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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION ORIGINAL SUIT NO. 3 OF 2006

State of Tamil Nadu               ……  Plaintiff

Versus  

State of Kerala & Anr.                ……  Defendants

JUDGMENT

R.M. LODHA, CJI.  

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  Forum1) 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  

1  Mullaperiyar Environmental Protection Forum v. Union of India & Ors.; [(2006) 3 SCC 643]

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1886  Lease  Agreement  between  the  Maharaja  of  Travancore  and  the  

Secretary of State for India in Council, the leased area as set out therein was  

granted on lease for 999 years from 01.01.1886.  The length of the main dam  

is 1200 ft. (365.76 m.) and top of the dam is 155 ft. (47.24 m.). The top of solid  

parapet and maximum height of the dam from deepest foundation are 158 ft.  

(48.16 m.) and 176 ft. (53.64 m.), respectively. The FRL of the dam is 152 ft.  

(46.33 m.). The original spillway capacity of the dam was 10 vents of 36’ x 16’  

(10.97 m. x 4.88 m.). The length of the Baby dam is 240 ft. (73.15 m.).

1979-1980 : Controversy about safety of the Dam

3. In 1979 with regard to the safety of  the Mullaperiyar  dam, the  

Government of Kerala wrote to the Tamil Nadu Government to take immediate  

steps to  strengthen the dam.  Simultaneously,  the Kerala  Government  also  

requested  the  Central  Government  to  depute  a  team from Central  Water  

Commission (CWC) to inspect the dam and suggest strengthening measures.

4. In pursuance of the request from the Kerala Government, the then  

Chairman,  CWC  inspected the dam and held  a  meeting on 25.11.1979 in  

which the officers from Tamil Nadu and Kerala participated. In that meeting,  

three level  measures,  (i)  emergency,  (ii)  medium and (iii)  long term, were  

suggested to strengthen the dam. In the meantime, it was recommended that  

water level in the reservoir be kept at 136 ft. (41.45 m.)

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5. In the second meeting held  on 29.04.1980,  it  was opined that  

after the completion of emergency and medium-term strengthening measures,  

the water level in the reservoir can be restored up to 145 ft. (44.2 m.).

1998 : Litigation begins  

6. Tamil  Nadu says that all  measures – emergency, medium and  

long term as suggested by the CWC have been undertaken by it but despite  

that no consensus could be reached between the two State Governments (of  

Tamil Nadu and Kerala)  to raise the water level in the Mullaperiyar reservoir  

beyond 136 ft. This led to the filing of number of writ petitions in the Kerala  

High Court as well as in the Madras High Court sometime in 1998 on the issue  

for and against  raising of  water level  in the Mullaperiyar  reservoir  and the  

safety of the dam. As the controversy was pending before the two High Courts  

and there was likelihood of conflicting judgments, some transfer petitions were  

filed before this Court.   

7. On 28.04.2000, in the transfer petitions, this Court desired Union  

Minister of Water Resources   to convene a meeting of the Chief Ministers of  

Kerala  and  Tamil  Nadu  to  amicably  resolve  the  issue.  The  meeting  was  

convened on 19.05.2000 but no consensus could be reached in the meeting  

as well.   However, in that meeting, the Union Minister of Water Resources  

decided to constitute an Expert Committee to go into the details of the safety  

of the dam and advise him on raising of water level in the reservoir.  

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8. On 14.06.2000, the Expert Committee was constituted having the  

following terms of reference.            

“(a) To study the safety of Mullaperiyar dam located on Periyar river   in Kerala with respect to the strengthening of dam carried out by the  Government  of  Tamil  Nadu  in  accordance  with  the  strengthening  measures  suggested  by  CWC  and  to  report/advise  the  Hon’ble  Minister of Water Resources on the safety of the dam.

(b) To advise the Hon’ble Minister of Water Resources regarding  raising of water level in Mullaperiyar reservoir beyond 136 ft. (41.45  m) as a result  of  strengthening of the dam and its  safety as at (a)  above.”

9. After initial resistance, the Government of Kerala nominated one  

Member to the Expert Committee.

10. The Expert Committee gave its final report on 16.03.2001.  While  

the matter  was under consideration by the Expert  Committee,  it  also gave  

certain interim directions. In its report, the Expert Committee had opined that  

water level in the Mullaperiyar reservoir could be raised to 142 ft. (43.28 m.)  

as that will not endanger the safety of the main dam, including spillway, baby  

dam and earthen bund.  

First litigation before this Court

11. Despite the above recommendation from the Expert Committee,  

the Government  of  Kerala  continued to  resist  raising of  water  level  in  the  

reservoir  beyond  136  ft.   It  was  then  that  a  writ  petition  was  filed  by  

Mullaperiyar  Environmental  Protection  Forum directly  before  this  Court  

wherein  diverse  prayers  were  made.   This  Court  also  transferred  the writ  

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petitions which were pending before the Kerala High Court and Madras High  

Court to this Court.  

12. After hearing the parties, including the two states, this Court gave  

its decision on 27.02.2006 permitting the water level in the Mullaperiyar dam  

to  be  raised  up to  142 ft.  The State  of  Kerala  and its  officers  were  also  

restrained from causing any obstruction to the above. It was also observed  

that after the strengthening work was complete to the satisfaction of CWC,  

independent experts would examine the safety angle before the water level is  

permitted to be raised up to 152 ft.    

2003 Act

13. Kerala  Irrigation and Water  Conservation Act,  2003 (for  short,  

“2003  Act”)  was  enacted  by  Kerala  legislature,  which  came into  force  on  

18.09.2003. 2003 Act was enacted to consolidate and amend the laws relating  

to construction of irrigation works, conservation and distribution of water for  

the purpose of irrigation and levy of betterment, contribution and water cess on  

lands benefited by irrigation works in the State of Kerala and to provide for  

involvement of farmers in water utilisation system and for matters connected  

therewith or incidental  thereto.  2003 Act was neither referred to nor relied  

upon by Kerala at the time of hearing in Mullaperiyar Environmental Protection  

Forum1.

