TMI Blog2014 (5) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... :- 7-5-2014 - R.M. Lodha, H.L. Dattu, Madan B. Lokur, Chandramauli Kr. Prasad and M.Y. Eqbal, JUDGEMENT R.M. Lodha, J 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) 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 foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cided 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iately 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 agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng. 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. 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 case, the focal issue was the impl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter including safety of 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 rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 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 go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Forum). This Court has held therein-and we have no justifiable reason to take a different view-that 1886 Lease Agreement is an ordinary ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 has not affected the rights of Province of Madras. 57. Relying upon Babu Ram Saksena, 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 Saksena. Learned senior counsel in this regard also relied upon the decision of this Court in State of Himachal Pradesh. Babu Ram Saksena 58. Let us carefully consider Babu Ram Saksena. The facts in Babu Ram Saksena 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 ₹ 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 totaling ₹ 3,00,000/- on various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Saksena, 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 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tradition 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Saksena 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 Saksena 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 Prades ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Pradesh 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 Pradesh, 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 tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccepted 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 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 princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so 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 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 Marsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 131 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 294, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opped 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acted 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alston titled The Public Trust Doctrine in the Water Rights Contexts . 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 Firemen, Raymond Motor Transportation, Raymond Kassel, American Trucking Association and Pfizer Animal Health. Learned senior counsel also relies upon, Science and Risk Regulation and International Law by Jacqueline Peel wherein Pfizer Animal Health has been referred. 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 ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that private rights pass into judgments but not the public rights and also submits that Wheeling Bridge principle has been applied in the subsequent cases viz., The Clinton Bridge, Hodges and Charles B. Miller. 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 Spinning which approved the earlier decisions in Sanjeev Coke and Doypack Systems. 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 separat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Act had to be enacted in view of the decision of this Court in Patel Gordhandas Hargovindas. 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. The Constitution Bench exposited that the validity of a validati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slature 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 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 Sabha, 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 jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Sambamurthy. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Saksena 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 parties and transactions and to require the court to give effect to that law. 22. While, in view of this distinction between legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 judicial decision. It can render judicial de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Elp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf 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 legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 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 canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u is Liyanage. The facts in Liyanage provide a 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 ex-post 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. Liyanage effectively lays down that judicial power is usurped (i) when there is legislative interference in a specific proceeding, (ii) the interference affects the pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic 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 Bridge 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 Bridge that the earlier decree was the result of a judicial investigation, founded upon facts ascertained in the course of the hearing an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Wheeling Bridge a decree had been rendered by the court against the bridge, while in the Clinton Bridge the cause was pending undecided, but he followed the majority opinion in Wheeling Bridge. Manigault 115. Mr. Harish Salve, learned counsel for the State of Kerala, placed reliance upon Arthur M. Manigault. 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 ordinaril ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des that the safety interests have not been shown to exist as a matter of law. Raymond Kassel 119. In Raymond Kassel, after recording evidence and conclusion of trial, the District Court applied the standard which was accepted in Raymond Motor Transportation 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 state law makers in the field of safety is largely attributable to a judicial disinclination to weigh the intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he law applicable to that very case was something other than what the courts said it was..... 120.3. In Plaut, 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law, it can at any time make such a validating law and make it retrospective. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orts 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 Forum case was the result of judicial investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in the State; (2) to advice Government to suspend the funct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, in the negative. The judgment of this Court in Mullaperiyar Environmental Protection Forum 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 sub-section (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:- (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 function ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reaty, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. 137. In Pfizer Animal Health, 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 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 req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tually 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 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 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 (Amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Singh, 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 Daryao, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng-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. 165. Shri Harish Salve, learned senior counsel for Kerala, placed reliance upon the decision of this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 168. The rule of res judicata is articulated in Section 11 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bella Johnson, and Rupa Ashok Hurra. 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 Hurra are satisfied. The present case does not fall within the parameters laid down in Rupa Ashok Hurra. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various scenarios of operative/inoperative gates for different FRLs. Free board Integrated Dam Break Flood study from Mulla Periyar Dam to Idduki Dam and beyond to enable preparation of an Emergency Action Plan. Preparation of a sample of likely inundation map. To assess Dam Break Flood that may be caused by different modes of failure/cascade effect in case 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. Back-water studies upstream of tip of Mulla Periyar Reservoir into main stem and tributaries. 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. Computerized Reservoir Sedimentation Survey for assessment of present elevation-area-capacity relations. Assessment in higher ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility of Main and Baby Dam. C. Seismic Safety:- Title Purpose of ITS Verification of the Probable To determine: Finite Element Method (FEM) analysis employing (response spectra)/(time histories) to asses stability of dam under design basis/maximum credible earthquake forces. To determine tensile stress caused due to Earthquake forces based on: 2D FEM Studies based on Response Spectra method (in two parts) submitted by SoK. 3D FEM studies (two times) submitted by SoTN. 2D FEM studies (in two parts) based on Time-History analysis. 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 bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 decline ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iyar 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Environment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ....... 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 from 1954 onwards, and ii) World Bank assisted Modernization of Periyar Vaigai Irrigation Project, phase-I and 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/municipa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fering 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 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 recommen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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