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TMI Blog2014 (5) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... ea as set out therein was granted on lease for 999 years from 01.01.1886. The length of the main dam is 1200 ft. (365.76 m.) and top of the dam is 155 ft. (47.24 m.). The top of solid parapet and maximum height of the dam from deepest foundation are 158 ft. (48.16 m.) and 176 ft. (53.64 m.), respectively. The FRL of the dam is 152 ft. (46.33 m.). The original spillway capacity of the dam was 10 vents of 36' x 16' (10.97 m. x 4.88 m.). The length of the Baby dam is 240 ft. (73.15 m.). 1979-1980: Controversy about safety of the Dam 3. In 1979 with regard to the safety of the Mullaperiyar dam, the Government of Kerala wrote to the Tamil Nadu Government to take immediate steps to strengthen the dam. Simultaneously, the Kerala Government also requested the Central Government to depute a team from Central Water Commission (CWC) to inspect the dam and suggest strengthening measures. 4. In pursuance of the request from the Kerala Government, the then Chairman, CWC inspected the dam and held a meeting on 25.11.1979 in which the officers from Tamil Nadu and Kerala participated. In that meeting, three level measures, (i) emergency, (ii) medium and (iii) long term, were suggested to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration by the Expert Committee, it also gave certain interim directions. In its report, the Expert Committee had opined that water level in the Mullaperiyar reservoir could be raised to 142 ft. (43.28 m.) as that will not endanger the safety of the main dam, including spillway, baby dam and earthen bund. First litigation before this Court 11. Despite the above recommendation from the Expert Committee, the Government of Kerala continued to resist raising of water level in the reservoir beyond 136 ft. It was then that a writ petition was filed by Mullaperiyar Environmental Protection Forum directly before this Court wherein diverse prayers were made. This Court also transferred the writ petitions which were pending before the Kerala High Court and Madras High Court to this Court. 12. After hearing the parties, including the two states, this Court gave its decision on 27.02.2006 permitting the water level in the Mullaperiyar dam to be raised up to 142 ft. The State of Kerala and its officers were also restrained from causing any obstruction to the above. It was also observed that after the strengthening work was complete to the satisfaction of CWC, independent experts would examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal agreement, Tamil Nadu surrendered the fishing rights in the leased lands and also agreed to the upward revision of the rent of the leased land. The second supplemental agreement conferred on Tamil Nadu, the right to generate power and right to construct all facilities required for power generation. An additional extent of 42.7 acres was leased to Tamil Nadu for the said purposes and correspondingly Tamil Nadu was required to pay to Kerala a sum annually as specified in the agreement. Tamil Nadu claims that the two supplemental agreements have re-affirmed, re-asserted and ratified 1886 Lease Agreement, which was statutorily protected and continued by Section 108 of the SR Act. Grounds of challenge to 2006 (Amendment) Act 18. The challenge to 2006 (Amendment) Act to the extent it affects Mullaperiyar dam is laid in the plaint on diverse grounds, some of which are the following:- (a) The impugned legislation amounts to usurpation of judicial power inasmuch as Kerala State Legislature has arrogated to itself the role of a judicial body and has itself determined the questions regarding the dam safety and raising the water level when such questions fall exclusively within the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt) Act is not a validation act but a mere device to defy, obstruct and nullify the judgment of this Court and constitutionally interfere with, restrict or extinguish the legal rights of Tamil Nadu as upheld by this Court. A Legislature cannot by mere declaration and enactment overrule and nullify a judicial decision. The direct object and effect of the impugned legislation is to overturn the judgment of this Court and to arrogate to Kerala the power to prevent Tamil Nadu from exercising its legal rights which have already been upheld by this Court. 19. On the above grounds, Tamil Nadu has sought two-fold relief, (i) to declare the 2006 (Amendment) Act passed by the Kerala legislature as unconstitutional in its application to and effect on the Mullaperiyar dam and (ii) to pass a decree of permanent injunction restraining the first defendant from applying and enforcing the impugned legislation interfering with or obstructing the plaintiff from increasing the water level to 142 ft. and from carrying out the repair works as per the judgment of this Court dated 27.02.2006 in W. P. (Civil) No. 386 of 2001 with connected matters. The Union of India has been impleaded as defendant no. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 2006 (Amendment) Act creates a working mechanism to deal with a problem like displacement of those whose lands are likely to be affected by the backwater effect. 24. The competency of Kerala legislature to enact the 2006 (Amendment) Act is sought to be justified by relying upon Entries 17 and 18 of List II (State List) and Entries 17, 17-A and 17-B of the Concurrent List of the Seventh Schedule to the Constitution. Kerala also states that it is competent for the Kerala legislature to modify the terms of the lease in public interest (if the lease has survived as contended by the Tamil Nadu), as the lease inherited under Article 295 of the Constitution does not bind the legislature of the state and that it is always open to the legislature to modify such conditions by law. 25. As regards structure of the Mullaperiyar dam, Kerala's stand is that it is not constructed entirely with rubble masonry in lime mortar. The front and rear faces are constructed of uncoursed rubble masonry in lime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r case is that 1886 Lease Agreement was executed between the Maharaja of Travancore and Secretary of State for India in England and as such the agreement is in the nature of treaty and act of state, the enforcement of which is barred by proviso to Article 131 of the Constitution. Tamil Nadu, therefore, cannot seek enforcement of 1886 lease deed before this Court. 29. Kerala has also challenged the report of the Expert Committee for assessing the structural safety of the dam that was relied upon by this Court in its judgment on 27.02.2006. Kerala says that both the interim report and final report submitted by the Expert Committee are riddled with inconsistencies and the views of the Committee do not constitute an authoritative opinion. Kerala has denied that storages at Mullaperiyar dam beyond 136 ft. will not pose any danger. 30. Kerala states that the storage at Mullaperiyar dam beyond 136 ft. would not be required to meet the irrigation requirement of 2,08,144 acres in 5 southern districts of Tamil Nadu, although the irrigation originally planned was not more than 1.5 lakh acres. Kerala has denied the contention of Tamil Nadu that due to non-restoration of FRL from 136 ft., Tam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or India on 29.10.1886 is valid, binding on first defendant and enforceable by plaintiff against the first defendant. 8. Whether the first defendant is estopped from contending that Periyar River is not an inter-State river. 9. Whether the offer of the first defendant, to construct a new dam across River Periyar in the downstream region of Mullai Periyar Dam would meet the ends of justice and requirements of plaintiff. 10. Whether the first defendant can obstruct the plaintiff from increasing the water level of Mullai Periyar Dam to 142 ft. and from carrying out repair works as per the judgment dated 27.2.2006 of this Court in WP(C) No. 386/2001. 11. To what relief is the plaintiff entitled to?" Documentary and oral evidence by the parties 33. The admission/denial of documents tendered by the parties was completed on 16.05.2008. Documents Ex. P1 to Ex. P44 tendered by Tamil Nadu were admitted by Kerala and documents Ex. D1 to D17 tendered by Kerala were admitted by Tamil Nadu. Tamil Nadu's documents Ex. XP1 to XP4 and Kerala's documents Ex. XD1 to XD24 were denied by the other side. 34. As regards oral evidence, Tamil Nadu produced R. Subramanian (PW-1) as the sole w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The report was submitted by the Empowered Committee finally on 23.04.2012. General observation 38. As a general observation, before we embark upon the discussion on diverse issues, it must be stated, that a suit of this nature cannot and ought not to be decided with very technical approach insofar as pleadings and procedure are concerned. A suit filed in original jurisdiction of this Court is not governed by the procedure prescribed in Civil Procedure Code save and except the procedure which has been expressly made applicable by the Supreme Court Rules. It is also important to bear in mind that the contest between the states is to be settled in the large and ample way that alone becomes the dignity of litigants concerned (State of Andhra Pradesh). Unfortunately, there is a sharp conflict over each and every aspect of the subject matter between the contesting states. Even in respect of the report submitted by the EC chaired by a former Chief Justice of this Court, one nominee each of the two states who are former judges of this Court and two renowned technical experts, the two states have different views although EC has submitted its report after a very tedious and minute consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y virtue of Section 46 of the 1935 Act, the Presidency of Fort St. George which was deemed to be a Province under 1919 Act became Governor's Province of Madras. 