2006 (Amendment) Act

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14. On 18.03.2006, in less than three weeks of the decision of this  

Court  in  Mullaperiyar  Environmental  Protection  Forum1,  the  Kerala  State  

legislature amended 2003 Act by the Kerala Irrigation and Water Conservation  

(Amendment) Act, 2006 [for short, “2006 (Amendment) Act”)]2.  

15. In the Second Schedule, appended to the 2006 (Amendment) Act,  

the Mullaperiyar dam owned and maintained by Tamil  Nadu is included as  

Item No. 1 where the height of the FRL has been fixed at 136 ft.  

Second litigation before this Court : Suit by Tamil Nadu

2   The salient features of the 2006 (Amendment) Act are as follows:    i. In Section 2, clause (ja) defines ‘custodian’ to mean a State Government  which has established or is running or otherwise operating any dam in Kerala. Further, clause (ala)   defines ‘Scheduled Dam’ to mean any dam included in the second schedule. The very first entry in   the Second Schedule is the Mullai Periyar Dam. ii. In  Section  57  (1)  the  words  “Surveillance,  inspection”  is  replaced  by  “ensuring the safety and security” iii. Introduction of 57(3) in main Chapter XII – ‘Constitution of Dam Safety  Authority’ to give effect to Chapter XII inspite of any other laws. iv. Replacement of existing section 62(1)(a) to (i) by new section 62 (1)(a) to  (j). The newly substituted Section 62(1), in so far as is material, reads as under: 62(1)  Notwithstanding anything contained in any other law, judgment, decree or order of any Court   or in any treaty, agreement, contract, instrument or other document, the authority shall exercise the   following powers viz:-

(a)(b)(c)  xxx xxx xxx  (d) to direct the custodians to carry out any  alteration, improvement, replacement or strengthening measures to any dam found to pose a   treat to human life or property; (e) to direct  the  custodian  to suspend the  functioning of any dam, to decommission any dam or restrict the functioning of any dam if  public safety or threat to human life or property, so requires;  (f) to advise the Government, custodian, or  other  agencies about policies and  procedures  to be followed in  site investigation,  design,   construction, operation and maintenance of dams; (g) to conduct  studies,  inspect  and  advise  the custodian or any other agency on the advisability of raising or lowering of the Maximum   Water  Level or Full  Reservoir  Level of any dam not being a scheduled dam,  taking  into  account the safety of the dam concerned;  (h) to conduct  studies,  inspect  and  advise  the  custodian  or  any agency on  the  sustainability  or  suitability of any dam  not  being  a   scheduled dam, to hold water in its reservoir, to get expert opinion of international  repute,   and provide advice by dam-break analysis and independent study and to direct strengthening   measures or require the commissioning of a new dam within a timeframe to be prescribed to  replace the existing dam;”

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16. The  State  of  Tamil  Nadu immediately  thereafter  instituted  the  

present suit under Article 131 of the Constitution of India against the State of  

Kerala. It is necessary to elaborate somewhat on facts as proceedings are in  

the nature of suit in original jurisdiction of this Court. The plaint avers that on  

coming into force of the States Reorganisation Act, 1956, (for short, “SR Act”),  

the State of Travancore – Cochin (Part – B, State) was formed.  The State of  

Kerala (first defendant) is the successor in interest of the State of Travancore  

– Cochin. The State of Tamil Nadu is the successor in interest of the Governor  

in Council, Secretary of State for India.  Tamil Nadu has, thus, pleaded that  

plaintiff  and  the  first  defendant  are  successors  in  interest  of  the  original  

contracting parties of the 1886 Lease Agreement.  

17. It is averred by Tamil Nadu that on 29.05.1970, two supplemental  

agreements were executed between it  and  Kerala.  The two supplemental  

agreements did not change the basic character of the 1886 Lease Agreement.  

By first supplemental agreement, Tamil Nadu surrendered the fishing rights in  

the leased lands and also agreed to the upward revision of the rent of the  

leased land.  The second supplemental agreement conferred on Tamil Nadu,  

the right to generate power and  right to construct all  facilities  required for  

power  generation.  An additional  extent of  42.7 acres was leased to  Tamil  

Nadu for the said purposes and correspondingly Tamil Nadu was required to  

pay to  Kerala  a  sum annually  as  specified  in  the agreement.  Tamil  Nadu  

claims that the two supplemental  agreements have re-affirmed,  re-asserted  

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and  ratified  1886  Lease  Agreement,  which  was  statutorily  protected  and  

continued by Section 108 of the SR Act.   

Grounds of challenge to 2006 (Amendment) Act

18. The challenge to 2006 (Amendment) Act to the extent it  affects  

Mullaperiyar dam is laid in the plaint on diverse grounds, some of which are  

the following:

(a) The impugned legislation amounts to usurpation of judicial power  

inasmuch as Kerala  State Legislature has arrogated to itself  the role  of  a  

judicial body and has itself determined the questions regarding the dam safety  

and raising the water level  when such questions fall  exclusively  within the  

province of the judiciary and have already been determined by this Court in its  

judgment dated 27.02.2006.  

(b) 2006 Amendment Act is beyond the legislative competence of the  

State of Kerala insofar as it affects the Mullaperiyar dam in view of Section  

108 of the SR Act which is a law made by Parliament under Articles 3 and 4 of  

the Constitution, which confer plenary power to traverse all legislative entries  

in all the three lists including Entry 17 List II.  

