Mullaperiyar Dam Issues: There Should Be No BAR of Law That MAR Life of People.

Mullaperiyar Disputes and Adjudication of Legal Issues.

Saji Koduvath, Advocate.

Foreword

Laws are made for better life and safety of men. Various rules as to bars and barriers are introduced in the legal system on this principle; whether it be Res Judicata, Constructive Res judicata, Order II rule 2 Bar, Estoppel or Judicial Precedent. Can such negative legal principles be allowed to successfully sound and strike-out in the SUPREME COURT, when the Life and Safety of a Large Number of Citizens of India are reasonably (apprehended to be) in peril, is one of the main questions that arise in Mullaperiyar Dam issue. Those legal doctrines, though interminable, cannot stand as a bar for the SUPREME COURT, especially when it reverberates devastating danger arising out of a structure made by the hands of man. The findings that are made in such a matter arose quarter a century back, should not be allowed to remain constant and untouched. Raising bar by law in this matter will be harsh and imprudent.

Brief History of Mullaperiyar.

Mullaperiyar is situated in Idukki District of the State of Kerala. The dam at Mullaperiyar was built between 1887 and 1895. During that time, this area was under the Kingdom of (erstwhile) Travancore. The purpose of making the dam was irrigation of the severely draught affected, otherwise fertile, land under the Madras Presidency, situated east of Travancore. The designer and builder of this masonry gravity-dam was a British engineer. Before constructing the dam, a lease agreement had been executed on October 29, 1886 between the Maharaja of Travancore and the Secretary of State for India in Council.

“I SIGN WITH BLOOD OF MY HEART”

The lease project under the agreement covered a long period of 999-years. It is said to be unconscionable inasmuch as it came into being out of the mighty clout of the British, and it was practically a unilateral agreement. Certain historians say that the Maharaja of Travancore had bewailed: “I SIGN THIS WITH THE BLOOD OF MY HEART”.

1970 Supplemental Agreements

After independence, two supplemental agreements were executed, in 1970, by the State of Tamil Nadu and State of Kerala. The first one increased the rent from Rs. 5 per acre to Rs. 30 and gave fishing rights in the Periyar lake to Kerala. And, it was recorded that all other
covenants in the 1886 lease deed would remain in force. The second supplemental agreement allowed Tamil Nadu to generate electricity and to pay a nominal consideration to Kerala.

Disputes triggered by the end of the 20^th century

The disputes that triggered by the end of the 20^th century, between the State of Kerala and the State of Tamil Nadu with respect to the maintenance of maximum height of water level of the dam, lead to the formation of an Expert Committee. The committee gave its final report on 16.03.2001. It suggested that the water level in the Mullaperiyar reservoir could be raised up to 142 ft.

Despite the recommendation of the Expert Committee, the Government of Kerala, pointing out safety hazards, continued its protest against the move to raise the water level in the reservoir beyond 136 ft.

Is Mullaperiyar Dam Really a Water-Bomb?

Mullaperiyar dam is constructed in Periyar river above the level of Idukki reservoir. Mullaperiyar is situated 36 kms away (south-east) from Idukki. Water from Mullaperiyar dam will reach the Idukki reservoir when the shutters of Mullaperiyar dam are opened.

On October 29, 2021, while the water-level of the Mullaperiyar dam surpassed limit prescribed by the Supreme Court, and the Tamil Nadu raised shutters, Kerala water resources minister urged people, through a press release, not to be panic, and he declared that there was nothing to be ‘concerned about’. It is seen pointed out by the minister that the storage capacity of Idukki is 70.5 Thousand Million Cubic feet (TMC) as compared to 12.758 TMC of Mullaperiyar; and therefore, the water ‘released’ from the latter would only raise the former’s level by a quarter of a foot (hindustantimes.com : Oct 29, 2021).