41. Section 177 of the 1935 Act, omitting the unnecessary part reads, ".....any contract made before the commencement of Part III of this Act by, or on behalf of, the Secretary of State in Council shall, as from that date-(a) if it was made for the purposes which will after the commencement of Part III of this Act be purposes of the Government of a Province, have effect as if it had been made on behalf of that Province..." By virtue of this provision, the existing contracts of the Secretary of State in Council would have the effect as if they had been made on behalf of the Province. When we see 1886 Lease Agreement in light of Section 177 of the 1935 Act, there remains no doubt at all that lease that was executed by the Secretary of State in Council for the Presidency of Madras (Madras Province) had the effect as if it had been made on behalf of the Presidency of Madras or for that matter Madras Province. To put it differently, by legal fiction created under Section 177(1)(a), the Presidency of Madras (Madras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the territories which, immediately before that day, were included in British India; (b) the suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian States, all functions exercisable by His Majesty at that date with respect to Indian States, all obligations of His Majesty existing at that date towards Indian States or the rulers thereof, and all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise; and (c) there lapse also any treaties or agreements in force at the date of the passing of this Act between His Majesty and any persons having authority in the tribal areas, any obligations of His Majesty existing at that date to any such persons or with respect to the tribal areas, and all powers, rights, authority or jurisdiction exercisable at that date of His Majesty in or in relation to the tribal areas by treaty, grant, usage, sufferance or otherwise:- Provided that, notwithstanding anything in paragraph (b) or paragraph (c) of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is, thus, no merit in the contention advanced on behalf of Kerala that 1886 Lease Agreement lapsed under the main provision of Section 7(1)(b) of 1947 Act. 50. Now, for consideration of the other limb of the argument addressed to us by Mr. Harish N. Salve that even otherwise, the Maharaja of Travancore denounced all agreements including 1886 Lease Agreement, it is necessary to refer to the proviso appended to Section 7(1)(b). The expression "denounced by the Ruler of the Indian State" in the proviso appended to Section 7, in our opinion, refers to unambiguous, unequivocal and express denouncement. Kerala has not produced any material or document to show that there was express denouncement of that nature by the Ruler of Travancore insofar as 1886 Lease Agreement is concerned. We do not think that the bulletin issued on 18.07.1947 clearly or finally denounced the 1886 Lease Agreement. 51. Moreover, to be a valid and effective denouncement of the agreement between the Ruler and His Majesty such denouncement must be made after 1947 Act came into effect. Admittedly, there is no denouncement of 1886 Lease Agreement by the Travancore Ruler after 15.08.1947. 52. The relevant porti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that standstill agreement could not survive after the deletion of Section 177 with effect from 15.08.1947 by virtue of India (Provisional Constitution) Order, 1947 is also without substance. Section 177 was deleted because it could no longer work and because Dominion of India was to come into being with provinces as part of the Dominion and there was to be no Secretary of State in Council. We are in agreement with Mr. Vinod Bobde, learned senior counsel for Tamil Nadu that deletion of Section 177 was prospective and it did not affect the deeming that had already taken place in 1935. The standstill agreement, in our view, cannot be said to have been wiped out by the deletion of Section 177. 55. Mr. Harish N. Salve is right in submitting that under Section 177 existing contracts made by the Secretary of State prior to 1935 would have effect as if they were made on behalf of the concerned Province and by virtue of this provision, the Province of Madras was a beneficiary of standstill agreement but he does not seem to be right when he says that this situation changed on 14.08.1947 when the India (Provisional Constitution) Order, 1947 was issued and the standstill agreement arrived a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere extraditable offences under the Indian Extradition Act, 1903 (for short, '1903 Act'). The warrant was issued under Section 7 of the 1903 Act to the District Magistrate, Nainital, where the accused was residing after reverting to the service of the Uttar Pradesh Government, to arrest and deliver him up to the District Magistrate of Tonk. The accused raised defences on merits as well as to the validity of the warrant and challenged the jurisdiction of the Magistrate at Nainital to take cognizance of the matter and arrest the appellant. The High Court overruled all the objections and dismissed the application for the release of the appellant. The matter was carried to this Court. Inter alia, the contention on behalf of the appellant before this Court was that the treaty entered into between the British Government and the Tonk state on 28.01.1869, although declared by Section 7 of the 1947 Act, to have lapsed as from 15.08.1947 was continued in force by the standstill agreement entered into on 08.08.1947; that that treaty exclusively governed all matters relating to extradition between the two states, and that, inasmuch as it did not cover the offences now charged against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under Section 7 of the 1903 Act for an offence which is not extraditable under the treaty is, in any sense, a derogation from the provisions of the treaty which provides for the extradition of offenders for certain specified offences committed in the respective territories of the high contracting parties. 59.1. In the other opinion given by Mukherjea, J. as regards the question, how far was the Extradition Treaty between the Tonk State and the British Government affected by reason of the merger of the Tonk State along with eight other States in view of a covenant entered into by the Rulers of these nine States, into the United State of Rajasthan, it has been held that as a result of amalgamation or merger, a State loses its full and independent power of action over the subject matter of a treaty previously concluded, the treaty must lapse. Mukherjea, J. noted Article 6 of the merger and the general opinion of the international jurists that when a State relinquishes its life as such through incorporation into or absorption by another State either voluntarily or as a result of conquest or annexation, the treaties of the former are automatically terminated. Mukherjea, J. observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... States. But although such separation exists for some purposes between one State territory and another, it is clear that the inhabitants of all the different States became, from the date of merger, the subjects of the United State of Rajasthan and they could not be described as subjects of any particular State. There is no such thing as subject of the Tonk State existing at the present day and the Ruler of Tonk cannot independently and in his own right exercise any form of sovereignty or control over the Tonk territory. The Government, which exercises sovereign powers, is only one, even though the different Rulers may have a voice in it. It seems to us that in those altered circumstances the Extradition Treaty of 1869 has become entirely incapable of execution. It is not possible for the Tonk State, which is one of the contracting parties to act in accordance with the terms of the treaty, for it has no longer any independent authority or sovereign rights over the Tonk territory and can neither make nor demand extradition. When as a result of amalgamation or merger, a State loses its full and independent power of action over the subject-matter of a treaty previously concluded, the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sthan and Union Territory of Chandigarh on the other relating to the power generated in the Bhakra-Nangal and Beas Projects. One of the issues under consideration was whether after the merger of the State of Bilaspur with the Dominion of India, the State of Himachal Pradesh could still have any cause of action to file the suit. While dealing with this issue, this Court referred to Bilaspur Merger Agreement dated 15.08.1948, particularly, Article 1 thereof. After having noticed that provision, this Court in paragraph 48 of the Report (Pgs. 359-360) held as under:- "48. It is thus clear that by the Bilaspur Merger Agreement dated 15-8- 1948 the Raja of Bilaspur ceded to the Dominion Government full and exclusive authority, jurisdiction and powers for and in relation to the governance of the State and agreed to transfer the administration of the State to the Dominion Government on 12-10-1948. Thereafter, the Government of India, Ministry of Law, issued a Notification dated 20-7- 1949 (Ext. D-4/2-A) in exercise of its powers under Section 290-A of the Government of India Act, 1935 making the States Merger (Chief Commissioners' Provinces) Order, 1949, which came into force from 1-8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entities of those States who acceded to the Dominion of India were totally wiped out. There is merit in the submission of Tamil Nadu that the fact that on 24.05.1949 the States of Travancore and Cochin merged together also establishes that Indian States which acceded to the Dominion continued as entities. 