(c) The impugned legislation,  in  its  application to  the Mullaperiyar  

dam, violates the rule of law and the federal structure and the separation of  

power under the Constitution. The Kerala State Legislature has taken the law  

in  its  own hands after  the declaration of  law by this  Court.  Kerala  having  

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participated in the adjudicatory process before this Court cannot become a  

Judge in its own cause and seek to reverse the decision of this Court because  

it has gone against it.

(d) The impugned legislation not only fixes and limits the FRL  to 136  

ft. in direct contravention of the judgment of this Court but also proceeds to  

authorise the Dam Safety Authority of Kerala – to disobey and disregard the  

decision of this Court by the following, among other provisions:

• Section 62(1)(e) empowers the authority to direct the suspension  

or restriction of the functioning of any dam or decommissioning.

• 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.

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• 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 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.

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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. 2 in the suit.  

Defence by Kerala

20. Kerala has traversed the claim of Tamil Nadu on merits and has  

also raised objections about the maintainability of the suit. Kerala’s defence is  

that the 1886 Lease Agreement for 999 years lapsed under the provisions of  

Section 7(1)(b) of the Indian Independence Act, 1947 (“Act of 1947”). From  

1947 to 26.01.1950, the lease was continued as a temporary lease on annual  

basis. After 26.01.1950, even the temporary continuation of the lease  came to  

an  end.  The  possession  of  the  land  held  and  continued  by  the  then  

Government of Madras and now Tamil Nadu, after 26.01.1950 has no juridical  

basis.

21. Kerala states that 1886 Lease Agreement, on the basis of which  

Tamil Nadu has laid its claim, is an unconscionable contract because of its  

duration (999 years) as well as the fact that the lease conveys for a small rent  

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a vital resource of Kerala. The lease was obtained by the Secretary of State  

for India in England obviously by holding threat of paramountcy over Maharaja  

of Travancore, who was his vassal.

22. As regards  the two supplemental  agreements  of  1970,  Kerala  

states that these agreements have not been executed in terms of mandatory  

provisions  of  Article  299  of  the  Constitution  and,  therefore,  they  do  not  

constitute contracts in the eye of law. In any event, these agreements do not  

bind the State legislature at all.

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  

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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 mortar.  

The hearting (center core) is of lime surkhi concrete, therefore, dam cannot be  

considered as homogeneous masonry dam under any circumstances. In view  

of Kerala, a dam could never have been intended to remain for long years  

without decommissioning at some point of time. For this background, people in  

Kerala living in the downstream region of the Mullaperiyar dam have raised  

serious apprehensions against the safety of the structure.

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26. Kerala has denied that river Periyar is an inter-state river. It has  

asserted that river Periyar is an intra-state river as it rises in Quilon District in  

Kerala and traverses only through the territory of Kerala before falling into the  

Arabian sea. The total catchment of Periyar basin is  5398 sq. km. of which  

only about 113 or 114 sq. km. lie within the territory of Tamil Nadu. Even this  

small  catchment of 113 sq. km. lying in Tamil  Nadu, is in the downstream  

region of the Mullaperiyar dam. Therefore, no water from this catchment is  

contributed to the kitty of Mullaperiyar dam.  

27. As regards the earlier judgment of this Court, Kerala’s stand is  

that the judgment concluded the issue relating to safety of  the people and  

degradation of the environment, apart from issue arising from Article 363 of  

the Constitution. The doctrine of  res judicata or  constructive res judicata has  

no relevance to the question of powers on the Kerala legislature to regulate  

the  storage  level  of  the  Mullaperiyar  dam  in  larger  public  interest  by  

legislation. Kerala states that the impugned legislation removes the legal basis  

of the judgment, i.e., the right of Tamil  Nadu to store water up to 142 ft. in  

Mullaperiyar reservoir. The legislature is competent to remove the basis of any  

judgment and, therefore, it is not permissible for Tamil Nadu to claim any right  

to store water at Mullaperiyar dam beyond 136 ft.  Kerala has assailed the  

findings  and  conclusions  in  the  earlier  judgment  dated  27.02.2006  on  all   

possible grounds.   

28. Kerala  has  raised  the  objection  about  maintainability  of  the  

present suit under Article 131 of the Constitution of India.  According to Kerala,  

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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 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.,  Tamil  Nadu’s  irrigation is  

getting suffered. According to Kerala, Tamil  Nadu was able to irrigate more  

area with Mullaperiyar water, even after lowering the water level to 136 ft.  

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31. Kerala  has,  thus,  prayed  that  suit  filed  by  Tamil  Nadu  be  

dismissed with costs.

Issues

32. On  13.12.2007,  the  Court  framed  the  following  issues  for  

consideration in the suit:

“1. Whether  the  suit  is  maintainable  under  Article  131  of  the  Constitution of India.

2.  (a) Whether  the  Kerala  Irrigation  and  Water  Conservation  (Amendment)  Act  2006  is  unconstitutional and ultra vires, in its application to and effect  on the Mullai Periyar Dam?

(b) Whether  plaintiff  is  entitled to a permanent injunction restraining the first defendant  from applying  and  enforcing  the  Kerala  Irrigation  and  Water   Conservation (Amendment) Act, 2006 with reference to Mullai  Periyar Dam?

3. Whether the rights of the plaintiff,  crystalised in the Judgment  dated 27.02.2006 passed by this Court in WP(C) No. 386/2001 can be  nullified by a legislation made by the Kerala State Legislature?

4.  (a) Whether  the  judgment  dated 27.2.2006 of this Court in WP(C) No. 386/2001 operated  as res judicata, in respect of all or any of the defences set up by  the first defendant in its written statement?

