rules should be construed as

in any way restricting the grounds on which the Government of Madras might

claim to withhold consent to the construction of any new irrigation reservoir or

any new Anient. Madras on the other hand was not content with the "Prescriptive

Riglit" being assured. It wanted a share on "Equitable Basis" of all the surpluses

of the Cauvery basin.

These differences led to exchange of correspondence, meetings and

conferences between the Dewan of Mysore A.R. Banerji and successive

Members of the Governor's Council in Madras: K, Srinivasa Ayyangar,

Charles Todhunter and C.P.Ramaswamy Iyer, between 1921 to early 1924.̂ ^

After deliberations, Mysore was forced to enter into an Agreement on 18th

February 1924. On this Agreement Sir M. Visveswarayya remarked that, "this

Agreement was between two unequals - a suzarain power on the one side and a

feudal unit on the other in which the weaker section has no alternative but to

yield."''

34. S. Guhan, The Cauvery River Dispute - Towards Conciliation, Op. Cit.. pp. 12-13. 35. Ibid, pp. 13-14. 36. M.P. Nagendra Murthy, "Inter-State Water Dispute With Reference To Cauvery",

Unpublished Master's Degree Dissertation in Law (Mysore, University of Mysore, 1992), p.89.

90

C. THE 1924 AGREEMENT

Tliis Agreement was tlie off-shoot of 1892 Agreement and an outcome of

continued negotiations over a period of 14 years. The Agreement consists of 10

ciauses.^^ The first nine clauses includes the events starting with the 1892

Agreement. This Agreement focusses attention on the KRS reservoir and

includes rules and regulations accepted by the Chief Engineers of the two sides

in July 1921. The rules became part of the Agreement. The right of the Madras

Govenmient to extend irrigation work on the tributaries of the Cauvery was

preserved. The interesting aspect of this Agreement is that it took mto

consideration the effect of the interests and rights of the French Territory also.

Elaborate rules and regulations of KRS reservoir, which was then under

construction have been set out as an annexure to the 1924 Agreement. This

covers aspects such as guage readings, impoudnig formula, inflow

computations, allowances for irrigation extension in Mysore, hot weather flow

from KRS, rate of evaporation, regulation of sluices, daily reporting of

register, entries and inspection of records.^*

The main clauses among the 15 operative clauses of the Agreement

are as follows:

1. Mysore Government may construct KRS reservoir to a height of 124 ft above

the river bed and to an effective capacity of 44.827 TMC ft to irrigate 1.25

lakh acres.

2. Mysore Government agrees to regulate discharges through and from KRS

reservoir strictly in accordance with the rules and regulations which forms part

of this Agreement.

37. For a fall text of the 1924 Mrecment see Appendix IV. Only the relevant portions of the 1924 Agreement are discussed here.

38. Financial Express.. 9 August 1991.

91

3. Madras Government is permitted to construct a reservoir at Mettm" to an

efective capacity of 93.5 TMC ft to extend irrigation by 3.01 lakh acres in

the delta area.

4. There should be mutual exchange of returns of technical details and

extension of irrigation at the close of each official year.

5. Mysore Government may make further extension of irrigation to the tune of

1,10,000 acres by constructing reservoirs of aggregate capacity of 45 TMC

ft on the Cauvery and its tributaries without infiinging the accepted rules

and regulations of discharges at KRS.

6. Mysore Government is also permitted to extend irrigation by improvement of

duty under each one of the irrigation channels to the extent of 1/3 of what

was being irrigated prior to 1910.

7. Mysore should furnish all particulars of reservoirs it proposes to build

against the permissible limit of 45 TMC ft to Madras Government.

8. Madras Government may construct new irrigation reservoirs on the tributaries

like Bhavani, Amaravati, and Noyil rivers. If they do so, Mysore may

construct an off set reservoir of capacity not exceeding 60% of the new

reservoir constructed by Madras. The impounding should not however

diminish the supplies to which Madras and Mysore are entitled under this

Agreement including die divisible surplus.