63. In light of the above, we are unable to accept the argument of Kerala that Madras ceased to be a lessee on 15.08.1947. It is pertinent to observe here that Kerala entered into the supplemental agreements with Tamil Nadu in 1970. In these supplemental agreements, the continuance of 1886 lease is stated in clear and unambiguous words. Had 1886 Lease Agreement ceased to be operational on and from 15.08.1947, there was no occasion for Kerala to enter into supplemental agreements with Tamil Nadu in 1970. By first supplemental agreement, Tamil Nadu surrendered the fishing rights in the leased lands and also agreed to the upward revision of the rent of the leased land. The second supplemental agreement conferred on Tamil Nadu the right to generate power and right to construct all facilities required for power generation. An additional extent of 42.7 acres was leased to Tamil Nadu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as already declared that 1886 Lease Agreement is not political in nature. We are in agreement with this view. The same reasoning applies equally to standstill agreement. Virendra Singh 65. Mr. Harish N. Salve, learned senior counsel for Kerala relied upon the decision of this Court in Virendra Singh. The Constitution Bench in Virendra Singh was concerned with the question about the post- Constitutional rights to property situate in Indian States that were not part of British India before the Constitution but which acceded to the dominion of India shortly before the Constitution and became an integral part of the Indian Republic after it. Charkhari and Sarila were independent States under the paramountcy of the British Crown. They acknowledged the British Crown as the suzerain power. India obtained Independence and became a Dominion by reason of Act of 1947. The two States-Charkhari and Sarila-executed Instruments of Accession and acceded to dominion. In the Instrument of Accession, the sovereignty of the acceding States was expressly recognised and safeguarded. The Ruler of Sarila granted, on 28.01.1948, one village to the writ petitioners and the Ruler of Charkhari also granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded territories and, by legislation or otherwise, to apply its own laws to them; and these laws can, and indeed when the occasion arises must, be examined and interpreted by the municipal Courts of the absorbing State." 65.2. The exposition of above legal position by the Constitution Bench hardly admits of any doubt. Obviously, the accession of an Indian State to the dominion of India and acceptance of it by the Dominion are acts of State and jurisdiction of the courts to go into its competency or settle any dispute arising out of them are clearly barred under Article 363 and the proviso to Article 131. As we have already held-and that is what has been held in the 2006 judgment as well-that 1886 Lease Agreement is an ordinary agreement and that it is not political in nature, the embargo of Article 363 and the proviso to Article 131 have no application. Scope of Article 363 and Article 131 66. Article 363 of the Constitution is an embargo for the courts including Supreme Court to deal with any dispute arising out of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of the Constitution by any Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reaty, agreement, covenant, engagement, sanad or other similar instrument was entered into or executed before the commencement of the Constitution and has or has been continued in operation after such commencement. 69. There is similarity of provision in Article 363 and proviso to Article 131. The original jurisdiction conferred on this Court by the main provision contained in Article 131 is excepted by virtue of proviso in the matters of political settlements. By making provisions such as Article 363 and proviso to Article 131, the political settlements have been taken out of purview of judicial pronouncements. Proviso appended to Article 131 renders a dispute arising out of any treaty, agreement, covenant, engagement, sanad or similar instrument which is political in nature executed before the commencement of the Constitution and which has or has been continued in operation, non-justiciable and jurisdiction of this Court is barred. The jurisdiction of this Court is not taken away in respect of the dispute arising out of an ordinary agreement. The instruments referred to and described in proviso are only those which are political in nature. Non-political instruments are not cover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h immediately before such commencement were vested in an Indian State corresponding to a State specified in Part B of the First Schedule shall vest in the Union, if the purposes for which such property and assets were held, be purposes of the Union. Clause 1(b) provides that all rights and liabilities and obligations of the Government of any Indian State corresponding to a State specified in Part B of the First Schedule, whether arising out of any contract or otherwise shall be the rights, liabilities and obligations of the Government of India if the purposes for which such rights were acquired or liabilities and obligations were incurred, be purposes of the Government of India. Clause (2) of this Article provides that Government of each State specified in Part B of the First Schedule shall be the successor of the corresponding State as regards all property and assets and all rights, liabilities and obligations, whether arising out of any contract or otherwise, other than those referred to in clause (1). This is subject to any agreement entered into that behalf by the Government of India with the Government of the State concerned. The expression 'Government of the corresponding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r alia, decommissioning of the dam. The nullification of judgment is, thus, plain and obvious. A final judgment, once rendered, operates and remains in force until altered by the court in an appropriate proceeding. He submits that unilateral legislation nullifying a judgment is constitutionally impermissible. 77. Relying upon the judgment of this Court in Prithvi Cotton, learned senior counsel for Tamil Nadu submits that nullification of a judgment without removal of its legal basis is one of the categories of usurpation. A judgment on a question of fact cannot be nullified so also the effect of judgment, which enforces a legal right. By relying upon the Privy Council judgment in Liyanage, he submitted that interference with the judicial process in a pending matter also amounts to usurpation of judicial power. In both categories of usurpation, the answer would depend on facts of each case after considering the legal effect of the law on a judgment or a judicial proceeding. Mr. Vinod Bobde submits that the true purpose of the legislation, the haste with which it was enacted, and the surrounding circumstances, are relevant circumstances. 78. It is argued by learned senior counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned senior counsel for Tamil Nadu that the legislative declaration of fact in Section 62A that the dams in Second Schedule are endangered on account of their age, degeneration, degradation, structure or other impediments is not beyond judicial scrutiny and it is open to the court to examine the true facts. 83. Mr. Vinod Bobde argues that 2006 (Amendment) Act is not a validating enactment because (i) the judgment of this Court did not reach the finding about the safety of the dam founded on any law which was considered to suffer from any constitutional vice or defect; (ii) there was no occasion at all to remove any vice or cure any defect in any law and perform a validating exercise; and (iii) in fact, the 2006 (Amendment) Act does not purport to cure any defect found by this Court in any law. In this regard, reliance is placed upon decisions of this Court in Prithvi Cotton, Madan Mohan Pathak, People's Union for Civil Liberties (PUCL), Municipal Corporation of the City of Ahmedabad and Anr. and Janapada Sabha. 84. It is argued by Mr. Vinod Bobde that validating laws are passed by the legislature after curing the defects in the law which have been struck down but where a fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed senior counsel for Kerala, thus, submits that where a judgment is per incuriam, one remedy is by way of further appropriate legislation. 89. Learned senior counsel for Kerala in the course of arguments extensively referred to the provisions of 2003 Act and the substitution of Section 62 by providing with non obstante clause that the function of evaluation of safety of a dam and the power to issue directions to the custodian are conferred upon Dam Safety Authority notwithstanding any decree of any court, and notwithstanding anything contained in any treaty, contract, instrument or other documents and submitted that 2003 Act and 2006 (Amendment) Act have created a statutory framework for regulating water level in respect of dams within the State of Kerala, both scheduled and non-scheduled. 