But, those people who raise alarm on Mullaperiyar issue say that the dam is in an area where the seismic activity is high; and that the people there feel tremors, frequently. It is a sheer fact that the people of Kerala believe that Vallakadavu, Vandiperiyar, Chappathu and Upputhara towns, situated between Idukki and Mullaperiyar, will be engulfed in flood waters if Mullaperiyar dam is damaged. They further point out that the people of Kerala experienced, in the 2018-flood, that mere rain water (pored for a few days) was capable of immersing a good number of towns and villages; and they compare it with the incomparable water in Idukki reservoir!

Besides Idukki dam, the water in Idukki reservoir is held-back by the service of Cheruthoni and Kulamavu dams also. There are people who believe that the galloping rushy water (if) exploded from the Mullaperiyar dam would be capable of destroying various dams of Idukki reservoir. In case water in Idukki reservoir is burst-out, no doubt, the damage will be devastating. And, it is feared, in such an event, the water in the dam will reach the Arabian sea only after submerging Aluva, Eranakulam Town, Kcohi Airport etc. among many other townships and villages.

Is Idukki dam large enough to hold the entire water that is stopped by Mullaperiyar?

In rainy season both dams will be filled in. But the water level of both dams will be lower in summer. Therefore, the the answer to the question, depends upon the ‘season’. So far as rainy a season is concerned, the storage capacity of both dams itself (Idukki – 70.5 TMC; Mullaperiyar – 12.758 TMC) gives the answer.

History of Union Carbide Disaster

It appears that no effective study is conducted, or it is not published, as to what all villages or towns will be affected, if a mishap occurs; and what all places will give shelter to the the people who may be affected by flooding. The history of Union Carbide disaster at Bhopal should not be allowed to be repeated; in Bhopal, people rushed to the factory premises, seeking help, when the devastating gas outburst took place in the factory compound!

Validity of the century old agreement

After promulgation of the Constitution of India, or after independence, there is only ‘one country and one land’. It is seen argued that the agreement that was executed at a time where this land stood divided should not be allowed to be used as a weapon of oppression, especially since the agreement was an unconscionable one; and the provisions therein should not be pointed out against the reconstruction of the dam by the State of Kerala spending from its own pouch.

Mullaperiyar Litigation – In a Nutshell

First Case – 2006 – Mullaperiyar Environmental Protection Forum v. Union of India
Second Case – 2014 – State of Tamil Nadu v. State of Kerala
Third Case – Originated in 2020 – Dr. Joe Joseph v. State of Tamil Nadu

First Mullaperiar Dam Case Before the Supreme Court

A writ petition was filed by Mullaperiyar Environmental Protection Forum before the Supreme Court (Mullaperiyar Environmental Protection Forum v. Union of India) raising disputes as to the water level to be maintained in the dam. The Apex Court gave its decision on 27.02.2006 (reported in (2006) 3 SCC 643). The Apex Court permitted to rise the water level in the Mullaperiyar dam up to 142 ft. The State of Kerala and its officers were restrained from causing any obstruction to the rising of level. It was also observed that, after the strengthening-work was completed to the satisfaction of CWC, independent experts would examine the matters ‘on safety angle before the water level is permitted to be raised up to 152 ft’.

Second Mullaperiar Dam Case Before the Supreme Court

State of Tamil Nadu v. State of Kerala, (2014) 12 SCC 696, is the second prominent Supreme Court decision on Mullaperiyar dam related issues. It is pronounced in the matter of validity of an enactment made by the State of Kerala; viz, The Kerala Irrigation and Water Conservation (Amendment) Act, 2006. The crux of the issue in that case was as regards the maximum water level to be maintained in the Mullaperiyar dam. The State of Tamil Nadu argued that the rights implored in this dispute had already been crystallised in the earlier Judgment on the (first) Mullaperiyar dam case, Mullaperiyar Environmental Protection Forum v. Union of India, (2006) 3 SCC 643. Accepting the claim of Tamil Nadu, the Apex Court restrained the State of Kerala by a decree of permanent injunction from obstructing the State of Tamil Nadu from increasing the water level to 142 ft.

