முல்லைப் பெரியாறு அணை
முல்லைப் பெரியாறு அணையின் நீர்மட்டத்தை 142 அடியாக உயர்த்தலாம் என்றும், அணை தொடர்பாக கேரளா அரசு கொண்டு வந்த சட்டம் செல்லாது என்றும், உச்ச நீதிமன்றம் இன்று (07.05.2014) அதிரடியாக தீர்ப்பளித்துள்ளது.
நீதிமன்ற தீர்ப்புகளை சட்டம் மூலம் தடுக்க முடியாது என்றும், கேரள அரசு கொண்டு வந்த சட்டம் அரசியல் சாசனத்துக்கு புறம்பானது என்றும் நீதிபதிகள் கூறியுள்ளனர்.
மேலும், முல்லைப் பெரியாறு அணை வலுவாகவே உள்ளது என்று கருத்து தெரிவித்துள்ள நீதிபதிகள், அணையை பராமரிக்க 3 பேர் கொண்ட குழுவை அமைத்து தீர்ப்பளித்துள்ளனர்.
முல்லைப் பெரியாறு அணைப் பிரச்னையில், இன்று (07.05.2014) உச்சநீதிமன்றம் அளித்திருக்கும் இவ்வரலாற்று சிறப்பு மிக்க இத்தீர்ப்பு, தமிழக முதல்வர் ஜெ.ஜெயலலிதா அவர்களின் சட்டப் போராட்டத்திற்கு கிடைத்த மகத்தான வெற்றியாகும்.
உச்சநீதி மன்ற தீர்ப்பின் உண்மை நகல், நமது வாசகர்களின் மேலானப் பார்வைக்கு இத்துடன் இணைக்கப்பட்டுள்ளது.
-டாக்டர்.துரைபெஞ்சமின்.
Hon’ble Mr. Justice R.M. Lodha
Hon’ble Mr. Justice H.L. Dattu
Hon’ble Mr. Justice Chandramauli Kumar Prasad
Hon’ble Mr. Justice Madan Bhimarao Lokur
Hon’ble Mr. Justice M.Y. Eqbal
உச்சநீதி மன்ற தீர்ப்பின் உண்மை நகல்:
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
ORIGINAL SUIT NO. 3 OF 2006
State of Tamil Nadu …… Plaintiff
Versus
State of Kerala & Anr. …… Defendants
JUDGMENT
R.M. LODHA, CJI.
This Court remains seized of the problem with regard to the water
level of Mullaperiyar dam after it had solved on 27.02.2006 (Mullaperiyar
Environmental Protection Forum1) because the Kerala State Legislature
enacted the law immediately thereafter fixing and limiting Full Reservoir Level
(FRL) to 136 ft.
Mullaperiyar dam : 1886 Lease Agreement
2. Mullaperiyar dam – a masonry dam – was constructed pursuant
to the Periyar Lake Lease Agreement dated 29.10.1886 (“1886 Lease
Agreement”) across Periyar river. The construction continued for about eight
years and was completed in 1895. The dam is situated at Thekkady District in
Kerala and is owned and operated by the Government of Tamil Nadu. By the
1 Mullaperiyar Environmental Protection Forum v. Union of India & Ors.; [(2006) 3 SCC 643]
Page 2
1886 Lease Agreement between the Maharaja of Travancore and the
Secretary of State for India in Council, the leased area as set out therein was
granted on lease for 999 years from 01.01.1886. The length of the main dam
is 1200 ft. (365.76 m.) and top of the dam is 155 ft. (47.24 m.). The top of solid
parapet and maximum height of the dam from deepest foundation are 158 ft.
(48.16 m.) and 176 ft. (53.64 m.), respectively. The FRL of the dam is 152 ft.
(46.33 m.). The original spillway capacity of the dam was 10 vents of 36’ x 16’
(10.97 m. x 4.88 m.). The length of the Baby dam is 240 ft. (73.15 m.).
1979-1980 : Controversy about safety of the Dam
3. In 1979 with regard to the safety of the Mullaperiyar dam, the
Government of Kerala wrote to the Tamil Nadu Government to take immediate
steps to strengthen the dam. Simultaneously, the Kerala Government also
requested the Central Government to depute a team from Central Water
Commission (CWC) to inspect the dam and suggest strengthening measures.
4. In pursuance of the request from the Kerala Government, the then
Chairman, CWC inspected the dam and held a meeting on 25.11.1979 in
which the officers from Tamil Nadu and Kerala participated. In that meeting,
three level measures, (i) emergency, (ii) medium and (iii) long term, were
suggested to strengthen the dam. In the meantime, it was recommended that
water level in the reservoir be kept at 136 ft. (41.45 m.)
Page 3
5. In the second meeting held on 29.04.1980, it was opined that
after the completion of emergency and medium-term strengthening measures,
the water level in the reservoir can be restored up to 145 ft. (44.2 m.).
1998 : Litigation begins
6. Tamil Nadu says that all measures – emergency, medium and
long term as suggested by the CWC have been undertaken by it but despite
that no consensus could be reached between the two State Governments (of
Tamil Nadu and Kerala) to raise the water level in the Mullaperiyar reservoir
beyond 136 ft. This led to the filing of number of writ petitions in the Kerala
High Court as well as in the Madras High Court sometime in 1998 on the issue
for and against raising of water level in the Mullaperiyar reservoir and the
safety of the dam. As the controversy was pending before the two High Courts
and there was likelihood of conflicting judgments, some transfer petitions were
filed before this Court.
7. On 28.04.2000, in the transfer petitions, this Court desired Union
Minister of Water Resources to convene a meeting of the Chief Ministers of
Kerala and Tamil Nadu to amicably resolve the issue. The meeting was
convened on 19.05.2000 but no consensus could be reached in the meeting
as well. However, in that meeting, the Union Minister of Water Resources
decided to constitute an Expert Committee to go into the details of the safety
of the dam and advise him on raising of water level in the reservoir.
Page 4
8. On 14.06.2000, the Expert Committee was constituted having the
following terms of reference.
“(a) To study the safety of Mullaperiyar dam located on Periyar river
in Kerala with respect to the strengthening of dam carried out by the
Government of Tamil Nadu in accordance with the strengthening
measures suggested by CWC and to report/advise the Hon’ble
Minister of Water Resources on the safety of the dam.
(b) To advise the Hon’ble Minister of Water Resources regarding
raising of water level in Mullaperiyar reservoir beyond 136 ft. (41.45
m) as a result of strengthening of the dam and its safety as at (a)
above.”
9. After initial resistance, the Government of Kerala nominated one
Member to the Expert Committee.
10. The Expert Committee gave its final report on 16.03.2001. While
the matter was under consideration by the Expert Committee, it also gave
certain interim directions. In its report, the Expert Committee had opined that
water level in the Mullaperiyar reservoir could be raised to 142 ft. (43.28 m.)
as that will not endanger the safety of the main dam, including spillway, baby
dam and earthen bund.
First litigation before this Court
11. Despite the above recommendation from the Expert Committee,
the Government of Kerala continued to resist raising of water level in the
reservoir beyond 136 ft. It was then that a writ petition was filed by
Mullaperiyar Environmental Protection Forum directly before this Court
wherein diverse prayers were made. This Court also transferred the writ
Page 5
petitions which were pending before the Kerala High Court and Madras High
Court to this Court.
12. After hearing the parties, including the two states, this Court gave
its decision on 27.02.2006 permitting the water level in the Mullaperiyar dam
to be raised up to 142 ft. The State of Kerala and its officers were also
restrained from causing any obstruction to the above. It was also observed
that after the strengthening work was complete to the satisfaction of CWC,
independent experts would examine the safety angle before the water level is
permitted to be raised up to 152 ft.
2003 Act
13. Kerala Irrigation and Water Conservation Act, 2003 (for short,
“2003 Act”) was enacted by Kerala legislature, which came into force on
18.09.2003. 2003 Act was enacted to consolidate and amend the laws relating
to construction of irrigation works, conservation and distribution of water for
the purpose of irrigation and levy of betterment, contribution and water cess on
lands benefited by irrigation works in the State of Kerala and to provide for
involvement of farmers in water utilisation system and for matters connected
therewith or incidental thereto. 2003 Act was neither referred to nor relied
upon by Kerala at the time of hearing in Mullaperiyar Environmental Protection
Forum1.
2006 (Amendment) Act
Page 6
14. On 18.03.2006, in less than three weeks of the decision of this
Court in Mullaperiyar Environmental Protection Forum1, the Kerala State
legislature amended 2003 Act by the Kerala Irrigation and Water Conservation
(Amendment) Act, 2006 [for short, “2006 (Amendment) Act”)]2.
15. In the Second Schedule, appended to the 2006 (Amendment) Act,
the Mullaperiyar dam owned and maintained by Tamil Nadu is included as
Item No. 1 where the height of the FRL has been fixed at 136 ft.
Second litigation before this Court : Suit by Tamil Nadu
2 The salient features of the 2006 (Amendment) Act are as follows:
i. In Section 2, clause (ja) defines ‘custodian’ to mean a State Government
which has established or is running or otherwise operating any dam in Kerala. Further, clause (ala)
defines ‘Scheduled Dam’ to mean any dam included in the second schedule. The very first entry in
the Second Schedule is the Mullai Periyar Dam.
ii. In Section 57 (1) the words “Surveillance, inspection” is replaced by
“ensuring the safety and security”
iii. Introduction of 57(3) in main Chapter XII – ‘Constitution of Dam Safety
Authority’ to give effect to Chapter XII inspite of any other laws.
iv. Replacement of existing section 62(1)(a) to (i) by new section 62 (1)(a) to
(j). The newly substituted Section 62(1), in so far as is material, reads as under:
62(1) Notwithstanding anything contained in any other law, judgment, decree or order of any Court
or in any treaty, agreement, contract, instrument or other document, the authority shall exercise the
following powers viz:-
(a)(b)(c) xxx xxx xxx
(d) to direct the custodians to carry out any
alteration, improvement, replacement or strengthening measures to any dam found to pose a
treat to human life or property;
(e) to direct the custodian to suspend the
functioning of any dam, to decommission any dam or restrict the functioning of any dam if
public safety or threat to human life or property, so requires;
(f) to advise the Government, custodian, or
other agencies about policies and procedures to be followed in site investigation, design,
construction, operation and maintenance of dams;
(g) to conduct studies, inspect and advise
the custodian or any other agency on the advisability of raising or lowering of the Maximum
Water Level or Full Reservoir Level of any dam not being a scheduled dam, taking into
account the safety of the dam concerned;
(h) to conduct studies, inspect and advise
the custodian or any agency on the sustainability or suitability of any dam not being a
scheduled dam, to hold water in its reservoir, to get expert opinion of international repute,
and provide advice by dam-break analysis and independent study and to direct strengthening
measures or require the commissioning of a new dam within a timeframe to be prescribed to
replace the existing dam;”
Page 7
16. The State of Tamil Nadu immediately thereafter instituted the
present suit under Article 131 of the Constitution of India against the State of
Kerala. It is necessary to elaborate somewhat on facts as proceedings are in
the nature of suit in original jurisdiction of this Court. The plaint avers that on
coming into force of the States Reorganisation Act, 1956, (for short, “SR Act”),
the State of Travancore – Cochin (Part – B, State) was formed. The State of
Kerala (first defendant) is the successor in interest of the State of Travancore
– Cochin. The State of Tamil Nadu is the successor in interest of the Governor
in Council, Secretary of State for India. Tamil Nadu has, thus, pleaded that
plaintiff and the first defendant are successors in interest of the original
contracting parties of the 1886 Lease Agreement.
17. It is averred by Tamil Nadu that on 29.05.1970, two supplemental
agreements were executed between it and Kerala. The two supplemental
agreements did not change the basic character of the 1886 Lease Agreement.
By first supplemental agreement, Tamil Nadu surrendered the fishing rights in
the leased lands and also agreed to the upward revision of the rent of the
leased land. The second supplemental agreement conferred on Tamil Nadu,
the right to generate power and right to construct all facilities required for
power generation. An additional extent of 42.7 acres was leased to Tamil
Nadu for the said purposes and correspondingly Tamil Nadu was required to
pay to Kerala a sum annually as specified in the agreement. Tamil Nadu
claims that the two supplemental agreements have re-affirmed, re-asserted
Page 8
and ratified 1886 Lease Agreement, which was statutorily protected and
continued by Section 108 of the SR Act.
Grounds of challenge to 2006 (Amendment) Act
18. The challenge to 2006 (Amendment) Act to the extent it affects
Mullaperiyar dam is laid in the plaint on diverse grounds, some of which are
the following:
(a) The impugned legislation amounts to usurpation of judicial power
inasmuch as Kerala State Legislature has arrogated to itself the role of a
judicial body and has itself determined the questions regarding the dam safety
and raising the water level when such questions fall exclusively within the
province of the judiciary and have already been determined by this Court in its
judgment dated 27.02.2006.
(b) 2006 Amendment Act is beyond the legislative competence of the
State of Kerala insofar as it affects the Mullaperiyar dam in view of Section
108 of the SR Act which is a law made by Parliament under Articles 3 and 4 of
the Constitution, which confer plenary power to traverse all legislative entries
in all the three lists including Entry 17 List II.
(c) The impugned legislation, in its application to the Mullaperiyar
dam, violates the rule of law and the federal structure and the separation of
power under the Constitution. The Kerala State Legislature has taken the law
in its own hands after the declaration of law by this Court. Kerala having
Page 9
participated in the adjudicatory process before this Court cannot become a
Judge in its own cause and seek to reverse the decision of this Court because
it has gone against it.
(d) The impugned legislation not only fixes and limits the FRL to 136
ft. in direct contravention of the judgment of this Court but also proceeds to
authorise the Dam Safety Authority of Kerala – to disobey and disregard the
decision of this Court by the following, among other provisions:
· Section 62(1)(e) empowers the authority to direct the suspension
or restriction of the functioning of any dam or decommissioning.
· Section 62A(1) read with Second Schedule is a legislative
judgment that the Mullaperiyar dam is endangered on account of
its age, degradation, structural or other impediments and limits
the water level to 136 ft.
· Sub-section (2) prohibits increase of water level fixed in the
Second Schedule notwithstanding any judgment, decree or order
of any court or any other law or any treaty, contract, agreement,
instrument or document except and in accordance with the
provisions of the Act.
Page 10
· Sub-section (3) also contains a non-obstante clause and requires
prior consent in writing of the authority for increasing storage
capacity and for doing any act or work for such purpose.
· Sub-section (4) directs any act or work for preparation by any
executant to stop the work immediately and to apply for consent
of the authority.
· Section 68A protects the authority and any officer or employee
from any suit, prosecution or other legal proceedings in respect
of anything done under the Act and also ousts the jurisdiction of
civil courts.
· 2006 (Amendment) Act is not a validation act but a mere device
to defy, obstruct and nullify the judgment of this Court and
constitutionally interfere with, restrict or extinguish the legal rights
of Tamil Nadu as upheld by this Court. A Legislature cannot by
mere declaration and enactment overrule and nullify a judicial
decision. The direct object and effect of the impugned legislation
is to overturn the judgment of this Court and to arrogate to Kerala
the power to prevent Tamil Nadu from exercising its legal rights
which have already been upheld by this Court.
Page 11
19. On the above grounds, Tamil Nadu has sought two-fold relief, (i)
to declare the 2006 (Amendment) Act passed by the Kerala legislature as
unconstitutional in its application to and effect on the Mullaperiyar dam and (ii)
to pass a decree of permanent injunction restraining the first defendant from
applying and enforcing the impugned legislation interfering with or obstructing
the plaintiff from increasing the water level to 142 ft. and from carrying out the
repair works as per the judgment of this Court dated 27.02.2006 in W. P.
(Civil) No. 386 of 2001 with connected matters. The Union of India has been
impleaded as defendant no. 2 in the suit.
Defence by Kerala
20. Kerala has traversed the claim of Tamil Nadu on merits and has
also raised objections about the maintainability of the suit. Kerala’s defence is
that the 1886 Lease Agreement for 999 years lapsed under the provisions of
Section 7(1)(b) of the Indian Independence Act, 1947 (“Act of 1947”). From
1947 to 26.01.1950, the lease was continued as a temporary lease on annual
basis. After 26.01.1950, even the temporary continuation of the lease came to
an end. The possession of the land held and continued by the then
Government of Madras and now Tamil Nadu, after 26.01.1950 has no juridical
basis.
21. Kerala states that 1886 Lease Agreement, on the basis of which
Tamil Nadu has laid its claim, is an unconscionable contract because of its
duration (999 years) as well as the fact that the lease conveys for a small rent
Page 12
a vital resource of Kerala. The lease was obtained by the Secretary of State
for India in England obviously by holding threat of paramountcy over Maharaja
of Travancore, who was his vassal.
22. As regards the two supplemental agreements of 1970, Kerala
states that these agreements have not been executed in terms of mandatory
provisions of Article 299 of the Constitution and, therefore, they do not
constitute contracts in the eye of law. In any event, these agreements do not
bind the State legislature at all.
23. About 2006 (Amendment) Act, it is stated that Kerala legislature
enacted the Act regulating the storage levels of 22 dams listed in the Second
Schedule read with Section 62A (1), as these dams fall entirely within the
territory of Kerala and these dams are considered to be endangered on
account of their age, degeneration, degradation, structural or other
impediments. Kerala states that such law is perfectly valid. Under Section
62A(3) of the 2006 (Amendment) Act, the FRL can be increased beyond 136
ft. after obtaining prior consent of the Dam Safety Authority headed by a
retired Judge of the High Court. If Tamil Nadu approaches under Section
62A(3), Kerala reserves its right to oppose such plea by demonstrating how
such increase would lead to spread of backwater beyond the contour line of
155 ft. and how the flora and fauna including ecology would be destroyed. The
impact of increased storages on the safety of the dam will also be
demonstrated before the Dam Safety Authority. This was not the matter that
was required to be considered by this Court in the previous case, since in that
Page 13
case, the focal issue was the implications of the increase in height upon the
safety and integrity of the dam. 2006 (Amendment) Act creates a working
mechanism to deal with a problem like displacement of those whose lands are
likely to be affected by the backwater effect.
24. The competency of Kerala legislature to enact the 2006
(Amendment) Act is sought to be justified by relying upon Entries 17 and 18 of
List II (State List) and Entries 17, 17-A and 17-B of the Concurrent List of the
Seventh Schedule to the Constitution. Kerala also states that it is competent
for the Kerala legislature to modify the terms of the lease in public interest (if
the lease has survived as contended by the Tamil Nadu), as the lease
inherited under Article 295 of the Constitution does not bind the legislature of
the state and that it is always open to the legislature to modify such conditions
by law.
25. As regards structure of the Mullaperiyar dam, Kerala’s stand is
that it is not constructed entirely with rubble masonry in lime mortar. The front
and rear faces are constructed of uncoursed rubble masonry in lime mortar.
The hearting (center core) is of lime surkhi concrete, therefore, dam cannot be
considered as homogeneous masonry dam under any circumstances. In view
of Kerala, a dam could never have been intended to remain for long years
without decommissioning at some point of time. For this background, people in
Kerala living in the downstream region of the Mullaperiyar dam have raised
serious apprehensions against the safety of the structure.
Page 14
26. Kerala has denied that river Periyar is an inter-state river. It has
asserted that river Periyar is an intra-state river as it rises in Quilon District in
Kerala and traverses only through the territory of Kerala before falling into the
Arabian sea. The total catchment of Periyar basin is 5398 sq. km. of which
only about 113 or 114 sq. km. lie within the territory of Tamil Nadu. Even this
small catchment of 113 sq. km. lying in Tamil Nadu, is in the downstream
region of the Mullaperiyar dam. Therefore, no water from this catchment is
contributed to the kitty of Mullaperiyar dam.
27. As regards the earlier judgment of this Court, Kerala’s stand is
that the judgment concluded the issue relating to safety of the people and
degradation of the environment, apart from issue arising from Article 363 of
the Constitution. The doctrine of res judicata or constructive res judicata has
no relevance to the question of powers on the Kerala legislature to regulate
the storage level of the Mullaperiyar dam in larger public interest by
legislation. Kerala states that the impugned legislation removes the legal basis
of the judgment, i.e., the right of Tamil Nadu to store water up to 142 ft. in
Mullaperiyar reservoir. The legislature is competent to remove the basis of any
judgment and, therefore, it is not permissible for Tamil Nadu to claim any right
to store water at Mullaperiyar dam beyond 136 ft. Kerala has assailed the
findings and conclusions in the earlier judgment dated 27.02.2006 on all
possible grounds.
28. Kerala has raised the objection about maintainability of the
present suit under Article 131 of the Constitution of India. According to Kerala,
Page 15
because the basis of claim made by Tamil Nadu lies in the 1886 Lease
Agreement which is a contractual right leading to civil dispute, if any, but it is
not in dispute in the constitutional context as required under Article 131 of the
Constitution of India. Kerala’s further case is that 1886 Lease Agreement was
executed between the Maharaja of Travancore and Secretary of State for India
in England and as such the agreement is in the nature of treaty and act of
state, the enforcement of which is barred by proviso to Article 131 of the
Constitution. Tamil Nadu, therefore, cannot seek enforcement of 1886 lease
deed before this Court.
29. Kerala has also challenged the report of the Expert Committee for
assessing the structural safety of the dam that was relied upon by this Court in
its judgment on 27.02.2006. Kerala says that both the interim report and
final report submitted by the Expert Committee are riddled with
inconsistencies and the views of the Committee do not constitute an
authoritative opinion. Kerala has denied that storages at Mullaperiyar dam
beyond 136 ft. will not pose any danger.
30. Kerala states that the storage at Mullaperiyar dam beyond 136 ft.
would not be required to meet the irrigation requirement of 2,08,144 acres in 5
southern districts of Tamil Nadu, although the irrigation originally planned was
not more than 1.5 lakh acres. Kerala has denied the contention of Tamil Nadu
that due to non-restoration of FRL from 136 ft., Tamil Nadu’s irrigation is
getting suffered. According to Kerala, Tamil Nadu was able to irrigate more
area with Mullaperiyar water, even after lowering the water level to 136 ft.
Page 16
31. Kerala has, thus, prayed that suit filed by Tamil Nadu be
dismissed with costs.
Issues
32. On 13.12.2007, the Court framed the following issues for
consideration in the suit:
“1. Whether the suit is maintainable under Article 131 of the
Constitution of India.
2. (a) Whether the Kerala
Irrigation and Water Conservation (Amendment) Act 2006 is
unconstitutional and ultra vires, in its application to and effect
on the Mullai Periyar Dam?
(b) Whether plaintiff is
entitled to a permanent injunction restraining the first defendant
from applying and enforcing the Kerala Irrigation and Water
Conservation (Amendment) Act, 2006 with reference to Mullai
Periyar Dam?
3. Whether the rights of the plaintiff, crystalised in the Judgment
dated 27.02.2006 passed by this Court in WP(C) No. 386/2001 can be
nullified by a legislation made by the Kerala State Legislature?
4. (a) Whether the judgment
dated 27.2.2006 of this Court in WP(C) No. 386/2001 operated
as res judicata, in respect of all or any of the defences set up by
the first defendant in its written statement?
(b) Whether the pleas
relating to validity and binding nature of the deed dated
29.10.1886, the nature of Periyar River, structural safety of
Mullai Periyar Dam etc. raised by the first defendant in its
defence, are finally decided by the judgment of this Court dated
27.2.2006 in WP(C) No. 386/2001, and consequently first
defendant is barred from raising or reagitating those issues and
pleas in this suit, by the principle of res judicata and
constructive res judicata?
5. Whether the suit based on a legal right claimed under the lease
deed executed between the Government of the Maharaja of
Page 17
Travancore and the Secretary of State for India on 29.10.1886, is
barred by the proviso to Article 131 of the Constitution of India?
6. Whether the first defendant is estopped from raising the plea
that the deed dated 29.10.1886 has lapsed, in view of subsequent
conduct of the first defendant and execution of the supplemental
agreements dated 29.05.1970 ratifying the various provisions of the
original Deed dated 29.10.1886.
7. Whether the lease deed executed between the Government of
the Maharaja of Travancore and Secretary of State for India on
29.10.1886 is valid, binding on first defendant and enforceable by
plaintiff against the first defendant.
8. Whether the first defendant is estopped from contending that
Periyar River is not an inter-State river.
9. Whether the offer of the first defendant, to construct a new dam
across River Periyar in the downstream region of Mullai Periyar Dam
would meet the ends of justice and requirements of plaintiff.
10. Whether the first defendant can obstruct the plaintiff from
increasing the water level of Mullai Periyar Dam to 142 ft. and from
carrying out repair works as per the judgment dated 27.2.2006 of this
Court in WP(C) No. 386/2001.
11. To what relief is the plaintiff entitled to?”
Documentary and oral evidence by the parties
33. The admission/denial of documents tendered by the parties was
completed on 16.05.2008. Documents Ex. P1 to Ex. P44 tendered by Tamil
Nadu were admitted by Kerala and documents Ex. D1 to D17 tendered by
Kerala were admitted by Tamil Nadu. Tamil Nadu’s documents Ex. XP1 to
XP4 and Kerala’s documents Ex. XD1 to XD24 were denied by the other side.
34. As regards oral evidence, Tamil Nadu produced R. Subramanian
(PW-1) as the sole witness. On the other hand, Kerala produced five
Page 18
witnesses, V.K. Mahanudevan (DW-1), K. Jayakumar (DW-2), Dr. A.K.
Gosain (DW-3), Dr. Dhrubajyoti Ghosh (DW-4) and M.K. Parameswaran Nair
(DW-5).
Reference to the 5-Judge Constitution Bench
35. Initially, the matter was heard by a three-Judge Bench. On
10.11.2009, matter was referred to the Constitution Bench as some of the
issues framed in the suit involved decision on certain substantial questions of
law concerning interpretation of the Constitution and in particular:
(i) Articles 3 and 4 read with Article 246 of the Constitution;
(ii) Article 131 read with Article 32 of the Constitution (in the
context of res-judicata);
(iii) Proviso to Article 131 read with Articles 295 and 363 of the
Constitution and the effect of the Constitution (26th Amendment)
Act, 1971; and
(iv) The effect of decision of this Court in Mullaperiyar Environmental
Protection Forum1 in the context of afore-referred constitutional
provisions.
Constitution of the Empowered Committee (EC)
36. A very important development occurred when the matter was
taken up initially by the Constitution Bench. It was felt by the Constitution
Bench that examination of all aspects of the matter including safety of
Page 19
Mullaperiyar dam by an Empowered Committee (EC) may help the Court in
deciding the matter effectively. Accordingly, on 18.02.2010, the Constitution
Bench directed the Central Government to constitute an EC under the
Chairmanship of Dr. A.S. Anand, former Chief Justice of India and comprising
of two members nominated by the States of Kerala and Tamil Nadu and two
renowned technical experts. The EC was requested to hear parties to the suit
on all issues that may be raised before it, without being limited to the issues
that have been raised before the Court in the matter and furnish a report as far
as possible within six months from its constitution. It was left open to the EC to
frame its own procedure and issue appropriate directions as to the hearings as
well as venue of its sittings and it was also left to the EC to receive such
further evidence as it considered appropriate. It was, however, clarified that
the legal and constitutional issues including validity of the 2006 Amendment
Act, are matters that would be considered by the Court.
37. The EC submitted status reports from time to time. The time for
giving final report was extended also. The report was submitted by the
Empowered Committee finally on 23.04.2012.
General observation
38. As a general observation, before we embark upon the discussion
on diverse issues, it must be stated, that a suit of this nature cannot and ought
not to be decided with very technical approach insofar as pleadings and
procedure are concerned. A suit filed in original jurisdiction of this Court is not
Page 20
governed by the procedure prescribed in Civil Procedure Code save and
except the procedure which has been expressly made applicable by the
Supreme Court Rules. It is also important to bear in mind that the contest
between the states is to be settled in the large and ample way that alone
becomes the dignity of litigants concerned (State of Andhra Pradesh3).
Unfortunately, there is a sharp conflict over each and every aspect of the
subject matter between the contesting states. Even in respect of the report
submitted by the EC chaired by a former Chief Justice of this Court, one
nominee each of the two states who are former judges of this Court and two
renowned technical experts, the two states have different views although EC
has submitted its report after a very tedious and minute consideration of facts
on the safety of the Mullaperiyar dam, which embraced the reports of tests,
investigation and technical studies carried out through the three apex
organizations, besides through other specialist organizations of the
Government of India and specialist expert agencies and also after site
appraisal. Moreover, the investigations, tests and technical studies were
directed to be carried out by the EC in association with the representatives of
both the States.