(b) Whether  the  pleas  relating  to  validity  and  binding  nature  of  the  deed  dated  29.10.1886,  the  nature  of  Periyar  River,  structural  safety  of  Mullai  Periyar  Dam etc.  raised  by  the  first  defendant  in  its  defence, are finally decided by the judgment of this Court dated  27.2.2006  in  WP(C)  No.  386/2001,  and  consequently  first  defendant is barred from raising or reagitating those issues and  pleas  in  this  suit,  by  the  principle  of  res  judicata  and  constructive res judicata?

5.  Whether the suit based on a legal right claimed under the lease  deed  executed  between  the  Government  of  the  Maharaja  of  

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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  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  witness.  On  the  other  hand,  Kerala  produced  five  

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witnesses,  V.K.  Mahanudevan  (DW-1),  K.  Jayakumar   (DW-2),  Dr.  A.K.  

Gosain (DW-3), Dr. Dhrubajyoti Ghosh (DW-4) and M.K. Parameswaran Nair  

(DW-5).

Reference to the 5-Judge Constitution Bench

35. Initially,  the  matter  was  heard  by  a  three-Judge  Bench.  On  

10.11.2009,  matter  was referred to the Constitution Bench as some of the  

issues framed in the suit involved decision on certain substantial questions of  

law concerning  interpretation of the Constitution and  in particular:

(i) Articles 3 and 4 read with Article 246 of the Constitution;

(ii)  Article  131  read  with  Article  32  of  the  Constitution  (in  the  

context of res-judicata);

(iii) Proviso  to  Article  131  read  with  Articles  295  and  363  of  the  

Constitution and the effect of the Constitution (26th Amendment)  

Act, 1971; and

(iv) The effect of decision of this Court in Mullaperiyar Environmental   

Protection Forum1  in  the context of  afore-referred constitutional  

provisions.

Constitution of the Empowered Committee (EC)

36. A  very  important  development  occurred  when the  matter  was  

taken up initially  by the Constitution Bench.  It  was felt  by the Constitution  

Bench  that  examination  of  all  aspects  of  the  matter  including  safety  of  

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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  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  

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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  Pradesh3).  

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 consideration of facts  

on the safety of the Mullaperiyar dam, which embraced the reports of tests,  

investigation  and  technical  studies  carried  out  through  the  three  apex  

organizations,  besides  through  other  specialist  organizations  of  the  

Government  of  India  and  specialist  expert  agencies  and  also  after  site  

appraisal.  Moreover,  the  investigations,  tests  and  technical  studies  were  

directed to be carried out by the EC in association with the representatives of  

both the States.

Issue Nos. 1, 5, 6 and 7.    

39. These  four  issues  are  interrelated  inasmuch  as  two  of  these  

issues relate to validity and binding nature of 1886 Lease Agreement and the  

3 State of Andhra Pradesh v. State of Maharashtra and Ors.; [(2013) 5 SCC 68].

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effect  of  1970 supplemental  agreements and the other two issues concern  

maintainability of suit under Article 131, if 1886 Lease Agreement is held valid,  

binding and enforceable. Extensive arguments have been addressed to us by  

the learned senior counsel for the two contesting states in respect of these  

issues.  However, it must be noted immediately that Kerala did not dispute the  

position that under Section 177 of the Government of India Act, 1935 existing  

contracts made by the Secretary of State prior to 1935 (made for the purposes  

of the Government 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  

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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 government. By 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  Province)  became  lessee  under  the  1886  

Lease  Agreement.  We  have,  therefore,  no  hesitation  in  accepting  the  

submission of Mr. Vinod Bobde, learned senior counsel for Tamil Nadu that by  

virtue of Section 177 of the 1935 Act, as from the commencement of the 1935  

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Act, the Government of the Province of Madras is deemed to be substituted as  

the lessee in the 1886 Lease Agreement.

Effect and impact of events between 18.07.1947 and 26.01.1950

42. In light of the above holding, we have to see the effect and impact  

of certain events that occurred between 18.07.1947 (when Act of 1947 was  

enacted by British Parliament) and 26.01.1950 (the date of commencement of  

Constitution).

42.1. On  18.07.1947,  a  bulletin  was  issued  by  the  Maharaja  of  

Travancore State denouncing all agreements.   

42.2. On 22.07.1947, the Dewan of Travancore is said to have stated in  

his notes submitted to the Maharaja that in his discussion with the Viceroy, he  

had unequivocally denounced the 1886 Lease Agreement and that the Viceroy  

had accepted the good sense underlying the denouncement.   

42.3. On 10.08.1947, in his letter, Mr. C.C. Desai, Additional Secretary  

gave an assurance that all agreements 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.  

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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 have no  responsibility  as  respects  the  government  of  any  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,   

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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  this  sub-section, effect  shall,  as nearly  as may be  continued to be given to the provisions of any such agreement as is   therein  referred  to  which  relate  to  customs,  transit  and  communications, posts and telegraphs, or other like matters, until the  provisions in question are denounced by the ruler of the Indian State  or person having authority in the tribal areas on the one hand, or by   the Dominion or Province or other part thereof concerned on the other   hand, or are superseded by subsequent agreements. (2)   …………….”   

45. As noted above, Act of 1947 came into effect from 15.08.1947.  

Section 7 deals with the consequences of the setting up of the new dominions.  

Clause (b)  of  sub-section (1)  of  Section 7 declares  that  suzerainty  of  His  

Majesty over the Indian States lapses. On lapsing of suzerainty, it provides for  

lapsing of all  treaties and agreements in force between His Majesty and the  

Rulers of Indian States from that date. Proviso appended to sub-section (1),  

however, continues such agreements unless the provisions in such agreement  

are  denounced by  the  Ruler  of  the  Indian  State  or  are  superseded  by  a  

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  

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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 Forum1). This Court has held therein – and we have no justifiable  

reason to take a different view – that 1886 Lease Agreement is an ordinary  

agreement being a lease agreement and it is wholly non-political in nature.