Third Mullaperiar Dam Case Before the Supreme Court

Urging that the matters involved in the Mullaperiyar dam issues require a reconsideration in the ‘safety and security’ angle, a third round of litigation (Dr. Joe Joseph v. State of Tamil Nadu) is originated in 2020 before the Supreme Court.

Kerala Irrigation and Water Conservation (Amendment) Act, 2006

Within less than three weeks of the decision in Mullaperiyar Environmental Protection Forum v. Union of India, (2006) 3 SCC 643, the Kerala State Legislature amended Kerala Irrigation and Water Conservation Act, 2003, by passing the Kerala Irrigation and Water Conservation (Amendment) Act, 2006. The Amendment Act, in its application to and effect on the Mullaperiyar dam (as found by the Supreme Court in State of Tamil Nadu v. State of Kerala, 2014-12 SCC 696), 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;
(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.”

Challenge by the State of Tamil Nadu

The Kerala (Amendment) Act, 2006 led the State of Tamil Nadu to challenge the Act contending, inter alia, the following:

Usurpation of judicial power
(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.
Violation of legislative competence
(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.
Violation of rule of law and separation of power
(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 participated in the adjudicatory process before the Apex Court, it cannot become a Judge in its own cause and seek to reverse the decision of this Court because it has gone against it.
Disobeyance of Apex Court decision
(d) The impugned legislation not only fixes and limits the FRL to 136 ft. in direct contravention of the judgment of the Apex Court but also proceeded to authorise the Dam Safety Authority of Kerala – to disobey and disregard the decision of the Apex Court by various other provisions.
(Amendment) Act Overturned and nullified Apex Court verdict
(e) 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 the Apex 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.

Reliefs sought for

The State of Tamil Nadu had sought for 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.

Defence by State of Kerala

The State of Kerala resisted the suit raising, among others, the following contentions:

The suit itself is not maintainable.
Contract Unconscionable
1886 Lease Agreement is an unconscionable contract because of its duration (999 years) as well as the fact that the lease conveys for a small rent 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.
The two supplemental agreements of 1970 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.
999 years Agreement lapsed under Indian Independence Act
The 1886 Lease Agreement for 999 years stood lapsed under the provisions of Section 7(1)(b) of the Indian Independence Act, 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.
Kerala legislature competent to modify the terms in public interest
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 justify the competency of Kerala legislature to enact the 2006 (Amendment) Act.
It is competent for the Kerala legislature to modify Kerala legislature to modify the terms 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.
2006 (Amendment) Act – dams fall within the territory of Kerala
Kerala legislature enacted the 2006 (Amendment) Act for 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. Such a 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.
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.
Safety of the dam
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 case, the focal issue was the implications of the increase in height upon the safety and integrity of the dam.
Structure of the Mullaperiyar dam
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.
Periyar is not an inter-state river
River Periyar is not 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.
Earlier judgment of the Court: No res judicata in public interest Matters
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.
Suit Not Maintainable under Article 131 of the Constitution
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.
Report of the Expert Committee for assessing the structural safety of the dam
This report was relied upon by the Court in its judgment on 27.02.2006. 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.
Water beyond 136 ft. would not be required
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. The contention of Tamil Nadu that due to non-restoration of FRL from 136 ft., Tamil Nadu’s irrigation is getting suffered is not correctet. Tamil Nadu was able to irrigate more area with Mullaperiyar water, even after lowering the water level to 136 ft.

Nub of the Findings in the 2nd Mullaperiar Dam Case

The 2014 Judgment in the 2nd Mullaperiar dam case went against the stance of Kerala, mainly, on the following observations and findings of the Supreme Court:

When dispute already adjudicated, one of the parties cannot overturn the final judgment. When the dispute between two States has already been adjudicated upon by the Supreme Court, any unilateral law enacted by one of the parties results in overturning the final judgment. A judicial decision can be reopened in the changed circumstances by the Court alone and no one else.
A final judgment remains in force until altered by the court. A categorical finding has been recorded by the Court in the earlier judgment that the Mullaperiyar dam is safe and that judgment has become final and binding. A final judgment remains in force until it is altered by the court. Legislature cannot reopen or alter a judicial decision rendered on a finding of fact.
Kerala Act infringes the doctrine of separation of powers and rule of law. The impugned 2006 (Amendment) Act is bad because it infringes the doctrine of separation of powers and rule of law. Legislature cannot indirectly control the Courts. The Amendment Act is a classic case of nullification of a judgment.
Legislature has clearly usurped the judicial power. If the judgment of this Court and the 2006 (Amendment) Act are placed side by side, both cannot stand together. By such law, the legislature has clearly usurped the judicial power.
If substantial changes the Court can be approached. 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.