Issue Nos. 1, 5, 6 and 7.
39. These four issues are interrelated inasmuch as two of these
issues relate to validity and binding nature of 1886 Lease Agreement and the
3 State of Andhra Pradesh v. State of Maharashtra and Ors.; [(2013) 5 SCC 68].
Page 21
effect of 1970 supplemental agreements and the other two issues concern
maintainability of suit under Article 131, if 1886 Lease Agreement is held valid,
binding and enforceable. Extensive arguments have been addressed to us by
the learned senior counsel for the two contesting states in respect of these
issues. However, it must be noted immediately that Kerala did not dispute the
position that under Section 177 of the Government of India Act, 1935 existing
contracts made by the Secretary of State prior to 1935 (made for the purposes
of the Government of a Province) would have effect as if they were made on
behalf of that Province. In view of this admitted position by Kerala, we shall
first see whether 1886 Lease Agreement was an existing contract made for
the purposes of the Government of Province of Madras on the commencement
of 1935 Act.
1886 Lease Agreement – whether an existing contract under 1935 Act
40. The Madras Presidency (Fort St. George) was established by the
Pitts Act, 1784. Thereafter, by the Government of India Act, 1858, the
territories under the Government of East India Company were transferred for
being vested in Her Majesty. Under this enactment, the Secretary of State in
Council was empowered to enter into contracts. By the 1859 (Amendment)
Act, the British Parliament authorised the Governor in Council of Fort St.
George to enter into contracts referred to as Secretary of State in Council.
1886 Lease Agreement was entered into between the Secretary of State in
Council and Maharaja of Travancore under this provision. Government of India
Page 22
Act, 1919 did not alter the position with regard to the 1886 Lease Agreement
since Presidency of Fort St. George was treated as Province for the purposes
of local government. By virtue of Section 46 of the 1935 Act, the Presidency of
Fort St. George which was deemed to be a Province under 1919 Act became
Governor’s Province of Madras.
41. Section 177 of the 1935 Act, omitting the unnecessary part reads,
“…..any contract made before the commencement of Part III of this Act by, or
on behalf of, the Secretary of State in Council shall, as from that date – (a) if it
was made for the purposes which will after the commencement of Part III of
this Act be purposes of the Government of a Province, have effect as if it had
been made on behalf of that Province…” By virtue of this provision, the
existing contracts of the Secretary of State in Council would have the effect as
if they had been made on behalf of the Province. When we see 1886 Lease
Agreement in light of Section 177 of the 1935 Act, there remains no doubt at
all that lease that was executed by the Secretary of State in Council for the
Presidency of Madras (Madras Province) had the effect as if it had been made
on behalf of the Presidency of Madras or for that matter Madras Province. To
put it differently, by legal fiction created under Section 177(1)(a), the
Presidency of Madras (Madras Province) became lessee under the 1886
Lease Agreement. We have, therefore, no hesitation in accepting the
submission of Mr. Vinod Bobde, learned senior counsel for Tamil Nadu that by
virtue of Section 177 of the 1935 Act, as from the commencement of the 1935
Page 23
Act, the Government of the Province of Madras is deemed to be substituted as
the lessee in the 1886 Lease Agreement.
Effect and impact of events between 18.07.1947 and 26.01.1950
42. In light of the above holding, we have to see the effect and impact
of certain events that occurred between 18.07.1947 (when Act of 1947 was
enacted by British Parliament) and 26.01.1950 (the date of commencement of
Constitution).
42.1. On 18.07.1947, a bulletin was issued by the Maharaja of
Travancore State denouncing all agreements.
42.2. On 22.07.1947, the Dewan of Travancore is said to have stated in
his notes submitted to the Maharaja that in his discussion with the Viceroy, he
had unequivocally denounced the 1886 Lease Agreement and that the Viceroy
had accepted the good sense underlying the denouncement.
42.3. On 10.08.1947, in his letter, Mr. C.C. Desai, Additional Secretary
gave an assurance that all agreements would be renegotiated.
42.4. On 12.08.1947, Instrument of Accession was executed by the
Ruler of Travancore declaring that Travancore has acceded to the Dominion of
India.
42.5. Following Instrument of Accession, on 12.08.1947 itself, a
standstill agreement was entered into between State of Travancore and the
Dominion of India.
Page 24
42.6. On 14.08.1947, India (Provisional Constitution) Order, 1947 was
promulgated whereby, inter alia, Section 177 of the 1935 Act was omitted.
42.7. On 15.08.1947, Act of 1947 came into effect.
42.8. On 24.05.1949, the two States – Travancore and Cochin –
merged together.
Whether 1886 Lease Agreement lapsed?
43. Mr. Harish N. Salve, learned senior counsel for Kerala, in view of
the above events submits that 1886 Lease Agreement lapsed and did not
survive on and from 15.08.1947.
44. By Act of 1947, the provisions were made for setting up in India of
two Indian dominions to be known respectively as India and Pakistan from
15.08.1947. Section 7 of Act of 1947 reads as follows :
“7. Consequences of the setting up of the new Dominions.—
(1) As from the appointed day—
(a) His Majesty’s Government in the United Kingdom have no
responsibility as respects the government of any of the territories
which, immediately before that day, were included in British India;
(b) the suzerainty of His Majesty over the Indian States lapses,
and with it, all treaties and agreements in force at the date of the
passing of this Act between His Majesty and the rulers of Indian
States, all functions exercisable by His Majesty at that date with
respect to Indian States, all obligations of His Majesty existing at that
date towards Indian States or the rulers thereof, and all powers, rights,
Page 25
authority or jurisdiction exercisable by His Majesty at that date in or in
relation to Indian States by treaty, grant, usage, sufferance or
otherwise; and
(c) there lapse also any treaties or agreements in force at the
date of the passing of this Act between His Majesty and any persons
having authority in the tribal areas, any obligations of His Majesty
existing at that date to any such persons or with respect to the tribal
areas, and all powers, rights, authority or jurisdiction exercisable at
that date of His Majesty in or in relation to the tribal areas by treaty,
grant, usage, sufferance or otherwise:
Provided that, notwithstanding anything in paragraph (b) or
paragraph (c) of this sub-section, effect shall, as nearly as may be
continued to be given to the provisions of any such agreement as is
therein referred to which relate to customs, transit and
communications, posts and telegraphs, or other like matters, until the
provisions in question are denounced by the ruler of the Indian State
or person having authority in the tribal areas on the one hand, or by
the Dominion or Province or other part thereof concerned on the other
hand, or are superseded by subsequent agreements.
(2) …………….”
45. As noted above, Act of 1947 came into effect from 15.08.1947.
Section 7 deals with the consequences of the setting up of the new dominions.
Clause (b) of sub-section (1) of Section 7 declares that suzerainty of His
Majesty over the Indian States lapses. On lapsing of suzerainty, it provides for
lapsing of all treaties and agreements in force between His Majesty and the
Rulers of Indian States from that date. Proviso appended to sub-section (1),
however, continues such agreements unless the provisions in such agreement
are denounced by the Ruler of the Indian State or are superseded by a
subsequent agreement.
46. It is the contention of Mr. Harish N. Salve that firstly, 1886 Lease
Agreement lapsed by virtue of main provision of Section 7(1)(b) of the Act of
1947 as it comprehends all treaties and agreements and secondly, the
Page 26
Maharaja of Travancore denounced all agreements including 1886 Lease
Agreement.
47. It is true that Section 7(1)(b) of Act of 1947 Act uses the
expression “all treaties and agreements” but, in our opinion, the word “all” is
not intended to cover the agreements which are not political in nature. This is
clear from the purpose of Section 7 as it deals with lapsing of suzerainty of
His Majesty over the Indian States and the consequence of lapsing of
suzerainty. Obviously, the provision was not intended to cover the agreements
and treaties other than political. We, accordingly, hold that Section 7(1)(b)
concerns only with political treaties and agreements.
48. The nature of 1886 Lease Agreement being not political is
already concluded by this Court in 2006 judgment (Mullaperiyar Environmental
Protection Forum1). This Court has held therein – and we have no justifiable
reason to take a different view – that 1886 Lease Agreement is an ordinary
agreement being a lease agreement and it is wholly non-political in nature.
49. There is, thus, no merit in the contention advanced on behalf of
Kerala that 1886 Lease Agreement lapsed under the main provision of Section
7(1)(b) of 1947 Act.
50. Now, for consideration of the other limb of the argument
addressed to us by Mr. Harish N. Salve that even otherwise, the Maharaja of
Travancore denounced all agreements including 1886 Lease Agreement, it is
necessary to refer to the proviso appended to Section 7(1)(b). The expression
“denounced by the Ruler of the Indian State” in the proviso appended to
Page 27
Section 7, in our opinion, refers to unambiguous, unequivocal and express
denouncement. Kerala has not produced any material or document to show
that there was express denouncement of that nature by the Ruler of
Travancore insofar as 1886 Lease Agreement is concerned. We do not think
that the bulletin issued on 18.07.1947 clearly or finally denounced the 1886
Lease Agreement.
51. Moreover, to be a valid and effective denouncement of the
agreement between the Ruler and His Majesty such denouncement must be
made after 1947 Act came into effect. Admittedly, there is no denouncement of
1886 Lease Agreement by the Travancore Ruler after 15.08.1947.
52. The relevant portion of the standstill agreement dated 12.08.1947
reads as follows:
“Agreement between the State of Travancore and the Dominion of
India
Whereas it is to the benefit and advantage of the Dominion of
India as well as of the Indian States that existing agreements and
administrative arrangements in the matters of common concern,
should continue for the time being, between the Dominion of India or
any part thereof and the Indian States :
Now therefore it is agreed between the Travancore State and
the Dominion of India that:-
1. (1) Until new agreements in this behalf are made, all
agreements and administrative arrangements as to matters
of common concern now existing between the Crown and
any Indian State shall, in so far as may be appropriate,
continue as between the Dominion of India or as the case
may be, the part thereof and the State.
(2) In particular, and without derogation from the generality
of sub-clause (1) of this clause the matters referred to above
shall include the matters specified in the Schedule to this
Agreement.”
Page 28
53. It is argued by Mr. Harish N. Salve that the standstill agreement,
which is between parties different from those who had executed the 1886
Lease Agreement, is a fresh agreement which brought into force, for the time
being, contractual obligations between the Maharaja of Travancore and the
Dominion of India. As the parties were different and the Act of 1947 provided
for the lapse of the British suzerainty over the Princely States, the question of
continuance of 1886 lease agreement does not arise. In any case, learned
senior counsel for Kerala argues that standstill agreement could not survive
after the deletion of Section 177 of the 1935 Act. We find no merit in these
arguments. The standstill agreement is not a fresh agreement between
Dominion of India and State of Travancore as suggested by Mr. Harish N.
Salve. The standstill agreement was intended for the benefit of the parties who
were parties to the agreements and arrangements, which were matters of
common concern existing between the Crown and the State of Travancore. In
the background of Instrument of Accession, it became necessary to have
some arrangement so that the existing agreements and arrangements
between the Crown and the Indian States continued. We do not think that
standstill agreement is political in nature as contended on behalf of Kerala.
54. The argument that standstill agreement could not survive after the
deletion of Section 177 with effect from 15.08.1947 by virtue of India
(Provisional Constitution) Order, 1947 is also without substance. Section 177
was deleted because it could no longer work and because Dominion of India
was to come into being with provinces as part of the Dominion and there was
Page 29
to be no Secretary of State in Council. We are in agreement with Mr. Vinod
Bobde, learned senior counsel for Tamil Nadu that deletion of Section 177
was prospective and it did not affect the deeming that had already taken place
in 1935. The standstill agreement, in our view, cannot be said to have been
wiped out by the deletion of Section 177.
55. Mr. Harish N. Salve is right in submitting that under Section 177
existing contracts made by the Secretary of State prior to 1935 would have
effect as if they were made on behalf of the concerned Province and by virtue
of this provision, the Province of Madras was a beneficiary of standstill
agreement but he does not seem to be right when he says that this situation
changed on 14.08.1947 when the India (Provisional Constitution) Order, 1947
was issued and the standstill agreement arrived at on 12.08.1947 ceased to
be for the benefit of Province of Madras. As stated by us earlier, the deletion
of Section 177 is prospective and did not undo what had already taken place.
This also negates the argument of Mr. Salve that the rights of the Crown,
which were enjoyed by the Province of Madras under Section 177, on deletion
of the said Section had come to an end as there was no successor to the
Crown.
56. The argument that there is no successor of Crown is irrelevant
because by virtue of Section 177, the Government of Province of Madras had
already become lessee in the 1886 Lease Agreement by deeming in 1935
itself. The standstill agreement continued 1886 Lease Agreement between
the Province of Madras and the State of Travancore. 1886 Lease Agreement
Page 30
did not lapse under the main provision of Section 7(i)(b) of the Act of 1947.
There was no unequivocal and unambiguous denouncement of 1886 Lease
Agreement by the Ruler of Travancore under proviso to Section 7(i)(b). The
Province of Madras was beneficiary of the standstill agreement. Surely,
deletion of Section 177 has not affected the rights of Province of Madras.
57. Relying upon Babu Ram Saksena4, it is vehemently argued by Mr.
Harish N. Salve, learned senior counsel for Kerala that upon merger of two
states – Travancore and Cochin – in 1949 all treaties entered into by the
Rulers of erstwhile states lapsed. His submission is that the standstill
agreement, whether it was an independent agreement or in continuation of
1886 Lease Agreement, came to an end in light of the legal position exposited
in Babu Ram Saksena4. Learned senior counsel in this regard also relied upon
the decision of this Court in State of Himachal Pradesh5.
Babu Ram Saksena
58. Let us carefully consider Babu Ram Saksena4. The facts in
Babu Ram Saksena4 were as follows: Babu Ram Saksena was a member of
Uttar Pradesh Civil Service and served Tonk State in various capacities. It
was alleged that during service, he helped the Nawab of Tonk in obtaining the
sanction of the Government of India to the payment of Rs.14,00,000/- to the
Nawab out of State treasury for the discharge of his debts, and induced the
Nawab by threats and deception to pay him, in return for such help, sums
4 Dr. Babu Ram Saksena v. State; [AIR 1950 SC 155]
5 State of Himachal Pradesh v. Union of India & Ors.; [(2011) 13 SCC 344]
Page 31
totaling Rs.3,00,000/- on various dates. Dr. Babu Ram Saksena was charged
with the offences under Sections 383, 575 and 420 of the Indian Penal Code.
These offences were extraditable offences under the Indian Extradition Act,
1903 (for short, ‘1903 Act’). The warrant was issued under Section 7 of the
1903 Act to the District Magistrate, Nainital, where the accused was residing
after reverting to the service of the Uttar Pradesh Government, to arrest and
deliver him up to the District Magistrate of Tonk. The accused raised defences
on merits as well as to the validity of the warrant and challenged the
jurisdiction of the Magistrate at Nainital to take cognizance of the matter and
arrest the appellant. The High Court overruled all the objections and
dismissed the application for the release of the appellant. The matter was
carried to this Court. Inter alia, the contention on behalf of the appellant
before this Court was that the treaty entered into between the British
Government and the Tonk state on 28.01.1869, although declared by Section
7 of the 1947 Act, to have lapsed as from 15.08.1947 was continued in force
by the standstill agreement entered into on 08.08.1947; that that treaty
exclusively governed all matters relating to extradition between the two states,
and that, inasmuch as it did not cover the offences now charged against the
appellant, no extradition of the appellant could be demanded or ordered. The
Attorney General, on the other hand, responded by contending that the
standstill agreement entered into with various Indian States were purely
temporary arrangements designed to maintain the status quo ante in respect
of certain administrative matters of common concern pending the accession of
Page 32
those States to the Dominion of India and they were superseded by the
instrument of Accession executed by the Rulers of those states. Tonk having
acceded to the Dominion on 16.08.1947, the standstill agreement relied on by
the appellant must be taken to have lapsed as from that date. Secondly, the
treaty was no longer subsisting and its execution became impossible, as the
Tonk State ceased to accede politically and as such sovereignty as it
possessed was extinguished, when it covenanted with certain other states,
with the concurrence of the Indian Government “to unite and integrate their
territories in one state, with the common executive, legislature and judiciary,
by the name of the United State of Rajasthan”, the last of such covenants
which superseded the earlier ones, having been entered into on 13.03.1949.
Lastly, it was argued by the Attorney General that the treaty was still in
operation as a binding executory contract and its provisions were in no way
derogated from by the application of Section 7 of the 1903 Act in the
extradition warrant issued under that Section and the arrest made in
pursuance thereof were legal and valid and could not be called in question
under Section 491 of the Code of Criminal Procedure.
59. It is important to note that in Babu Ram Saksena4, two opinions
have been given by this Court, one by Patanjali Sastri, J. and the other by
Mukherjea, J. Insofar as Patanjali Sastri, J. is concerned, His Lordship did not
give any opinion on the first two contentions raised by the Attorney General.
This is clear when Patanjali Sastri, J. said, “As we are clearly of the opinion
that the appellant’s contentions must fail on this last ground, we consider it
Page 33
unnecessary to pronounce on the other points raised by the Attorney General
especially as the issues involved are not purely legal but also of a political
character, and we have not had the views of the accused concerned on those
points”. Having said that, Patanjali Sastri, J. considered the question whether
extradition under Section 7 of the 1903 Act for an offence which is not
extraditable under the treaty is, in any sense, a derogation from the provisions
of the treaty which provides for the extradition of offenders for certain specified
offences committed in the respective territories of the high contracting parties.
59.1. In the other opinion given by Mukherjea, J. as regards the
question, how far was the Extradition Treaty between the Tonk State and the
British Government affected by reason of the merger of the Tonk State along
with eight other States in view of a covenant entered into by the Rulers of
these nine States, into the United State of Rajasthan, it has been held that as
a result of amalgamation or merger, a State loses its full and independent
power of action over the subject matter of a treaty previously concluded, the
treaty must lapse. Mukherjea, J. noted Article 6 of the merger and the general
opinion of the international jurists that when a State relinquishes its life as
such through incorporation into or absorption by another State either
voluntarily or as a result of conquest or annexation, the treaties of the former
are automatically terminated. Mukherjea, J. observed as follows:
“………..The result is said to be produced by reason of complete loss of
personality consequent on extinction of State life. The cases discussed
in this connection are generally cases where independent States have
ceased to be such through constrained or voluntary absorption by
another with attendant extinction of the former’s treaties with other
Page 34
States. Thus the forceable incorporation of Hanover into the Prussian
Kingdom destroyed the previous treaties of Hanover. The admission of
Texas into the United States of America by joint resolution extinguished
the Treaties of the Independent Republic of Texas. The position is the
same when Korea merged into Japan. According to Oppenheim, whose
opinion has been relied upon by Sir Alladi, no succession of rights and
duties ordinarily takes place in such cases, and as political and personal
treaties presuppose the existence of a contracting State, they are
altogether extinguished. It is a debatable point whether succession takes
place in cases of treaties relating to commerce or extradition but here
again the majority of writers are of opinion that they do not survive
merger or annexation”
59.2. The above observations of Mukherjea, J. were based on the two
renowned books, (one) Hyde on International Law, Vol. III, Pg. 1529 and (two)
Oppenheim on International Law, Vol. I, Pg. 152.
59.3. Dealing with the covenant under consideration, Mukherjea, J.
went on to state as follows:
“The remarks quoted above do not, however, seem quite appropriate to
a case of the present description. Here there was no absorption of one
State by another which would put an end to the State life of the former
and extinguish its personality. What happened here was that several
States voluntarily united together and integrated their territories so as
to form a larger and composite State of which every one of the
covenanting parties was a component part. There was to be one
common executive, legislature and judiciary and the Council of Rulers
would consist of the Rulers of all the Covenanting States. It may not be
said, therefore, that the Covenanting States lost their personality
altogether and it is to be noted that for purposes of succession of
Rulership and for counting votes on the strength of population and
other purposes the Covenant of Merger recognises a quasi-separation
between the territories of the different States. But although such
separation exists for some purposes between one State territory and
another, it is clear that the inhabitants of all the different States
became, from the date of merger, the subjects of the United State of
Rajasthan and they could not be described as subjects of any particular
State. There is no such thing as subject of the Tonk State existing at
the present day and the Ruler of Tonk cannot independently and in his
own right exercise any form of sovereignty or control over the Tonk
territory. The Government, which exercises sovereign powers, is only
one, even though the different Rulers may have a voice in it. It seems to
us that in those altered circumstances the Extradition Treaty of 1869
Page 35
has become entirely incapable of execution. It is not possible for the
Tonk State, which is one of the contracting parties to act in accordance
with the terms of the treaty, for it has no longer any independent
authority or sovereign rights over the Tonk territory and can neither
make nor demand extradition. When as a result of amalgamation or
merger, a State loses its full and independent power of action over the
subject-matter of a treaty previously concluded, the treaty must
necessarily lapse. It cannot be said that the sovereignty of the Tonk
State in this respect is now vested in the United State of Rajasthan. The
authority, so far as extradition was concerned, was already surrendered
by the Tonk State in favour of the Dominion Government by the
Instrument of Accession. But even assuming that these treaty rights
could devolve upon the United State of Rajasthan by reason of Article 6
of the Covenant of Merger, the latter, it seems to me, could be totally
incapable of giving effect to the terms of the treaty. As has been said
already, there could be no such thing as a subject of the Tonk State at
the present moment and Article 2 of the Treaty which provides for
extradition of Tonk subjects accused of having committed heinous
offences within Tonk territory and seeking asylum elsewhere would be
wholly infructuous. The United State of Rajasthan could not possibly
demand extradition on the basis of this article, and if reciprocity, which
is the essence of an Extradition Agreement, is gone, the Treaty must be
deemed to be void and inoperative.”
59.4. The view of Mukherjea, J. was concurred with by Mahajan, J.
Das, J. substantially agreed with the reasoning of Mukherjea, J. Fazl Ali, J.
agreed with the line of reasoning in both the judgments delivered by Patanjali
Sastri, J. and Mukherjea, J.
59.5. A careful consideration of the judgment by Mukherjea, J. in Babu
Ram Saksena4 would show that His Lordship’s opinion has no application to a
non-political agreement such as 1886 Lease Agreement. The observation of
Mukherjea, J., “When as a result of amalgamation or merger, a State loses its
full independent power of action over the subject matter of a treaty previously
concluded, the treaty must necessarily lapse…” is in the context of an
extradition treaty which is purely political in nature. In our view, Babu Ram
Page 36
Saksena4 is clearly distinguishable and does not help Kerala in its argument
that 1886 Lease Agreement lapsed on merger of the two States, Travancore
and Cochin, into the United State of Travancore and Cochin.
State of Himachal Pradesh
60. Mr. Harish N. Salve also placed heavy reliance upon the decision
of this Court in the case of State of Himachal Pradesh5. The dispute in that
case was between the State of Himachal Pradesh on the one hand and the
Union of India, State of Punjab, State of Haryana, State of Rajasthan and
Union Territory of Chandigarh on the other relating to the power generated in
the Bhakra-Nangal and Beas Projects. One of the issues under consideration
was whether after the merger of the State of Bilaspur with the Dominion of
India, the State of Himachal Pradesh could still have any cause of action to file
the suit. While dealing with this issue, this Court referred to Bilaspur Merger
Agreement dated 15.08.1948, particularly, Article 1 thereof. After having
noticed that provision, this Court in paragraph 48 of the Report (Pgs. 359-360)
held as under:
“48. It is thus clear that by the Bilaspur Merger Agreement dated 15-8-1948
the Raja of Bilaspur ceded to the Dominion Government full and exclusive
authority, jurisdiction and powers for and in relation to the governance of the
State and agreed to transfer the administration of the State to the Dominion
Government on 12-10-1948. Thereafter, the Government of India, Ministry
of Law, issued a Notification dated 20-7-1949 (Ext. D-4/2-A) in exercise of
its powers under Section 290-A of the Government of India Act, 1935
making the States Merger (Chief Commissioners’ Provinces) Order, 1949,
which came into force from 1-8-1949. Under this States Merger (Chief
Commissioners’ Provinces) Order, 1949, Bilaspur was to be administered in
all respects as if it was a Chief Commissioner’s Province. Under the
Page 37
Constitution of India also initially Bilaspur continued to be administered as
the Chief Commissioner’s Province and was included in the First Schedule
to the Constitution as a Part C State. Under Article 294(b) all rights,
liabilities and obligations of the Government of the Dominion of India,
whether arising out of any contract or otherwise, became the rights,
liabilities and obligations of the Government of India. These provisions of
the Bilaspur Merger Agreement dated 15-8-1948 (Ext. D-4/1-A), the States
Merger (Chief Commissioners’ Provinces) Order, 1949, the First Schedule
to the Constitution and Article 294(b) of the Constitution make it clear that
Bilaspur became the part of the Dominion of India and thereafter was
administered as a Chief Commissioner’s Province by the Government of
India and all rights of the Raja of Bilaspur vested in the Government of
India. We, therefore, hold that the plaintiff will not have any cause of action
to make any claim on the basis of any right of the Raja of Bilaspur prior to
the merger of Bilaspur State with the Dominion of India.”
61. The above observations in State of Himachal Pradesh5 must be
read in the context of Bilaspur Merger Agreement dated 15.08.1948 whereby
the Raja of Bilaspur ceded to the Dominion Government full and exclusive
authority, jurisdiction and powers for and in relation to the governance of the
State and all rights of Raja of Bilaspur had vested in the Government of India.
We find it difficult to appreciate how these observations have any application
insofar as the continuance of the 1886 Lease Agreement after the merger of
the Travancore State and the Cochin State into a new state, namely, United
State of Travancore and Cochin are concerned. The judgment of this Court in
State of Himachal Pradesh5, in our view, has no application to the submission
advanced on behalf of Kerala.
Status of Indian States on accession
62. It is important to bear in mind that accession of Indian States to
the Dominion of India did not extinguish those States as entities. They only
Page 38
became part of Dominion of India as constituent States along with the
provinces of erstwhile British India. We are unable to hold that the entities of
those States who acceded to the Dominion of India were totally wiped out.
There is merit in the submission of Tamil Nadu that the fact that on 24.05.1949
the States of Travancore and Cochin merged together also establishes that
Indian States which acceded to the Dominion continued as entities.
63. In light of the above, we are unable to accept the argument of
Kerala that Madras ceased to be a lessee on 15.08.1947. It is pertinent to
observe here that Kerala entered into the supplemental agreements with Tamil
Nadu in 1970. In these supplemental agreements, the continuance of 1886
lease is stated in clear and unambiguous words. Had 1886 Lease Agreement
ceased to be operational on and from 15.08.1947, there was no occasion for
Kerala to enter into supplemental agreements with Tamil Nadu in 1970. By
first supplemental agreement, Tamil Nadu surrendered the fishing rights in the
leased lands and also agreed to the upward revision of the rent of the leased
land. The second supplemental agreement conferred on Tamil Nadu the right
to generate power and right to construct all facilities required for power
generation. An additional extent of 42.7 acres was leased to Tamil Nadu for
the said purposes. Mr. Harish N. Salve, learned senior counsel for Kerala
argued that 1970 supplemental agreements and the statement therein about
continuance of 1886 Lease Agreement were based on a mistake of law
(wrongful assumption) of continuance of lease of 1886. The submission of the
learned senior counsel for Kerala can hardly be accepted firstly, in view of our
Page 39
finding that 1886 Lease Agreement continued on and from 15.08.1947 and
secondly, in view of the decision of this Court in State of Andhra Pradesh3,
wherein a three-Judge Bench of this Court speaking through one of us (R.M.
Lodha, J., as he then was) observed, “when an agreement is entered into
between two or more states, they have assistance of competent, legal and
technical minds available with them. The states do not have lack of drafting
ability. Such agreement is provided by trained minds…….”. The 1970
supplemental agreements having been entered into by two high parties,
namely, State of Kerala and State of Tamil Nadu, it can hardly be accepted
that the continuance of 1886 lease was wrongly assumed though it had lapsed
on 15.08.1947. Kerala obviously must have had competent and legal minds
available with them when supplemental agreements were entered into in 1970
with Tamil Nadu. There is no merit in the argument of Kerala that
supplemental agreements were based on mistake of law.
Is 1886 lease agreement an act of State?
64. Is 1886 Lease Agreement an act of State or International Treaty?
The answer has to be in the negative. It is well settled that an act of State is
the taking over of sovereign powers by a State in respect of territory which
was not till then part of it, by conquest, treaty, cession or otherwise, and the
municipal courts recognised by the new sovereign have the power and
Page 40
jurisdiction to investigate and ascertain only such rights as the new sovereign
has chosen to recognise or acknowledge by legislation, agreement or
otherwise, and that such a recognition may be express or may be implied from
the circumstances. 1886 Lease Agreement is an ordinary contract of lease.