49. There is, thus, no merit in the contention advanced on behalf of  

Kerala that 1886 Lease Agreement lapsed under the main provision of Section  

7(1)(b) of 1947 Act.

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  

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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 portion of the standstill agreement dated 12.08.1947  

reads as follows:

“Agreement between the State of Travancore and the Dominion of  India

Whereas it is to the benefit and advantage of the Dominion of  India  as  well  as of  the  Indian  States  that  existing  agreements  and  administrative  arrangements  in  the  matters  of  common  concern,  should continue for the time being, between the Dominion of India or  any part thereof and the Indian States :

Now therefore it is agreed between the Travancore State and  the Dominion of India that:-

1. (1) Until  new  agreements  in  this  behalf  are  made,  all   agreements and administrative arrangements as to matters  of  common concern now existing between the Crown and  any  Indian  State  shall,  in  so  far  as  may be  appropriate,  continue as between the Dominion of India or as the case  may be, the part thereof and the State. (2) In particular, and without derogation from the generality  of sub-clause (1) of this clause the matters referred to above  shall  include the matters specified in the Schedule to this  Agreement.”

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53. It is argued by Mr. Harish N. Salve 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 not think that  

standstill agreement is political in nature as contended on behalf of Kerala.  

54. The argument 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  

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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 at on 12.08.1947 ceased to  

be for the benefit of Province of Madras.  As stated by us earlier, the deletion  

of Section 177 is prospective and did not undo what had already taken place.  

This also negates the argument of  Mr.  Salve that the rights of  the Crown,  

which were enjoyed by the Province of Madras under Section 177, on deletion  

of the said Section  had come to an end as there was no successor to the  

Crown.   

56. The argument that there is no successor of Crown is irrelevant  

because by virtue of Section 177, the Government of Province of Madras had  

already become lessee in the 1886 Lease Agreement by deeming in 1935  

itself.   The standstill  agreement continued 1886 Lease Agreement between  

the Province of Madras and the State of Travancore.  1886 Lease Agreement  

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did not lapse under the main provision of Section 7(i)(b) of the Act of 1947.  

There was no unequivocal  and unambiguous denouncement of 1886 Lease  

Agreement by the Ruler of Travancore under proviso to Section 7(i)(b).  The  

Province  of  Madras  was  beneficiary  of  the  standstill  agreement.   Surely,  

deletion of Section 177 has not affected the rights  of Province of Madras.  

57. Relying upon Babu Ram Saksena4, 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 Saksena4. Learned senior counsel in this regard also relied upon  

the decision of this Court in State of Himachal Pradesh5.

Babu Ram Saksena

58. Let  us  carefully  consider  Babu  Ram Saksena4.   The  facts  in  

Babu Ram Saksena4  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 Rs.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  

4 Dr. Babu Ram Saksena v. State;  [AIR 1950 SC 155] 5 State of Himachal Pradesh v. Union of India & Ors.; [(2011) 13 SCC 344]

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totaling Rs.3,00,000/- on various dates. Dr. Babu Ram Saksena was charged  

with the offences under Sections 383, 575 and 420 of the Indian Penal Code.  

These offences were 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 the  

appellant, no extradition of the appellant could be demanded or ordered. The  

Attorney  General,  on  the  other  hand,  responded  by  contending  that  the  

standstill  agreement  entered  into  with  various  Indian  States  were  purely  

temporary arrangements designed to maintain the status quo ante in respect  

of certain administrative matters of common concern pending the accession of  

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those  States  to  the  Dominion  of  India  and  they  were  superseded  by  the  

instrument of Accession executed by the Rulers of those states.  Tonk having  

acceded to the Dominion on 16.08.1947, the standstill agreement relied on by  

the appellant must be taken to have lapsed as from that date. Secondly, the  

treaty was no longer subsisting and its execution became impossible, as the  

Tonk  State  ceased  to  accede  politically  and  as  such  sovereignty  as  it  

possessed was extinguished, when it  covenanted with certain other states,  

with the concurrence of the Indian Government “to unite and integrate their  

territories in one state, with the common executive, legislature and judiciary,  

by the name of the 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 Saksena4, 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  

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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 had the views of the accused concerned on those  

points”. Having said that, Patanjali Sastri, J. considered the question whether  

extradition  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. observed as follows:

"………..The result is said to be produced by reason of complete loss of  personality consequent on extinction of State life. The cases discussed  in this connection are generally cases where independent States have  ceased  to  be  such  through  constrained  or  voluntary  absorption  by  another  with  attendant  extinction  of  the  former's  treaties  with  other  

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States. Thus the forceable incorporation of Hanover into the Prussian  Kingdom destroyed the previous treaties of Hanover. The admission of  Texas into the United States of America by joint resolution extinguished  the Treaties of the Independent Republic of Texas. The position is the  same when Korea merged into Japan. According to Oppenheim, whose  opinion has been relied upon by Sir Alladi, no succession of rights and  duties ordinarily takes place in such cases, and as political and personal   treaties  presuppose  the  existence  of  a  contracting  State,  they  are  altogether extinguished. It is a debatable point whether succession takes  place in cases of treaties relating to commerce or extradition 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  votes  on  the  strength  of  population  and  other purposes the Covenant of Merger recognises a quasi-separation  between  the  territories  of  the  different  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  