9. Both Governments agree that the limitations and arrangements embodied in

Clause IV and V i.e., in respect of extension of irrigation by both

Governments set out shall after the expiry of 50 years (in 1974) be opened

to reconsideration in the liglit of the experience, gained and for an

92

examination of the possibilities of further extension of irrigation within the

lerritories of the respccfive Govenimenis and to such modifications and

additions as may be mutually agreed upon as a result of such reconsideration.

10. In case of a dispute between the two Governments touching the interpretation

or operation or carrying out this Agreement, such a dispute shall be referred

to arbitration or to Government oflndiaifboth parties agree for settlement.

Thus the 1924 Agreement was in the nature of follow up action on the

original 1892 Agreement, the validity of which continued to survive. In short,

Madras gave its assent under Clause 3 of the 1892 Agreement to Mysore to

construct KRS reservoir and secured the right to construct its Mettur Project and

both Madras and Mysore obtained additional right to extend irrigation to new 39

areas.

The 1924 Agreement shows that the Madras Government at that time was

more powerful than the Mysore Government. F.J.Berber writes that, "Ffie

Cauvery Dispute between Princely Mysore and Madras Presidency, settled in 1924

was a dispute between British India and the other was a dependent Princely State

under the British suzerainty. 1 he dispute was not settled by the application of

law, but through the authoritative decision of the sovereign power or the British

crown."""

V. IRRIGATION DEVELOPMENT IN POST 1924

In Mysore, irrigation from major and medium works under the Cauvery

which was 1.1 lakh acres at the beginning of the century increased to 3 lakh

39. N.D. Gulhati, Development Of Inter-State Rivers: Law And Practice In India (New Delhi, Allied Publishers, 1972), p. 113.

40. F.J. Berber, Rivers In International Law (London, Stevens and Sons, 1959), pp. 180-181.

93

acres by 1930 with the extension of irrigation under the KRS. By 1970, it had

further risen to about 4.4 lakh acres. About half of this increment of 1.4 lakh

acres was contributed by new irrigation from small reservoirs, Anicuts and

channels on the tributaries, and the other half by extension of irrigation under the

KRS Anient and Channels.'"

As a result of Post-Independence recognition of political units some

Princely States got merged with the neighbouring states and through the States

Re-organisation Act, 1956 the boundaries of certain states were also

changed. Thus the erstwhile Princely State of Travancore became part of Kerala

and Mysore became Kamataka and after bifurcation of Madras, Tamilnadu

became the successor of Madras in regard to Cauvery matter.

In Tamilnadu, ayacut development in this period was more fast and

significant. The initial pre-Mettur extent of 14.4 lakh acres of irrigation was

augmented by Mettur to an extent of 3.2 lakh acres and to an equal extent by

projects implemented in the first plan (1951-56) and Second Plan (1956-61)

periods. The first plan projects were the Lower Bhavani Project (covering 2.1

lakh acres) and the Mettur Canal Project (0.5 lakh acres). The three Second Plan

projects, the Amaravathy, the New Kattalai High Level Canal and the

Pullambadi Canal were to add about 0.2 lakh acres each. Mysore objected these

new projects on the ground that they were not permissible under the 1924

Agreement. Madras maintained that irrigation from the Mettur Canal was within

the acreage limit allowed for the Cauvery-Mettur project. The other two projects

were cleared by the Planning Commission on the assurance of the Madras

41. Achutha Menon, The Hindu. 23 April 1970 and 15 May 1970.

94

Government that these projects would utilise only surplus waters or waters saved

by economy and would not entail the creation of any new prescriptive rights.

Overall, the Mettur and other 1934-72 projects added 6.4 lakh acres to

the pre-Mettur extent of 14.4 lakh acres. In addition, the area under a second

crop was increased to a total extent of 4.5 lakh acres of this, 2.5 lakh acres was

located in the old Cauvery delta, 0.8 lakh acres in the Coleroon system, 0.8 lakh

acres under the canals in Salem and Tiruchinapalli districts and 0.4 lakh acres in

the Bhavani and the Amaravathy sub-basins. Madras did not seek any extra waters

on account of extensions to irrigation beyond what had been assured to it under

the 1924 rules of regulation.'*^

The Kamataka Government under its development plans took up

constructional work on some irrigation projects to utilise its share of water

under the 1924 Agreement. Work on the Kabini reservoir was commenced in

1959, although the project had been discussed in 1933 itself.