2006 (Amendment) Act establishes a statutory authority, which confers upon it the power to take certain measures in the interest of public safety. The judgment of this Court in 2006, Kerala contends, even does not suggest remotely that Kerala legislature lacks power to make measures for public safety in relation to the reservoir situated within the State. 90. Mr. Harish Salve argues that in de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade demarcation without drawing formal lines between the three organs-legislature, executive and judiciary. Mahal Chand Sethia 94. In Mahal Chand Sethia, while dealing with the argument that although it was open to the State legislature by an Act and the Governor by an Ordinance to amend the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, it was incompetent for either of them to validate an order of transfer which had been quashed by the issue of a writ of certiorari by the High Court and the order of transfer being virtually dead, could not be resuscitated by the Governor or legislature and the validating measures could not touch any adjudication by the Court. Mitter J. speaking for the Court stated the legal position:- "......A legislature of a State is competent to pass any measure which is within its legislative competence under the Constitution of India. of course, this is subject to the provisions of Part III of the Constitution. Laws can be enacted either by the Ordinance making power of a Governor or the Legislature of a State in respect of the topics covered by the entries in the appropriate List in the Seventh Schedule to the Constitution. Subject to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he words of the Constitution Bench:- "....When a Legislature sets out to validate a tax declared by a court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition, of course, is that the Legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. A court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions and one more decision of this Court in Amalgamated Coal Fields were noted by the two-Judge Bench of this Court in the Municipal Corporation of the City of Ahmedabad. While accepting that the legislature under our Constitution have within the prescribed limits, powers to make laws prospectively as well as retrospectively and that by exercise of those powers, the legislature can remove the basis of a decision rendered by a competent court thereby rendering that decision ineffective but no legislature has power to ask the instrumentalities of the State to disobey or disregard the decisions given by courts. Madan Mohan Pathak 98. Yet another important decision by the 7-Judge Constitution Bench of this Court on the subject is Madan Mohan Pathak. P.N. Bhagwati, J. speaking for himself, Krishna Iyer and Desai, JJ. while dealing with the constitutional validity of the Life Insurance Corporation (Modification of Settlement) Act, 1976, which was enacted by the Parliament in light of the decision of the Calcutta High Court holding an impost or tax to be invalid, observed that irrespective of whether the impugned Act was constitutionally valid or not, Life Insurance Corporation was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al as it sought to nullify the order of the Tribunal impinging on the judicial power of the State. PUCL 101. In People's Union for Civil Liberties (PUCL)15, the question under consideration before the three-Judge Bench of this Court was the validity of the Representation of the People (Amendment) Ordinance, 2002. The amendment followed the decision of this Court in Association for Democratic Reforms. M.B. Shah, J. speaking for the majority noticed the earlier decisions of this Court in P. Sambamurthy, Cauvery reference, Municipal Corporation of the City of Ahmedabad, Prithvi Cotton and Mahal Chand Sethia and stated:- "The Legislature can change the basis on which a decision is rendered by this Court and change the law in general. However, this power can be exercised subject to constitutional provision, particularly, legislative competence and if it is violative of fundamental rights enshrined in Part III of the Constitution, such law would be void as provided under Article 13 of the Constitution. The Legislature also cannot declare any decision of a court of law to be void or of no effect". Kesavananda Bharti, Indira Nehru Gandhi, Bal Mukund Sah and I.R. Coelho 102. That s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y altering or changing with retrospective, curative or neutralising effect the conditions on which such decision is based. As pointed out by Ray, C.J. in Indira Nehru Gandhi v. Raj Narain, the rendering ineffective of judgments or orders of competent courts and Tribunals by changing their basis by legislative enactment is a well-known pattern of all validating Acts. Such validating legislation which removes the causes for ineffectiveness or invalidity of actions or proceedings is not an encroachment on judicial power." 103.1. In I.N. Saksena, this Court referred to an earlier decision in Hari Singh wherein a Bench of seven Judges of this Court noted the two tests for judging the validity of a validating law: (i) whether the legislature possesses competence over the subject-matter, and, (ii) whether by validation, the legislature has removed the defect which the courts have found in the previous law. While following these two tests, the four-Judge Bench in I.N. Saksena added a third test: whether it is consistent with the provisions of Part III of the Constitution. P. Kannadasan 104. Prithvi Cotton has been followed in Hindustan Gum and Chemicals, Vijay Mills Company and P. Kanna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous decisions commencing from Shri Prithvi Cotton Mills. Under our Constitution, neither wing is superior to the other. Each wing derives its power and jurisdiction from the Constitution. Each must operate within the sphere allotted to it. Trying to make one wing superior to the other would be to introduce an imbalance in the system and a negation of the basic concept of separation of powers inherent in our system of government........" Indian Aluminium Company 105. In Indian Aluminium Company, one of the contentions addressed to this Court was that the Kerala legislature had no power to enact Section 11 of the impugned Act validating the levy with retrospective effect as it amounted to encroachment upon judicial power of the courts. While dealing with this contention, the Court referred to earlier decisions of this Court and culled out the following principles (para 56; Pgs. 662-663 of the Report):- "(1) The adjudication of the rights of the parties is the essential judicial function. Legislature has to lay down the norms of conduct or rules which will govern the parties and the transactions and require the court to give effect to them; (2) The Constitution delineated delicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a particular date. The legislature can change the character of the tax or duty from impermissible to permissible tax but the tax or levy should answer such character and the legislature is competent to recover the invalid tax validating such a tax on removing the invalid base for recovery from the subject or render the recovery from the State ineffectual. It is competent for the legislature to enact the law with retrospective effect and authorise its agencies to levy and collect the tax on that basis, make the imposition of levy collected and recovery of the tax made valid, notwithstanding the declaration by the court or the direction given for recovery thereof. (9) The consistent thread that runs through all the decisions of this Court is that the legislature cannot directly overrule the decision or make a direction as not binding on it but has power to make the decision ineffective by removing the base on which the decision was rendered, consistent with the law of the Constitution and the legislature must have competence to do the same." Arooran Sugars 106. In Arooran Sugars, the matter reached this Court from the judgment of the Madras High Court. Before the Madras High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The principle that the doctrine of colorable legislation does not involve bona fides or mala fides on the part of the legislature is highlighted by this Court in Dharam Dutt. Relying upon earlier decisions in K.C. Gajapati Narayan Deo and Ayurvedic and Unani Tibia College, the Court in Dharam Dutt further observed:- "16......The whole doctrine resolves itself into the question of the competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all. We will, therefore, concentrate on the legislative competence of Parliament to enact the impugned legislation. If Parliament has the requisite competence to enact the impugned Act, the enquiry into the motive which persuaded Parliament into passing the Act would be of no use at all." 108.1. On the question of the effect of the previous judgment of the High Court on the impugned legislation, this Court in Dharam Dutt referred to Madan Mohan Pathak, Prithvi Cotton, Indian Aluminium Company, Indira Nehru Gandhi and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ronounced to be void by the Court. It would have been better if before passing the Bill into an Act the attention of Parliament was specifically invited to the factum of an earlier pari materia Ordinance having been annulled by the High Court. If an Ordinance invalidated by the High Court is still re-enacted into an Act after the pronouncement by the High Court, the subsequent Act would be liable to be annulled once again on finding that the High Court was right in taking the view of the illegality of the Ordinance, which it did. However, as we have already stated, this is not the position obtaining in the present case. The impugned Act is not liable to be annulled on the ground of violation of the doctrine of separation of powers." Virender Singh Hooda (II) 109. In Virender Singh Hooda (II), this Court was concerned with the validity of Haryana Civil Services (Executive) Branch and Allied Services and other Services, Common/Combined Examination Act, 2002 (for short, 'the Act'). The contention of the petitioners in that case was that the Act amounted to usurpation of judicial power by the State legislature with a view to overrule the decisions of this Court in Virender Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment on the judicial power and the nullification of the effect of a judicial decision by changing the law retrospectively, the Court referred to Tirath Ram Rajinder Nath and stated, "the former is outside the competence of the legislature but the latter is within its permissible limits. The reason for this lies in the concept of separation of powers adopted by our constitutional scheme. The adjudication of the rights of the parties according to law is a judicial function. The legislature has to lay down the law prescribing norms of conduct which will govern parties and transactions and to require the court to give effect to that law". 