Merely, because the contract was arrived at between the Crown through the
Secretary of State and the Travancore State – a princely Indian State – the
nature of contract is not changed and it does not become a political
arrangement. As noted above, this Court in Mullaperiyar Environmental
Protection Forum1 has already declared that 1886 Lease Agreement is not
political in nature. We are in agreement with this view. The same reasoning
applies equally to standstill agreement.
Virendra Singh
65. Mr. Harish N. Salve, learned senior counsel for Kerala relied upon
the decision of this Court in Virendra Singh6. The Constitution Bench in
Virendra Singh6 was concerned with the question about the post-Constitutional
rights to property situate in Indian States that were not part of British India
before the Constitution but which acceded to the dominion of India shortly
before the Constitution and became an integral part of the Indian Republic
after it. Charkhari and Sarila were independent States under the paramountcy
of the British Crown. They acknowledged the British Crown as the suzerain
power. India obtained Independence and became a Dominion by reason of
6 Virendra Singh & Ors. v. State of Uttar Pradesh; [(1955) 1 SCR 415 : AIR 1954 SC 447]
Page 41
Act of 1947. The two States – Charkhari and Sarila – executed Instruments of
Accession and acceded to dominion. In the Instrument of Accession, the
sovereignty of the acceding States was expressly recognised and
safeguarded. The Ruler of Sarila granted, on 28.01.1948, one village to the
writ petitioners and the Ruler of Charkhari also granted certain villages to the
petitioners. On 13.03.1948, thirty-five States in Bundelkhand and
Baghelkhand (including Charkhari and Sarila) agreed to unite themselves in
one State which was to be called United State of Vindhya Pradesh. Few days
later, pursuant to the above agreement, a covenant was signed by all the
thirty-five Rulers which brought the new State into being. This arrangement
was domestic arrangement and not a treaty with the dominion of India. Soon
after this, the Revenue Officers of the newly formed Vindhya Pradesh Union
tried to interfere with the grants made by the above Rulers. The integration
did not work satisfactorily. So, on 26.12.1949, the same thirty-five Rulers
entered into another agreement abrogating their covenant and dissolving the
newly created State as from 01.01.1950. By the same instrument each Ruler
ceded to the Government of the Indian Dominion as from the same date. The
instrument was called the Vindhya Pradesh Merger Agreement. The
Government of Indian Dominion was also party to the agreement. The
Dominion Government took over the administration of the States which formed
Vindhya Pradesh on 01.01.1950 and decided to form them into a Chief
Commissioner’s province. The Constitution came into force on 26.01.1950.
The grants of Jagirs and Muafis made by the Rulers of Charkhari and Sarila
Page 42
were revoked somewhere in August, 1952. It was this order of revocation
which was challenged before this Court by invoking Article 32 of the
Constitution.
65.1. While dealing with the issue noted above and in light of various
decisions cited at the bar, this Court exposited as follows:
“Now it is undoubted that the accessions and the acceptance of them
by the Dominion of India were acts of State into whose competency no
municipal Court could enquire; nor can any Court in India, after the
Constitution, accept jurisdiction to settle any dispute arising out of
them because of article 363 and the proviso to article 131; all they can
do is to register the fact of accession; see section 6 of the Government
of India Act, 1935 relating to the Accession of States. But what then?
Whether the Privy Council view is correct or that put forward by Chief
Justice Marshall in its broadest outlines is more proper, all authorities
are agreed that it is within the competence of the new sovereign to
accord recognition to existing rights in the conquered or ceded
territories and, by legislation or otherwise, to apply its own laws to
them; and these laws can, and indeed when the occasion arises must,
be examined and interpreted by the municipal Courts of the absorbing
State.”
65.2. The exposition of above legal position by the Constitution Bench
hardly admits of any doubt. Obviously, the accession of an Indian State to the
dominion of India and acceptance of it by the Dominion are acts of State and
jurisdiction of the courts to go into its competency or settle any dispute arising
out of them are clearly barred under Article 363 and the proviso to Article 131.
As we have already held – and that is what has been held in the 2006
judgment as well – that 1886 Lease Agreement is an ordinary agreement and
that it is not political in nature, the embargo of Article 363 and the proviso to
Article 131 have no application.
Page 43
Scope of Article 363 and Article 131
66. Article 3637 of the Constitution is an embargo for the courts
including Supreme Court to deal with any dispute arising out of a treaty,
agreement, covenant, engagement, sanad or other similar instrument which
was entered into or executed before the commencement of the Constitution by
any Ruler of an Indian state and to which the Government of the dominion of
India or any of its predecessors Government was a party and it has or has
been continued in operation after such commencement. The jurisdiction of the
courts is also barred to interfere in any dispute in respect of any right accruing
under any liability or obligation arising out of any of the provisions of this
Constitution relating to any such treaty, agreement, covenant, engagement,
sanad or other similar instrument.
67. A plain reading of Article 363 leaves no manner of doubt that if
the dispute arises in respect of a document of that description and if such
document had been executed before the commencement of Constitution, the
interference by courts is barred. The documents referred to in Article 363 are
those which are political in nature. Any dispute regarding such documents is
7 363. Bar to interference by courts in disputes arising out of certain treaties, agreements, etc. – (1)
Notwithstanding anything in this Constitution but subject to the provisions of Article 143, neither the Supreme
Court nor any other court shall have jurisdiction in any dispute arising out of any provision of a treaty,
agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed
before the commencement of this Constitution by any Ruler of an Indian State and to which the Government of
the Dominion of India or any of its predecessor Government was a party and which has or has been continued
in operation after such commencement, or in any dispute in respect of any right accruing under or any liability
or obligation arising out of any of the provisions of this Constitution relating to any such treaty, agreement,
covenant, engagement, sanad or other similar instrument
(2) In this article –
(a) “Indian State” means any territory recognised before the commencement of this Constitution by
His Majesty or the Government of the Dominion of India as being such a State; and
(b) “Ruler” includes the Prince, Chief or other person recognised before such commencement by His
Majesty or the Government of the Dominion of India as the Ruler of any Indian State.
Page 44
non-justiciable. The object behind Article 363 is to bind the Indian Rulers with
treaties, agreements, covenants, engagements, sanads or other similar
instruments entered into or executed before the commencement of the
Constitution and to prevent the Indian Rulers from resiling from such
agreements as the integrity of India was to be maintained at all cost and could
not be affected by raising certain disputes. It may be of relevance to refer to
the White Paper on Indian States prepared by the Government of India in
1948 which brings out the historical perspective which necessitated the
adoption of the provisions in Article 363. It says “Article 363 has therefore
been embodied in the Constitution which excludes specifically the Agreements
of Merger and the Covenants from the jurisdiction of courts except in cases
which may be referred to the Supreme Court by the President”.
68. Article 1318 of the Constitution deals with the original jurisdiction
of this Court. Subject to the provisions of the Constitution, this Court has
original jurisdiction in any dispute, inter alia, between the Government of India
and any State or States on one side and one or more other States on the other
if and insofar as the dispute involves any question (whether of law or fact) on
which the existence of legal right depends. However, by proviso appended
8 Art. 131. Original jurisdiction of the Supreme Court.— Subject to the provisions of this Constitution, the
Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute—
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one side and one or more other
States on the other; or
(c) between two or more States,
if and in so far as the dispute involves any question (whether of law or fact) on which the existence or
extent of a legal right depends:
Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement,
covenant, engagement, sanad or other similar instrument which, having been entered into or executed before
the commencement of this Constitution, continues in operation after such commencement, or which provides
that the said jurisdiction shall not extend to such a dispute.”
Page 45
thereto, the jurisdiction of this Court is barred if the dispute to which a State
specified in Part B of the First Schedule is a party if the dispute arises out of
any provision of a treaty, agreement, covenant, engagement, sanad or other
similar instrument was entered into or executed before the commencement of
the Constitution and has or has been continued in operation after such
commencement.
69. There is similarity of provision in Article 363 and proviso to Article
131. The original jurisdiction conferred on this Court by the main provision
contained in Article 131 is excepted by virtue of proviso in the matters of
political settlements. By making provisions such as Article 363 and proviso to
Article 131, the political settlements have been taken out of purview of judicial
pronouncements. Proviso appended to Article 131 renders a dispute arising
out of any treaty, agreement, covenant, engagement, sanad or similar
instrument which is political in nature executed before the commencement of
the Constitution and which has or has been continued in operation, nonjusticiable
and jurisdiction of this Court is barred. The jurisdiction of this Court
is not taken away in respect of the dispute arising out of an ordinary
agreement. The instruments referred to and described in proviso are only
those which are political in nature. Non-political instruments are not covered
by the proviso.
70. 1886 Lease Agreement does provide for resolution of disputes
between the parties to the agreement by way of arbitration; it contains an
arbitration clause. The submission of Kerala that enforcement of any award
Page 46
under the arbitration clause would be political in nature is misplaced. The
assumption of Kerala that 1886 Lease Agreement was not justiciable and
enforceable in court of law prior to the Constitution as no court in Travancore
would obviously entertain a claim against Maharaja and no court outside the
State of Travancore have jurisdiction over the Maharaja of Travancore is not
relevant at all and devoid of any merit.
71. We are in complete agreement with the view taken by this Court
in Mullaperiyar Environmental Protection Forum1 that 1886 Lease Agreement
would not come within the purview of Article 363 and jurisdiction of this Court
is not barred. As a necessary corollary, the dispute arising out of 1886 Lease
Agreement is not barred under Article 131 proviso as well. Moreover, the
principal challenge laid in the suit pertains to constitutional validity of 2006
(Amendment) Act for which Article 363 or for that matter under Article 131
proviso does not come into operation at all.
Article 294 and Article 295
72. By virtue of Article 2949, all properties immediately before the
commencement of the Constitution which vested in His Majesty for the
purposes of the Government of the Dominion of India vest in the Union and all
9294. Succession to property, assets, rights, liabilities and obligations in certain cases.—As from the
commencement of this Constitution—
(a) ……………
(b) all rights, liabilities and obligations of the Government of the Dominion of India and of the
Government of each Governor’s Province, whether arising out of any contract or otherwise, shall be the rights,
liabilities and obligations respectively of the Government of India and the Government of each corresponding
State,
subject to any adjustment made or to be made by reason of the creation before the commencement of
this Constitution of the Dominion of Pakistan or of the Provinces of West Bengal, East Bengal, West Punjab
and East Punjab.
Page 47
properties which vested in His Majesty for the purposes of the Government of
each Governor’s Province vest in the corresponding State and all rights,
liabilities and obligations of the Government of Dominion of India and the
Government of each Governor’s Province are recognised to be rights,
liabilities and obligations respectively of the Government of India and the
Government of each corresponding State. In other words, this article declares
which property would vest in the Union and which would vest in the State
Government. There remains no doubt that by virtue of Article 294(b) read with
First Schedule appended to the Constitution, leasehold rights devolved upon
the State of Madras under the 1886 Lease Agreement.
73. Article 29510 relates to succession to property, assets, rights,
liabilities and obligations. Clause 1(a) states that from the commencement of
the Constitution all property and assets which immediately before such
commencement were vested in an Indian State corresponding to a State
specified in Part B of the First Schedule shall vest in the Union, if the purposes
for which such property and assets were held, be purposes of the Union.
10 Article 295 – Succession to property, assets, rights, liabilities and obligations in other cases. –
(1) As from the commencement of this Constitution-
(a) all property and assets which immediately before such commencement were vested in any Indian
State corresponding to a State specified in Part B of the First Schedule shall vest in the Union, if the purposes
for which such property and assets were held immediately before such commencement will thereafter be
purposes of the Union relating to any of the matters enumerated in the Union List, and
(b) all rights, liabilities and obligations of the Government of any Indian State corresponding to a
State specified in Part B of the First Schedule, whether arising out of any contract or otherwise, shall be the
rights, liabilities and obligations of the Government of India, if the purposes for which such rights were
acquired or liabilities or obligations were incurred before such commencement will thereafter be purposes of
the Government of India relating to any of the matters enumerated in the Union List,
subject to any agreement entered into in that behalf by the Government of India with the Government
of that State.
(2) Subject as aforesaid, the Government of each State specified in Part B of the First Schedule shall,
as from the commencement of this Constitution, be the successor of the Government of the corresponding
Indian State as regards all property and assets and all rights, liabilities and obligations, whether arising out of
any contract or otherwise, other than those referred to in clause (1).
Page 48
Clause 1(b) provides that all rights and liabilities and obligations of the
Government of any Indian State corresponding to a State specified in Part B of
the First Schedule, whether arising out of any contract or otherwise shall be
the rights, liabilities and obligations of the Government of India if the purposes
for which such rights were acquired or liabilities and obligations were incurred,
be purposes of the Government of India. Clause (2) of this Article provides
that Government of each State specified in Part B of the First Schedule shall
be the successor of the corresponding State as regards all property and
assets and all rights, liabilities and obligations, whether arising out of any
contract or otherwise, other than those referred to in clause (1). This is subject
to any agreement entered into that behalf by the Government of India with the
Government of the State concerned. The expression ‘Government of the
corresponding Indian State” in Article 295(2), in our opinion, with reference to
Government of Part B State of Travancore—Cochin meant not only the
merged erstwhile State of Travancore and Cochin but also its components.
Seen thus, by virtue of Article 295(2), the Government of Part B State of
Travancore – Cochin became successor of the corresponding State of
Travancore as regards all rights, liabilities and obligations arising out of 1886
Lease Agreement.
Findings on issue Nos. 1, 5, 6 and 7
74. In light of the above, our finding on issue Nos. 1, 5, 6 and 7 are:
Page 49
(i) The suit filed by the State of Tamil Nadu is maintainable under Article
131 of the Constitution.
(ii) The suit based on a legal right claimed under the lease deed executed
between the Government of the Maharaja of Travancore and the Secretary of
State for India in Council on 29.10.1886 is not barred by the proviso to Article
131 of the Constitution.
(iii) The State of Kerala (first defendant) is estopped from raising the plea
that the lease deed dated 29.10.1886 has lapsed, in view of the supplemental
agreements dated 28.05.1970.
(iv) The lease deed executed between the Government of the Maharaja of
Travancore and Secretary of State for India in Council on 29.10.1886 is valid
and binding on the first defendant and it is enforceable by plaintiff against the
first defendant.
Issue Nos. 2(a), 3, 4(a), 4(b) and 10
75. These issues are inter-related and, therefore, they are being
discussed together.
Contentions on behalf of Tamil Nadu
76. Mr. Vinod Bobde, learned senior counsel for Tamil Nadu submits
that 2006 judgment had rendered a finding of fact on the safety of Mullaperiyar
dam for raising water level to 142 ft. 2006 (Amendment) Act could not have
taken away the legal right of Tamil Nadu flowing from the judgment. Section
Page 50
62(A) of the 2006 (Amendment) Act directly seeks to nullify the judgment of
this Court by declaring the dam to be endangered and by fixing the height of
the water level at 136 ft. It also authorises the Dam Safety Authority to discard
the judgment and to adjudge for itself whether to allow raising of water level.
The Section also goes on to freeze all work on the dam allowed by this Court
in 2006 judgment. Section 62(1)(e) of the 2006 (Amendment) Act in its
application to the subject dam, seeks to overcome the finding of safety by
authorizing the Dam Safety Authority to order, inter alia, decommissioning of
the dam. The nullification of judgment is, thus, plain and obvious. A final
judgment, once rendered, operates and remains in force until altered by the
court in an appropriate proceeding. He submits that unilateral legislation
nullifying a judgment is constitutionally impermissible.
77. Relying upon the judgment of this Court in Prithvi Cotton11,
learned senior counsel for Tamil Nadu submits that nullification of a judgment
without removal of its legal basis is one of the categories of usurpation. A
judgment on a question of fact cannot be nullified so also the effect of
judgment, which enforces a legal right. By relying upon the Privy Council
judgment in Liyanage12, he submitted that interference with the judicial process
in a pending matter also amounts to usurpation of judicial power. In both
categories of usurpation, the answer would depend on facts of each case after
considering the legal effect of the law on a judgment or a judicial proceeding.
Mr. Vinod Bobde submits that the true purpose of the legislation, the haste
11 Shri Prithvi Cotton Mills Ltd. and Anr. v. Broach Borough Municipality and Ors.; [(1969) 2 SCC 283]
12 Don John Francis Douglas Liyanage & Ors. v. The Queen; [(1966) 1 All E.R. 650]
Page 51
with which it was enacted, and the surrounding circumstances, are relevant
circumstances.
78. It is argued by learned senior counsel for Tamil Nadu that the test
for determining whether a judgment is nullified is to see whether the law and
the judgment are inconsistent and irreconcilable so that both cannot stand
together. The finding of fact by this Court in 2006 judgment that the dam is
safe can never be deemed to be imaginary by legal fiction which then
proceeds to deem the opposite to be real, namely, that the dam is
endangered. The provision limiting the height of water level to 136 ft, enacted
within 15 days after the judgment of this Court finding the dam to be safe and
allowing the water level to be raised to 142 ft., shows the true purpose of the
legislation, the situation to which it was directed and the clear intention to defy
and act as a judicial authority sitting in appeal over the judgment of this Court.
79. Mr. Vinod Bobde submits that between 27.02.2006 when the
judgment was rendered by this Court and 15.03.2006 when 2006
(Amendment) Act was enacted by Kerala State legislature, no new facts
emerged nor there was any change in circumstances. Kerala Government and
Kerala State Legislature did not have a single piece of information of fact
before it concerning seismic coefficient values, Probable Maximum Flood
(PMF) levels or any other matter or material contradicting or even doubting the
finding of this Court in 2006 judgment which was based on the findings of the
Expert Committee.
Page 52
80. It is strenuously urged by learned senior counsel for Tamil Nadu
that once a dispute is before a court and parties are at issue on any question
of fact, the decision on that question can be rendered only by the court and not
by the legislature or the executive. The legislature cannot decide that the
water level shall not exceed 136 ft. when the very issue had been adjudicated
upon by the court.
81. Learned senior counsel for Tamil Nadu argues that the finding of
fact about safety of the dam for water level upto 142 ft. is res judicata and
binds the two States. It is not within the province of the Kerala Legislature to
sit in judgment on the finding of this Court and purport to reverse the same by
directing that water level shall remain at 136 ft. According to Tamil Nadu, this
is not a legislation; it is the exercise of “despotic discretion” and offends the
rule of law and the principle of separation of powers.
82. Relying upon a decision of this Court in Indra Sawhney13, it is
argued by learned senior counsel for Tamil Nadu that the legislative
declaration of fact in Section 62A that the dams in Second Schedule are
endangered on account of their age, degeneration, degradation, structure or
other impediments is not beyond judicial scrutiny and it is open to the court to
examine the true facts.
83. Mr. Vinod Bobde argues that 2006 (Amendment) Act is not a
validating enactment because (i) the judgment of this Court did not reach the
finding about the safety of the dam founded on any law which was considered
13 Indra Sawhney v. Union of India and Others; [(2000) 1 SCC 168]
Page 53
to suffer from any constitutional vice or defect; (ii) there was no occasion at all
to remove any vice or cure any defect in any law and perform a validating
exercise; and (iii) in fact, the 2006 (Amendment) Act does not purport to cure
any defect found by this Court in any law. In this regard, reliance is placed
upon decisions of this Court in Prithvi Cotton11, Madan Mohan Pathak14,
People’s Union for Civil Liberties (PUCL)15, Municipal Corporation of the City of
Ahmedabad and Anr.16 and Janapada Sabha17.
84. It is argued by Mr. Vinod Bobde that validating laws are passed
by the legislature after curing the defects in the law which have been struck
down but where a fact is adjudicated upon, there is no power in the legislature
or executive to sit in judgment upon a decision on a disputed question of fact
and substitute its own “legislative judgment” for that Court. Learned senior
counsel places reliance upon the judgment of this Court in Cauvery
reference18.
85. It is, thus, argued by the learned senior counsel for Tamil Nadu
that 2006 (Amendment) Act is unconstitutional.
Contentions on behalf of Kerala
14 Madan Mohan Pathak & Anr. v. Union of India and Others; [(1978) 2 SCC 50]
15 People’s Union for Civil Liberties (PUCL) and Anr. v. Union of India and Anr.; [(2003) 4 SCC 399]
16 Municipal Corporation of the City of Ahmedabad & Anr. v. New Shrock Spg. And Wvg. Co. Ltd.
[(1970) 2 SCC 280]
17 Janapada Sabha Chhindwara v. Central Provinces Syndicate Ltd. and Anr.; [(1970) 1 SCC 509]
18 Cauvery Water Disputes Tribunal, Re; [1993 Supp (1) SCC 96 (2)]
Page 54
86. Mr. Harish N. Salve, learned senior counsel for Kerala on the
other hand argues that Kerala legislature is competent to override the
contracts and regulate the safety of Mullaperiyar dam situated within its
territory across river Periyar. Even agreements entered into between foreign
sovereigns can be overridden in exercise of legislative powers. He relies upon
the decisions of this Court in Thakur Jagannath Baksh19, Maharaj Umeg
Singh20, Manigault21 and an article by Roderick E. Walston titled “The Public
Trust Doctrine in the Water Rights Contexts”22.
87. Learned senior counsel for Kerala contends that on the basis of
“age”, etc., as safety standards, the Kerala legislature as a precautionary
measure has declared that 22 dams are “endangered” and restricted storages
thereunder by virtue of Section 62(A)(1) and (2) read with Second Schedule.
Learned senior counsel relies upon Brotherhood of Locomotive Firemen23,
Raymond Motor Transportation24, Raymond Kassel25, American Trucking
Association26 and Pfizer Animal Health27. Learned senior counsel also relies
upon, “Science and Risk Regulation and International Law” by Jacqueline
Peel28 wherein Pfizer Animal Health27 has been referred.
19 Thakur Jagannath Baksh Singh v. The United Provinces; [73 IA 123]
20 Maharaj Umeg Singh and Ors. v. State of Bombay and Ors.; [(1955) 2 SCR 164]
21 Arthur M. Manigault v. Alfred A. Springs et al; [(1905) 199 US 473]
22 “The Public Trust Doctrine in the Water Rights Contexts” by Roderick E. Walston; 29 Natural Resources
Journal 585.
23 Brotherhood of Locomotive Firemen & Enginemen et al. v. Chicago, Rock Island & Pacific Rail-Road
Co. et al.; [(1968) 393 US 129]
24 Raymond Motor Transportation, Inc. et al. v. Zel S. Rice et al.; [(1978) 434 US 429]
25 Raymond Kassel et al. v. Consolidated Freightways Corporation of Delaware; [(1981) 450 US 662]
26 American Trucking Associations, Inc. v. Thomas D. Larson; [(1982) 683 F.2d 787]
27 Pfizer Animal Health SA v. Council of the European Union; [(2002) ECR II-03305]
28 “Science and Risk Regulation and International Law” by Jacqueline Peel; Published by Cambridge
University Press, 2010.
Page 55
88. Mr. Harish Salve, learned senior counsel for Kerala argues that
legislature is competent to remove the basis of judgment and neutralize its
effect. In response to the contention of Tamil Nadu that 2006 (Amendment)
Act constitutes usurpation of judicial power, learned senior counsel argues that
2003 Act was in place when the judgment was delivered by this Court on
27.02.2006 but the Court has not taken into consideration Sections 3 and 4
and so also Section 30 of the 2003 Act. It was assumed that Section 108 of
the 1956 Act would save the contractual rights arising from the 1886 Lease
Agreement and purportedly continued by the supplementary agreements of
1970. The 2003 Act was not under challenge either in the previous litigation
nor in the present suit. Learned senior counsel for Kerala, thus, submits that
where a judgment is per incuriam, one remedy is by way of further appropriate
legislation.
89. Learned senior counsel for Kerala in the course of arguments
extensively referred to the provisions of 2003 Act and the substitution of
Section 62 by providing with non obstante clause that the function of
evaluation of safety of a dam and the power to issue directions to the
custodian are conferred upon Dam Safety Authority notwithstanding any
decree of any court, and notwithstanding anything contained in any treaty,
contract, instrument or other documents and submitted that 2003 Act and 2006
(Amendment) Act have created a statutory framework for regulating water
level in respect of dams within the State of Kerala, both scheduled and nonscheduled.
2006 (Amendment) Act establishes a statutory authority, which
Page 56
confers upon it the power to take certain measures in the interest of public
safety. The judgment of this Court in 2006, Kerala contends, even does not
suggest remotely that Kerala legislature lacks power to make measures for
public safety in relation to the reservoir situated within the State.
90. Mr. Harish Salve argues that in declaring a dam to be unsafe, the
Legislature does not render a finding of fact. It deems the dam to be unsafe
and sets up an authority to regulate the dam in a particular manner. The
legislative competence of the legislature to put in place statutory machinery to
regulate water levels in a dam situated within the State in the interest of public
safety cannot be denied. He argues that as to what constitutes an endangered
dam is a matter of legislative policy and safety is accepted to be a matter
primarily of policy. A court through the process of adjudication renders findings
and adjudication is always as per law in force. Once the law is altered, the
adjudication cannot stand on its own. According to Mr. Salve, the argument of
Tamil Nadu that impugned legislation is usurpation of judicial power is
misconceived.
91. Learned senior counsel for Kerala relies upon Wheeling Bridge29
in support of the principle that private rights pass into judgments but not the
public rights and also submits that Wheeling Bridge29 principle has been
29 The State of Pennsylvania v. The Wheeling and Belmont Bridge Company, et al.;[ (1855) 59 U.S. 421]
Page 57
applied in the subsequent cases viz., The Clinton Bridge30, Hodges31 and
Charles B. Miller32.
92. Shri Harish N. Salve, argues that 2006 (Amendment) Act is not a
Validation Act in a stricto sensu. While adjudicating upon constitutional validity,
he argues that the court must proceed on the premise that the legislature
understands and correctly appreciates the needs of its own people and its
laws are directed to the problems made manifest by its experience and are
based on adequate grounds. Learned senior counsel for Kerala relies upon the
decision of this Court in Elphinstone Spinning33 which approved the earlier
decisions in Sanjeev Coke34 and Doypack Systems35.
Indian Constitution : Separation of powers
93. Indian Constitution, unlike Constitution of United States of
America and Australia, does not have express provision of separation of
powers. However, the structure provided in our Constitution leaves no manner
of doubt that the doctrine of separation of powers runs through the Indian
Constitution. It is for this reason that this Court has recognized separation of
power as a basic feature of the Constitution and an essential constituent of
the rule of law. The doctrine of separation of powers is, though, not expressly
engrafted in the Constitution, its sweep, operation and visibility are apparent
30 The Clinton Bridge case; [(1870) 77 US 454]
31 Hodges et al. v. Snyder et al.; [(1923) 261 US 600]
32 Charles B. Miller, Superintendent, Pendleton Correctional Facility et al. v. Richard A. French et al.;
[(2000)
530 U.S. 327]
33 Union of India v. Elphinstone Spinning and Weaving Co. Ltd. and Ors.; [(2001) 4 SCC 139].
34 Sanjeev Coke Manufacturing Co. v. M/s. Bharat Coking Coal Ltd. and Anr.; [(1983) 1 SCC 147]
35 M/s. Doypack Systems Pvt. Ltd. v. Union of India and Ors.; [(1988) 2 SCC 299]
Page 58
from the Constitution. Indian Constitution has made demarcation without
drawing formal lines between the three organs – legislature, executive and
judiciary.
Mahal Chand Sethia
94. In Mahal Chand Sethia36, while dealing with the argument that
although it was open to the State legislature by an Act and the Governor by an
Ordinance to amend the West Bengal Criminal Law Amendment (Special
Courts) Act, 1949, it was incompetent for either of them to validate an order of
transfer which had been quashed by the issue of a writ of certiorari by the High
Court and the order of transfer being virtually dead, could not be resuscitated
by the Governor or legislature and the validating measures could not touch
any adjudication by the Court. Mitter J. speaking for the Court stated the
legal position :-
“……A legislature of a State is competent to pass any measure which is
within its legislative competence under the Constitution of India. Of
course, this is subject to the provisions of Part III of the Constitution.
Laws can be enacted either by the Ordinance making power of a
Governor or the Legislature of a State in respect of the topics covered
by the entries in the appropriate List in the Seventh Schedule to the
Constitution. Subject to the above limitations laws can be prospective
as also retrospective in operation. A court of law can pronounce upon
the validity of any law and declare the same to be null and void if it was
beyond the legislative competence of the Legislature or if it infringed
the rights enshrined in Part III of the Constitution. Needless to add it
can strike down or declare invalid any Act or direction of a State
Government which is not authorised by law. The position of a
Legislature is however different. It cannot declare any decision of a
Court of law to be void or of no effect.”
