Finally, the much awaited judgment on Mullaperiyar Dam is delivered by the Supreme Court. After reading the 158 page judgment the first thought that crosses one’s mind is why it took so many years to arrive at it! Except for the findings of the Empowered Committee, which was not even subjected to cross examination, the whole case is decided on legal and technical grounds. The judgment mainly deals with the questions of validity of 1886 lease agreement, the nature of 1886 lease, constitutionality of 2006 Amendment of the Kerala Irrigation and Water Conservation Act, 2003, safety of the dam, and appointment of a supervisory committee. In a nutshell, Kerala has lost the case and the Mullaperiyar, in its entirety, with all its contentions having been clinically rejected by the Court. The only silver line I could see is the assertion that "it is always open to any of the parties to approach the court and apply for re-assessing the safety"
Some of the salient points from the judgment are excerpted below for ready and easy reference. The inclusion is based solely on my understanding and, therefore, if you propose to use the information in any manner, I request you to read the full text of the judgment. Purpose of this post is to let the readers have a clearer picture about the judgment and issues dealt with in it, instead of depending on the statements misleading statements of politicians and other with vested interests.Throughout this post, notes and emphasis are supplied by me.
State of Tamil Nadu Vs. State of Kerala and another (OS No. 3 of 2006)
On the question whether State of TN can claim under 1886 Lease Deed:
41. ……By virtue of Sec 177 of 1935 Act, the Government of the Province of Madras is deemed to be substituted as lessee in the 1886 Lease Agreement.
On the question of validity of 1886 Lease Deed:
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.
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.
On the question of effect of Travancore Maharaja’s denouncement of 1886 Lease Deed:
50. …..The expression “denounced by the Ruler of the Indian State” in the proviso appended to 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.
On the nature of 1886 Agreement
65. ….. 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.
On the question of Constitutionality of 2006 Amendment (which was the cause of litigation)
145. …….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. …… 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.
151. ……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.
152. …..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.
On the question of Res Judicata
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.
165. ……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.
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.
On the question of Safety of the Dam
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.
198. Moreover, this Court appointed EC (Empowered Committee) 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.
On the Question whether Periyar is an Interstate River
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…..
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 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.
On the Question of Constructing a New Dam
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 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.
On alternative solutions
215. EC has itself noted that the second alternative (note: referring to a new tunnel at EL 50 ft.) 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 (note: widening of existing tunnel and constructing new tunnel) suggested by the EC.
On three Member Supervisory Committee
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 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 (notes. 1. Look at the use of words “though none exists!” 2. Kerala has to now give more space for this Committee, as well).
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.
(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.
Final Findings of the Court on framed issues
74 (i) The suit filed by the State of Tamil Nadu is maintainable under Article 131 of the Constitution.
74 (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.
74 (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.
74 (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.
199 (i) Kerala Irrigation and Water Conservation (Amendment) Act, 2006 is unconstitutional and ultra vires in its application to and effect on the Mullaperiyar dam.
199 (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.
199 (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.
199 (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.
199 (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.
210. ….it is held that Kerala cannot be permitted to contend that river Periyar is an intra-State river.
213. … 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.
221. …..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…