Original Suit No. 3 of 2006 and Special Leave Petition (C) No. 13955 of 2012 (Under Article 131 of the Constitution of India). Case: 1. State of Tamil Nadu, 2. C.R. Neelakandan and Anr. Vs 1. State of Kerala and Anr., 2. Union of India (UOI) and Ors.. Supreme Court (India)

Case NumberOriginal Suit No. 3 of 2006 and Special Leave Petition (C) No. 13955 of 2012 (Under Article 131 of the Constitution of India)
CounselFor Appearing Parties: Subramonium Prasad, AG., Mohan Jain, ASG., Vinod Arvind Bobde, Rajiv Dhawan, Sr. Advs., G. Umapathy, B. Balaji, R. Nekhala, Kamna Sagar, Sanjay Parikh, Advs. for Anitha Shenoy, Adv., Mohan V. Katarki, Ramesh Babu M.R., Mukti Chowdhary, Swati Setia, Deepak Jain, S. Wasim A. Qadri, D.K. Thakur, Prabhat Kumar, Rashmi ...
JudgesR.M. Lodha, C.J.I., H.L. Dattu, C.K. Prasad, Madan B. Lokur and M. Yusuf Eqbal, JJ.
IssueKerala Irrigation and Water Conservation Act, 2003 - Sections 3, 4, 5, 11, 30, 57, 57(1), 57(2), 62, 62A(2), 62A(3), 62B, 62(3); Kerala Irrigation and Water Conservation (Amendment) Act, 2006 - Sections 2, 62A, 62A(1), 62A(2), 62A(3), 62A(4), 62(1), 62(2), 68A; States Reorganisation Act, 1956 - Sections 108, 108(1); Indian Independence Act, 194...
Judgement DateMay 07, 2014
CourtSupreme Court (India)


R.M. Lodha, C.J.I.

1. 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 Forum v. Union of India and Ors. [(2006) 3 SCC 643]) 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 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.)

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.

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 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 Forum v.Union of India and Ors. [(2006) 3 SCC 643].

2006 (Amendment) Act

14. On 18.03.2006, in less than three weeks of the decision of this Court in Mullaperiyar Environmental Protection Forum v. Union of India and Ors. [(2006) 3 SCC 643], the Kerala State legislature amended 2003 Act by the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 [for short, "2006 (Amendment) Act")]1.

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

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 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...

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