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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  treaty  must  necessarily  lapse. It  cannot be said that the sovereignty of the Tonk  State in this respect is now vested in the United State of Rajasthan. The  authority, so far as extradition was concerned, was already surrendered  by  the  Tonk  State  in  favour  of  the  Dominion  Government  by  the  Instrument  of  Accession.  But  even assuming that  these treaty  rights  could devolve upon the United State of Rajasthan by reason of Article 6   of the Covenant of Merger, the latter, it seems to me, could be totally  incapable of giving effect to the terms of the treaty. As has been said  already, there could be no such thing as a subject of the Tonk State at  the  present  moment  and  Article  2  of  the  Treaty  which  provides  for   extradition  of  Tonk  subjects  accused  of  having  committed  heinous  offences within Tonk territory and seeking asylum elsewhere would be  wholly infructuous. The United State of Rajasthan could not possibly  demand extradition on the basis of this article, and if reciprocity, which  is the essence of an Extradition Agreement, is gone, the Treaty 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 Saksena4 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  

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Saksena4  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 Pradesh5.  The dispute in that  

case was between the State of Himachal Pradesh on the one hand and the  

Union of India, State of Punjab, State of Haryana,  State of Rajasthan 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 1-8-1949.  Under  this  States  Merger  (Chief  Commissioners’ Provinces) Order, 1949, Bilaspur was to be administered in  all  respects  as  if  it  was  a  Chief  Commissioner’s  Province.  Under  the  

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Constitution of India also initially Bilaspur continued to be administered as  the Chief Commissioner’s Province and was included in the First Schedule  to  the  Constitution  as  a  Part  C  State.  Under  Article  294(b)  all  rights,  liabilities  and  obligations  of  the  Government  of  the  Dominion  of  India,  whether  arising  out  of  any  contract  or  otherwise,  became  the  rights,   liabilities and obligations of the Government of India. These provisions of  the Bilaspur Merger Agreement dated 15-8-1948 (Ext. D-4/1-A), the States  Merger (Chief Commissioners’ Provinces) Order, 1949, the First Schedule  to the Constitution and Article 294(b) of the Constitution make it clear that  Bilaspur  became  the  part  of  the  Dominion  of  India  and  thereafter  was  administered as a Chief  Commissioner’s  Province by the  Government of  India  and all  rights  of  the Raja of 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 Pradesh5 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 Pradesh5, 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 those States as entities. They only  

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became  part  of  Dominion  of  India  as  constituent  States  along  with  the  

provinces of erstwhile British India. We are unable to hold that the 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 for  

the said  purposes.  Mr.  Harish N.  Salve,  learned senior  counsel  for  Kerala  

argued that 1970 supplemental agreements and the statement therein about  

continuance  of  1886  Lease  Agreement  were  based  on  a  mistake  of  law  

(wrongful assumption) of continuance of lease of 1886.  The submission of the  

learned senior counsel for Kerala can hardly be accepted firstly, in view of our  

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finding that 1886 Lease Agreement continued on and from 15.08.1947 and  

secondly, in view of the decision of this Court in  State of Andhra Pradesh3,  

wherein a three-Judge Bench of this Court speaking through one of us (R.M.  

Lodha, J.,  as he then was) observed, “when an agreement is  entered into  

between two or more states, they have assistance of competent, legal  and  

technical minds available with them. The states do not have lack of drafting  

ability.  Such  agreement  is  provided  by  trained  minds…….”.  The  1970  

supplemental  agreements  having  been  entered  into  by  two  high  parties,  

namely, State of Kerala and State of Tamil Nadu, it can hardly be accepted  

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  

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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 princely Indian State – the  

nature  of  contract  is  not  changed  and  it  does  not  become  a  political  

arrangement.   As  noted  above,  this  Court  in  Mullaperiyar  Environmental   

Protection Forum1  has 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  Singh6.   The  Constitution  Bench in  

Virendra Singh6  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  

6 Virendra Singh & Ors. v. State of Uttar Pradesh; [(1955) 1 SCR 415 : AIR 1954 SC 447]

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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 certain villages to the  

petitioners.  On  13.03.1948,  thirty-five   States  in  Bundelkhand  and  

Baghelkhand (including Charkhari and Sarila) agreed to unite themselves in  

one State which was to be called United State of Vindhya  Pradesh. Few days  

later,  pursuant to the above agreement, a  covenant was signed by all  the  

thirty-five Rulers which brought the new State into being. This arrangement  

was domestic arrangement and not a treaty with the dominion of India.  Soon  

after this, the Revenue Officers of the newly formed Vindhya Pradesh  Union  

tried to interfere with the grants made by the above Rulers.  The integration  

did  not work satisfactorily.   So, on 26.12.1949,  the same thirty-five Rulers  

entered into another agreement abrogating their covenant and dissolving the  

newly created State as from 01.01.1950. By the same instrument each Ruler  

ceded to the Government of the Indian Dominion as from the same date. The  

instrument  was  called  the  Vindhya  Pradesh  Merger  Agreement.  The  

Government  of  Indian  Dominion  was  also  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  

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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 Marshall in its broadest outlines is more proper, all authorities  are agreed that it  is within the competence of the new sovereign to  accord  recognition  to  existing  rights  in  the  conquered  or  ceded  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.

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Scope of Article 363 and Article 131

66. Article  3637 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 Ruler of an Indian state and to which the Government of the dominion of  

India or any of its predecessors Government was a party and it has or has  

been continued in operation after such commencement. The jurisdiction of the  

courts is also barred to interfere in any dispute in respect of any right accruing  

under any liability  or  obligation arising out of  any of  the provisions of  this  

Constitution relating to any such treaty, agreement, covenant, engagement,  

sanad or other similar instrument.   