109.4. Relying upon a decision of this Court in S.S. Bola, the Court in Virender Singh Hooda (II)55 said:- "49. When a particular rule or the Act is interpreted by a court of law in a specified manner and the law-making authority forms the opinion that such an interpretation would adversely affect the rights of the parties and would be grossly iniquitous and accordingly a new set of rules or laws is enacted, it is very often challenged on the ground that the legislature has usurped the judicial power. In such a case the court has a delicate function ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judiciary constituted a grave and deliberate incursion in the judicial sphere. It is worth noticing the following passage from Liyanage:- "If such Acts as these were valid the judicial power could be wholly absorbed by the Legislature and taken out of the hands of the Judges. It is appreciated that the Legislature has no such general intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringe the Constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. and thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution." 110.1. Liyanage is based on the principle of implied limitations on the legislative power. This position is accepted by our own Court in Kesavananda Bharati (per Shelat and Grover, JJ.). Nicholas 111. As regards the constitutional position in Australia, it needs to be mentioned that Australia has a Constitution with the rigid demarcation of powers between the leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutional? Nelson, J., who delivered the majority opinion of the court, accepted the general proposition that an act of Congress cannot have the effect and operation to annul the judgment of the court already rendered, or the rights thereby determined. It was further observed that adjudications upon the private rights of the parties which have passed into judgment, become absolute and it is the duty of the court to enforce it. Nelson, J. held: "But that part of the decree directing the abatement of the obstruction, is executory, a continuing decree, which requires not only the removal of the bridge but enjoins the defendants against any reconstruction or continuance. Now, whether it is a future existing or continuing obstruction depends upon the question whether or not it interferes with the right of navigation. If, in the mean time, since the decree, this right has been modified by the competent authority, so that the bridge is no longer an unlawful obstruction, it is quite plain the decree of the court cannot be enforced. There is no longer any interference with the enjoyment of the public right inconsistent with law, no more than there would be where the plaintiff himself had con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he former by the pleadings and evidence in a case. From this view it is at once seen, that congress could not undertake to hear the complaint of Pennsylvania in this case, take testimony or cause it to be taken, examine the surveys and reports of engineers, decide the questions of law which arise on the admission of the testimony, and give the proper and legal effect to the evidence in the final decree. To do this is the appropriate duty of the judicial power. and this is what was done by this court, before the above act of congress was passed. The court held, that the bridge obstructed the navigation of the Ohio River, and that, consequently, it was a nuisance. The act declared the bridge to be a legal structure, and, consequently, that it was not a nuisance. Now, is this a legislative or a judicial act? Whether it be a nuisance or not, depends upon the fact of obstruction; and this would seem to be strictly a judicial question, to be decided on evidence produced by the parties in a case." 113.3. In the minority opinion, McLean. J. declared the act of the Congress inoperative and void and reiterated that decree already passed be carried into effect according to its true intent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nhancing their value for agricultural purposes." Hodges 116. In Hodges, the U.S. Supreme Court, following Wheeling Bridge held as follows:- "In the Wheeling Bridge Case, as in the Clinton Bridge Case, the public right involved was that of abating an obstruction to the navigation of a river. The right involved in the present suit, of enjoining the maintenance of an illegal school district and the issuance of its bonds, is likewise a public right shared by the plaintiffs with all other resident taxpayers. and while in the Wheeling Bridge Case the bill was filed by the State, although partly in its proprietary capacity as the owner of certain canals and railways, the doctrine that a judgment declaring a public right may be annulled by subsequent legislation, applies with like force in the present suit, although brought by individuals primarily for their own benefit; the right involved and adjudged, in the one case as in the other, being public, and not private." 116.1. Hodges was a case where the U.S. Supreme Court dissolved an injunction against the formation of a consolidated school district following legislation which authorised such a consolidation, and yet upheld the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l power to invalidate this judgment of the people of Arkansas and their elected representatives as to the price society should pay to promote safety in the railroad industry......" Raymond Motor Transportation 118. Two more decisions of the U.S. Supreme Court, one, Raymond Motor Transportation and the other, Raymond Kassel may now be considered. Raymond Motor Transportation was concerned with the question whether administrative regulations of the State of Wisconsin governing the length and configuration of contracts that may be operated within the state violated the commerce clause. The three-Judge District Court held that the regulations were not unconstitutional on either ground. Upsetting the view of the District Court, Powell, J., who delivered the opinion of the Court first noted the general rule, "...... Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits". Powell, J., then concluded that the challenged regulations violated the commerce clause because th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 10(b) of the Act. Scalia, J., who delivered the majority opinion, referred to the following First Inaugural Address by President Lincoln in which the President explained why the political branches could not, and need not interfere with the judgment:- "I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit.... and while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice." 120.1. Scalia, J. also referred to the views of Thomas Cooley (a constitutional Scholar) who had said:- "If the legislature cannot thus indirectly control the action of the courts, by requiring of them a construction of the law according to its own views, it is very plain it cannot do so directly, by setting aside their judgments, compelling them to grant new trials ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he constitutions of the countries which contain express provision for separation of powers. (ii) Independence of courts from the executive and legislature is fundamental to the rule of law and one of the basic tenets of Indian Constitution. Separation of judicial power is a significant constitutional principle under the Constitution of India. (iii) Separation of powers between three organs-legislature, executive and judiciary-is also nothing but a consequence of principles of equality enshrined in Article 14 of the Constitution of India. Accordingly, breach of separation of judicial power may amount to negation of equality under Article 14. Stated thus, a legislation can be invalidated on the basis of breach of the separation of powers since such breach is negation of equality under Article 14 of the Constitution. (iv) The superior judiciary (High Courts and Supreme Court) is empowered by the Constitution to declare a law made by the legislature (Parliament and State legislatures) void if it is found to have transgressed the constitutional limitations or if it infringed the rights enshrined in Part III of the Constitution. (v) The doctrine of separation of powers applies