36 Mahal Chand Sethia v. State of West Bengal; Crl. A. No. 75 of 1969, decided on 10th September, 1969;
[1969 (2) UJ 616 SC]
Page 59
(emphasis supplied)
Prithvi Cotton
95. One of the leading cases of this Court on the legislative
competence vis-à-vis decision of the Court is Prithvi Cotton11. In that case, the
validity of the Gujarat Imposition of Taxes by Municipalities (Validation) Act,
1963 was assailed on behalf of the petitioners. The Validation Act had to be
enacted in view of the decision of this Court in Patel Gordhandas
Hargovindas37. Section 3 of the Validation Act provided that notwithstanding
anything contained in any judgment, decree or order of a court or tribunal or
any other authority, no tax assessed or purported to have been assessed by a
municipality on the basis of capital value of a building or land and imposed,
collected or recovered by the municipality at any time before the
commencement of the Validation Act shall be deemed to have been invalidly
assessed, imposed, collected or recovered and the imposition, collection or
recovery of the tax so assessed shall be valid and shall be deemed to have
been always valid and shall not be called in question merely on the ground
that the assessment of the tax on the basis of capital value of the building or
land was not authorized by law and accordingly any tax so assessed before
the commencement of the Validation Act and leviable for a period prior to such
commencement but not collected or recovered before such commencement
may be collected or recovered in accordance with the relevant municipal law.
37 Patel Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad ; [(1964) 2 SCR 608]
Page 60
The Constitution Bench exposited that the validity of a validating law
depended upon whether the legislature possesses the competence which it
claims over the subject matter and whether in making the validation it removed
the defect which the courts had found in the existing law and made adequate
provisions in the validating law for a valid imposition of the taxes. In the words
of the Constitution Bench:
“….When a Legislature sets out to validate a tax declared by a court
to be illegally collected under an ineffective or an invalid law, the
cause for ineffectiveness or invalidity must be removed before
validation can be said to take place effectively. The most important
condition, of course, is that the Legislature must possess the power to
impose the tax, for, if it does not, the action must ever remain
ineffective and illegal. Granted legislative competence, it is not
sufficient to declare merely that the decision of the Court shall not bind
for that is tantamount to reversing the decision in exercise of judicial
power which the Legislature does not possess or exercise. A court’s
decision must always bind unless the conditions on which it is based
are so fundamentally altered that the decision could not have been
given in the altered circumstances. Ordinarily, a court holds a tax to be
invalidly imposed because the power to tax is wanting or the statute or
the rules or both are invalid or do not sufficiently create the
jurisdiction. Validation of a tax so declared illegal may be done only if
the grounds of illegality or invalidity are capable of being removed and
are in fact removed and the tax thus made legal. Sometimes this is
done by providing for jurisdiction where jurisdiction had not been
properly invested before. Sometimes this is done by re-enacting
retrospectively a valid and legal taxing provision and then by fiction
making the tax already collected to stand under the re-enacted law.
Sometimes the Legislature gives its own meaning and interpretation of
the law under which tax was collected and by legislative fiat makes the
new meaning binding upon courts. The Legislature may follow any one
method or all of them and while it does so it may neutralise the effect
of the earlier decision of the court which becomes ineffective after the
change of the law. Whichever method is adopted it must be within the
competence of the legislature and legal and adequate to attain the
object of validation. If the Legislature has the power over the subjectmatter
and competence to make a valid law, it can at any time make
such a valid law and make it retrospectively so as to bind even past
transactions. The validity of a Validating Law, therefore, depends upon
whether the Legislature possesses the competence which it claims
Page 61
over the subject-matter and whether in making the validation it
removes the defect which the courts had found in the existing law and
makes adequate provisions in the Validating Law for a valid imposition
of the tax.”
(emphasis supplied)
Janapada Sabha
96. The Constitution Bench in Janapada Sabha17, considered the
position with regard to legislative power and a decision of the Supreme Court
and made the following weighty observations:
“..On the words used in the Act, it is plain that the Legislature
attempted to overrule or set aside the decision of this Court. That, in
our judgment, is not open to the Legislature to do under our
constitutional scheme. It is open to the Legislature within certain limits
to amend the provisions of an Act retrospectively and to declare what
the law shall be deemed to have been, but it is not open to the
Legislature to say that a judgment of a Court properly constituted and
rendered in exercise of its powers in a matter brought before it shall be
deemed to be ineffective and the interpretation of the law shall be
otherwise than as declared by the Court.”
(emphasis supplied by us)
Municipal Corporation of the City of Ahmedabad
97. The above three decisions and one more decision of this Court in
Amalgamated Coal Fields38 were noted by the two-Judge Bench of this Court
in the Municipal Corporation of the City of Ahmedabad16. While accepting that
the legislature under our Constitution have within the prescribed limits, powers
38 State of M.P. v. Amalgamated Coalfields Ltd. and Anr; [(1970) 1 SCC 509].
Page 62
to make laws prospectively as well as retrospectively and that by exercise of
those powers, the legislature can remove the basis of a decision rendered by
a competent court thereby rendering that decision ineffective but no legislature
has power to ask the instrumentalities of the State to disobey or disregard the
decisions given by courts.
Madan Mohan Pathak
98. Yet another important decision by the 7-Judge Constitution Bench
of this Court on the subject is Madan Mohan Pathak14. P.N. Bhagwati, J.
speaking for himself, Krishna Iyer and Desai, JJ. while dealing with the
constitutional validity of the Life Insurance Corporation (Modification of
Settlement) Act, 1976, which was enacted by the Parliament in light of the
decision of the Calcutta High Court holding an impost or tax to be invalid,
observed that irrespective of whether the impugned Act was constitutionally
valid or not, Life Insurance Corporation was bound to obey the writ of
mandamus issued by the Calcutta High Court. M.H. Beg, C.J., agreeing with
the view of P.N. Bhagwati, J. that the benefits of rights recognized by the
judgment of the Calcutta High Court could not be indirectly taken away under
Section 3 of the impugned Act selectively, said that if the right conferred by the
judgment independently is sought to be set aside, then Section 3 would be
invalid for trenching upon the judicial power. M.H. Beg, C.J. further said:
“ I may, however, observe that even though the real object of the Act
may be to set aside the result of the mandamus issued by the Calcutta
Page 63
High Court, yet, the section does not mention this object at all.
Probably this was so because the jurisdiction of a High Court and the
effectiveness of its orders derived their force from Article 226 of the
Constitution itself. These could not be touched by an ordinary act of
Parliament. Even if Section 3 of the Act seeks to take away the basis
of the judgment of the Calcutta High Court, without mentioning it, by
enacting what may appear to be a law, yet, I think that, where the
rights of the citizen against the State are concerned, we should adopt
an interpretation which upholds those rights. Therefore, according to
the interpretation I prefer to adopt the rights which had passed into
those embodied in a judgment and became the basis of a mandamus
from the High Court could not be taken away in this indirect fashion.”
(emphasis supplied by us)
P. Sambamurthy
99. The importance of power of judicial review in rule of law has been
significantly highlighted in P. Sambamurthy39. In that case, this Court while
holding that proviso to clause (5) of Article 371-D was violative of the basic
structure doctrine, observed that if the exercise of the power of judicial review
could be set at naught by the State Government by overriding the decision
against it, it would sound the death knell of the rule of law. Sounding a word of
caution, this Court said that the rule of law would cease to have any meaning if
the State Government were to defy the law and yet to get away with it.
Cauvery Reference
100. In Cauvery reference18, this Court was concerned with the validity
of Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991. Relying
upon its previous decisions in Madan Mohan Pathak14 and P. Sambamurthy39,
39 P. Sambamurthy and Ors. v. State of A.P. and Anr.;[ (1987) 1 SCC 362]
Page 64
this Court declared the Ordinance unconstitutional as it sought to nullify the
order of the Tribunal impinging on the judicial power of the State.
PUCL
101. In People’s Union for Civil Liberties (PUCL)15, the question under
consideration before the three-Judge Bench of this Court was the validity of
the Representation of the People (Amendment) Ordinance, 2002. The
amendment followed the decision of this Court in Association for Democratic
Reforms40. M.B. Shah, J. speaking for the majority noticed the earlier
decisions of this Court in P. Sambamurthy39, Cauvery reference18 , Municipal
Corporation of the City of Ahmedabad16, Prithvi Cotton11 and Mahal Chand
Sethia36 and stated :
“The Legislature can change the basis on which a decision is
rendered by this Court and change the law in general. However, this
power can be exercised subject to constitutional provision, particularly,
legislative competence and if it is violative of fundamental rights
enshrined in Part III of the Constitution, such law would be void as
provided under Article 13 of the Constitution. The Legislature also
cannot declare any decision of a court of law to be void or of no
effect”.
Kesavananda Bharti, Indira Nehru Gandhi, Bal Mukund Sah and I.R.
Coelho
102. That separation of powers between the legislature, the executive
and the judiciary is the basic structure of the Constitution is expressly stated
by Sikri, C.J. in Kesavananda Bharti41. Shelat and Grover, JJ. reiterating the
40 Union of India v. Association for Democratic Reforms and Anr.; [(2002) 5 SCC 294]
41 His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr.;[(1973) 4 SCC 225]
Page 65
views of Sikri, J. said that demarcation of power between the legislature, the
executive and the judiciary could be regarded as basic elements of the
Constitutional structure. The same view is expressed in subsequent decisions
of this Court in Indira Nehru Gandhi42, Bal Mukund Sah43 and I.R. Coelho44.
The nine-Judge Constitution Bench in I.R. Coelho44 has described that
equality, rule of law, judicial review and separation of powers form parts of the
basic structure of the Constitution. The Court in I.R. Coelho44 said:
“. . . . . .. Each of these concepts are intimately connected. There can
be no rule of law, if there is no equality before the law. These would
be meaningless if the violation was not subject to the judicial review.
All these would be redundant if the legislative, executive and judicial
powers are vested in one organ. Therefore, the duty to decide whether
the limits have been transgressed has been placed on the judiciary.”
I.N. Saksena
103. Drawing distinction between legislative and judicial acts and
functions, this Court in I.N. Saksena45 held (para 21 and 22 of the Report):
“21. The distinction between a “legislative” act and a “judicial” act is
well known, though in some specific instances the line which separates
one category from the other may not be easily discernible. Adjudication
of the rights of the parties according to law enacted by the legislature is
a judicial function. In the performance of this function, the court
interprets and gives effect to the intent and mandate of the legislature
as embodied in the statute. On the other hand, it is for the legislature to
lay down the law, prescribing norms of conduct which will govern
42 Smt. Indira Nehru Gandhi v. Shri Raj Narain and Anr; [1975 (Supp.) SCC 1]
43 State of Bihar and Anr. v. Bal Mukund Sah and Others; [(2000) 4 SCC 640]
44 I.R. Coelho (Dead) by LRs. v. State of T.N.; [(2007) 2 SCC 1]
45 I.N. Saksena v. State of Madhya Pradesh; [(1976) 4 SCC 750]
Page 66
parties and transactions and to require the court to give effect to that
law.
22. While, in view of this distinction between legislative and judicial
functions, the legislature cannot by a bare declaration, without more,
directly overrule, reverse or override a judicial decision, it may, at any
time in exercise of the plenary powers conferred on it by Articles 245
and 246 of the Constitution render a judicial decision ineffective by
enacting a valid law on a topic within its legislative field fundamentally
altering or changing with retrospective, curative or neutralising effect
the conditions on which such decision is based. As pointed out by Ray,
C.J. in Indira Nehru Gandhi v. Raj Narain, the rendering ineffective of
judgments or orders of competent courts and Tribunals by changing
their basis by legislative enactment is a well-known pattern of all
validating Acts. Such validating legislation which removes the causes
for ineffectiveness or invalidity of actions or proceedings is not an
encroachment on judicial power.”
103.1. In I.N. Saksena45, this Court referred to an earlier decision
in Hari Singh46 wherein a Bench of seven Judges of this Court noted the two
tests for judging the validity of a validating law: (i) whether the legislature
possesses competence over the subject-matter, and, (ii) whether by
validation, the legislature has removed the defect which the courts have found
in the previous law. While following these two tests, the four-Judge Bench in
I.N. Saksena45 added a third test: whether it is consistent with the provisions of
Part III of the Constitution.
P. Kannadasan
104. Prithvi Cotton11 has been followed in Hindustan Gum and
Chemicals47, Vijay Mills Company48 and P. Kannadasan49. It is not necessary
to burden this judgment with all the three judgments as, in our view, reference
46 Hari Singh and Ors. v. Military Estate Officer and Anr.; [(1972) 2 SCC 239]
47 Hindustan Gum and Chemicals Ltd. v. State of Haryana and Others; [(1985) 4 SCC 124]
48 Vijay Mills Company Limited and Others v. State of Gujarat and Ors.; [(1993) 1 SCC 345]
49 P. Kannadasan and Others v. State of T.N. and Others; [(1996) 5 SCC 670]
Page 67
to one of them, i.e., P. Kannadasan49 will suffice. In P. Kannadasan49 this
Court noted that the Constitution of India recognised the doctrine of separation
of powers between the three organs of the State, namely, the legislature, the
executive and the judiciary. The Court said :
“15.……. It must be remembered that our Constitution recognises and
incorporates the doctrine of separation of powers between the three
organs of the State, viz., the Legislature, the Executive and the
Judiciary. Even though the Constitution has adopted the parliamentary
form of government where the dividing line between the legislature
and the executive becomes thin, the theory of separation of powers is
still valid. Ours is also a federal form of government. The subjects in
respect of which the Union and the States can make laws are
separately set out in List I and List II of the Seventh Schedule to the
Constitution respectively. (List III is, of course, a concurrent list.) The
Constitution has invested the Supreme Court and High Courts with the
power to invalidate laws made by Parliament and the State
Legislatures transgressing the constitutional limitations. Where an Act
made by a State Legislature is invalidated by the courts on the ground
that the State Legislature was not competent to enact it, the State
Legislature cannot enact a law declaring that the judgment of the court
shall not operate; it cannot overrule or annul the decision of the court.
But this does not mean that the other legislature which is competent to
enact that law cannot enact that law. It can. Similarly, it is open to a
legislature to alter the basis of the judgment as pointed out by this
Court in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality—
all the while adhering to the constitutional limitations; in such a case,
the decision of the court becomes ineffective in the sense that the
basis upon which it is rendered, is changed. The new law or the
amended law so made can be challenged on other grounds but not on
the ground that it seeks to ineffectuate or circumvent the decision of
the court. This is what is meant by “checks and balances” inherent in a
system of government incorporating the concept of separation of
powers. This aspect has been repeatedly emphasised by this Court in
numerous decisions commencing from Shri Prithvi Cotton Mills. Under
our Constitution, neither wing is superior to the other. Each wing
derives its power and jurisdiction from the Constitution. Each must
operate within the sphere allotted to it. Trying to make one wing
superior to the other would be to introduce an imbalance in the system
and a negation of the basic concept of separation of powers inherent
in our system of government……..”
Indian Aluminium Company
Page 68
105. In Indian Aluminium Company50, one of the contentions
addressed to this Court was that the Kerala legislature had no power to enact
Section 11 of the impugned Act validating the levy with retrospective effect as
it amounted to encroachment upon judicial power of the courts. While dealing
with this contention, the Court referred to earlier decisions of this Court and
culled out the following principles (para 56; Pgs. 662-663 of the Report):
“(1) The adjudication of the rights of the parties is the essential judicial
function. Legislature has to lay down the norms of conduct or rules
which will govern the parties and the transactions and require the
court to give effect to them;
(2) The Constitution delineated delicate balance in the exercise of the
sovereign power by the legislature, executive and judiciary;
(3) In a democracy governed by rule of law, the legislature exercises
the power under Articles 245 and 246 and other companion articles
read with the entries in the respective lists in the Seventh Schedule to
make the law which includes power to amend the law.
(4) Courts in their concern and endeavour to preserve judicial power
equally must be guarded to maintain the delicate balance devised by
the Constitution between the three sovereign functionaries. In order
that rule of law permeates to fulfil constitutional objectives of
establishing an egalitarian social order, the respective sovereign
functionaries need free play in their joints so that the march of social
progress and order remains unimpeded. The smooth balance built with
delicacy must always be maintained;
(5) In its anxiety to safeguard judicial power, it is unnecessary to be
overzealous and conjure up incursion into the judicial preserve
invalidating the valid law competently made;
(6) The court, therefore, needs to carefully scan the law to find out: (a)
whether the vice pointed out by the court and invalidity suffered by
previous law is cured complying with the legal and constitutional
requirements; (b) whether the legislature has competence to validate
the law; (c) whether such validation is consistent with the rights
guaranteed in Part III of the Constitution.
(7) The court does not have the power to validate an invalid law or to
legalise impost of tax illegally made and collected or to remove the
norm of invalidation or provide a remedy. These are not judicial
functions but the exclusive province of the legislature. Therefore, they
are not encroachment on judicial power.
(8) In exercising legislative power, the legislature by mere declaration,
without anything more, cannot directly overrule, revise or override a
50 Indian Aluminium Company and Others v. State of Kerala and Others; [(1996) 7 SCC 637]
Page 69
judicial decision. It can render judicial decision ineffective by enacting
valid law on the topic within its legislative field fundamentally altering
or changing its character retrospectively. The changed or altered
conditions are such that the previous decision would not have been
rendered by the court, if those conditions had existed at the time of
declaring the law as invalid. It is also empowered to give effect to
retrospective legislation with a deeming date or with effect from a
particular date. The legislature can change the character of the tax or
duty from impermissible to permissible tax but the tax or levy should
answer such character and the legislature is competent to recover the
invalid tax validating such a tax on removing the invalid base for
recovery from the subject or render the recovery from the State
ineffectual. It is competent for the legislature to enact the law with
retrospective effect and authorise its agencies to levy and collect the
tax on that basis, make the imposition of levy collected and recovery of
the tax made valid, notwithstanding the declaration by the court or the
direction given for recovery thereof.
(9) The consistent thread that runs through all the decisions of this
Court is that the legislature cannot directly overrule the decision or
make a direction as not binding on it but has power to make the
decision ineffective by removing the base on which the decision was
rendered, consistent with the law of the Constitution and the
legislature must have competence to do the same.”
Arooran Sugars
106. In Arooran Sugars51, the matter reached this Court from the
judgment of the Madras High Court. Before the Madras High Court, the
challenge was laid to the constitutional validity of T.N. Land Reforms (Fixation
of Ceiling on Land) Amendment Act, 1978 on diverse grounds. The Division
Bench of the Madras High Court allowed the writ petitions. The State of Tamil
Nadu being not satisfied with that judgment approached this Court. While
dealing with the power of the legislature, the Constitution Bench of this Court
observed: “The power of the legislature to amend, delete or obliterate a
statute or to enact a statute prospectively or retrospectively cannot be
51 State of T.N. v. Arooran Sugars Ltd.; [(1997) 1 SCC 326]
Page 70
questioned and challenged unless the court is of the view that such exercise is
in violation of Article 14 of the Constitution. It need not be impressed that
whenever any Act or amendment is brought in force retrospectively or any
provision of the Act is deleted retrospectively, in this process rights of some
are bound to be affected one way or the other. In every case, it cannot be
urged that the exercise by the legislature while introducing a new provision or
deleting an existing provision with retrospective effect per se shall be violative
of Article 14 of the Constitution. If that stand is accepted, then the necessary
corollary shall be that legislature has no power to legislate retrospectively,
because in that event a vested right is effected; of course, in a special
situation this Court has held that such exercise was violative of Article 14 of
the Constitution……..” . The Constitution Bench held that the provisions of the
impugned Act do not purport to affect any vested or acquired right, it only
restores the position which existed when the principal Act was in force. It
further held that the Amending Act did not ask the instrumentalities of the
State to disobey or disregard the decision given by the High Court but what it
has done is that it has removed the basis of its decision.
Elphinstone Spinning and Weaving Company
107. The Constitution Bench of this Court in Elphinstone Spinning and
Weaving Company33 laid down: (a) there is always a presumption that the
legislature does not exceed its jurisdiction, (b) the burden of establishing that
the legislature has transgressed constitutional mandates is always on the
Page 71
person who challenges its vires, and (c) unless it becomes clear beyond
reasonable doubt that the legislation in question has transgressed the
constitutional limits, it must be allowed to stand.
Dharam Dutt
108. The principle that the doctrine of colorable legislation does not
involve bona fides or mala fides on the part of the legislature is highlighted by
this Court in Dharam Dutt52. Relying upon earlier decisions in K.C. Gajapati
Narayan Deo53 and Ayurvedic and Unani Tibia College54, the Court in
Dharam Dutt52 further observed :
“16……The whole doctrine resolves itself into the question of the
competency of a particular legislature to enact a particular law. If the
legislature is competent to pass a particular law, the motives which
impelled it to act are really irrelevant. On the other hand, if the
legislature lacks competency, the question of motive does not arise at
all. We will, therefore, concentrate on the legislative competence of
Parliament to enact the impugned legislation. If Parliament has the
requisite competence to enact the impugned Act, the enquiry into the
motive which persuaded Parliament into passing the Act would be of
no use at all.”
108.1. On the question of the effect of the previous judgment of
the High Court on the impugned legislation, this Court in Dharam Dutt52
referred to Madan Mohan Pathak14, Prithvi Cotton11, Indian Aluminium
Company50, Indira Nehru Gandhi42 and other decisions of this Court and held
in paragraph 69 (pg. 753) of the Report as follows:
52 Dharam Dutt and Ors. v. Union of India and Ors.; [(2004) 1 SCC 712]
53 Sri Sri Sri K.C. Gajapati Narayan Deo v. State of Orissa; [AIR 1953 SC 375]
54 Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. State of Delhi (now Delhi Administration)
and Anr.; [AIR 1962 SC 458]
Page 72
“69. That decision of the learned Single Judge was not left
unchallenged. In fact, the correctness of the judgment of the learned
Single Judge was put in issue by the Union of India by filing an intracourt
appeal. Filing of an appeal destroys the finality of the judgment
under appeal. The issues determined by the learned Single Judge
were open for consideration before the Division Bench. However, the
Division Bench was denied the opportunity of hearing and the
aggrieved party could also not press for decision of the appeal on
merits, as before the appeal could be heard it was rendered infructuous
on account of the Ordinance itself having ceased to operate. The Union
of India, howsoever it may have felt aggrieved by the pronouncement of
the learned Single Judge, had no remedy left available to it to pursue.
The judgment of the Division Bench refusing to dwell upon the
correctness of the judgment of the Single Judge had the effect of
leaving the matter at large. Upon the lapsing of the earlier Ordinance
pending an appeal before a Division Bench, the judgment of the Single
Judge about the illegality of the earlier Ordinance, cannot any longer
bar this Court from deciding about the validity of a fresh law on its own
merits, even if the fresh law contains similar provisions.”
108.2. The Court, however, did not invalidate the impugned Act.
This is what the court said in para 70 (pg.753) of the Report:
“…The doctrine of separation of powers and the constitutional
convention of the three organs of the State, having regard and respect
for each other, is enough answer to the plea raised on behalf of the
petitioners founded on the doctrine of separation of powers. We
cannot strike down a legislation which we have on an independent
scrutiny held to be within the legislative competence of the enacting
legislature merely because the legislature has re-enacted the same
legal provisions into an Act which, ten years before, were incorporated
in an Ordinance and were found to be unconstitutional in an erroneous
judgment of the High Court and before the error could be corrected in
appeal the Ordinance itself lapsed. It has to be remembered that by
the impugned Act Parliament has not overruled the judgment of the
High Court nor has it declared the same law to be valid which has
been pronounced to be void by the Court. It would have been better if
before passing the Bill into an Act the attention of Parliament was
specifically invited to the factum of an earlier pari materia Ordinance
having been annulled by the High Court. If an Ordinance invalidated
by the High Court is still re-enacted into an Act after the
pronouncement by the High Court, the subsequent Act would be liable
to be annulled once again on finding that the High Court was right in
taking the view of the illegality of the Ordinance, which it did. However,
as we have already stated, this is not the position obtaining in the
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present case. The impugned Act is not liable to be annulled on the
ground of violation of the doctrine of separation of powers.”
Virender Singh Hooda (II)
109. In Virender Singh Hooda (II)55, this Court was concerned with the
validity of Haryana Civil Services (Executive) Branch and Allied Services and
other Services, Common/Combined Examination Act, 2002 (for short, ‘the
Act’). The contention of the petitioners in that case was that the Act amounted
to usurpation of judicial power by the State legislature with a view to overrule
the decisions of this Court in Virender Singh Hooda (I)56 and Sandeep Singh57.
Having regard to the contentions of the petitioners, one of the questions
framed by the Court for determination was, whether the Act, to the extent of its
retrospectivity, is ultra vires as it amounts to usurpation of judicial power by
the State legislature or it removes the basis of decisions in Virender Singh
Hooda (I)56 and Sandeep Singh57 cases. The Court noted that one of the facets
of the question under consideration was whether a writ of Mandamus can be
made ineffective by an enactment of the legislature. Dealing with the
legislative power, the Court observed, “The legislative power to make law with
retrospective effect is well recognised. It is also well-settled that though the
legislature has no power to sit over Court’s judgment or usurp judicial power,
but, it has subject to the competence to make law, power to remove the basis
which led to the Court’s decision. The legislature has power to enact laws with
55 Virender Singh Hooda (II) and Ors. v. State of Haryana and Another; [(2004) 12 SCC 588]
56 Virender Singh Hooda (I) and Ors. v. State of Haryana and Another; [(1999) 3 SCC 696]
57 Sandeep Singh v. State of Haryana and Anr.; [(2002) 10 SCC 549]
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retrospective effect but has no power to change a judgment of court of law
either retrospectively or prospectively. The Constitution clearly defines the
limits of legislative power and judicial power. None can encroach upon the
field covered by the other. The laws made by the legislature have to conform
to the constitutional provisions ….”.
109.1 The Court further said: “It is well settled that if the legislature has
the power over the subject-matter and competence to make a valid law, it can
at any time make such a valid law and make it retrospectively so as to bind
even past transactions. The validity of a validating law, therefore, depends
upon whether the legislature possesses the competence which it claims over
the subject matter and whether in making the validation it removes the defect
which the courts had found in the existing law”.
109.2. The Court also said : “It is equally well-settled that the legislature
cannot by a bare declaration, without anything more, directly overrule, reverse
or override a judicial decision; it may, at any time in exercise of the plenary
power conferred on it by the Constitution render a judicial decision ineffective
by enacting a valid law on a topic within its legislative field, fundamentally
altering or changing with retrospective, curative or neutralizing effect the
conditions on which such decision is based……”
109.3. While drawing distinction between encroachment on the judicial
power and the nullification of the effect of a judicial decision by changing the
law retrospectively, the Court referred to Tirath Ram Rajinder Nath58 and
58 Tirath Ram Rajinder Nath, Lucknow v. State of U.P. and Anr.; [(1973) 3 SCC 585]
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stated, “the former is outside the competence of the legislature but the latter is
within its permissible limits. The reason for this lies in the concept of
separation of powers adopted by our constitutional scheme. The adjudication
of the rights of the parties according to law is a judicial function. The
legislature has to lay down the law prescribing norms of conduct which will
govern parties and transactions and to require the court to give effect to that
law”.
109.4. Relying upon a decision of this Court in S.S. Bola59, the Court in
Virender Singh Hooda (II)55 said :
“49. When a particular rule or the Act is interpreted by a court of law in
a specified manner and the law-making authority forms the opinion
that such an interpretation would adversely affect the rights of the
parties and would be grossly iniquitous and accordingly a new set of
rules or laws is enacted, it is very often challenged on the ground that
the legislature has usurped the judicial power. In such a case the court
has a delicate function to examine the new set of laws enacted by the
legislature and to find out whether in fact the legislature has exercised
the legislative power by merely declaring an earlier judicial decision to
be invalid and ineffective or the legislature has altered and changed
the character of the legislation which ultimately may render the judicial
decision ineffective.”