67. A plain reading of Article 363 leaves no manner of doubt that if  

the dispute arises in respect of a document of that description and if  such  

document had been executed before the commencement of Constitution, the  

interference by courts is barred. The documents referred to in Article 363 are  

those which are political in nature. Any dispute regarding such documents is  7 363.  Bar  to  interference  by courts  in  disputes  arising  out  of  certain  treaties,  agreements,  etc.  –  (1)   Notwithstanding anything in this Constitution but subject to the provisions of Article 143, neither the Supreme  Court  nor  any other  court  shall  have  jurisdiction  in  any dispute arising  out  of any provision  of a  treaty,   agreement,  covenant,  engagement,  sanad or  other  similar  instrument  which  was entered  into or  executed  before the commencement of this Constitution by any Ruler of an Indian State and to which the Government of  the Dominion of India or any of its predecessor Government was a party and which has or has been continued  in operation after such commencement, or in any dispute in respect of any right accruing under or any liability  or obligation arising out of any of the provisions of this Constitution relating to any such treaty, agreement,   covenant, engagement, sanad or other similar instrument

(2) In this article -  (a) “Indian State” means any territory recognised before the commencement of this Constitution by  

His Majesty or the Government of the Dominion of India as being such a State; and (b)  “Ruler” includes the Prince, Chief or other person recognised before such commencement by His  

Majesty or the Government of the Dominion of India as the Ruler of any Indian State.

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non-justiciable. The object behind Article 363 is to bind the Indian Rulers with  

treaties,  agreements,  covenants,  engagements,  sanads  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 1318 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 proviso appended  8 Art. 131. Original jurisdiction of the Supreme Court.— Subject to the provisions of this Constitution, the  Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute—

(a) between the Government of India and one or more States; or (b) between the Government of India and any State or States on one side and one or more other  

States on the other; or (c) between two or more States,

if and in so far as the dispute involves any question (whether of law or fact) on which the existence or  extent of a legal right depends:

Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement,  covenant, engagement, sanad or other similar instrument which, having been entered into or executed before  the commencement of this Constitution, continues in operation after such commencement, or which provides  that the said jurisdiction shall not extend to such a dispute.”

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thereto, the jurisdiction of this Court is barred if the dispute to which a State  

specified in Part B of the First Schedule is a party if the dispute arises out of  

any provision of a treaty, 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 covered  

by the proviso.  

70. 1886 Lease Agreement does provide for resolution of  disputes  

between the parties  to the agreement by way of  arbitration; it  contains an  

arbitration clause. The submission of Kerala that enforcement of any award  

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under the arbitration clause would be political  in nature is misplaced.  The  

assumption of  Kerala  that  1886 Lease Agreement  was  not  justiciable  and  

enforceable in court of law prior to the Constitution as no court in Travancore  

would obviously entertain a claim against Maharaja and no court outside the  

State of Travancore have jurisdiction over the Maharaja of Travancore is not  

relevant at all and devoid of any merit.     

71. We are in complete agreement with the view taken by this Court  

in Mullaperiyar Environmental Protection Forum1 that 1886 Lease Agreement  

would not come within the purview of Article 363 and jurisdiction of this Court  

is not barred.  As a necessary corollary, the dispute arising out of 1886 Lease  

Agreement is  not barred under Article  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  2949,  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  9294.   Succession  to  property,  assets,  rights,  liabilities  and  obligations  in  certain  cases.—As  from  the  commencement of this Constitution—

 (a)     ...............   (b)  all rights,  liabilities and obligations of the Government of the Dominion of India and of the   

Government of each Governor’s Province, whether arising out of any contract or otherwise, shall be the rights,   liabilities and obligations respectively of the Government of India and the Government of each corresponding  State,

subject to any adjustment made or to be made by reason of the creation before the commencement of  this Constitution of the Dominion of Pakistan or of the Provinces of West Bengal, East Bengal, West Punjab   and East Punjab.

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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 1886 Lease Agreement.

73. Article  29510 relates  to  succession  to  property,  assets,  rights,  

liabilities and obligations.  Clause 1(a) states that from the commencement of  

the  Constitution  all  property  and  assets  which  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.  10 Article 295 - Succession to property, assets, rights, liabilities and obligations in other cases. -  

(1) As from the commencement of this Constitution- (a) all property and assets which immediately before such commencement were vested in any 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  immediately before such  commencement  will  thereafter  be  purposes of the Union relating to any of the matters enumerated in the Union List, and

(b) all  rights,  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 or obligations were incurred before such commencement will thereafter be purposes of  the Government of India relating to any of the matters enumerated in the Union List,

subject to any agreement entered into in that behalf by the Government of India with the Government   of that State.

(2) Subject as aforesaid, the Government of each State specified in Part B of the First Schedule shall,   as from the commencement  of this Constitution,  be the successor of the Government  of the corresponding   Indian 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).

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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 Indian State” in Article 295(2), in our opinion, with reference to  

Government  of  Part  B  State  of  Travancore—Cochin  meant  not  only  the  

merged erstwhile State of Travancore and Cochin but also its components.  

Seen thus, by  virtue of  Article  295(2),  the Government  of  Part  B  State  of  

Travancore  –  Cochin  became  successor  of  the  corresponding  State  of  

Travancore as regards all rights, liabilities and obligations arising out of 1886  

Lease Agreement.

Findings on issue Nos. 1, 5, 6 and 7

74. In light of the above, our finding on issue Nos. 1, 5, 6 and 7 are:

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(i) The suit filed by the State of Tamil Nadu is maintainable under Article  

131 of the Constitution.

(ii) The suit based on a legal right claimed under the lease deed executed  

between the Government of the Maharaja of Travancore and the Secretary of  

State for India in Council on 29.10.1886 is not barred by the proviso to Article  

131 of the Constitution.  

(iii) The State of Kerala (first defendant) is estopped from raising the plea  

that the lease deed dated 29.10.1886 has lapsed, in view of the supplemental  

agreements dated 28.05.1970.