to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriyar Environmental Protection Forum at some length. That decision was rendered by this Court in a writ petition filed by Mullaperiyar Environment Protection Forum under Article 32 of the Constitution of India and few transferred cases. In that case, the petitioner's claim was that water level in the reservoir cannot be raised from its present level of 136 ft. That was the stand of Kerala as well. According to Kerala, the life of Mullaperiyar dam was fifty years from the date of construction but it had already completed more than hundred years and it had served its useful life. In Kerala's view, it was dangerous to allow raising of water levels beyond 136 ft. and serious consequences could ensue resulting in wiping out of three adjoining districts completely. On the other hand, Tamil Nadu set up the case that as per the report of the Expert Committee constituted by this Court, the water level could be raised upto 142 ft. as an interim measure and on taking certain steps and after execution of the strengthening measure in respect of baby dam, earthen bund and on completion of remaining portion, water level could be allowed to be restored at FRL of 152 ft. Tamil Nadu sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A. Mohanakrishnan, Member of Tamil Nadu Government, opined in the light of para 4 that the water level should be raised up to at least EL 143.00 ft (43.59 m) as the tensile stresses are within the permissible limits. Shri M.K. Parameswaran Nair, Member of Kerala Government did not agree to raise the water level above EL 136.00 ft (41.45 m). However, the Committee after detailed deliberations, has opined that the water level in the Mullaperiyar reservoir be raised to EL 142.00 ft (43.28 m) which will not endanger the safety of the main dam, including spillway, baby dam and earthen bund. The abstracts of the calculations for stress analysis are enclosed as Annexure XIX. 6. This raising of reservoir level up to a level where the tensile stress does not exceed 2.85 t/m2 during the earthquake condition is an interim measure and further raising of water level to the FRL EL 152.00 ft (46.33 m) (original design FRL of the Mullaperiyar reservoir) be studied after the strengthening measures on baby dam are carried out and completed." 122.3 The Court framed the following five questions for consideration:- "1. Whether Section 108 of the States Reorganisation Act, 1956 is unconstitutional? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s confined to whether water level in the reservoir could be increased to 142 ft. for which there was already a report by an Expert Committee. 122.8 For consideration of question No. 5, the Court carefully referred to the report of the Expert Committee with regard to safety of the dam on water level being raised to 142 ft. In para 30 of the judgment, this Court held as under:- "30. Regarding the issue as to the safety of the dam on water level being raised to 142 ft from the present level of 136 ft, the various reports have examined the safety angle in-depth including the viewpoint of earthquake resistance. The apprehensions have been found to be baseless. In fact, the reports suggest an obstructionist attitude on the part of the State of Kerala. The Expert Committee was comprised of independent officers. Seismic forces as per the provisions were taken into account and structural designs made accordingly while carrying out strengthening measures. The final report of the Committee set up by the Ministry of Water Resources, Government of India to study the water safety aspect of the dam and raising the water level has examined the matter in detail. The Chairman of the Committee was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment in its affidavit, no damage to the dam was reported by CWC officers who inspected the dam. The experts having reported about the safety of the dam and the Kerala Government having adopted an obstructionist approach, cannot now be permitted to take shelter under the plea that these are disputed questions of fact. There is no report to suggest that the safety of the dam would be jeopardised if the water level is raised for the present to 142 ft. The report is to the contrary." (emphasis supplied by us) 122.9 In view of the above consideration, this Court restrained Kerala and its officers from causing any obstruction from carrying out further strengthening measures by Tamil Nadu as suggested by CWC and Tamil Nadu was permitted to increase water level of Mullaperiyar dam to 142 ft. 122.10. The judgment in Mullaperiyar Environmental Protection Forum was pronounced on 27.02.2006. 123. On 14/15.03.2006, a special session of the Kerala Legislative Assembly was convened and a Bill was introduced to amend the 2003 Act, which was passed on 15.03.2006. On 18.03.2006, the Bill received the assent of the Governor and became an enactment with effect from that day. 124. It is, thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s violative of the rule of law? 128. As noted in the earlier part of the judgment, the 2003 Act was enacted to consolidate and amend the laws relating to construction of irrigation works, conservation and distribution of water for the purpose of irrigation in the State of Kerala and other incidental matters. Section 2(b) defines "Authority" which means the Kerala Dam Safety Authority constituted under Section 57. Section 2(k) defines "distributory system" which means and includes, inter alia, all works, structures and appliances connected with the distribution of water for irrigation. Section 2(w) defines "irrigation work" which, inter alia, includes all reservoirs which may be used for the supply, collection, storage or retention of water for agricultural purposes and reservoirs installed to supply water. Section 2(aq) defines "water course" which means a river, stream, springs, channel, lake or any natural collection of water other than in a private land and includes any tributary or branch of any river, stream, springs or channel. Section 3 starts with non obstante clause and provides that all water courses and all water in such water courses in the State shall be the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions as it deems fit, requiring any person having possession or control of such dam to take such measures or to do such things within such time as may be specified therein to give effect to the advice or recommendations, and such person shall be bound to comply with the orders and directions issued by the Government. 129. Mr. Harish N. Salve, learned senior counsel for Kerala argued that these provisions were not taken into consideration by this Court in its judgment in Mullaperiyar Environmental Protection Forum and, therefore, judgment of this Court is per incuriam. 130. We are not persuaded by this argument at all. 2003 Act was neither referred to nor relied upon by Kerala at the time of hearing in Mullaperiyar Environmental Protection Forum. It was rightly so because 2003 Act had no direct bearing on the issues which were under consideration. Section 3 refers to water courses and the definition of "water course" in Section 2 (aq) does not include a dam such as Mullaperiyar dam. Kerala Dam Safety Authority was not in place when the arguments in Mullaperiyar Environmental Protection Forum were concluded. We are informed that Dam Safety Authority came to be constituted on 18.2.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, instrument or any other document. Sub-section (3) of new Section 62 provides that where a direction is issued by the Dam Safety Authority under sub-Section (1), the custodian or any other agency to whom it is directed shall take immediate measures within the time frame stipulated by the Authority or do or refrain from doing such things within such time frame as may be stipulated and to comply with the directions of the Authority. After Section 62, new Sections 62A and 62B have been added. The details of the dams which are endangered on account of their age, degeneration, degradation, structural or other impediments are specified in the Second Schedule. Sub-sections (2) and (3) to new Section 62A are overriding provisions, which read as under:- "(1) xxx xxx xxx (2) Notwithstanding anything contained in any other law or in any judgment, decree, order or direction of any court, or any treaty, contract, agreement, instrument or document, no Government, custodian or any other agency shall increase, augment, add to or expand the Full Reservoir Level Fixed or in any other way do or omit to do any act with a view to increase the water level fixed and set out in THE SECOND SCHEDULE. Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of additional scientific evidence. .................. It is not for the Court to assess the merits of either of the scientific points of view argued before it and to substitute its assessment for that of the Community institutions, on which the Treaty confers sole responsibility in that regard. ...................." 139. Kerala has also relied upon the article, "The Public Trust Doctrine in the Water Rights Context" by Roderick E. Walston. The author has culled out following four principles of the Public Trust doctrine:- "(1) The state as sovereign "retains continuing supervisory control" over navigable waters and underlying beds; (2) The legislature, either directly or through the water rights agency, has the right to grant usufructuary water rights even though such rights will "not promote, and may unavoidably harm, the trust uses at the sources stream;" (3) The state has the "affirmative duty" to take the public trust into account in planning and allocating water resources; and (4) The state has a "duty of continuing supervision" over water rights even after such rights have been granted." 