Liyanage
110. Having surveyed good number of decisions of this Court on the
separation of powers doctrine, it is time that we consider some leading foreign
judgments on this aspect. The first judgment in this category that deserves
consideration, which was also referred to by Mr. Vinod Bobde, learned senior
counsel for Tamil Nadu is Liyanage12. The facts in Liyanage12 provide a
59 S.S. Bola and Ors. v. B.D. Sardana and Ors.; [(1997) 8 SCC 522]
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classic example of usurpation of judicial function by the legislature in a
pending case. In that case, the Judicial Committee of the Privy Council held
that the Criminal Law (Special Provisions) Act No. 1 of 1962 usurped and
infringed judicial power and was, therefore, invalid. This Act modified the
Criminal Procedure Code applicable in Ceylon by purporting to legalise expost
facto the detention of persons imprisoned in respect of an attempted
coup, to widen the class of offences for which trial by three Judges, nominated
by the Minister of Justice sitting without a jury, could be ordered to validate
retrospective arrests for certain offences made without warrant and to
prescribe new minimum penalties for the offence of waging war against the
Queen. The legislation was held to involve “a grave and deliberate incursion
into the judicial sphere” which was inconsistent with the separation of judicial
power from legislative power required by the Constitution of Ceylon.
Liyanage12 effectively lays down that judicial power is usurped (i) when there is
legislative interference in a specific proceeding, (ii) the interference affects the
pending litigation and (iii) the interference affects the judicial process itself,
i.e., the discretion or judgment of the judiciary or the rights, authority or
jurisdiction of the Court. Liyanage12 inter alia holds that powers in case of
countries with written Constitutions must be exercised in accordance with the
terms of Constitution from which they are derived. Making observations on the
true nature and purpose of the impugned enactment, Liyanage12 says that
alterations made by Parliament in the function of the judiciary constituted a
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grave and deliberate incursion in the judicial sphere. It is worth noticing the
following passage from Liyanage12 :
“If such Acts as these were valid the judicial power could
be wholly absorbed by the Legislature and taken out of the hands
of the Judges. It is appreciated that the Legislature has no such
general intention. It was beset by a grave situation and it took
grave measures to deal with it, thinking, one must presume, that it
had power to do so and was acting rightly. But that consideration
is irrelevant, and gives no validity to acts which infringe the
Constitution. What is done once, if it be allowed, may be done
again and in a lesser crisis and less serious circumstances. And
thus judicial power may be eroded. Such an erosion is contrary
to the clear intention of the Constitution.”
110.1. Liyanage12 is based on the principle of implied limitations
on the legislative power. This position is accepted by our own Court in
Kesavananda Bharati41 (per Shelat and Grover, JJ.).
Nicholas
111. As regards the constitutional position in Australia, it needs
to be mentioned that Australia has a Constitution with the rigid demarcation of
powers between the legislative and judicial organs of the Government. The
Australian Constitution has imperatively separated the three branches of the
Government, and has assigned to each, by its own authority the appropriate
organ.
112. In Nicholas60, the High Court of Australia, dealing with the
infringement and usurpation of judicial power, held the legislation to be invalid
on the ground that it revised the final judgment of a federal court in breach of
60 Nicholas v. the Queen; [(1998) 193 CLR 173]
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separation of powers. It lays down that usurpation occurs when the legislature
has exercised judicial power on its own behalf.
Wheeling Bridge
113. The decision of the US Supreme Court in Wheeling Bridge29
deserves a little elaborate consideration since a great deal of reliance has
been placed by Mr. Harish Salve on this judgment. The dispute in that case
concerned navigation on the Ohio River. In the earlier decision involving the
same parties, the U.S. Supreme Court had held the defendant’s bridge to be
an unlawful structure to the extent that it obstructed navigation on the Ohio
River in breach of the federal statutes and thereby obstructing public right of
free navigation. The State of Pennsylvania which filed the suit was granted an
injunctive relief. The defendant (Wheeling and Belmont Bridge Company)
was ordered to remove the bridge, or elevate it to the levels prescribed by
statute. Subsequently, Congress enacted legislation by which the bridge was
rendered a lawful structure and ships were mandated to be modified so as not
to interfere with the bridge. As the luck would have been, the bridge was
destroyed by high winds. The State of Pennsylvania applied for injunction
from reconstructing the bridge except in a manner consistent with the order of
the court in the previous proceedings which was granted. The company
despite the injunction order proceeded to construct the bridge lower than that
required by the original court order. The State of Pennsylvania brought the
matter again before the court. The defendant relied upon the federal statute
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which declared the original bridge lawful, and argued that the requirements for
a lawful structure were set out therein, rendering the requirements on which
the original judgment was based redundant. The question that arose for
consideration was whether the statute that overturned the final judgment of the
US Supreme Court in the form of injunction in the earlier suit was
constitutional? Nelson, J., who delivered the majority opinion of the court,
accepted the general proposition that an act of Congress cannot have the
effect and operation to annul the judgment of the court already rendered, or
the rights thereby determined. It was further observed that adjudications upon
the private rights of the parties which have passed into judgment, become
absolute and it is the duty of the court to enforce it. Nelson, J. held: “But that
part of the decree directing the abatement of the obstruction, is executory, a
continuing decree, which requires not only the removal of the bridge but
enjoins the defendants against any reconstruction or continuance. Now,
whether it is a future existing or continuing obstruction depends upon the
question whether or not it interferes with the right of navigation. If, in the mean
time, since the decree, this right has been modified by the competent
authority, so that the bridge is no longer an unlawful obstruction, it is quite
plain the decree of the court cannot be enforced. There is no longer any
interference with the enjoyment of the public right inconsistent with law, no
more than there would be where the plaintiff himself had consented to it, after
the rendition of the decree…….” Nelson, J., opined that although bridge could
still be an obstruction in fact but it was not so in contemplation of the law.
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Consequently, the court vacated its injunction. Nelson, J. distinguished
adjudication upon private rights from adjudication upon public rights and held :
“In respect to these purely internal streams of a State, the public right
of navigation is exclusively under the control and regulation of the
state legislature; and in cases where these erections or obstructions to
the navigation are constructed under a law of the State, or sanctioned
by legislative authority, they are neither a public nuisance subject to
abatement, nor is the individual who may have sustained special
damage from their interference with the public use entitled to any
remedy for his loss. So far as the public use of the stream is
concerned, the legislature having the power to control and regulate it,
the statute authorizing the structure, though it may be a real
impediment to the navigation, makes it lawful.”
113.1. The opinion of Nelson, J., which is majority opinion in The
Wheeling Bridge29 though maintains the general principle of the inviolability of
final judgments pursuant to the separation of powers doctrine but it is made
subject to qualification that unlike private rights, public rights do not pass into
judgments. In the opinion of Nelson, J., the nature of judicial remedy is
relevant; an equitable relief such as injunction is not beyond the reach of the
power of the congress but a decree of damages or costs is unaffected by the
subsequent law.
113.2. McLean, J., who dissented from the majority opinion, on the
other hand, emphasized in Wheeling Bridge29 that the earlier decree was the
result of a judicial investigation, founded upon facts ascertained in the course
of the hearing and it was strictly a judicial question. The complaint was an
obstruction of commerce, by the bridge, to the injury of the complainant, and
the court found the fact to be as alleged in the bill. Following the statement of
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Chief Justice Marshall that congress could do many things but that it cannot
alter a fact, McLean, J. in his opinion stated :
“The judicial power is exercised in the decision of cases; the
legislative, in making general regulations by the enactment of laws.
The latter acts from considerations of public policy; the former by the
pleadings and evidence in a case. From this view it is at once seen,
that congress could not undertake to hear the complaint of
Pennsylvania in this case, take testimony or cause it to be taken,
examine the surveys and reports of engineers, decide the questions of
law which arise on the admission of the testimony, and give the proper
and legal effect to the evidence in the final decree. To do this is the
appropriate duty of the judicial power. And this is what was done by
this court, before the above act of congress was passed. The court
held, that the bridge obstructed the navigation of the Ohio River, and
that, consequently, it was a nuisance. The act declared the bridge to
be a legal structure, and, consequently, that it was not a nuisance.
Now, is this a legislative or a judicial act? Whether it be a nuisance or
not, depends upon the fact of obstruction; and this would seem to be
strictly a judicial question, to be decided on evidence produced by the
parties in a case.”
113.3. In the minority opinion, McLean. J. declared the act of the
Congress inoperative and void and reiterated that decree already passed be
carried into effect according to its true intent.
113.4. In another minority opinion in Wheeling Bridge29, Wayne, J.,
while dissenting with the majority and concurring with McLean J. stated that
Congress had no power to interfere with the judgment of the U.S. Supreme
Court under the pretence of a power to legalize the structure of bridges over
the public navigable rivers of the United States, either within the States, or
dividing States from each other, or under the commercial powers of Congress
to regulate commerce among the States.
Clinton Bridge
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114. Nelson,J., who delivered majority opinion in Wheeling Bridge29,
also delivered opinion of the U.S. Supreme Court in the Clinton Bridge30.
Although in Wheeling Bridge29 a decree had been rendered by the court
against the bridge, while in the Clinton Bridge30 the cause was pending
undecided, but he followed the majority opinion in Wheeling Bridge29.
Manigault
115. Mr. Harish Salve, learned counsel for the State of Kerala, placed
reliance upon Arthur M. Manigault21. In that case, the U.S. Supreme Court
followed the principle that interdiction of the statutes impairing the obligation of
contracts does not prevent the State from exercising such powers as are
vested in it for the promotion of the common weal, or are necessary for the
general good of the public, though contracts previously entered into between
individuals may thereby be affected. While explaining that this power is
known as the ‘police power’, it is an exercise of the sovereign right of the
Government to protect the lives, health, morals, comfort, and general welfare
of the people, and is paramount to any right under the contracts between the
individuals. It is stated that subject to limitations in certain cases, there is wide
discretion on the part of the legislature in determining what is and what is not
necessary. In such discretion, the courts ordinarily will not interfere with.
Dealing with the exposition of law, flowing from some of its previous decisions,
the U.S. Supreme Court, observed:
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“…….We see no reason why the same principle should not apply to
cases where the state legislature, exercising its police power, directs a
certain dam to be built, and thereby incidentally impairs access to
lands above the dam. In both cases the sovereign is exercising its
constitutional right, in one case in improving the navigation of the
river, and in the other, in draining its lowlands, and thereby enhancing
their value for agricultural purposes.”
Hodges
116. In Hodges31, the U.S. Supreme Court, following Wheeling Bridge29
held as follows :-
“In the Wheeling Bridge Case, as in the Clinton Bridge Case, the
public right involved was that of abating an obstruction to the
navigation of a river. The right involved in the present suit, of enjoining
the maintenance of an illegal school district and the issuance of its
bonds, is likewise a public right shared by the plaintiffs with all other
resident taxpayers. And while in the Wheeling Bridge Case the bill
was filed by the State, although partly in its proprietary capacity as the
owner of certain canals and railways, the doctrine that a judgment
declaring a public right may be annulled by subsequent legislation,
applies with like force in the present suit, although brought by
individuals primarily for their own benefit; the right involved and
adjudged, in the one case as in the other, being public, and not
private.”
116.1. Hodges31 was a case where the U.S. Supreme Court dissolved an
injunction against the formation of a consolidated school district following
legislation which authorised such a consolidation, and yet upheld the judgment
in the previous decision making to an award of damages.
Brotherhood of Locomotive Firemen
117. In Brotherhood of Locomotive Firemen23, the U.S. Supreme Court
was confronted with the question whether the Arkansas “full-crew” laws
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specifying a minimum number of employees who must serve as part of a train
crew under certain circumstances, violate the commerce clause or the
Fourteenth Amendment of the U.S. Constitution. The constitutionality of these
Arkansas Laws had been specifically upheld against challenges under the
same constitutional provisions in three decisions earlier. However, from the
case that reached the U.S. Supreme Court, the District Court found that as a
result of economic and technical developments since the last decision on the
subject, the statutes were no longer justified as safety measures – the ground
on which they had formerly been sustained. The Supreme Court of United
States struck down the impugned laws as contrary to the commerce clause of
the Constitution and the due process clause of the Fourteenth Amendment.
Black, J., who delivered the opinion on behalf of the majority, held that the
District Court indulged in a legislative judgment wholly beyond its limited
authority to review state legislation under the commerce clause. The Court
said that it was not open for the District Court to place a value on the
additional safety in terms of dollars and cents in order to see whether this
value as calculated by the Court exceeded the financial cost to the rail roads.
The majority view, thus, concluded:
“Under all the circumstances we see no reason to depart from this
Court’s previous decisions holding that the Arkansas full-crew laws do
not unduly burden interstate commerce or otherwise violate the
Constitution. Undoubtedly heated disputes will continue as to the
extent to which these laws contribute to safety and other public
interests, and the extent to which such contributions are justified by
the cost of the additional manpower. These disputes will continue to
be worked out in the legislatures and in various forms of collective
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bargaining between management and the unions. As we have said
many times, Congress unquestionably has power under the
Commerce Clause to regulate the number of employees who shall be
used to man trains used in interstate commerce. In the absence of
congressional action, however, we cannot invoke the judicial power to
invalidate this judgment of the people of Arkansas and their elected
representatives as to the price society should pay to promote safety in
the railroad industry……”
Raymond Motor Transportation
118. Two more decisions of the U.S. Supreme Court, one, Raymond
Motor Transportation24 and the other, Raymond Kassel25 may now be
considered. Raymond Motor Transportation24 was concerned with the
question whether administrative regulations of the State of Wisconsin
governing the length and configuration of contracts that may be operated
within the state violated the commerce clause. The three-Judge District Court
held that the regulations were not unconstitutional on either ground. Upsetting
the view of the District Court, Powell, J., who delivered the opinion of the Court
first noted the general rule, “…… Where the statute regulates evenhandedly to
effectuate a legitimate local public interest, and its effects on interstate
commerce are only incidental, it will be upheld unless the burden imposed on
such commerce is clearly excessive in relation to the putative local benefits”.
Powell, J., then concluded that the challenged regulations violated the
commerce clause because they placed a substantial burden on interstate
commerce and they cannot be said to make more than most speculative
contribution to highway safety.
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118.1. Blackmun, J., with whom Brennan, CJ. and Rehnquist, J.
concurred, held that if safety justifications were not illusory, the Court will not
second-guess legislative judgment about their importance in comparison with
related burdens on interstate commerce. Blackmun J, also held :
“Here, the Court does not engage in a balance of policies it does not
make a legislative choice. Instead, after searching the factual record
developed by the parties, it concludes that the safety interests have
not been shown to exist as a matter of law.”
Raymond Kassel
119. In Raymond Kassel25, after recording evidence and conclusion of
trial, the District Court applied the standard which was accepted in Raymond
Motor Transportation24 and concluded that the state law impermissibly created
burden on inter-state commerce. The Court of appeals accepted the District
Court’s findings and the view. This is how the matter reached the U.S.
Supreme Court. Powell, J., who delivered the opinion of the Court in which
White, Blackmun and Stevens JJ. joined, observed: “while Supreme Court
has been most reluctant to invalidate state regulations that touch upon safety,
especially highway safety, constitutionality of such regulations nevertheless
depends upon sensitive consideration of weight and nature of state regulatory
concern in light of extent of burden imposed on course of interstate
commerce”.
119.1. Brennan, J., with whom Marshall, J. joined, concurring with the
judgment observed : “This Court’s heightened deference to the judgments of
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state law makers in the field of safety is largely attributable to a judicial
disinclination to weigh the interest of safety against other societal interests,
such as the economic interest in the free flow of commerce………..”
Plaut
120. The judgment of the US Supreme Court in Plaut61 on the doctrine
of separation of powers is significant and deserves appropriate consideration.
In that case, the US Supreme Court was presented with the question whether
Section 27A(b) of the Securities Exchange Act, 1934 was violative of the
Constitution’s separation of powers or the due process clause of the Fifth
Amendment to the extent it required Federal Courts to reopen final judgments
in private civil actions under Section 10(b) of the Act. Scalia, J., who delivered
the majority opinion, referred to the following First Inaugural Address by
President Lincoln in which the President explained why the political branches
could not, and need not interfere with the judgment :
“I do not forget the position assumed by some, that constitutional
questions are to be decided by the Supreme Court; nor do I deny that
such decisions must be binding in any case, upon the parties to a suit,
as to the object of that suit . . . . And while it is obviously possible that
such decision may be erroneous in any given case, still the evil effect
following it, being limited to that particular case, with the chance that it
may be over-ruled, and never become a precedent for other cases,
can better be borne than could the evils of a different practice.”
120.1. Scalia, J. also referred to the views of Thomas Cooley (a
constitutional Scholar) who had said :
61 Plaut et al. v. Spendthrift Farm, Inc., et al.; [(1995) 514 U.S. 211]
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“If the legislature cannot thus indirectly control the action of the courts,
by requiring of them a construction of the law according to its own
views, it is very plain it cannot do so directly, by setting aside their
judgments, compelling them to grant new trials, ordering the discharge
of offenders, or directing what particular steps shall be taken in the
progress of a judicial inquiry.”
120.2. Scalia J, observed that the power to analyze a final judgment was
“an assumption of judicial power” and, therefore, forbidden. Finality rule was
given pre-eminence. This becomes evident from his following observations:
“……Having achieved finality, however, a judicial decision becomes the last
word of the judicial department with regard to a particular case or controversy,
and Congress may not declare by retroactive legislation that the law
applicable to that very case was something other than what the courts said it
was…..”
120.3. In Plaut61, the majority opinion also holds that considerations such
as that legislation was motivated by a genuine concern to implement public
policy was irrelevant. The majority opinion exposited that prohibition
(separation of power) was violated when an individual final judgment is
legislatively rescinded for even the best of reasons, such as legislature’s
genuine conviction (supported by all the professionals in the land) that the
judgment was wrong,…….”
120.4. The US Supreme Court, thus, by majority declared that Section
27A(b) of the Act was violative of the separation of the powers doctrine.
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Summary of Separation of powers doctrine under the Indian
Constitution
121. On deep reflection of the above discussion, in our opinion, the
constitutional principles in the context of Indian Constitution relating to
separation of powers between legislature, executive and judiciary may, in
brief, be summarized thus :
(i) Even without express provision of the separation of powers, the
doctrine of separation of powers is an entrenched principle in the Constitution
of India. The doctrine of separation of powers informs the Indian constitutional
structure and it is an essential constituent of rule of law. In other words, the
doctrine of separation of power though not expressly engrafted in the
Constitution, its sweep, operation and visibility are apparent from the scheme
of Indian Constitution. Constitution has made demarcation, without drawing
formal lines between the three organs – legislature, executive and judiciary. In
that sense, even in the absence of express provision for separation of power,
the separation of power between legislature, executive and judiciary is not
different from the constitutions of the countries which contain express
provision for separation of powers.
(ii) Independence of courts from the executive and legislature is
fundamental to the rule of law and one of the basic tenets of Indian
Constitution. Separation of judicial power is a significant constitutional
principle under the Constitution of India.
Page 90
(iii) Separation of powers between three organs – legislature,
executive and judiciary – is also nothing but a consequence of principles of
equality enshrined in Article 14 of the Constitution of India. Accordingly,
breach of separation of judicial power may amount to negation of equality
under Article 14. Stated thus, a legislation can be invalidated on the basis of
breach of the separation of powers since such breach is negation of equality
under Article 14 of the Constitution.
(iv) The superior judiciary (High Courts and Supreme Court) is
empowered by the Constitution to declare a law made by the legislature
(Parliament and State legislatures) void if it is found to have transgressed the
constitutional limitations or if it infringed the rights enshrined in Part III of the
Constitution.
(v) The doctrine of separation of powers applies to the final
judgments of the courts. Legislature cannot declare any decision of a court of
law to be void or of no effect. It can, however, pass an amending Act to
remedy the defects pointed out by a court of law or on coming to know of it
aliunde. In other words, a court’s decision must always bind unless the
conditions on which it is based are so fundamentally altered that the decision
could not have been given in the altered circumstances.
(vi) If the legislature has the power over the subject-matter and
competence to make a validating law, it can at any time make such a
validating law and make it retrospective. The validity of a validating law,
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therefore, depends upon whether the legislature possesses the competence
which it claims over the subject-matter and whether in making the validation
law it removes the defect which the courts had found in the existing law.
(vii) The law enacted by the legislature may apparently seem to be
within its competence but yet in substance if it is shown as an attempt to
interfere with the judicial process, such law may be invalidated being in breach
of doctrine of separation of powers. In such situation, the legal effect of the
law on a judgment or a judicial proceeding must be examined closely, having
regard to legislative prescription or direction. The questions to be asked are,
(i) Does the legislative prescription or legislative direction interfere with the
judicial functions? (ii) Is the legislation targeted at the decided case or
whether impugned law requires its application to a case already finally
decided? (iii) What are the terms of law; the issues with which it deals and the
nature of the judgment that has attained finality? If the answer to (i) to (ii) is in
the affirmative and the consideration of aspects noted in question (iii)
sufficiently establishes that the impugned law interferes with the judicial
functions, the Court may declare the law unconstitutional.
Analysis of the Mullaperiyar Environmental Protection Forum Judgment
(2006 Judgment)
122. In light of the above constitutional principles relating to separation
of powers between legislature, executive and judiciary, we shall now examine
the constitutional validity of the 2006 (Amendment) Act in its application to and
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effect on the Mullaperiyar dam. For deciding this question, it is appropriate to
first refer to the decision of this Court in Mullaperiyar Environmental Protection
Forum1 at some length. That decision was rendered by this Court in a writ
petition filed by Mullaperiyar Environment Protection Forum under Article 32 of
the Constitution of India and few transferred cases. In that case, the
petitioner’s claim was that water level in the reservoir cannot be raised from its
present level of 136 ft. That was the stand of Kerala as well. According to
Kerala, the life of Mullaperiyar dam was fifty years from the date of
construction but it had already completed more than hundred years and it had
served its useful life. In Kerala’s view, it was dangerous to allow raising of
water levels beyond 136 ft. and serious consequences could ensue resulting
in wiping out of three adjoining districts completely. On the other hand, Tamil
Nadu set up the case that as per the report of the Expert Committee
constituted by this Court, the water level could be raised upto 142 ft. as an
interim measure and on taking certain steps and after execution of the
strengthening measure in respect of baby dam, earthen bund and on
completion of remaining portion, water level could be allowed to be restored at
FRL of 152 ft. Tamil Nadu sought specific direction for raising water level to
142 ft. and after strengthening, to its full level of 152 ft.
122.1. The Court noted the following terms of reference and the task
given to the Expert Committee:
“(a) To study the safety of Mullaperiyar dam located on Periyar river in
Kerala with respect to the strengthening of dam carried out by the
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Government of Tamil Nadu in accordance with the strengthening
measures suggested by CWC and to report/advise the Hon’ble
Minister of Water Resources on the safety of the dam.
(b) To advise the Hon’ble Minister of Water Resources regarding
raising of water level in Mullaperiyar reservoir beyond 136 ft (41.45 m)
as a result of strengthening of the dam and its safety as at (a) above.
The Committee will visit the dam to have first-hand information and to
assess the safety aspects of the dam. It will hold discussions with the
Secretary, Irrigation of the Kerala Government as well as Secretary,
PWD, Government of Tamil Nadu with respect to safety of the dam
and other related issues.”
122.2. Then the Court adverted to the recommendations of the Expert
Committee as follows:
“1. The strengthening measures pertaining to baby dam and the
earthen bund, as already suggested by CWC and formulated by the
Government of Tamil Nadu, should be carried out at the earliest.
2. The Government of Kerala should allow the execution of
strengthening measures of baby dam, earthen bund and the remaining
portion of about 20 m of parapet wall on the main Mullaperiyar dam up
to EL 160 ft. (48.77 m) immediately.
3. CWC will finalise the instrumentation for installation at the main
dam. In addition, instruments will be installed during strengthening of
baby dam, including the earthen bund, so that monitoring of the health
of Mullaperiyar dam, baby dam and earthen bund can be done on a
continuous basis.
4. The water level in the Mullaperiyar reservoir be raised to a level
where the tensile stress in the baby dam does not exceed 2.85 t/m2
(as suggested by Shri Parameswaran Nair, Kerala representative)
especially in condition E (full reservoir level with earthquake) as per
BIS Code IS 6512-1984 with ah= 0.12 g and analysis as per clauses
3.4.2.3 and 7.3.1 of BIS Code 1893-1984.
5. The committee members discussed the issue of raising of water
level above EL 136.00 ft (41.45 m) after studying the analysis of safety
of baby dam. Prof. A. Mohanakrishnan, Member of Tamil Nadu
Government, opined in the light of para 4 that the water level should
be raised up to at least EL 143.00 ft (43.59 m) as the tensile stresses
are within the permissible limits. Shri M.K. Parameswaran Nair,
Member of Kerala Government did not agree to raise the water level
above EL 136.00 ft (41.45 m). However, the Committee after detailed
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deliberations, has opined that the water level in the Mullaperiyar
reservoir be raised to EL 142.00 ft (43.28 m) which will not endanger
the safety of the main dam, including spillway, baby dam and earthen
bund. The abstracts of the calculations for stress analysis are
enclosed as Annexure XIX.
6. This raising of reservoir level up to a level where the tensile stress
does not exceed 2.85 t/m2 during the earthquake condition is an
interim measure and further raising of water level to the FRL EL
152.00 ft (46.33 m) (original design FRL of the Mullaperiyar reservoir)
be studied after the strengthening measures on baby dam are carried
out and completed.”
122.3 The Court framed the following five questions for consideration:
“1. Whether Section 108 of the States Reorganisation Act, 1956 is
unconstitutional?
2. Whether the jurisdiction of this Court is barred in view of Article 262
read with Section 11 of the Inter-State Water Disputes Act, 1956?
3. Whether Article 363 of the Constitution bars the jurisdiction of this
Court?
4. Whether disputes are liable to be referred to arbitration?
5. Whether the raising of water level of the reservoir from 136 ft to 142
ft would result in jeopardising the safety of the people and also
degradation of the environment?”
122.4 While dealing with question No. 1, the Court, inter alia, held that
law making power under Articles 3 and 4 of the Constitution was paramount
and it was neither subjected to nor fettered by Article 246 and Lists II and III of
the Seventh Schedule. The Court also held that power of Parliament to make
law under Articles 3 and 4 was plenary and traverses over all legislative
subjects as are necessary for effectuating a proper reorganization of the
states. Accordingly, the Court found no merit in challenge to the validity of
Section 108 of the States Reorganisation Act, 1956.
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122.5 Dealing with question No. 2, the Court noted that the dispute
relating to raising the water level in the Mullaperiyar dam was not a water
dispute since the right of Tamil Nadu to divert water from Periyar reservoir to
Tamil Nadu for integrated purpose of irrigation or to use the water to generate
power or for other uses was not in dispute. It was observed that there was no
dispute about the lease granted to Tamil Nadu in 1886 or about
supplementary agreements of 1970 and that till 1979 there was no dispute
with regard to water level at all. In 1979, the water level was brought down to
136 ft. to facilitate Tamil Nadu to carry out certain strengthening measures
suggested by the CWC. The Court, thus, held that safety of the dam on
increase of water level to 142 ft. was not the issue hit by Article 262 of the
Constitution or the Inter-State River Water Disputes Act, 1956.
122.6 With regard to question No. 3, the Court held that there was no
question of the jurisdiction of this Court being barred as Article 363 has no
application to an agreement such as 1886 Lease Agreement which is an
ordinary agreement of lease and is not a political arrangement.
122.7 On question No. 4, the Court observed that present dispute was
not about the rights, powers and obligations or interpretation of any part of the
agreement but the controversy was confined to whether water level in the
reservoir could be increased to 142 ft. for which there was already a report by
an Expert Committee.