Later projects began with dams and reservoirs on tributaries including the

Harangi (1964), Swamavathy (1965), the Hemavathy (1968), the Varuna Canal

(extension from KRS, 1979) and the Yagachi (1983). The total irrigation

potential under these schemes upto 1990 was expected to be about 13 lakh

acres with actual established irrigation until then being 11.2 lakh acres.

The contention of Tamilnadu is that the projects undertaken by Kamataka

aie not within tlie stipulated limits and were ui excess of tlie allowances made

in the 1924 Agreement for newirigation m Kamataka. It also opined that the

42. S.C. Jain, Alice Jacob, Subhas C. Jain. "Inter-State Water Disputes In India", Indian Law Institute Journal. 1971, p. 48

43. S.Gnhan, The Cauvcry River Dispute - Towards Conciliation Op. Cit.. pp. 18-19.

95

new projects under taken by Kamataka would reduce the assured supplies to

Tamilnadu through limit flows from KRS and that the 1924 Agreement covers

storages in non-scheduled rivers only if they do not affect Tamilnadu's

prescriptive right.'*'*

Owing to laiiiilnadu's objections, the above projects were not cleared by

the Central Water Commission or by the Union Planning Conmiission for

inclusion under Plan Schemes in Kamataka. Expenses on them have been

met from non-Plan allocations and Kamataka argues diat this has resulted in

loss of Central assistance, improper funding and execution delays. Along with

requirements of 85.2 TMC ft for minor irrigation, 50 TMC ft for water supply

and 7 TMC ft for power peojects, Kamataka has projected its requirements at

465 TMC ft.

The development of major and minor irrigation in Kamataka upto 1990 is

as follows:

44. Loc. Cit.

96

TABLE 1

SI. No.

MAJOR AND MINOR IRRIGATION IN KARNATAKA 1990 Projects Year of Ultimate

commence- ayacut(gross ment lakh acres)

Ultimate utilisa­tion (IMC ft.)

A. Prior to KRS (Anicut, chaimels) 1. KRS 2. New Works and Extensions

upto 1971.

B. in 1971 (A+1+2)

C. Projects since 1971 on Schedule rivers (existing/ongoing)

1. Kabini 2. Swamavathy 3. Hemavathy 4. KRS Varuna Canal 5. Modernisation of KRS 6. Yagachi

D. Other Projects since 1971 (existing/ongoing)

1. Harangi 2. Other projects

E. Total of existing and on-going projects (B+C+D)

F. Proposed Projects

1. KRS Extension 2. Otlier projects

G. Grand 1 olal (11 i 1)

1926

1959 1965 1968 1979 1979 1983

1964 1970

1.90 1.96

0.59

4.45

12.93 4.47 0.07 7.01 0.80 0.05 0.53

2.58 1.35 1.23

19.96

1 42

1.12 0.30

21.38

57.7 61.2

15.6

134.5

139.5 65.0

3.6 54.7 10.5

-

5.7

34.4 18.0 16.4

308.4

14.4

8.2 6.2

322.8 SOURCE:̂ ^

45. Government of Kamataka. 1992.

97

The post 1972 irrigation development in Tamilnadu has been confined to

small schemes in siib-tTibiitaiies in the dry areas of Dharmapnri, Salem,

Periyar, Dindigul and Tiruchinapalli districts. Thirteen such schemes have a

total ayacut of 50,000 acres and a total utilisation of about 7 TMC ft. Tamilnadu

has further proposed a project for the rehabilitation and modernisation ol

irrigation in 6 lakh acres of the delta. The total requirements including the major

and minor irrigation schemes in Tamiinadu comes upto 501.5 TMC ft.

Further the Cauvery Fact Finding Committee (CFFC) has indicated use of 58

TMC ft for minor irrigation and 5 TMC ft. for water supply. With this the

overall requkement is 564.5 TMC ft. The development of major and minor

irrigation in Tainilnadu upto 1990 is indicated below:

TABLE 2 MAJOR AND MINOR IRRIGATION IN TAMILNADU UPTO 1990

SI. Projects No.