Issues, and Findings of the Supreme Court in a Nutshell

Issue Nos	Issues	Findings in Nutshell
1.	Whether the suit is maintainable under Article 131 of the Constitution of India.	Maintainable.
5.	Whether 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 on 29.10.1886, is barred by the proviso to Article 131 of the Constitution of India?	Not barred.
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.	The State of Kerala (first defendant) is estopped.
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.	The lease deed is valid and binding on the first defendant and it is enforceable by plaintiff.
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?	Kerala Irrigation and Water Conservation (Amendment) Act, 2006 is unconstitutional and ultra vires.
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?	(ii.) The rights crystallized in the Judgment cannot be nullified by a legislation.
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?	The earlier judgment 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.
4(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?	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.
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.	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.
8	Whether the first defendant is estopped from contending that Periyar River is not an inter-State river.	Kerala cannot be permitted to contend that river Periyar is an intra-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.	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.
11	To what relief is the plaintiff entitled to?”	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.
2(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?	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.

Third Round of Litigation: Dr. Joe Joseph v. State of Tamil Nadu

Fresh spurt of arguments are surged in the Supreme Court on filing the Writ Petition, Dr. Joe Joseph v. State of Tamil Nadu, in 2020, beseeching a re-look on the issues on the premises of ‘safety and security’ . The Apex Court has already taken notice of the need to ‘ensure the safety of people’; and it directed the State of Tamil Nadu, on March 16, 2021, to furnish requisite information to the Supervisory Committee. The Court further directed that the Supervisory Committee should take necessary steps including issuance of appropriate directions to the concerned party-States as may be necessary and to submit an action taken report before the Court.

Now the matter is in the process of settlement of issues to be addressed in the case.

End Notes:

Important observations & findings in State of Tamil Nadu v. State of Kerala, (2014) 12 SCC 696:

Arguments of State of Kerala: “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 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 Health.”
Legislature cannot indirectly control the Courts: “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.”
Legislature cannot alter a judicial decision rendered on a Finding of Fact. “143. This Court in Mullaperiyar Environmental Protection Forum, 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 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 neutralise the effect of the judgment given after ascertainment of fact by means of evidence/materials placed by the parties to the dispute.”
A final judgment remains in force until altered by the court: “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.
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.”
Judicial decision on a particular fact cannot be reopened by legislature: “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 Bridge. Firstly, public right qualification in Wheeling Bridge 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 Bridge. The principle question before the US Supreme Court in Wheeling Bridge 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 Bridge 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 Bridge 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 Bridge one by McLean J. and the other by Wayne J. – though in minority- also 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.”
It is open to approach court for re-assessing safety aspect: “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.”
Mullaperiyar dam was found safe and that finding was not imaginary: “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 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.“
The impugned law is a classic case of nullification of a judgment: “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 Forum and on the other in 2006 (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 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.
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.”
Court can be approached if emergent situation as to safety of dam.: “165. Shri Harish Salve, learned senior counsel for Kerala, placed reliance upon the decision of this Court in N.D. Jayal . In N.D. Jayal, 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. Jayal 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 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.”
Safety of Mullaperiyar dam – Evidence and EC Report
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 activity in the dam area is considered of no consequence to the seismic safety. Also, it has caused no distress to MPD / Idukki dams.”
CC investigations carried out with representatives of both the States: “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 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 Regina.
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 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.”

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Mullaperiyar Dam Issues: There Should Be No BAR of Law That MAR Life of People.

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