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122.8 For consideration of question No. 5, the Court carefully referred to
the report of the Expert Committee with regard to safety of the dam on water
level being raised to 142 ft. In para 30 of the judgment, this Court held as
under:
“30. Regarding the issue as to the safety of the dam on water level
being raised to 142 ft from the present level of 136 ft, the various
reports have examined the safety angle in-depth including the
viewpoint of earthquake resistance. The apprehensions have been
found to be baseless. In fact, the reports suggest an obstructionist
attitude on the part of the State of Kerala. The Expert Committee was
comprised of independent officers. Seismic forces as per the
provisions were taken into account and structural designs made
accordingly while carrying out strengthening measures. The final
report of the Committee set up by the Ministry of Water Resources,
Government of India to study the water safety aspect of the dam and
raising the water level has examined the matter in detail. The
Chairman of the Committee was a Member (D&R) of the Central Water
Commission, two Chief Engineers of the Central Water Commission,
Director, Dam Safety, Government of Madhya Pradesh and retired
Engineer-in-Chief, U.P. besides two representatives of the
Governments of Tamil Nadu and Kerala, were members of the
Committee. All appended their signatures except the representative of
the Kerala Government. The summary of the results of stability
analysis of Mullaperiyar baby dam contains a note which shows that
the permissible tensile strength was masonry as per the specifications
mentioned therein based on test conducted by CSMRS, Delhi on the
time and agreed by all committee members including the Kerala
representative in the meeting of the Committee held on 9/10-2-2001. It
also shows the various strengthening measures suggested by CWC
having been completed by the Tamil Nadu PWD on the dam including
providing of RCC backing to the dam. The report also suggests that
the parapet wall of baby dam and main dam have been raised to 160 ft
(48.77 m) except for a 20 m stretch on the main dam due to denial of
permission by the Government of Kerala. Some other works as stated
therein were not allowed to be carried on by the State of Kerala. The
report of CWC after inspection of the main dam, the galleries, baby
dam, earthen bund and spillway, concludes that the dam is safe and
no excessive seepage is seen and that Mullaperiyar dam has been
recently strengthened. There are no visible cracks that have occurred
in the body of the dam and seepage measurements indicate no cracks
in the upstream side of the dam. Our attention has also been drawn to
various documents and drawings including cross-sections of the
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Periyar dam to demonstrate the strengthening measures. Further, it is
pertinent to note that the dam immediately in line after Mullaperiyar
dam is Idukki dam. It is the case of the State of Kerala that despite the
“copious rain”, the Idukki reservoir is not filled to its capacity, while the
capacity of the reservoir is 70.500 TMC, it was filled only to the extent
of 57.365 TMC. This also shows that assuming the worst happens,
more than 11 TMC water would be taken by Idukki dam. The Deputy
Director, Dam Safety, Monitoring Directorate, Central Water
Commission, Ministry of Water Resources in the affidavit of April 2004
has, inter alia, stated that during the recent earthquake mentioned by
the Kerala Government in its affidavit, no damage to the dam was
reported by CWC officers who inspected the dam. The experts having
reported about the safety of the dam and the Kerala Government
having adopted an obstructionist approach, cannot now be permitted
to take shelter under the plea that these are disputed questions of
fact. There is no report to suggest that the safety of the dam would be
jeopardised if the water level is raised for the present to 142 ft. The
report is to the contrary.”
(emphasis supplied by us)
122.9 In view of the above consideration, this Court restrained Kerala
and its officers from causing any obstruction from carrying out further
strengthening measures by Tamil Nadu as suggested by CWC and Tamil
Nadu was permitted to increase water level of Mullaperiyar dam to 142 ft.
122.10. The judgment in Mullaperiyar Environmental Protection Forum1
was pronounced on 27.02.2006.
123. On 14/15.03.2006, a special session of the Kerala Legislative
Assembly was convened and a Bill was introduced to amend the 2003 Act,
which was passed on 15.03.2006. On 18.03.2006, the Bill received the assent
of the Governor and became an enactment with effect from that day.
124. It is, thus, seen that one of the issues that directly fell for
consideration before this Court in Mullaperiyar Environmental Protection
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Forum1 was whether the raising of water level of the reservoir from 136 ft. to
142 ft. would result in jeopardising the safety of the people? From the various
reports including the report of the Expert Committee, the Court held that
apprehensions (wiping out of three districts) of Kerala were found to be
baseless in these reports and there was nothing to suggest that the safety of
dam would be jeopardised if the water level was raised to 142 ft. The
judgment records the finding regarding the safety of the dam on water level
being raised to 142 ft. from the present level of 136 ft., in these words: “the
various reports have examined the safety angle in-depth including the
viewpoint of earthquake resistance. The apprehensions have been found to
be baseless.” and, “The report of CWC after inspection of main dam, the
galleries, baby dam, earthen bund and spillway, concludes that the dam is
safe ……. .”
125. For these reasons, and others contained in the judgment, this
Court reached to the firm conclusion that raising the water level from 136 ft. to
142 ft. would not jeopardise the safety of the dam in any manner.
Consequently, this Court restrained Kerala and its officers from causing any
obstruction from carrying out further strengthening measures by Tamil Nadu
as suggested by CWC and Tamil Nadu was permitted to increase water level
of Mullaperiyar dam to 142 ft.
126. The decision of this Court on 27.02.2006 in the Mullaperiyar
Environmental Protection Forum1 case was the result of judicial investigation,
founded upon facts ascertained in the course of hearing. It was strictly a
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judicial question. The claim of the State of Kerala was that water level cannot
be raised from its present level of 136 ft. On the other hand, Tamil Nadu
sought direction for raising the water level to 142 ft. and, after strengthening,
to its full level of 152 ft. The obstruction by Kerala to the water level in the
Mullaperiyar dam being raised to 142 ft. on the ground of safety was found
untenable, and, in its judgment, this Court so pronounced.
Whether 2006 (Amendment) Act in its application to Mullaperiyar dam
amounts to usurpation of judicial power
127. The question now is: Does the impugned legislation amount to
usurpation of judicial power and whether it is violative of the rule of law?
128. As noted in the earlier part of the judgment, the 2003 Act was
enacted to consolidate and amend the laws relating to construction of irrigation
works, conservation and distribution of water for the purpose of irrigation in the
State of Kerala and other incidental matters. Section 2(b) defines “Authority”
which means the Kerala Dam Safety Authority constituted under Section 57.
Section 2(k) defines “distributory system” which means and includes, inter alia,
all works, structures and appliances connected with the distribution of water for
irrigation. Section 2(w) defines “irrigation work” which, inter alia, includes all
reservoirs which may be used for the supply, collection, storage or retention of
water for agricultural purposes and reservoirs installed to supply water. Section
2(aq) defines “water course” which means a river, stream, springs, channel,
lake or any natural collection of water other than in a private land and includes
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any tributary or branch of any river, stream, springs or channel. Section 3 starts
with non obstante clause and provides that all water courses and all water in
such water courses in the State shall be the property of the Government
(Government of Kerala), and the Government shall be entitled to conserve and
regulate the use of such water courses and the water in all those water courses
for the purposes of irrigation and the generation of electricity and for matters
connected therewith or for both. Section 4 makes provision for regulation on
abstraction of water from water course. Section 5 provides for regulation on
construction of reservoirs, anicut, etc. Section 30 deals with distribution of
water to another State or Union Territory. It is provided in Section 30 that no
water from a water course in the State shall be distributed to any other State or
Union Territory, except in accordance with an agreement between the State
Government and the Government of such other State or the Union Territory in
terms of a resolution to that effect passed by the Legislative Assembly of the
State. Section 57 provides for constitution of Dam Safety Authority for the
purpose of surveillance, inspection and advice on maintenance of dams
situated within the territory of the State. For the purposes of this section “dam”
means any artificial barrier including appurtenant work constructed across a
river or tributaries thereof with a view to impound or divert water for irrigation,
drinking water supply or for any other purpose. Section 62 spells out the
functions of the Authority. This section says that notwithstanding anything
contained in any treaty, agreement or instrument, the Dam Safety Authority,
inter alia, has the functions (1) to arrange for the safety evaluation of all dams
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in the State; (2) to advice Government to suspend the functioning of any dam if
the public safety so demands; (3) to examine the precariousness of any dam in
public interest and to submit its recommendations including decommissioning
of dam to the Government; (4) to inspect and advice the Government on
advisability of raising or lowering of the reservoir level of any dam taking into
account the safety of the dam concerned and the environmental aspects
involved; and (5) to inspect and advice the Government on the sustainability of
any dam to hold the water in the reservoir thereof. Sub-section (3) of Section
62 provides that where the advice or recommendations of the Authority relate
to a dam owned or controlled by person other than the Government, it shall be
lawful for the Government to issue orders or directions as it deems fit, requiring
any person having possession or control of such dam to take such measures or
to do such things within such time as may be specified therein to give effect to
the advice or recommendations, and such person shall be bound to comply
with the orders and directions issued by the Government.
129. Mr. Harish N. Salve, learned senior counsel for Kerala argued
that these provisions were not taken into consideration by this Court in its
judgment in Mullaperiyar Environmental Protection Forum1 and, therefore,
judgment of this Court is per incuriam.
130. We are not persuaded by this argument at all. 2003 Act was
neither referred to nor relied upon by Kerala at the time of hearing in
Mullaperiyar Environmental Protection Forum1. It was rightly so because 2003
Act had no direct bearing on the issues which were under consideration.
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Section 3 refers to water courses and the definition of “water course” in Section
2 (aq) does not include a dam such as Mullaperiyar dam. Kerala Dam Safety
Authority was not in place when the arguments in Mullaperiyar Environmental
Protection Forum1 were concluded. We are informed that Dam Safety Authority
came to be constituted on 18.2.2006, i.e., few days before the judgment was
pronounced by this Court in that case. We have carefully considered the
provisions of amended 2003 Act and, in our view, in whatever way 2003 Act is
seen, there was no impediment for this Court to consider and decide the
question whether raising the water level from 136 ft. to 142 ft. would jeopardize
the safety of the dam. This Court answered the question based on the
materials on record, in the negative. The judgment of this Court in Mullaperiyar
Environmental Protection Forum1 by no stretch of imagination can be termed as
per incuriam. The judgment wholly and squarely binds the parties including
Kerala.
131. The Kerala legislature amended the 2003 Act by 2006
(Amendment) Act. By the 2006 (Amendment) Act, in Section 2, clauses (ja) and
(jb) defining “custodian” and “dam” were inserted after clause (j). Clause (ala)
defining “scheduled dam” was also inserted after clause (al). In sub-section (1)
of Section 57 of the principal Act, the words “surveillance, inspection” were
substituted by “ensuring the safety and security”. The explanation in subsection
(2) of Section 57 was deleted. Section 62 of the principal Act was
substituted by new Section 62. The new Section 62, inter alia, empowers the
Dam Safety Authority with following functions:
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“(1) xxx xxx xxx
(a) to evaluate the safety and security of all dams in the State
considering among other factors, the age of the structures, geological
and seismic factors, degeneration or degradation caused over time or
otherwise;
(b) to (d) xxx xxx xxx
(e) to direct the custodian to suspend the functioning of any dam, to
decommission any dam or restrict the functioning of any dam if public
safety or threat to human life or property so requires;
(f) to advise the Government, custodian, or other agencies about
policies and procedures to be followed in site investigation, design,
construction, operation and maintenance of dams;
(g) to conduct studies, inspect and advise the custodian or any other
agency on the advisability of raising or lowering of the maximum water
level or full reservoir level of any dam, not being a scheduled dam,
taking into account the safety of the dam concerned;
(h) to (j) xxx xxx xxx”
132. The functions conferred on the Dam Safety Authority under new
Section 62 override the judgment, decree or order of any Court or any treaty,
agreement, contract, instrument or any other document. Sub-section (3) of new
Section 62 provides that where a direction is issued by the Dam Safety
Authority under sub-Section (1), the custodian or any other agency to whom it
is directed shall take immediate measures within the time frame stipulated by
the Authority or do or refrain from doing such things within such time frame as
may be stipulated and to comply with the directions of the Authority. After
Section 62, new Sections 62A and 62B have been added. The details of the
dams which are endangered on account of their age, degeneration,
degradation, structural or other impediments are specified in the Second
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Schedule. Sub-sections (2) and (3) to new Section 62A are overriding
provisions, which read as under:
“(1) xxx xxx xxx
(2) Notwithstanding anything contained in any other law or in any
judgment, decree, order or direction of any court, or any treaty,
contract, agreement, instrument or document, no Government,
custodian or any other agency shall increase, augment, add to or
expand the Full Reservoir Level Fixed or in any other way do or omit
to do any act with a view to increase the water level fixed and set out
in THE SECOND SCHEDULE. Such level shall not be altered except
in accordance with the provisions of this Act in respect of any
Scheduled dam.
(3) Notwithstanding anything contained in any other law, or in any
judgment, decree, order, direction of any court or any treaty, contract,
agreement, instrument or document, any Government, custodian or
any other agency intending to, or having secured any right under any
treaty, contract, agreement, instrument or document or by any other
means to increase, augment, add to or expand, the storage capacity or
increase the Full Reservoir Level Fixed of any Scheduled dam, shall
not do any act or work for such purpose without seeking prior consent
in writing of the Authority and without obtaining an order permitting
such work by the Authority.
(4) and (5) xxx xxx xxx”
133. Section 62B gives powers of a Civil Court to the Dam Safety
Authority in respect of the matters specified therein while dealing with
applications for consent in writing for increasing, augmenting, adding to or
expanding the storage capacity or the water spread area or for increasing of
Maximum Water Level or Full Reservoir Level fixed for Scheduled dams.
Section 68A bars the jurisdiction of Civil Court from settling, deciding or dealing
with any question of fact or to determine any matter which under the 2003 Act,
as amended by 2006 (Amendment) Act, is required to be settled, decided or
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dealt with or to be determined by the Authority under the Act. In Second
Schedule, at item No.1 is the subject “Mullaperiyar Dam” for which FRL is fixed
at 41.45 meter (136 ft.) from the deepest point of the level of Periyar river at
the site of the main dam.
134. Tamil Nadu says that 2006 (Amendment) Act to the extent it
applies to Mullaperiyar dam seeks to nullify the judgment of this Court in
Mullaperiyar Environmental Protection Forum1 by declaring the dam to be
endangered and by fixing the height of the water level at 136 ft.; that It
authorizes the Dam Safety Authority to disregard the judgment and to adjudge
for itself whether to allow raising of water level and Section 62(1)(e) authorizes
the Dam Safety Authority to order inter alia decommissioning of the dam
despite the finding of safety recorded by this Court in the 2006 judgment and,
thus, the 2006 (Amendment) Act is unconstitutional being violative of
separation of powers doctrine and consequently rule of law.
135. On the other hand, the argument of Mr. Harish N. Salve, learned
senior counsel for Kerala, is that the legislature of every State has not just the
power but the obligation to take appropriate legislative measures to ensure the
safety and security of its residents. Where the legislature of a State is satisfied
that there is a need to curtail the use or storage of a water reservoir to protect
its citizenry and elects to enact legislation as a precautionary measure, the
legislation cannot be said to be in excess of the legislative competence of the
State if it relates to reservoir and dam within the legislating State. Kerala
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legislature has imposed precautionary measures by placing pro tem
restrictions on the storage level of the dams mentioned in the Second Schedule
read with Section 62A(2) of the 2006 (Amendment) Act and the said restrictions
are based on the legislative wisdom of the Kerala legislature that these dams
are endangered on account of their age, degeneration, degradation, structural
or other impediments. While adjudicating upon the constitutional validity, Mr.
Harish Salve argues that the Court must proceed on the premise that the
legislature understands and correctly appreciates the needs of its own people
and its laws are directed to the problems made manifest by its experience and
are based on adequate grounds.
136. Mr. Harish N. Salve, learned senior counsel for Kerala heavily
relies upon ‘precautionary principle’ and ‘public trust doctrine’ and argues that
Kerala legislature was competent to override the contracts and regulate safety
of the Mullaperiyar dam situated within its territory across river Periyar. His
submission is that the State as sovereign retains continuing supervisory control
over navigable waters and underlying beds. It is his submission that the State
has a duty of ‘continuing supervision’ even after such rights have been granted.
In this regard strong reliance is placed by him on Pfizer Animal Health27.
137. In Pfizer Animal Health27, the Court of First Instance of European
Communities (Third Chamber) was concerned with the legality and validity of
the regulations which, inter alia, banned particular use of the substance in
question. Pfizer argued that it was directly concerned by the contested
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regulation as it withdraws authorization of Virginiamycin. The counsel for the
European Union argued that the regulations were enacted to general
application which was applicable to objectively determined situations and that
they ban the particular use of the substance in question, whether they are
marketed by Pfizer or by any one else under a different name. The Court
observed that for the purpose of taking preventive action, to wait for the
adverse effects of the use of the products was not required.
138. Dealing with precautionary principle, the Court made these
observations:
“First, it must be borne in mind that, when the precautionary principle
is applied, the fact that there is scientific uncertainty and that it is
impossible to carry out a full risk assessment in the time available
does not prevent the competent public authority from taking preventive
protective measures if such measures appear essential, regard being
had to the level of risk to human health which the public authority has
decided is the critical threshold above which it is necessary to take
preventive measures.
………….
The precautionary principle allows the competent public authority to
take, on a provisional basis, preventive protective measures on what
is as yet an incomplete scientific basis, pending the availability of
additional scientific evidence.
………………
It is not for the Court to assess the merits of either of the scientific
points of view argued before it and to substitute its assessment for that
of the Community institutions, on which the Treaty confers sole
responsibility in that regard.
………………..”
139. Kerala has also relied upon the article, “The Public Trust Doctrine
in the Water Rights Context” by Roderick E. Walston22. The author has culled
out following four principles of the Public Trust doctrine:
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“(1) The state as sovereign “retains continuing supervisory control”
over navigable waters and underlying beds;
(2) The legislature, either directly or through the water rights
agency, has the right to grant usufructuary water rights even though
such rights will “not promote, and may unavoidably harm, the trust
uses at the sources stream;”
(3) The state has the “affirmative duty” to take the public trust into
account in planning and allocating water resources; and
(4) The state has a “duty of continuing supervision” over water
rights even after such rights have been granted.”
139.1 Public trust doctrine, Roderick E. Walston says, is regarded by
some as an exercise of sovereign state regulatory, analogous to the police
power.
140. In our opinion, the principle of ‘public trust doctrine’ in the context
of water rights culled out by Roderick E. Walston or the ‘precautionary
principle’ explained in Pfizer Animal Health27 can hardly be doubted but these
principles have no application in the context of safety of Mullaperiyar dam on
raising the water level from the present level to 142 ft., which was directly in
issue and has been expressly, categorically and unambiguously determined by
the Court. This Court has found – supported by the Expert Committee Reports –
that the safety of the subject dam is not at all jeopardized if the water level is
raised from the present level to 142 ft. Kerala, which is contesting party, by
applying ‘public trust doctrine’ or ‘precautionary measure’, cannot through
legislation do an act in conflict with the judgment of the highest Court which has
attained finality. If a legislation is found to have breached the established
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constitutional limitation such as separation of powers, it has to go and cannot
be allowed to remain.
141. It is true that the State’s sovereign interests provide the
foundation of the public trust doctrine but the judicial function is also a very
important sovereign function of the State and the foundation of the rule of law.
The legislature cannot by invoking ‘public trust doctrine’ or ‘precautionary
principle’ indirectly control the action of the Courts and directly or indirectly set
aside the authoritative and binding finding of fact by the Court, particularly, in
situations where the executive branch (Government of the State) was a party in
the litigation and the final judgment was delivered after hearing them.
142. 2006 (Amendment) Act in its application to and effect on the
Mullaperiyar dam seeks to attain the following:
(a) It substitutes Section 62 with a new provision whereby, notwithstanding
the judgment of this Court and notwithstanding anything contained in any
treaty, contract, 1886 Lease Agreement and 1970 supplemental agreements,
the function of evaluation of safety of the Mullaperiyar dam and the power to
issue directions to Tamil Nadu as custodian are conferred upon Dam Safety
Authority;
(b) the Dam Safety Authority is empowered, inter alia, to restrict the
functioning of Mullaperiyar dam and/or to conduct studies on the advisability of
raising or lowering of the maximum water level or the full reservoir level;
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(c) Mullaperiyar dam is considered by Kerala legislature to be endangered
and by virtue of Section 62(A), it takes away the right of Tamil Nadu to
increase, expand the FRL or in any manner increase the water level as set out
in the Second Schedule except in accordance with the provisions of the Act;
(d) under Section 62A(4), Tamil Nadu as custodian has to submit an
application to the Dam Safety Authority for its prior consent for the increase in
the water level;
(e) it takes away all rights of Tamil Nadu including the right which has
passed into judgment of this Court to increase the water level;
(f) the Dams Safety Authority has power to order de-commissioning of the
Mullaperiyar dam.
143. This Court in Mullaperiyar Environmental Protection Forum1, after
hearing the State of Kerala, was not persuaded by Kerala’s argument that
Mullaperiyar dam was unsafe or storage of water in that dam cannot be
increased. Rather, it permitted Tamil Nadu to increase the present water level
from 136 ft. to 142 ft. and restrained Kerala from interfering in Tamil Nadu’s
right in increasing the water level in Mullaperiyar dam to 142 ft. Thus, a
judgment has been given by this court in contest between the two States in
respect of safety of Mullaperiyar dam for raising water level to 142 ft. The
essential element of the judicial function is the decision of a dispute actually
arising between the parties and brought before the court. Necessarily, such
decision must be binding upon the parties and enforceable according to the
decision. A plain and simple judicial decision on fact cannot be altered by a
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legislative decision by employing doctrines or principles such as ‘public trust
doctrine’, ‘precautionary principle’ ‘larger safety principle’ and, ‘competence of
the State legislature to override agreements between the two States’. The
Constitutional principle that the legislature can render judicial decision
ineffective by enacting validating law within its legislative field fundamentally
altering or changing its character retrospectively has no application where a
judicial decision has been rendered by recording a finding of fact. Under the
pretence of power, the legislature, cannot neutralize the effect of the judgment
given after ascertainment of fact by means of evidence/materials placed by
the parties to the dispute. A decision which disposes of the matter by giving
findings upon the facts is not open to change by legislature. A final judgment,
once rendered, operates and remains in force until altered by the court in
appropriate proceedings.
144. 2006 (Amendment) Act plainly seeks to nullify the judgment of
this court which is constitutionally impermissible. Moreover, it is not disputed
by Kerala that 2006 (Amendment) Act is not a validation enactment. Since the
impugned law is not a validating law, it is not required to inquire whether in
making the validation the legislature has removed the defect which the Court
has found in existing law. The 2006 (Amendment) Act in its application to and
effect on Mullaperiyar dam is a legislation other than substantially legislative
as it is aimed at nullifying the prior and authoritative decision of this Court. The
nub of the infringement consists in Kerala legislator’s revising the final
judgment of this Court in utter disregard of the constitutional principle that the
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revision of such final judgment must remain exclusively within the discretion of
the court.
145. Section 62A declares the dam to be endangered. The Second
Schedule appended to the Act fixes the height of the water level at 136 ft.
though this Court in its judgment had declared Mullaperiyar dam safe and
permitted the increase of the water level to 142 ft. Moreover, the 2006
(Amendment) Act authorises the Dam Safety Authority to adjudge its
safety to allow raising of water level. The provision is in direct disregard of the
judgment of this Court. Section 62A also freezes all work on the dam allowed
by this Court in its judgment dated 27.2.2006. In our opinion, by 2006
(Amendment) Act, the Kerala legislature has overturned a final judgment in the
interest of its own executive Government. The impugned law amounts to
reversal of the judgment of this Court which determines directly the question of
safety of Mullaperiyar dam for raising water level to 142 ft. and whereunder
Tamil Nadu’s legal right has been determined.
146. On behalf of Kerala, it is strenuously argued by Mr. Harish Salve
that right to safety of the people being a public right could not have passed
into 2006 judgment of this court. In this regard, heavy reliance is placed on
the majority decision of the Wheeling Bridge29. Firstly, public right qualification
in Wheeling Bridge29 has no application in the present case as there is a
critical difference between the provisions impugned before us and the
provisions which were impugned before US Supreme Court in Wheeling
Bridge29. The principle question before the US Supreme Court in Wheeling
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Bridge29 was whether or not the compact could operate as a restriction upon
the power of courts under the Constitution to regulate commerce among
several States. In response to the argument urged before it that the Congress
cannot have the effect to annul the judgment of the court already rendered or
the rights determined thereby was accepted as a general proposition but this
proposition was held not applicable in the matters of adjudication upon the
public rights. In our view, a legislation violating the separation of powers
principle cannot be saved by carving out an exception that the legislature has
regulated a public right. We think that the act of legislature designed to
achieve a legitimate regulatory measure does not grant constitutional
immunity to such law enacted in violation of separation of powers principle or
in other words, rule of law. Once a judicial decision on ascertainment of a
particular fact achieves finality, we are afraid the legislature cannot reopen
such final judgment directly or indirectly. In such cases, the courts, if brought
before them, may reopen such cases in exercise of their own discretion.
147. In our view, Wheeling Bridge29 qualification by the majority
decision of U.S. Supreme Court cannot be read to permit the actual revision of
the final judgment by the legislature. If Wheeling Bridge29 lays down the
proposition that a judgment declaring a public right may be annulled by
subsequent legislation as contended by Mr. Harish Salve, then we say, as we
must, that we are not persuaded to accept such proposition of majority
judgment in Wheeling Bridge29. The two separate opinions in Wheeling
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Bridge29 one by McLean J. and the other by Wayne J. – though in minorityalso
did not accept such proposition.
148. The above discussion must also answer the argument of Mr.
Harish Salve that rules of inter partes litigation do not determine the obligation
of the State for safety of its people. We do not think it is necessary to consider
the opinion of Weeramantry, J. in Gobcikovo-Nagymaros Project (ICJ) in
detail. The stress laid by Weeramantry, J. is that where issue of serious or
catastrophic environmental danger arises, the Court must look beyond inter
partes adversarial procedures.
149. It is true that safety of dam is an aspect which can change from
time to time in different circumstances but then the circumstances have to be
shown based on which it becomes necessary to make departure from the
earlier finding. It is always open to any of the parties to approach the court and
apply for re-assessing the safety aspect but absent change in circumstances,
factual determination in the earlier proceedings even on the questions such as
safety of dam binds the parties. If the circumstances have changed which
necessitates a re-look on the aspect of safety, the Court itself may exercise its
discretion to reopen such case but legislative abrogation of judgment for even
the very best of reasons and genuine concern for public safety does not clothe
the legislature to rescind the judgment of the court by a legislation.
150. The contention of Mr. Harish Salve that by declaring dam unsafe,
the legislature has not rendered any finding of fact; it deems dam unsafe and
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sets up an Authority to regulate it, is noted to be rejected. What has been
found as a fact by judicial determination cannot be declared otherwise by
applying legal fiction. We are, however, persuaded to accept the submission
of Mr. Vinod Bobde, learned senior counsel for Tamil Nadu that the fact that
the Mullaperiyar dam is safe was found by this Court and that finding of fact
can never be deemed to be imaginary by a legal fiction which then proceeds
to deem the opposite to be real, viz., that the dam is endangered. This is not a
matter of legislative policy as it is being made out to be, rather in our opinion,
it is incursion in the judicial process and functions of judicial organ. The
declaration in Section 62A read with item No. 1 of the Second Schedule
leaves no manner of doubt that the enactment is intended to reach the
question decided by the Court.
151. The question whether or not the legislature has usurped the
judicial power or enacted a law in breach of separation of powers principle
would depend on facts of each case after considering the real effect of law on
a judgment or a judicial proceeding. One of the tests for determining whether
a judgment is nullified is to see whether the law and the judgment are
inconsistent and irreconcilable so that both cannot stand together. In what we
have already discussed above, it is abundantly clear that on the one hand
there is a finding of fact determined by this Court on hearing the parties on the
basis of the evidence/materials placed on record in the judgment of this Court
in Mullaperiyar Environmental Protection Forum1 and on the other in 2006
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(Amendment) Act, the Kerala legislature has declared the dam being an
endangered one and fixed the water level in the dam at 136 ft. If the judgment
of this Court in Mullaperiyar Environmental Protection Forum1 and the 2006
(Amendment) Act are placed side by side insofar as safety of the Mullaperiyar
dam for raising the water level from 136 ft. to 142 ft. is concerned, it is obvious
that the judgment of this Court and the law enacted by Kerala State legislature
cannot stand together and they are irreconcilable and inconsistent. The
impugned law is a classic case of nullification of a judgment simpliciter, as in
the judgment of this Court the question of safety of dam was determined on
the basis of materials placed before it and not on the interpretation of any
existing law and there was no occasion for the legislature to amend the law by
altering the basis on which the judgment was founded. When the impugned
law is not a validation law, there is no question of the legislature removing the
defect, as the Court has not found any vice in the existing law and declared
such law to be bad.
152. There is yet another facet that in federal disputes, the legislature
(Parliament and State legislatures) cannot be judge in their own cause in the
case of any dispute with another State. The rule of law which is basic feature
of our Constitution forbids the Union and the States from deciding, by law, a
dispute between two States or between the Union and one or more States. If
this was permitted under the Constitution, the Union and the States which
have any dispute between them inter se would enact law establishing its claim
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or right against the other and that would lead to contradictory and
irreconcilable laws. The Constitution makers in order to obviate any likelihood
of contradictory and irreconcilable laws being enacted has provided for
independent adjudication of federal disputes. Article 131 of the Constitution
confers original jurisdiction upon this Court in relation to the disputes between
the Government of India and one or more States or between the Government
of India and any State or States on one side and one or more States on the
other or between two or more States insofar as dispute involves any question
on which the existence or extent of a legal right depends. The proviso
appended to Article 131 carves out an exception to the jurisdiction of this
Court to a dispute arising out of treaty, agreement, covenant, engagement,
sanad or other similar instrument which have been entered into or executed
before the commencement of the Constitution and continues in operation after
such commencement, which are political in nature. In relation to dispute
relating to waters of inter-State river or river valleys, Article 262 provides for
creation of tribunal or forum for their adjudication. In federal disputes,
Parliament or State legislatures by law, if seek to decide a dispute between
the two States or between the Union and one or more States directly or
indirectly, the adjudicatory mechanism provided in Articles 131 and 262 of the
Constitution would be rendered nugatory and, therefore, such legislation
cannot be constitutionally countenanced being violative of separation of
powers doctrine.