A. Pre-Mettur B. Mettur C. First Plan Projects 1. Lower Bhavani 2. Mettur Canal D. Second Plan Projects 1. Amaravathy

Period of Commission­ing.

2. New Kattalai High Level Canal 3. PuUambadi Canal E Post-Mettur Extension

to existing area. 1. In old delta 2. Under Colcroon system 3. Under Mettur System 4. Under tributaries F Small and medium works G Grand Total (A to F) SOURCE:'"

1934 1951-56

1956-61

1934-72

1968-86

Ayacut (Gross Lakli Acres) 14.44 3.23 2.52 2.07 0.45 0.64 0.22 0.21 0.21

4.47 2.69 0.66 0.77 0.35 0.50

25.80

Utilization (TMC ft.)

391.2 55.0 45.2 32.6 12.6 13.6 4.8 5.3 3.5

-10.4 -15.4

3.9 -7.2 8.3 6.9

501.5

46. Cauver\' Fact Finding Committee (1973) and Government of Tamilnadu (1987).

98

The table given below illustrates the Cauvery irrigation development in

Kamataka and Tamihiadu from 1901 to 1990.

TABLE 3

CAUVERY IRRIGATION DEVELOPMENT IN KARNATAKA AND TAMILNADU FROM 1901 TO 1990

State

KARNATAKA 1901 1928 1971

1990 and beyond (estimated)

TAMIL NADU 1901 1928 1971 1990

Area (Gross Lakh Acres)

1.11 1.11 4.42

21.38

13.45 14.44 25.30 25.80

Estimated Utilisation Requirement for Utilisation (IMC ft.)

27.2 27.2

110.2

322.8

366.9 391.2 494.6 501.5

SOURCE:''^

There has been growth in terms of area and utilisation in Kamataka since

1970s. Consequently, it has resulted in a decline of availabilities for actual

utilisation in Tamil Nadu in this period, with the fall in the inflow and Mettur in

post 1970s and specially in 1980s. The share of Kamataka in utilisation in the

yield above Mettur has increased during this period. The Table given below

illustrates this:

47. Goveninient of Kamataka (1990) and Government of Tamilnadu (1990)

99

TABLE 4

UTILISATION OF THE CAUVERY WATERS IN KARNATAKA AND TAMILNADU

SI. No.

Utilisation 1934-70 1970-80 1980-90

1. Share of Kamataka in total utilisation (per cent)

2. Share of Tamilnadu in total utilisation (per cent)

3. Share of Kamataka's utilisation in yield above Mettur (per cent)

4. Inflow at Mettur (TMC ft)

5. Inflow at Mettur as proportion of yield above Mettur.

22.9

76.4

28.7

378.4

70.7

27.6

71.6

36.8

324.6

62.6

42.2

57.1

54.7

229.0

47.7

SOURCE: 'IS

In 1974, the 50 years Agreement fell due to "reassessment" and

"renewal" in Tamibiadu's opinion and "expired" in flie words of Kamataka

leaders. Since then, Kamataka has followed a system of ad-hoc releases

based on scasuiial cotiditiuiis, itTJgatiuii needs in Karnataka and capacity uf

water in KRS and in the new reservoirs including the Swaraavathy (1973), the

Kabini (1975), the Hemavathy (1978) and the Harangi (1979).

48. Government of Kamataka (1990) and Government of Tamilnarfn (1990)

100

Responding to Tamilnadu's plea, Kamataka made supplemental releases

in some years, towards the end of irrigation season/' In return for such releases,

Kamataka has demanded supply of power from Tamilnadu at concessional rates

equivalent to the quantity of water released. As a result, since 1974 inflows at

Mettur have ceased to be predictable or assumed. Developments like these, have

aggravated the Cauvery Water dispute between Kamataka and Tamilnadu.

Since late 1960's the two States have engaged themselves in negotiations to find

an amicable solution to the problem.

49. Such ad-hoc releases have been (in TMC ft) 60 in 1976-77, 25.4 in 1982-83, 5 in 1983-84, 17.1 in 1985-86, 11.4 in 1986-87, 4 in 1987-88, 10 in 1988-89 and 5 in 1990. Cited in S.Guhan, The Cauvery Water Dispute - Towards Conciliation, Op. Cit.. p. 24.