139.1 Public trust doctrine, Roderick E. Walston says, is regarded by some as an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he court. 145. Section 62A declares the dam to be endangered. The Second Schedule appended to the Act fixes the height of the water level at 136 ft. though this Court in its judgment had declared Mullaperiyar dam safe and permitted the increase of the water level to 142 ft. Moreover, the 2006 (Amendment) Act authorises the Dam Safety Authority to adjudge its safety to allow raising of water level. The provision is in direct disregard of the judgment of this Court. Section 62A also freezes all work on the dam allowed by this Court in its judgment dated 27.2.2006. In our opinion, by 2006 (Amendment) Act, the Kerala legislature has overturned a final judgment in the interest of its own executive Government. The impugned law amounts to reversal of the judgment of this Court which determines directly the question of safety of Mullaperiyar dam for raising water level to 142 ft. and whereunder Tamil Nadu's legal right has been determined. 146. On behalf of Kerala, it is strenuously argued by Mr. Harish Salve that right to safety of the people being a public right could not have passed into 2006 judgment of this court. In this regard, heavy reliance is placed on the majority decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The stress laid by Weeramantry, J. is that where issue of serious or catastrophic environmental danger arises, the Court must look beyond inter partes adversarial procedures. 149. It is true that safety of dam is an aspect which can change from time to time in different circumstances but then the circumstances have to be shown based on which it becomes necessary to make departure from the earlier finding. It is always open to any of the parties to approach the court and apply for re-assessing the safety aspect but absent change in circumstances, factual determination in the earlier proceedings even on the questions such as safety of dam binds the parties. If the circumstances have changed which necessitates a re-look on the aspect of safety, the Court itself may exercise its discretion to reopen such case but legislative abrogation of judgment for even the very best of reasons and genuine concern for public safety does not clothe the legislature to rescind the judgment of the court by a legislation. 150. The contention of Mr. Harish Salve that by declaring dam unsafe, the legislature has not rendered any finding of fact; it deems dam unsafe and sets up an Authority to regulate i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law, as by such law, the legislature has clearly usurped the judicial power. Res-judicata 155. It is true that 2006 judgment was rendered in exercise of the jurisdiction of this Court under Article 32 of the Constitution and the petitions which were transferred to this Court under Article 139A but to say that such judgment does not bind this Court while deciding the present suit, which confers exclusive jurisdiction upon it, is not correct. The earlier decision of this Court by no stretch of imagination can be regarded as a judgment rendered without jurisdiction. A finding recorded by this Court in the proceedings under Article 32 is as effective and final as in any other proceedings. 156. The rule of res judicata is not merely a technical rule but it is based on high public policy. The rule embodies a principle of public policy, which in turn, is an essential part of the rule of law. In Duchess of Kingston, the House of Lords (in the opinion of Sir William de Grey) has observed: "From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: first, that the judgment of a court of concurrent juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give limited effect to the principle of finality of decision after full contest. 162. Nanak Singh has been followed by a three Judge Bench of this Court in Bua Das Kaushal. In our view, the rule of res judicata which is founded on public policy prevents not only a new decision in the subsequent suit but also prevents new investigation. It prevents the defendant from setting up a plea in a subsequent suit which was decided between the parties in the previous proceedings. The legal position with regard to rule of res judicata is fairly well-settled that the decision on a matter in controversy in writ proceeding (Article 226 or Article 32 of the Constitution) operates as res judicata in subsequent suit on the same matters in controversy between the same parties. For the applicability of rule of res judicata it is not necessary that the decision in the previous suit must be the decision in the suit so as to operate as res judicata in a subsequent suit. A decision in previous proceeding, like under Article 32 or Article 226 of the Constitution, which is not a suit, will be binding on the parties in the subsequent suit on the principle of res judicata. 163. For the applicability of ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground of safety was found untenable. The judgment dated 27.2.2006 of this Court, thus, operates as res judicata in respect of the issue of safety of the dam by increasing its water level from 136 ft. to 142 ft. 171. It is argued by Mr. Harish Salve, learned senior counsel for Kerala, that even agreements entered into between foreign sovereigns can be overridden in exercise of legislative powers. He argues that if the contention of Tamil Nadu that the 1886 Lease Agreement was an ordinary lease agreement is correct and assuming that such an agreement was continued, it clearly was open to the legislature of the State of Kerala to override such a contract. According to him, even contracts by way of sanads, treaties, etc., by the Crown could, after the Government of India Act and also after the Constitution of India, be overridden by exercise of the legislative power. 172. Learned senior counsel for Kerala in support of this contention relied upon the Privy Council decision in Thakur Jagannath Baksh and Maharaj Umeg Singh. Learned senior counsel also submits that Section 108 of the SR Act does not create any limitation upon Kerala exercising legislative power, inter alia, to cancel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r more States is conferred upon the Supreme Court by Article 131 of the Constitution. However, it does not follow logically from this that a judgment rendered by the Supreme Court in a writ jurisdiction under Article 32 amongst others between two States is not conclusive and binding on such States. As already noted above, the 2006 judgment rendered by this Court in exercise of its jurisdiction under Article 32 binds Kerala and Tamil Nadu. We have no hesitation and we state with all emphasis that a finding recorded by this Court in exercise of jurisdiction under Article 32 is binding between the two parties, in a subsequent suit between the two States under Article 131. Safety of Mullaperiyar dam-Evidence and EC Report 178. Learned senior counsel for Kerala while assailing the finding of fact on safety of Mullaperiyar dam recorded in 2006 judgment, and in support of his contention that it does not constitute res judicata as the circumstances have changed, has relied upon the evidence of its witness Dr. A.K. Gosain (DW-3) on the impact of Probable Maximum Flood (PMF), evidence of Dr. D.K. Paul on the impact of seismic forces and certain admissions of Tamil Nadu's witness PW-1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriyar dam is a composite gravity dam constructed of lime surkhi mortar and lime surkhi concrete; that inner core of the dam, which constitutes 62% of the total volume, admittedly consists of lime surkhi concrete; and that Mullaperiyar dam has suffered heavy leaching of lime and has lost as much as 30.48 MT per year as found by the Expert Committee of Tamil Nadu, which has been admitted by PW-1. Kerala has highlighted that the density of the materials used in the dam has gradually gone down from 150 lbs/cft considered in 1895 to 135 lbs/cft in 1986 and that such gradual reduction testifies structural degradation of the Mullaperiyar dam. 184. As noted earlier, when the matter was initially taken up by the Constitution Bench it was felt that all the aspects of the matter including safety of Mullaperiyar dam need to be examined by an Empowered Committee (EC), which may help the Court in deciding the matter effectively. Accordingly, on 18.2.2010 the Constitution Bench directed the Central Government to constitute an EC under the Chairmanship of Dr. A.S. Anand, former Chief Justice of India, and comprising of two members nominated by the States of Kerala and Tamil Nadu and two renowned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owards An Amicable Resolution". Two notes, one from Justice K.T. Thomas, member of the EC, and the other from Justice (Dr.) A.R. Lakshmanan, member of the EC, on Chapter VIII of the report of the EC are also appended to the report. 186. In Chapter III, the EC has recorded the issues for consideration. One of the issues, viz., Issue No.4 for consideration reads, "Should the reservoir level be raised from 136 ft.? If yes, what further measures for strengthening the existing dam, do the two parties envisage, to allow the raising of reservoir level from 136 ft. to 142 ft. and beyond?" 