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153. Mr. Harish Salve, learned senior counsel is right in his submission
that a legislation can never be challenged on the principles of res judicata and
that it binds a party and not the legislature. The question here is not that the
2006 (Amendment) Act is unconstitutional on the ground of res judicata but the
question is, when a categorical finding has been recorded by this Court in the
earlier judgment that the dam is safe for raising the water level to 142 ft. and
permitted the water lever of the dam being raised to 142 ft. and that judgment
has become final and binding between the parties, has the Kerala legislature
infringed the separation of powers doctrine in enacting such law? In what has
already been discussed above, the answer to the question has to be in the
affirmative and we hold so.
154. Where a dispute between two States has already been
adjudicated upon by this Court, which it is empowered to deal with, any
unilateral law enacted by one of the parties that results in overturning the final
judgment is bad not because it is affected by the principles of res judicata but
because it infringes the doctrine of separation of powers and rule of law, as by
such law, the legislature has clearly usurped the judicial power.
Res-judicata
155. It is true that 2006 judgment was rendered in exercise of the
jurisdiction of this Court under Article 32 of the Constitution and the petitions
which were transferred to this Court under Article 139A but to say that such
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judgment does not bind this Court while deciding the present suit, which
confers exclusive jurisdiction upon it, is not correct. The earlier decision of this
Court by no stretch of imagination can be regarded as a judgment rendered
without jurisdiction. A finding recorded by this Court in the proceedings under
Article 32 is as effective and final as in any other proceedings.
156. The rule of res judicata is not merely a technical rule but it is
based on high public policy. The rule embodies a principle of public policy,
which in turn, is an essential part of the rule of law. In Duchess of Kingston62,
the House of Lords (in the opinion of Sir William de Grey) has observed:
“From the variety of cases relative to judgments being given in evidence in
civil suits, these two deductions seem to follow as generally true: first, that the
judgment of a court of concurrent jurisdiction, directly upon the point, is as a
plea, a bar, or as evidence, conclusive, between the same parties, upon the
same matter, directly in question in another court; secondly, that the judgment
of a court of exclusive jurisdiction, directly upon the point, is, in like manner,
conclusive upon the same matter, between the same parties, coming
incidentally in question in another court, for a different purpose.”
157. Corpus Juris explains that res judicata is a rule of universal law
pervading every well-regulated system of jurisprudence, and is put upon two
grounds, embodied in various maxims of the common law; the one, public
policy and necessity, which makes it to the interest of the State that there
62 Duchess of Kingston; 2 Smith Lead Cas 13 Ed. Pp. 644, 645.
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should be an end to litigation; and the other, the hardship on the individual that
he should be vexed twice for the same cause.
158. In Sheoparsan Singh63, Sir Lawrence Jenkins noted the statement
of law declared by Lord Coke, ‘interest reipublica ut sit finis litium,’ otherwise
great oppression might be done under colour and pretence of law. – (6 Coke,
9A.)
159. In Daryao64, P.B. Gajendragadkar, J. while explaining the rule of
res judicata stated that on general considerations of public policy there seems
to be no reason why rule of res judicata should be treated as inadmissible or
irrelevant while dealing with the petitions filed under Article 32 of the
Constitution. P.B. Gajendragadkar, J. referred to earlier decision of this Court
in M.S.M. Sharma65 wherein the application of the rule of res judicata to a
petition filed under Article 32 was considered and it was observed that the
question determined by the previous decision of this Court cannot be
reopened and must govern the rights and obligations of the parties which are
subsequently the same.
160. In Gulab Chand Chhotalal Parikh66, this Court stated that a
decision in a writ petition is res judicata in a subsequent suit.
63 Sheoparsan Singh v. Ramnandan Prashad Narayan Singh; [AIR 1916 PC 78]
64 Daryao and Ors. v. State of U.P. and Ors.; [AIR 1961 SC 1457]
65 Pandit M.S.M. Sharma v. Dr. Shree Krishna Sinha and Ors.; [AIR 1960 SC 1186]
66 Gulab Chand Chhotalal Parikh v. State of Bombay; [(1965) 2 SCR 547]
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161. In Nanak Singh67 the question whether the decision in a writ
petition operates as res judicata in a subsequent suit filed on the same cause
of action has been settled. In Nanak Singh67, this court observed that there is
no good reason to preclude decisions on matters in controversy in writ
proceedings under Article 226 or Article 32 of the Constitution from operating
as res judicata in subsequent regular suits on the same matters in controversy
between the same parties and, thus, to give limited effect to the principle of
finality of decision after full contest.
162. Nanak Singh67 has been followed by a three Judge Bench of this
Court in Bua Das Kaushal68. In our view, the rule of res judicata which is
founded on public policy prevents not only a new decision in the subsequent
suit but also prevents new investigation. It prevents the defendant from setting
up a plea in a subsequent suit which was decided between the parties in the
previous proceedings. The legal position with regard to rule of res judicata is
fairly well-settled that the decision on a matter in controversy in writ
proceeding (Article 226 or Article 32 of the Constitution) operates as res
judicata in subsequent suit on the same matters in controversy between the
same parties. For the applicability of rule of res judicata it is not necessary that
the decision in the previous suit must be the decision in the suit so as to
operate as res judicata in a subsequent suit. A decision in previous
proceeding, like under Article 32 or Article 226 of the Constitution, which is not
67 Union of India v. Nanak Singh; [(1968) 2 SCR 887 : AIR 1968 SC 1370]
68 State of Punjab v. Bua Das Kaushal; [ (1970) 3 SCC 656]
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a suit, will be binding on the parties in the subsequent suit on the principle of
res judicata.
163. For the applicability of rule of res judicata, the important thing that
must be seen is that the matter was directly and substantially in issue in the
previous proceeding and a decision has been given by the Court on that issue.
A decision on issue of fact in the previous proceeding – such proceeding may
not be in the nature of suit – constitutes res judicata in the subsequent suit.
164. In light of the above legal position, if the 2006 judgment is seen, it
becomes apparent that after considering the contentions of the parties and
examining the reports of Expert Committee, this Court posed the issue for
determination about the safety of the dam to increase the water level to 142 ft.
and came to a categorical finding that the dam was safe for raising the water
level to 142 ft. and, accordingly, in the concluding paragraph the Court
disposed of the writ petition and the connected matters by permitting the water
level of Mullaperiyar dam being raised to 142 ft. and also permitted further
strengthening of the dam as per the report of the Expert Committee appointed
by the CWC. The review petition filed against the said decision was dismissed
by this Court on 27.7.2006. The 2006 judgment having become final and
binding, the issues decided in the said proceedings definitely operate as res
judicata in the suit filed under Article 131 of the Constitution.
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165. Shri Harish Salve, learned senior counsel for Kerala, placed
reliance upon the decision of this Court in N.D. Jayal69. In N.D. Jayal69
Dharmadhikari, J. made general observations on the dam safety aspect that
plea like res judicata on the earlier decisions passed by the Supreme Court
cannot be allowed to be raised. The observations made by Dharmadhikari, J.
in N.D. Jayal69 have to be read as an exception to the res judicata rule in the
matters where, by their very nature, the factual situation has drastically
changed in course of time. If substantial changes in the circumstances occur
and such circumstances are shown to the Court necessitating departure from
the earlier finding on the issue of safety, the Court can be approached and in
that event the Court itself may exercise its discretion to reopen the safety
aspect having regard to the drastic change in circumstances or in emergent
situation as to the safety of dam. In our view, a judicial decision, having
achieved finality, becomes the last word and can be reopened in the changed
circumstances by that Court alone and no one else.
166. On behalf of Kerala, it is contended that the jurisdiction of this
Court under Article 32 of the Constitution for enforcement of the fundamental
rights conferred by Part III of the Constitution is ousted or excluded in respect
of disputes between two or more States: since such disputes fall within the
ambit of the original jurisdiction of this Court under Article 131 of the
Constitution or jurisdiction of a tribunal constituted under the provisions of
69 N.D. Jayal and Anr. v. Union of India and Ors.; [(2004) 9 SCC 362]
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Inter-State River Water Disputes Act, 1956 read with the provisions of Article
262 of the Constitution. Thus, it was submitted that the 2006 judgment is not
binding and that the rule of res judicata can hardly be attracted in this
situation.
167. We are unable to accept the submission of the learned senior
counsel for Kerala. The label of jurisdiction exercised by this Court is not
material for applicability of principles of res judicata if the matter in issue in the
subsequent suit has already been concluded by the earlier decision of this
Court between the same parties. The 2006 judgment was the result of judicial
investigation, founded upon facts ascertained in the course of hearing. The
plea of lack of jurisdiction of this Court was taken in the earlier proceedings on
both the grounds, viz., (1) whether the jurisdiction of this Court is barred in
view of Article 262 read with Section 11 of the Inter-State River Water
Disputes Act, 1956, and (2) whether Article 363 of the Constitution bars the
jurisdiction of this Court. On both these questions the findings were recorded
against Kerala. It is too much for Kerala to say that the 2006 judgment is
without jurisdiction and not binding.
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168. The rule of res judicata is articulated in Section 1170 of the Code
of Civil Procedure.
169. Explanations VII and VIII were inserted in the above provision by
Code of Civil Procedure (Amendment) Act, 1976 w.e.f. 1.2.1977. Explanation
VIII in this regard is quite relevant. The principles of res judicata, thus, have
been made applicable to cases which are tried by Courts of limited
jurisdiction. The decisions of the Courts of limited jurisdiction, insofar as such
decisions are within the competence of the Courts of limited jurisdiction,
70 Section 11 – Res judicata
No Court shall try any suit or issue in which the matter directly and substantially in issue has been
directly and substantially in issue in a former suit between the same parties, or between parties under whom
they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or
the suit in which such issue has been subsequently raised, and has been heard and finally decided by such
Court.
Explanation I. – The expression “former suit” shall denote a suit which has been decided prior to the
suit in question whether or not it was instituted prior thereto.
Explanation II. – For the purposes of this section, the competence of a Court shall be determined
irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III. – The matter above referred to must in the former suit have been alleged by one party
and either denied or admitted, expressly or impliedly, by the other.
Explanation IV. – Any matter which might and ought to have been made ground of defence or attack
in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V. – Any relief claimed in the plaint, which is not expressly granted by the decree, shall,
for the purposes of this section, be deemed to have been refused.
Explanation VI. – Where persons litigate bona fide in respect of a public right or of a private right
claimed in common for themselves and others, all persons interested in such right shall, for the purposes of
this section, be deemed to claim under the persons so litigating.
Explanation VII. – The provisions of this section shall apply to a proceeding for the execution of a
decree and references in this section to any suit, issue or former suit shall be construed as references,
respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a
former proceeding for the execution of that decree.
Explanation VIII. – An issue heard and finally decided by a Court of limited jurisdiction, competent
to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of
limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been
subsequently raised.
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operate as res judicata in a subsequent suit, although, the Court of limited
jurisdiction that decided the previous suit may not be competent to try such
subsequent suit or the suit in which such question is subsequently raised. If a
decision of the Court of limited jurisdiction, which was within its competence,
operates as res judicata in a subsequent suit even when the subsequent suit is
not triable by it, a fortiori, the decision of the highest Court of the land in
whatever jurisdiction given on an issue which was directly raised, considered
and decided must operate as res judicata in the subsequent suit triable
exclusively by the highest Court under Article 131 of the Constitution. Any
other view in this regard will be inconsistent with the high public policy and
rule of law. The judgment of this Court directly upon the point, is as a plea, a
bar, or as evidence, conclusive between the same parties, upon the same
matter, directly in question before this Court, though, label of jurisdiction is
different.
170. The principles of res judicata are clearly attracted in the present
case. The claim of Kerala in the earlier proceeding that water level cannot be
raised from its present level of 136 ft. was expressly not accepted and the
obstruction by Kerala to the water level in the Mullaperiyar dam being raised
to 142 ft. on the ground of safety was found untenable. The judgment dated
27.2.2006 of this Court, thus, operates as res judicata in respect of the issue
of safety of the dam by increasing its water level from 136 ft. to 142 ft.
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171. It is argued by Mr. Harish Salve, learned senior counsel for
Kerala, that even agreements entered into between foreign sovereigns can be
overridden in exercise of legislative powers. He argues that if the contention of
Tamil Nadu that the 1886 Lease Agreement was an ordinary lease agreement
is correct and assuming that such an agreement was continued, it clearly was
open to the legislature of the State of Kerala to override such a contract.
According to him, even contracts by way of sanads, treaties, etc., by the
Crown could, after the Government of India Act and also after the Constitution
of India, be overridden by exercise of the legislative power.
172. Learned senior counsel for Kerala in support of this contention
relied upon the Privy Council decision in Thakur Jagannath Baksh19 and
Maharaj Umeg Singh20. Learned senior counsel also submits that Section 108
of the SR Act does not create any limitation upon Kerala exercising legislative
power, inter alia, to cancel 1886 Lease Agreement and if Section 108 of SR
Act is construed to impose a permanent fetter on the State’s legislative power,
such provision is unconstitutional.
173. It may be stated immediately that the constitutionality of the SR
Act has not been raised by Kerala in its written statement. As a matter of fact,
there is no issue framed by the Court in this regard. Rather, in the earlier
litigation the constitutionality of Section 108 of the SR Act was challenged. In
the 2006 judgment, one of the questions framed for consideration was,
whether Section 108 of the SR Act is unconstitutional. The Court held that law
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making power under Articles 3 and 4 of the Constitution was paramount and it
was neither subjected nor fettered by Article 246 and Lists II (State List) and III
(Concurrent List) of the Seventh Schedule. The Court also held that power of
Parliament to make law under Articles 3 and 4 is plenary and traverses over
all legislative subjects as are necessary for effecting a proper reorganization
of the States. Consequently, the Court found no merit in the challenge as to
the validity of Section 108 of the SR Act.
174. We are, therefore, not persuaded to consider constitutional
validity of Section 108(1) of the SR Act again. Moreover, it is not necessary to
consider this aspect in view of our finding that 2006 (Amendment) Act enacted
by Kerala legislature is unconstitutional.
175. Thakur Jagannath Baksh19 and Maharaj Umeg Singh20 have no
application to the situation obtaining in the present case. The effect of a
judgment which enforces a legal right flowing from a contract is that the right is
incorporated as a right under the judgment and such a right cannot be
overridden by legislature as it tantamounts to overriding a judgment.
176. Learned senior counsel for Kerala also relied upon a decision of
this Court in State of Orissa71. In State of Orissa71, while dealing with Article
131, this Court stated, “Article 131 has no doubt given the Supreme Court
exclusive jurisdiction to resolve any dispute between, inter alia, two or more
States. This exclusive jurisdiction is, however, subject to two limitations — one
71 State of Orissa Vs. State of A.P.; [(2006) 9 SCC 591]
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contained in the opening words of the Article, namely, “subject to the
provisions of this Constitution” and the other which is contained in the proviso
to the Article.”
177. There is no doubt that the jurisdiction to resolve any dispute
between two or more States is conferred upon the Supreme Court by Article
131 of the Constitution. However, it does not follow logically from this that a
judgment rendered by the Supreme Court in a writ jurisdiction under Article 32
amongst others between two States is not conclusive and binding on such
States. As already noted above, the 2006 judgment rendered by this Court in
exercise of its jurisdiction under Article 32 binds Kerala and Tamil Nadu. We
have no hesitation and we state with all emphasis that a finding recorded by
this Court in exercise of jurisdiction under Article 32 is binding between the
two parties, in a subsequent suit between the two States under Article 131.
Safety of Mullaperiyar dam – Evidence and EC Report
178. Learned senior counsel for Kerala while assailing the finding of
fact on safety of Mullaperiyar dam recorded in 2006 judgment, and in support
of his contention that it does not constitute res judicata as the circumstances
have changed, has relied upon the evidence of its witness Dr. A.K. Gosain
(DW-3) on the impact of Probable Maximum Flood (PMF), evidence of Dr.
D.K. Paul on the impact of seismic forces and certain admissions of Tamil
Nadu’s witness PW-1. Mr. Harish Salve argues that the doctrine of finality
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does not preclude this Court from correcting the errors. Learned senior
counsel in this regard places reliance upon three decisions of this Court in
A.R. Antulay72, Isabella Johnson73, and Rupa Ashok Hurra74.
179. Being the highest court of the land, this court possesses powers
to correct a judgment in a curative petition if the parameters laid down in Rupa
Ashok Hurra74 are satisfied. The present case does not fall within the
parameters laid down in Rupa Ashok Hurra74. Though there is no justification
to reopen the dam safety aspect in view of the judgment of this Court passed
on 27.2.2006, yet for our satisfaction as to whether there is any danger to the
Mullaperiyar dam, despite strengthening of dam carried out by Tamil Nadu in
accordance with the strengthening measures suggested by CWC, we briefly
intend to look into this aspect.
180. Learned senior counsel for Kerala submits that danger posed to
the safety of the Mullaperiyar dam arises from, (i) the impact of Probable
Maximum Flood (PMF), i.e., floods which impact the dam; (ii) the impact of
Maximum Considered Earthquake (MCE), i.e., if earthquake happens, the
impact of such event on the dam; and (iii) the impact on structural
degeneration, i.e., with the age, the dam structure has been rendered unsafe.
Kerala’s emphasis is that in the 2006 judgment this Court wrongly endorsed
the PMF of 2.12 lakh cusecs estimated by the CWC in 1986. Kerala asserts
72 R.S. Nayak v. A.R. Antulay; [(1984) 2 SCC 183]
73 Isabella Johnson (Smt.) v. M.A. Susai (Dead) by Lrs.; [(1991) 1 SCC 494]
74 Rupa Ashok Hurra v. Ashok Hurra and Anr.; [(2002) 4 SCC 388]
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that the observed flood at Mullaperiyar dam in 1943 was 2.98 lakh cusecs and
according to Tamil Nadu’s own witness (PW-1), the PMF ought to be more
than observed flood. Hence, estimation of PMF as 2.12 lakh cusecs by the
CWC in 1986 is an underestimation.
181. As regards impact of MCE, Kerala has heavily relied upon the
study conducted by Dr. D.K. Paul and Dr. M.L. Sharma, Professors of IIT,
Roorkee. Kerala says that these two experts have categorically concluded
that, “………..both the Main Mullaperiyar dam and Baby Dam are likely to
undergo damage which may lead to failure under static plus earthquake
condition and therefore needs serious attention….”.
182. Kerala submits that the dam suffered heavy lime loss between
1930 and 1960 forcing Tamil Nadu to grout admittedly 542 MT of cement in
this period.
183. On the aspect of impact of structural degeneration, Kerala’s
submission is that Mullaperiyar dam is a composite gravity dam constructed of
lime surkhi mortar and lime surkhi concrete; that inner core of the dam, which
constitutes 62% of the total volume, admittedly consists of lime surkhi
concrete; and that Mullaperiyar dam has suffered heavy leaching of lime and
has lost as much as 30.48 MT per year as found by the Expert Committee of
Tamil Nadu, which has been admitted by PW-1. Kerala has highlighted that
the density of the materials used in the dam has gradually gone down from
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150 lbs/cft considered in 1895 to 135 lbs/cft in 1986 and that such gradual
reduction testifies structural degradation of the Mullaperiyar dam.
184. As noted earlier, when the matter was initially taken up by the
Constitution Bench it was felt that all the aspects of the matter including safety
of Mullaperiyar dam need to be examined by an Empowered Committee (EC),
which may help the Court in deciding the matter effectively. Accordingly, on
18.2.2010 the Constitution Bench directed the Central Government to
constitute an EC under the Chairmanship of Dr. A.S. Anand, former Chief
Justice of India, and comprising of two members nominated by the States of
Kerala and Tamil Nadu and two renowned technical experts. Kerala
nominated Justice K.T. Thomas, a former Judge of this Court, and Tamil Nadu
nominated Justice (Dr.) A.R. Lakshmanan, a former Judge of this Court, to the
EC. Two renowned technical experts, Dr. C.D. Thatte and Shri D.K. Mehta
were nominated in consultation with the Chairman of the EC. As per the terms
of reference, the EC was free to receive further evidence as it considered
appropriate. The two experts, Dr. C.D. Thatte and Shri D.K. Mehta have long
experience in all facets of water sector. EC got investigations, tests and
technical studies carried out through the three apex organizations, besides
other specialized organizations of the Government of India and, especially,
expert agencies with a view to appreciate the diverse stand of the two States.
In all, 12 investigations and technical studies, besides some site studies, were
directed to be carried out to assist the EC to appreciate the stand of the two
States and for submission of its report to this Court. The EC also visited
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Mullaperiyar dam (main dam), Baby dam and earthen bund from the Periyar
lakeside as well as from the downstream side. Before EC, the representative
of both States explained theories of the existing dam. The two technical
members made a visit to drainage galleries and spillway for better appraisal of
the dam site. The two experts again visited the dam site for site appraisal and
submitted their report.
185. The reports and investigations, tests and studies (ITS reports) are
contained in 50 CDs and 4 DVDs. The report of EC consists of 8 Chapters.
Chapter I has the title “Dams – An Overview”. Chapter II deals with three
aspects, viz., (a) Use of Periyar waters; (b) Evolution of Periyar Project; and
(c) Mullaperiyar dam Dispute in the Supreme Court. Chapter III refers to the
issues settled by the EC. Chapter IV contains – (i) Report of visit of the EC to
Mullaperiyar dam site/areas during 19-22.12.2010; (ii) Resolutions of the EC
dated 21.12.2010, 7.1.2011 and 5.12.2011; and (iii) Report of visit by two
technical members (Dr. C.D. Thatte and Shri D.K. Mehta) during 22-
26.12.2011. Chapter V records responses in brief of the parties to the issues
framed by EC. Chapter VI is appraisal and analysis of the reports of technical
investigations, tests and studies. Chapter VII records conclusions. Chapter VIII
deals with general observation with the title, “Way Forward-Towards An
Amicable Resolution”. Two notes, one from Justice K.T. Thomas, member of
the EC, and the other from Justice (Dr.) A.R. Lakshmanan, member of the EC,
on Chapter VIII of the report of the EC are also appended to the report.
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186. In Chapter III, the EC has recorded the issues for consideration.
One of the issues, viz., Issue No.4 for consideration reads, “Should the
reservoir level be raised from 136 ft.? If yes, what further measures for
strengthening the existing dam, do the two parties envisage, to allow the
raising of reservoir level from 136 ft. to 142 ft. and beyond?”
187. In Chapter V, the EC has noted responses by Tamil Nadu and
Kerala to the issues framed by it.
188. Chapter VI, in which appraisal and analysis of ITS reports have
been made, shows that following tests and studies were formulated so as to
effectively deal with the concerns and grievances of the two States:
“A. HYDROLOGIC SAFETY
Title Purpose of ITS
1. Verification of the Probable
Maximum Flood (PMF)
computations with flood
routing for revisiting
spillway capacity.
To determine:
(i) Probable Maximum
Flood (PMF)
(ii) Outflow PMF
hydrograph and its
moderation from Mulla
Periyar Dam upto tip of
Idukki reservoir.
(iii) Outflow PMF
hydrograph of Idukki
reservoir.
(iv) Maximum Water Level
(MWL) for various
scenarios of operative /
inoperative gates for
different FRLs.
(v) Free board
2. Integrated Dam Break
Flood study from Mulla
Periyar Dam to Idduki Dam
and beyond to enable
To assess Dam Break Flood
that may be caused by
different modes of
failure/cascade effect in case
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preparation of an
Emergency Action Plan.
Preparation of a sample of
likely inundation map.
of occurrence of MPD break.
To identify the plausible worst
case of Dam Break Flood
going down Periyar river from
MPD to Idukki reservoir tip (in
1st phase) and beyond (in
other 2 phases). To
determine maximum
inundation on both banks for
preparation of Emergency
Action Plan under Disaster
Management Plan.
3. Back-water studies
upstream of tip of Mulla
Periyar Reservoir into main
stem and tributaries.
4. Contour map of reservoir
area from present water
level to 165 ft (50.29 m)
elevation.
To determine afflux (swelling)
above the MWL in the
upstream from tip of the
reservoir caused due to inflow
congestion.
5. Computerized Reservoir
Sedimentation Survey for
assessment of present
elevation-area-capacity
relations. Assessment in
higher elevations by
Remote Sensing.
To determine loss of storage
due to sedimentation and its
effect (if any) on Probable
Maximum Flood attenuation.
Note: Side items of ITS pertain to i) Dams built with spillway design
flood less than PMF, ii) Availability of water for Tamil Nadu, and iii)
Requirement for environmental flow.
B. STRUCTURAL SAFETY
6. Mapping of upstream face
of dam above water level
by means of photography
To scan upstream face of Dam
for discontinuities, cracks,
hollows, voids & joints etc.
above water level by grid
based photography.
7. Underwater scanning of
upstream face of the dam
by means of a Remotely
Operated Vehicle to assess
its condition.
To scan upstream face of Dam
for discontinuities, cracks,
hollows, voids & joints etc.
under water by means of a
Remote Operated Vehicle.
8. Studies of seepage and its
free lime content.
(i) To compile measured
values of seepage from
dam body and
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foundation.
(ii) To determine proportion
of seepage through dam
body/foundation by flow
net studies.
(iii) To determine leached
free lime content in
seepage.
9. Determination of in-situ/exsitu
strength & integrity of
the dam body materials and
foundation for using in
safety/stability status
assessment.
To carry out core drilling in
Dam body/ foundation to
enable following physical and
chemical, in-situ and ex-situ
(in laboratories) tests.
In-situ Tests:
(i) Sonic test
(ii) Gamma – Gamma /
Neutron-Neutron
(iii) Dye Tracer
(iv) Electrical Resistivity &
Geophysical
Tomographic Study
Ex-situ Tests:
(i) Compressive strength
(ii) Tensile Strength
(iii) Modulus of Elasticity
(Static as well as
dynamic)
(iv) Poisson’s ratio
(v) Density
(vi) Free Lime
(vii) Chemical analysis of
materials
10.Measurement of loss of
stress in the sample prestressed
cable
To determine loss of prestress
and hence residual prestress
in the cable anchors
installed in 1981, as part of
strengthening measures.
Note: Side items of ITS pertain to i) Thermal properties of backing
concrete and effect on interface, ii) Instrumentation, and iii) Stability of
Main and Baby Dam.
C. SEISMIC SAFETY
11.Finite Element Method (FEM) To determine tensile stress
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analysis employing
(response spectra) / (time
histories) to asses stability
of dam under design
basis/maximum credible
earthquake forces.
caused due to Earthquake
forces based on:
(i) 2D FEM Studies based
on Response Spectra
method (in two parts)
submitted by SoK.
(ii) 3D FEM studies (two
times) submitted by
SoTN.
(iii) 2D FEM studies (in two
parts) based on Time-
History analysis.
12.Identify evidence of
geological fault in the
surroundings of the Baby
Dam.
To make a traverse and identify
evidence if any, of the
suspected geological fault in
the Baby dam foundation.
Note: Side items of ITS pertain to i) Study of 3D FEM Analysis by Prof.
R.N. Iyengar of Indian Institute of Sciences, Bangalore, ii) Seismic
Design Parameters of Mulla Periyar Dam, and iii) Impact of recent
earthquake events.”
189. The above reports have then been carefully analysed and on the
basis of the appraisal of the ITS reports, EC held that Probable Maximum
Precipitation (PMP) considered earlier was correct and the determination of
observed maximum flood in 1943 was not reliable. EC’s assessment is that
peak of PMF reaching the Mullaperiyar dam reservoir / periphery / upstream
tip remains at 2.12 lakh cusecs (6003 cumecs).
190. EC has been of the view that spillway designed capacity of
Mullaperiyar dam for flood lower than PMF is acceptable. The EC carefully
analysed the two studies, viz., (i) study above water level by photography, and
(ii) study below water level by means of a Remote Operated Vehicle, upto a
safely reachable level, and on appraisal from both scans/studies read together
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did not apprehend cause for concern about manifestation of any distress for
the dam.
191. EC has also carefully considered the concerns expressed by
Kerala with regard to (a) seepage measurement and assessment of loss of
free lime; (b) loss of strength of dam body constituents due to lime loss; and
(c) vulnerability due to free lime loss. According to EC appraisal, the total lime
leaching in 116 years of dam’s existence was about 3.66%, which is less than
the upper permissible limit of 15-20%. EC held that as lime loss as assessed
was far within permissible limits, there is no cause for concern about loss of
strength of Mullaperiyar dam.
192. The physical properties of dam body material has also been
reviewed and assessed by applying in situ non destructive tests, viz., (a) sonic
test from dam’s upstream face; (b) neutron-logging and tracer study; (c)
geophysical tomographic study; and (d) scanning of internal surface of bore
hole walls using digital video recording system. EC also requested Tamil
Nadu to obtain and test core samples from dam body / foundation rock,
besides carrying out in situ tests in 9 holes on Mullaperiyar dam, of 150 mm
size and more, which were got done by Tamil Nadu. These test reports were
also considered. The chemical tests on constructed material used in the dam
body and reservoir water were also conducted. The test results indicate
innocuous nature of all these materials.
193. All time seepage data of Mullaperiyar dam has been appraised
and analysed by EC, which indicates that it is within permissible limits. Testing
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of one ungrouted cable anchor for residual pre-stress was got done. Analysis
has also been done of thermal properties of backing concrete and effect on
interface. The detailed appraisal and analysis of ITS reports for seismic
design parameters on Mullaperiyar dam show the recent earthquake events to
be transient and inconsequential.
194. One of the apprehensions highlighted by Kerala is that a dam
break flood would cause large scale devastation. This aspect has been
considered by the EC under the head “Dam Break Flood and possible
cascading effect”. EC in this regard has observed that Kerala has not supplied
to it inundation maps even for normal flood with return periods such as 50, 100
years in downstream area for phase-I and between Idukki and lower Periyar
dam or further downstream for later phases. Such inundation maps have to be
prepared for Emergency Action Plan. Kerala also has not submitted any
assessment as prescribed in CWC ‘Guidelines for Development and
Implementation of Emergency Action Plan for Dams, May, 2006’. EC,
accordingly, depended on maps developed by using Archived Satellite
Imagery and Survey of India toposheets, through ‘Mapsets’, and accomplished
illustrative contouring of area between Mullaperiyar dam and Idukki complex.
EC has observed that all the projections / concerns by Kerala were not based
on computations / studies. Despite the request made to Kerala to supply
contour map, Kerala did not do so. EC has further observed that Kerala’s
projection is conjectural since there is deficiency in assessing the likely
inundated area. EC, therefore, did not accept the scare of dam break flood.
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195. Having done elaborate and detailed appraisal and analysis of the
voluminous tests and reports of experts and having regard to the concerns
expressed by Kerala about the safety of the Mullaperiyar dam, EC has
summarized its conclusions on the three aspects, viz., (a) hydrologic safety;
(b) structural safety; and (c) seismic safety as follows:
“A) Hydrologic Safety
23. The MPD is found hydrologically safe. The Probable
Maximum Flood (PMF), with a peak flow of 2.12 lakh cusecs (6003
cumecs) is accepted by EC. It can be routed over the reservoir FRL
142 ft (43.28 m) to safely pass over the MPD spillway with 13 gates
operative, resulting into a peak out flow of 1,43,143 cusecs (4053
cumecs), raising the Maximum Water Level (MWL) to elevation 153.47
ft (46.78 m) transiently. Even for the Test Case of one gate remaining
inoperative, the MWL raises to elevation 154.10 ft (46.97 m) when
PMF impinges the reservoir at FRL 142 ft (42.28 m).
B) Structural Safety
24. Both the main and Baby Dam (gravity and earth), are structurally
safe. FRL can be restored to the pre-1979 position. Following
maintenance and repair measures, should however be carried out in a
time-bound manner: i) treatment of upstream surface, ii) reaming of
drainage holes, iii) instrumentation, iv) periodical monitoring, analysis
and leading away the seepage from toe of the dam towards
downstream, v) geodetic re-affirmation, etc., vi) the dam body should
be grouted with a properly designed grout mix of fine cement / suitable
chemical / epoxy / polymer according to expert advice so that its safety
continues to remain present.
C) Seismic Safety
25. MPD is found to be seismically safe for FRL 152 ft (46.33 m) /
MWL 155 ft (47.24 m) for the identified seismic design parameters
with acceleration time histories under 2-D FEM Analysis. The strength
and other properties of dam material presently available, indicate
ample reserve against the likely stresses / impacts assessed under
this analysis. In addition, reserve strength of cable anchors makes the
dam further safe. The suspicion about existence of a geological fault
in the Baby Dam foundation is ruled out. The recent earthquake
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activity in the dam area is considered of no consequence to the
seismic safety. Also, it has caused no distress to MPD / Idukki dams.”
196. Kerala has vehemently challenged the EC report and its
conclusions. Mr. Harish Salve, learned senior counsel for Kerala, argues that
the ITS reports contained in 50 CDs and 4 DVDs are not admissible and
should not be considered as part of material on record before this Court. He
submits that EC suo motu decided to conduct investigations, tests and studies
on various aspects related to the case through the apex organizations, the
Coordination Committee was formed, headed by Dr. C.D. Thatte, member of
the EC, and consisting of representatives of Kerala and Tamil Nadu and
though the representatives of States were made part of the Coordination
Committee, but their role was limited to more of being an observer and
unilateral decisions regarding the studies, etc., were taken by Dr. C.D. Thatte,
which were prejudicial to the interest of Kerala. Kerala’s grievance is that the
EC on 5.12.2011 declined to disclose and supply the copies of results and ITS
reports without dealing with the question of prejudice. Subsequently, EC
submitted its report before this Court and the Court directed the Registry on
4.5.2012 to supply copy of the report of the EC to party States and,
accordingly, the Registry of this Court made available a photocopy of the
report. The report supplied by the Registry to Kerala did not include the
results and reports of the ITS listed in Annexure 6.1 of the report but later on
pursuant to the order of this Court dated 31.8.2012, all 50 CDs and 4 DVDs
were supplied to the counsel for Kerala. It is submitted on behalf of Kerala that
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the fair procedure and rules of natural justice demanded that the EC should
have disclosed the results and reports of ITS relied upon by it and given an
opportunity to Kerala on the acceptability of the ITS reports. It is strenuously
urged by learned senior counsel for Kerala that the ITS reports are the
opinions of experts and, therefore, the EC could not have relied upon such
results and reports without giving an opportunity to it to meet the adverse
contents and Kerala has the right to cross-examine the authors and also to
lead evidence of experts, if any, challenging the adverse results and reports of
the ITS. In this regard, Kerala referred to the application made before EC on
21.11.2011. Kerala also relied upon the decision of Queens Bench in
Regina75.
197. We are not persuaded by the submissions of Mr. Harish Salve. It
is true that 50 CDs and 4 DVDs containing ITS reports were supplied to Kerala
pursuant to the order of this Court dated 31.8.2012 after the report had been
submitted by the EC but the fact of the matter is that the EC decided to
conduct the investigations, tests and studies on various aspects relating to the
safety of the Mullaperiyar dam through the apex organizations pursuant to the
task given to it by this Court. The EC in its proceedings dated 17.2.2011
formed a Coordination Committee which comprised the representatives of
both the States. It is very difficult to accept that the role of the representatives
of the States in the Coordination Committee was limited to that of being an
observer. The ITS reports have been given by the organizations and bodies
75 Regina v. Deputy Industrial Injuries Commissioner, Ex parte Jones; [(1962) 2 QB 677].
Page 143
which are expert on the job. We have no hesitation in holding that the
investigations, tests and technical studies were directed to be carried out by
the EC in association with representatives of both the States.
198. Moreover, this Court appointed EC to assure itself about the
safety of the Mullaperiyar dam. The EC, we must say, has completed its task
admirably by thoroughly going into each and every aspect of the safety of
Mullaperiyar dam. We do not find any merit in the objections of Kerala
challenging the findings and conclusions of the EC on hydrologic safety,
structural safety and seismic safety of the dam. The findings of EC with
elaborate analysis of reports of investigations, tests and studies lead to one
and only one conclusion that there is no change in the circumstances
necessitating departure from the earlier finding on the safety of Mullaperiyar
dam given by this Court in 2006 judgment. As a matter of fact, there is no
change in circumstances at all much less any drastic change in circumstances
or emergent situation justifying the reopening of safety aspect of Mullaperiyar
dam which has been determined by this Court in the earlier judgment.
Findings on Issue Nos. 2(a), 3, 4(a), 4(b) and 10
199. In light of the above discussion, our findings on Issue Nos. 2(a), 3,
4(a), 4(b) and 10 are as follows:
(i.) Kerala Irrigation and Water Conservation (Amendment) Act, 2006 is
unconstitutional and ultra vires in its application to and effect on the
Mullaperiyar dam.
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(ii.) The rights of Tamil Nadu, crystallized in the judgment dated 27.2.2006
passed by this Court in W.P. (C) No.386/2001 cannot be nullified by a
legislation made by the Kerala State legislature.
(iii.) The earlier judgment of this Court given on 27.2.2006 operates as res
judicata on the issue of the safety of Mullaperiyar dam for raising water
level to 142 ft. and ultimately to 152 ft. after completion of further
strengthening measures on the Mullaperiyar dam.
(iv.) The plea raised by Kerala relating to the lease deed dated 29.10.1886
and structural safety of Mullaperiyar dam have been finally decided by
the judgment of this Court dated 27.2.2006 and Kerala is estopped from
raising or re-agitating these issues in the present suit.
(v.) Kerala cannot obstruct Tamil Nadu from increasing the water level of
Mullaperiyar dam to 142 ft. and from carrying out repair works as per
judgment dated 27.2.2006.
Issue No. 8.
200. This issue covers the controversy as to whether Kerala is
estopped from contending that Periyar river is not an inter-State river.
201. Tamil Nadu in the plaint has averred as follows:
“The plaintiff, defendant no.1, State of Kerala are the two riparian
States through which the Inter-State river Periyar flows. The river
is one of the west flowing rivers in the State of Kerala, with a
portion of its catchment lying with the State of Tamil
Nadu………….”
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202. Traversing the above pleading of the Tamil Nadu, Kerala has set
up the case that river Periyar is not an inter-State river but it is intra-State
river; that it rises in Quilon District in Kerala and traverses only through the
territory of Kerala before falling into the Arabian sea.
203. In its replication, Tamil Nadu has averred that, in any event, in the
earlier proceedings, Kerala had raised the plea of lack of jurisdiction of this
Court to entertain the river water disputes with reference to Article 262 of the
Constitution read with Section 11 of the Inter-State River Water Disputes Act,
1956. This plea was raised on the ground that river Periyar is an inter-State
river. Tamil Nadu, thus, has set up the plea that Kerala is estopped from
raising a plea that river Periyar is not an inter-State river.
204. Mr. Harish Salve, learned senior counsel for Kerala, argues that
river Periyar rises in Kerala and flows for a length of 244 km. in Kerala before
entering in the sea at Kerala coast. River Periyar does not touch any part of
Tamil Nadu. He submits that in the earlier proceedings, Kerala had not
admitted that river Periyar was an inter-State river. Learned senior counsel
contends that river Periyar is an intra-State river and Kerala’s averments in the
earlier proceedings does not estop it from raising the plea that river Periyar is
not an inter-State river.
205. In 2006 judgment, one of the points considered and decided by
this court is whether the jurisdiction of this court is barred in view of Article 262
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of the Constitution read with Section 11 of the Inter-State River Water
Disputes Act, 1956. This point would not have been raised by Kerala but for
the fact that river Periyar happened to be an inter-State river. While deciding
this point, obviously, the court proceeded on the footing that river Periyar is an
inter-State river. This court decided this point against Kerala. It appears that in
the review petition, for the first time, Kerala took the specific plea that Periyar
is an intra-State river but covered by an inter-State agreement. The review
petition has been rejected by this Court on 27.7.2006.
206. It is true that in the earlier proceedings there is no express and
categorical admission of Kerala that river Periyar is an inter-State river, but the
very plea of lack of jurisdiction of this court for considering the applicability of
Article 262, as noted above, would not have been raised by Kerala if river
Periyar was an intra-State river. Moreover, the entire area drained by the river
and its tributaries is called the river basin. It is well-understood in the water
laws that the basin of any river includes the river valley. The topographical
map of Periyar river-basin shows that part of Periyar basin (about 114 sq. km.)
is in Tamil Nadu. This is established from Water Atlas of Kerala published by
Centre for Water Resources Development and Management, Kazhikode,
Kerala. Though the Periyar basin area that falls in Tamil Nadu is very small
but, in our view, that does not make any difference insofar as the status of
Periyar river as inter-State river is concerned. The fact of the matter is that 114
sq. km. of Periyar basin area falls in Tamil Nadu. This is also fortified by the
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advance report of Public Works Department, Government of Kerala, which,
inter alia, states, “the rivers which have their drainage area lying in more than
one State have been brought under the category of Inter-State rivers and a
consolidated study has been admitted in this chapter……………” “Of the west
flowing rivers, those which have a portion of their catchment area lying in
Madras State are …………..(iv) Periyar.”
207. Kerala’s witness M.K. Parameswaran Nair has admitted that in
Chapter LXIII under the heading “Interstate waters” from “Water Resources of
Kerala” published by Public Works Department, Government of Kerala in
1958, Periyar has been mentioned as an inter-State river. This witness also
admits that Water Atlas of Kerala wherein details of Periyar basin are given
shows that part of the basin falls in the neighbouring State of Tamil Nadu.
208. Since Kerala has raised the plea that river Periyar is an intra-
State river, obviously, burden is on Kerala to prove this fact. Kerala, except
asserting that Periyar river rises in and traverses only in the territory of Kerala
before entering into Arabian sea and no part of the land in Tamil Nadu abuts
river Periyar, has not produced substantial evidence to prove that river Periyar
is an intra-State river. Kerala has not discharged its burden to the satisfaction
of the Court.
209. It is true that averment of Tamil Nadu in the plaint that the two
States – Kerala and Tamil Nadu – are riparian States is not right in its entirety
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because Tamil Nadu is not a riparian State but the status of Periyar river as
inter-State river, on the basis of what we have observed above, cannot be
overlooked. It is not open to Kerala to take a totally inconsistent plea and
begin fresh controversy about the status of Periyar river on the ground that the
earlier plea was founded on some erroneous premise. In our view, Kerala
cannot be permitted to contend that Periyar river is not an inter-State river.
Finding on Issue No.8
210. In light of the above discussion, it is held that Kerala cannot be
permitted to contend that river Periyar is an intra-State river. Issue No.8 is
answered accordingly.
Issue No.9
211. This issue is founded on the offer made by Kerala to Tamil Nadu
to construct a new dam across river Periyar in the downstream region of
Mullaperiyar dam. EC in Chapter VIII under the title “Way Forward – Towards
An Amicable Resolution” has dealt with this aspect as a first alternative and
suggested as follows:
“1. That the SoK may construct a new dam, at its own expense to
serve its own perceptions, if techno-economically cleared by the
Planning Commission, and cleared by MoEF in accordance of their
regulations. The construction of a new dam, giving due margin for
inflation etc, may cost the exchequer more than Rupees one thousand
crores. The statutory clearances, fixing of a construction agency,
preliminary works, the actual construction and decommissioning with
demolition of existing dam is likely to take 8 to 10 years. The existing
dam shall not be dismantled, demolished or decommissioned till the
new dam construction is completed and it becomes operational. Till
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such time, the rights of the SoTN in the existing Dam to all waters of
Mulla Periyar Dam arising out of the Lease Deed of 1886 and the
Agreements of 1970, shall be fully honoured.
2. However, the operation of the New Dam would commence only
after:
2(a) A fresh MOU is executed between the SoK and the SoTN.
2(b) That to control, manage, operate, maintain and regulate the
waters of the New Dam, an Independent Committee / Board, to
be chaired by a representative of the Union of India, with
representatives of the SoK and the SoTN as its Members, is put
in place;
2(c) That the terms of rent/levies etc payable by the SoTN to the
SoK are settled and the power generation rights of the two
States are settled beforehand;
2(d) That before construction of the new dam and till its
commissioning, the existing dam will be strengthened by the
measures suggested by the CWC, including Dam Safety
requirements as already voiced, which still remain to be carried
out.
2(e) That the SoTN will be entitled to all its existing rights including
all water levels under the Lease Deed of 1886 and
Agreement of 1970.
2(f) That decommissioning or demolition of the existing dam would
be subject to the conditions 2(a) to 2(e) being met by the two
Party States.
2(g) The Empowered Committee had made the suggestion to the
two States during the hearing on 2nd January, 2012. Learned
counsel for the parties had sought time to consult the States
and file their responses. Counsel for the parties later on gave
their responses in general terms, but there has been no direct
response or opposition to the alternatives suggested.”
212. Any amicable resolution of the present dispute between the two
States would have been really good for the people of these States but this has
not been possible as the two States have sharp conflict over the subject
matter and their stance is rigid, inflexible and hard. The offer made by Kerala
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for construction of new dam has been outrightly rejected by Tamil Nadu. It is
important to bear in mind that Mullaperiyar dam has been consistently found to
be safe, first, by the Expert Committee, and, then, by this Court in 2006
judgment. The hydrological, structural and seismic safety of the Mullaperiyar
dam has been confirmed by the EC as well.
Finding on Issue No.9
213. In this view of the matter for the construction of new dam, there
has to be agreement of both the parties. The offer made by Kerala cannot be
thrusted upon Tamil Nadu. Issue No.9, therefore, has to be decided against
Kerala and it is so held.
214. EC has also suggested the following second alternative:
“2. The Dam Safety Organization Central Water Commission, the
Government of India (Ministry of Water Resources), has laid down the
Criteria and Guidelines for Evacuating Storage Reservoirs, Sizing Low
Level Outlets and Initial Filling of Reservoirs.
i) According to the criteria, generally speaking, Dams should be
provided with low level outlets of adequate capacity to lower the
reservoir water level to a specified elevation for inspection,
maintenance and repair, and ii) to control the rate of reservoir
pool rise during initial filling.
ii) The Guidelines recommend that an outlet should be provided at
the lowest possible level and should be of sufficient dimensions
to cater to evacuation of storage with requisite flow capacity.
The decision about level at which the outlet has to be provided
is left to the concerned dam owning entity. The level will
depend upon assessment of the dam’s condition, a judgment on
location at which distress may be caused, its nature and the
time of evacuation needed for enabling completion of
restoration measures.
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3. In the existing MPD project, as noted in Chapter-ll(b) (supra), a
tunnel had been designed with a D-Section 12 feet wide and 7.5 ft
high with provision of the sluice head gate having sill at El 106.5 ft for
diversion of water from Periyar reservoir to Vaigai basin in the SoTN.
This tunnel was modernized by widening and lining in the year 1958.
The tunnel can allow reservoir draw-down to 106.5 ft as per criteria
laid down in (i). Storage lower than El 106.5 ft to an identified
elevation based on assessment of likely distress cannot be drawndown
through the present arrangement of drawl of water for the SoTN
through the existing tunnel.
4. Further, digging of a New Tunnel at say at EL 50 ft., of course, after
conducting surveys, designs, and techno-economic feasibility studies,
with requisite sluice gates for evacuation of reservoir water from EL
106.5 ft to say 50 ft. These studies will have to be undertaken within a
specified time frame. It goes without saying that the water flow from
the New Tunnel can be used for power generation or for any other
purpose by making changes in its existing infrastructure. Depending
upon a decision about the elevation of the New Tunnel outlet,
evacuation of the MPD reservoir will be possible in corresponding time
period.
a) The new tunnel, will need to be constructed by the SoTN, since
the ownership of the existing dam vests in it. The total
expenditure for construction of the new tunnel should be borne
by the SoTN. The costs may be small as compared to the cost
of the replacement of the new dam. The SoTN should
accomplish surveys and feasibility studies for the proposal of
having a new tunnel within a year.
b) The New Tunnel say at EI 50 ft will enable the SoTN to use
additional water available in storage between EL 106 ft to 50 ft.
At present, these waters are remaining unused.
c) More importantly, if this alternative is implemented in an agreed
period of time, the fear perception in the minds of people of the
SoK will be set at rest. They can then appreciate that the New
Tunnel is going to help evacuation of storage faster and better,
in case the dam develops any distress. As a gravity dam
seldom gives in suddenly, such evacuation will reduce Dam
Break flood (DBF) magnitude significantly.
d) Though, the demand of the SoK for 1.1 TMC of water for
Environmental Flow is not substantiated, yet, a legitimate need
which is yet to be assessed, can be met with after the FRL is
raised to 142 ft. A small pipe outlet of a suitable diameter
through right bank hillock can be dug to release the
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Environmental Flow as firmed up by the SoTN in consultation
with CWC & the SoK.
5. That a MoU would have to be executed by the SoTN and the
SoK, in the presence of a representative of the Govt. of India, Ministry
of Water Resources, regarding the construction of the new tunnel
within a specified time.”
215. EC has itself noted that the second alternative is dependent on
agreement between the two States but to us there appears to be no possibility
of mutual agreement on this aspect as well. The alternatives suggested by EC
are worth exploring by the two States but having regard to the unbending
stance adopted by them, this does not seem to be possible. We, however,
grant liberty to the parties to apply to the Court if they are able to arrive at
some amicable solution on either of the two alternatives suggested by the EC.
Issue Nos. 2(b) and 11
216. With reference to these issues, it is strenuously urged by Kerala
that Tamil Nadu has not suffered any injury because of the reduction of the
storage at Mullaperiyar dam to 136 ft. since 1979. According to Kerala, more
water was drawn and more area was irrigated after 1979. Kerala has in this
regard relied upon the data supplied by Tamil Nadu Public Works Department
and the analysis thereof. It is submitted that average water drawn during the
pre-1979 period was 19,277 Mcft. while in the post-1979 period the water
drawn was 21,434 Mcf. As regards extent of irrigation, Kerala submits that the
extent of irrigation in Tamil Nadu from Mullaperiyar, water has admittedly
increased from about 1,71,307 acres before 1979 to 2,31,412 acres. Kerala
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has also relied upon the answers of PW-1 to question Nos. 585 to 601 and 58
to 59. Kerala has also relied upon the decision of this Court in State of Andhra
Pradesh3 wherein this Court observed, “…….that in a suit for injunction filed by
one State against the other State, the burden on the complaining State is
much greater than that generally required to be borne by one seeking an
injunction in a suit between private parties. The complaining State has to
establish that threatened invasion of rights is substantial and of a serious
magnitude. In the matter between States, injunction would not follow because
there is infraction of some rights of the complaining State but a case of high
equity must be made out that moves the conscience of the Court in granting
injunction…….”
217. Tamil Nadu on the other hand asserts that raising the water level
in the dam to original FRL is absolutely necessary to irrigate the lands in about
2 lakh acres in five drought-prone districts of Theni, Dindigul, Madurai,
Sivagangai and Ramanathanpuram. About 6.8 lakh farmers and agricultural
labourers besides 80 lakh people of the above five districts continue to suffer
due to inadequate timely supply of water for irrigation and drinking purposes.
218. Pertinently, EC has also considered this aspect and observed as
follows:
“EC has assessed that increase in irrigation in Vaigai Basin is
mainly due to i) construction of Vaigai Dam in 1954 and related
canal distribution system post 1974, which worked as a balancing
reservoir for release from power station in non-irrigation months
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from 1954 onwards, and ii) World Bank assisted Modernization of
Periyar Vaigai Irrigation Project, phase-I & II, implemented in
1980’s, which enabled improved Water Use Efficiency.
Although firming up of irrigation is achieved by the SoTN, there is
still large drought-prone area in Vaigai Basin and adjoining area,
which needs protective irrigation. Also domestic / municipal /
industrial needs of the area are significant. These present
requirements remain unmet, if FRL is not restored even partially.
EC is unable to accept the submission of the SoK that no harm
will be done under these circumstances to the SoTN if FRL is not
restored.”
219. Insofar as drawal of water in pre-1979 period and post-1979
period is concerned, the sole witness of Tamil Nadu has admitted that in the
post-1979 period the water drawn was 21,434 Mcft. and the average water
drawn pre-1979 period was 19,277 Mcft. Similarly, he has admitted increase
of irrigation from 1,71,307 acres before 1979 to 2,31,412 acres in 1992-93,
but, as observed by EC, this has been due to construction of Vaigai dam in
1954 and related canal distribution system post-1974. The five districts Theni,
Dindigul, Madurai, Sivagangai and Ramanathanpuram that are served by
Periyar project are drought prone. About 2 lakh acres of land fall in these five
districts which needs to be irrigated. The inadequate timely water supply of
water for irrigation and drinking purposes to the population of these districts
may affect their lives as well as livelihood. The increase of irrigation and more
drawal of water post 1979 still appears to be deficient for the population of
more than 80 lakh people in these districts.
Page 155
220. In these facts, therefore, it can safely be said that Tamil Nadu has
been able to establish that invasion on its rights is substantial. Tamil Nadu has
been able to make out a case for grant of injunction on the principles laid
down by this Court in State of Andhra Pradesh3. Moreover, present suit is not
a suit for injunction simpliciter as the main prayer is that Kerala Irrigation and
Water Conservation (Amendment) Act, 2006 be declared unconstitutional and
ultra vires in its application to and effect on the Mullaperiyar dam.
Findings on Issue Nos. 2(b) and 11
221. In view of the foregoing discussion, we hold that Tamil Nadu is
entitled to the reliefs as prayed in para 40 (i) and (ii) of the suit. Consequently,
it is declared that the Kerala Irrigation and Water Conservation (Amendment)
Act, 2006 passed by the Kerala legislature is unconstitutional in its application
to and effect on the Mullaperiyar dam. The 1st defendant – State of Kerala – is
restrained by a decree of permanent injunction from applying and enforcing
the impugned legislation or in any manner interfering with or obstructing the
State of Tamil Nadu from increasing the water level to 142 ft. and from
carrying out the repair works as per the judgment of this Court dated
27.2.2006 in W.P.(C) No. 386/2001 with connected matters.
222. However, to allay the apprehensions of Kerala- though none
exists – about the safety of the Mullaperiyar dam on restoration of the FRL to
142 ft., a 3-Member Supervisory Committee is constituted. The Committee
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shall have one representative from the Central Water Commission and one
representative each from the two States – Tamil Nadu and Kerala. The
representative of the Central Water Commission shall be the Chairman of the
Committee. The Committee will select the place for its office, which shall be
provided by Kerala. Tamil Nadu shall bear the entire expenditure of the
Committee.
223. The powers and functions of the Supervisory Committee shall be
as follows:
(i) The Committee shall supervise the restoration of FRL in the
Mullaperiyar dam to the elevation of 142 ft.
(ii) The Committee shall inspect the dam periodically, more
particularly, immediately before the monsoon and during the
monsoon and keep close watch on its safety and recommend
measures which are necessary. Such measures shall be carried
out by Tamil Nadu.
(iii) The Committee shall be free to take appropriate steps and issue
necessary directions to the two States – Tamil Nadu and Kerala –
or any of them if so required for the safety of the Mullaperiyar
dam in an emergent situation. Such directions shall be obeyed by
all concerned.
Page 157
(iv) The Committee shall permit Tamil Nadu to carry out further
precautionary measures that may become necessary upon its
periodic inspection of the dam in accordance with the guidelines
of the Central Water Commission and Dam Safety Organisation.
224. The suit is decreed as above, with no order as to costs.
………..……………………CJI.
(R.M. Lodha)
………..………………………J.
(H.L. Dattu)
………..………………………J.
(Chandramauli Kr. Prasad)
………..………………………J.
(Madan B. Lokur)
………..………………………J.
(M.Y. Eqbal)
NEW DELHI;
MAY 07, 2014.
Page 158
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) No.13955 of 2012
C.R. NEELAKANDAN & ANR. … PETITIONERS
VERSUS
UNION OF INDIA & ORS. … RESPONDENTS
O R D E R
In view of our separate judgment pronounced today in Original Suit No.3
of 2006 (State of Tamil Nadu v. State of Kerala and another), nothing further
remains to be decided in this special leave petition and it is dismissed
accordingly.
……..………………………CJI.
(R.M. Lodha)
………..………………………J.
(H.L. Dattu)
………..………………………J.
(Chandramauli Kr. Prasad)
………..………………………J.
(Madan B. Lokur)
………..………………………J.
(M.Y. Eqbal)
NEW DELHI
MAY 07, 2014