187. In Chapter V, the EC has noted responses by Tamil Nadu and Kerala to the issues framed by it. 188. Chapter VI, in which appraisal and analysis of ITS reports have been made, shows that following tests and studies were formulated so as to effectively deal with the concerns and grievances of the two States:- "A. Hydrologic Safety:- Title Purpose of ITS Verification of the Probable To determine: Maximum Flood (PMF) computations with flood routing for revisiting spillway capacity. Probable Maximum Flood (PMF) Outflow PMF hydrograph and its moderation from Mulla Periyar Dam upto tip of Idukki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terials and foundation for using in safety/stability status assessment. To carry out core drilling in Dam body/foundation to enable following physical and chemical, in-situ and ex-situ (in laboratories) tests. In-situ Tests: Sonic test Gamma - Gamma/Neutron-Neutron Dye Tracer Electrical Resistivity and Geophysical Tomographic Study Ex-situ Tests: Compressive strength Tensile Strength Modulus of Elasticity (Static as well as dynamic) Poisson's ratio Density Free Lime Chemical analysis of materials Measurement of loss of stress in the sample pre-stressed cable To determine loss of pre-stress and hence residual pre-stress in the cable anchors installed in 1981, as part of strengthening measures. Note: Side items of ITS pertain to i) Thermal properties of backing concrete and effect on interface, ii) Instrumentation, and iii) Stability of Main and Baby Dam. C. Seismic Safety:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EC also requested Tamil Nadu to obtain and test core samples from dam body/foundation rock, besides carrying out in situ tests in 9 holes on Mullaperiyar dam, of 150 mm size and more, which were got done by Tamil Nadu. These test reports were also considered. The chemical tests on constructed material used in the dam body and reservoir water were also conducted. The test results indicate innocuous nature of all these materials. 193. All time seepage data of Mullaperiyar dam has been appraised and analysed by EC, which indicates that it is within permissible limits. Testing of one ungrouted cable anchor for residual pre-stress was got done. Analysis has also been done of thermal properties of backing concrete and effect on interface. The detailed appraisal and analysis of ITS reports for seismic design parameters on Mullaperiyar dam show the recent earthquake events to be transient and inconsequential. 194. One of the apprehensions highlighted by Kerala is that a dam break flood would cause large scale devastation. This aspect has been considered by the EC under the head "Dam Break Flood and possible cascading effect". EC in this regard has observed that Kerala has not supplied t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigations, 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. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uilon District in Kerala and traverses only through the territory of Kerala before falling into the Arabian sea. 203. In its replication, Tamil Nadu has averred that, in any event, in the earlier proceedings, Kerala had raised the plea of lack of jurisdiction of this Court to entertain the river water disputes with reference to Article 262 of the Constitution read with Section 11 of the Inter-State River Water Disputes Act, 1956. This plea was raised on the ground that river Periyar is an inter-State river. Tamil Nadu, thus, has set up the plea that Kerala is estopped from raising a plea that river Periyar is not an inter-State river. 204. Mr. Harish Salve, learned senior counsel for Kerala, argues that river Periyar rises in Kerala and flows for a length of 244 km. in Kerala before entering in the sea at Kerala coast. River Periyar does not touch any part of Tamil Nadu. He submits that in the earlier proceedings, Kerala had not admitted that river Periyar was an inter-State river. Learned senior counsel contends that river Periyar is an intra-State river and Kerala's averments in the earlier proceedings does not estop it from raising the plea that river Periyar is not an int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the heading "Interstate waters" from "Water Resources of Kerala" published by Public Works Department, Government of Kerala in 1958, Periyar has been mentioned as an inter-State river. This witness also admits that Water Atlas of Kerala wherein details of Periyar basin are given shows that part of the basin falls in the neighbouring State of Tamil Nadu. 208. Since Kerala has raised the plea that river Periyar is an intra- State river, obviously, burden is on Kerala to prove this fact. Kerala, except asserting that Periyar river rises in and traverses only in the territory of Kerala before entering into Arabian sea and no part of the land in Tamil Nadu abuts river Periyar, has not produced substantial evidence to prove that river Periyar is an intra-State river. Kerala has not discharged its burden to the satisfaction of the Court. 209. It is true that averment of Tamil Nadu in the plaint that the two States-Kerala and Tamil Nadu-are riparian States is not right in its entirety 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 tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be carried out. 2(e) That the SoTN will be entitled to all its existing rights including all water levels under the Lease Deed of 1886 and Agreement of 1970. 2(f) That decommissioning or demolition of the existing dam would be subject to the conditions 2(a) to 2(e) being met by the two Party States. 2(g) The Empowered Committee had made the suggestion to the two States during the hearing on 2nd January, 2012. Learned counsel for the parties had sought time to consult the States and file their responses. Counsel for the parties later on gave their responses in general terms, but there has been no direct response or opposition to the alternatives suggested." 212. Any amicable resolution of the present dispute between the two States would have been really good for the people of these States but this has not been possible as the two States have sharp conflict over the subject matter and their stance is rigid, inflexible and hard. The offer made by Kerala 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 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50 ft. These studies will have to be undertaken within a specified time frame. It goes without saying that the water flow from the New Tunnel can be used for power generation or for any other purpose by making changes in its existing infrastructure. Depending upon a decision about the elevation of the New Tunnel outlet, evacuation of the MPD reservoir will be possible in corresponding time period. a) The new tunnel, will need to be constructed by the SoTN, since the ownership of the existing dam vests in it. The total expenditure for construction of the new tunnel should be borne by the SoTN. The costs may be small as compared to the cost of the replacement of the new dam. The SoTN should accomplish surveys and feasibility studies for the proposal of having a new tunnel within a year. b) The New Tunnel say at EI 50 ft will enable the SoTN to use additional water available in storage between EL 106 ft to 50 ft. At present, these waters are remaining unused. c) More importantly, if this alternative is implemented in an agreed period of time, the fear perception in the minds of people of the SoK will be set at rest. They can then appreciate that the New Tunnel is going to help eva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complaining State is much greater than that generally required to be borne by one seeking an injunction in a suit between private parties. The complaining State has to establish that threatened invasion of rights is substantial and of a serious magnitude. In the matter between States, injunction would not follow because there is infraction of some rights of the complaining State but a case of high equity must be made out that moves the conscience of the Court in granting injunction......." 217. Tamil Nadu on the other hand asserts that raising the water level in the dam to original FRL is absolutely necessary to irrigate the lands in about 2 lakh acres in five drought-prone districts of Theni, Dindigul, Madurai, Sivagangai and Ramanathanpuram. About 6.8 lakh farmers and agricultural labourers besides 80 lakh people of the above five districts continue to suffer due to inadequate timely supply of water for irrigation and drinking purposes. 218. Pertinently, EC has also considered this aspect and observed as follows:- "EC has assessed that increase in irrigation in Vaigai Basin is mainly due to i) construction of Vaigai Dam in 1954 and related canal distribution system post 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Tamil Nadu is entitled to the reliefs as prayed in para 40 (i) and (ii) of the suit. Consequently, it is declared that the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 passed by the Kerala legislature is unconstitutional in its application to and effect on the Mullaperiyar dam. The 1st defendant-State of Kerala-is restrained by a decree of permanent injunction from applying and enforcing the impugned legislation or in any manner interfering with or obstructing the State of Tamil Nadu from increasing the water level to 142 ft. and from carrying out the repair works as per the judgment of this Court dated 27.2.2006 in W.P.(C) No. 386/2001 with connected matters. 222. However, to allay the apprehensions of Kerala- though none exists-about the safety of the Mullaperiyar dam on restoration of the FRL to 142 ft., a 3-Member Supervisory Committee is constituted. The Committee 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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