(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  

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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 on to freeze all work on the dam allowed by this Court  

in  2006  judgment.  Section  62(1)(e)  of  the  2006  (Amendment)  Act  in  its  

application to the subject  dam, seeks to overcome the finding of safety by  

authorizing the Dam Safety Authority to order,  inter 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  Cotton11,  

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 Liyanage12, 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  11  Shri Prithvi Cotton Mills Ltd. and Anr. v. Broach Borough Municipality and Ors.; [(1969) 2 SCC 283] 12  Don John Francis Douglas Liyanage & Ors. v. The Queen; [(1966) 1 All E.R. 650]

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with which it  was enacted, and the surrounding circumstances, are relevant  

circumstances.

78. It is argued by learned senior counsel for Tamil Nadu that the test  

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.  The finding of fact by this Court in 2006 judgment that the dam is  

safe  can  never  be  deemed  to  be  imaginary  by  legal  fiction  which  then  

proceeds  to  deem  the  opposite  to  be  real,  namely,  that  the  dam  is  

endangered. The provision limiting the height of water level to 136 ft, enacted  

within 15 days after the judgment of this Court finding the dam to be safe and  

allowing the water level to be raised to 142 ft., shows the true purpose of the  

legislation, the situation to which it was directed and the clear intention  to defy  

and act as a judicial authority sitting in appeal over the judgment of this Court.

79. Mr.  Vinod  Bobde  submits  that  between  27.02.2006  when  the  

judgment  was  rendered  by  this  Court  and  15.03.2006  when  2006  

(Amendment)  Act  was  enacted  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.

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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 at 136 ft. According to Tamil Nadu, this  

is not a legislation; it is the exercise of “despotic discretion” and offends the  

rule of law and the principle of separation of powers.

82. Relying upon a decision of  this Court in  Indra Sawhney13,  it  is  

argued  by  learned  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  

13  Indra Sawhney v. Union of India and Others; [(2000) 1 SCC 168]

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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  Cotton11,  Madan  Mohan  Pathak14,   

People’s Union for Civil Liberties (PUCL)15, Municipal Corporation of the City of   

Ahmedabad and Anr.16 and Janapada Sabha17.

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 is adjudicated upon, there is no power in the legislature  

or executive to sit in  judgment upon a decision on a disputed question of fact  

and substitute its  own “legislative  judgment” for  that Court.  Learned senior  

counsel  places  reliance  upon  the   judgment  of  this  Court  in  Cauvery  

reference18.

85. It is, thus, argued by the learned senior counsel for Tamil Nadu  

that 2006 (Amendment) Act is unconstitutional.  

Contentions on behalf of Kerala

14  Madan Mohan Pathak & Anr. v. Union of India and Others; [(1978) 2 SCC 50] 15  People’s Union for Civil Liberties (PUCL) and Anr. v. Union of India and Anr.; [(2003) 4 SCC 399] 16  Municipal Corporation of the City of Ahmedabad & Anr. v. New Shrock Spg. And Wvg. Co. Ltd.   

    [(1970) 2   SCC 280] 17  Janapada Sabha Chhindwara v. Central Provinces Syndicate Ltd. and Anr.; [(1970) 1 SCC 509] 18  Cauvery Water Disputes Tribunal, Re; [1993 Supp (1) SCC 96 (2)]

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86. Mr.  Harish N.  Salve,  learned senior  counsel  for  Kerala  on the  

other  hand  argues  that  Kerala  legislature  is  competent  to  override  the  

contracts  and  regulate  the  safety  of  Mullaperiyar  dam  situated  within  its  

territory across river Periyar. Even agreements entered into between foreign  

sovereigns can be overridden in exercise of legislative powers. He relies upon  

the  decisions  of  this  Court  in  Thakur  Jagannath  Baksh19,  Maharaj  Umeg  

Singh20, Manigault21 and an article by Roderick E. Walston titled “The Public  

Trust Doctrine in the Water Rights Contexts”22.

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  Firemen23,   

Raymond  Motor  Transportation24,  Raymond  Kassel25,  American  Trucking  

Association26 and Pfizer Animal Health27.  Learned senior counsel also relies  

upon,  “Science  and  Risk  Regulation  and  International  Law”  by  Jacqueline  

Peel28 wherein Pfizer Animal Health27  has been referred.  

19 Thakur Jagannath Baksh Singh v. The United Provinces; [73 IA 123] 20 Maharaj Umeg Singh and Ors. v. State of Bombay and Ors.; [(1955) 2 SCR 164] 21  Arthur M. Manigault v.  Alfred A. Springs et al; [(1905) 199 US 473]  22   “The Public Trust Doctrine in the Water Rights Contexts” by Roderick E. Walston; 29 Natural Resources  

Journal 585. 23  Brotherhood of Locomotive Firemen & Enginemen et al. v. Chicago, Rock Island & Pacific Rail-Road  

    Co. et al.; [(1968) 393 US 129] 24  Raymond Motor Transportation, Inc. et al. v. Zel S. Rice et al.; [(1978) 434 US 429] 25  Raymond Kassel et al. v. Consolidated Freightways Corporation of Delaware; [(1981) 450 US 662] 26  American Trucking Associations, Inc. v. Thomas D. Larson; [(1982) 683 F.2d 787] 27  Pfizer Animal Health SA v. Council of the European Union; [(2002) ECR II-03305] 28 “Science and Risk Regulation and International Law” by Jacqueline Peel; Published by Cambridge  University Press, 2010.

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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 assumed that Section 108 of  

the 1956 Act would save the contractual rights arising from the 1886 Lease  

Agreement and purportedly  continued by the supplementary agreements of  

1970. The 2003 Act was not under challenge either in the previous litigation  

nor in the present suit. Learned 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  

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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 declaring a dam to be unsafe, the  

Legislature does not render a finding of fact. It deems the dam to be unsafe  

and sets  up an authority  to  regulate  the dam in  a  particular  manner.  The  

legislative competence of the legislature to put in place statutory machinery to  

regulate water levels in a dam situated within the State in the interest of public  

safety cannot be denied. He argues that as to what constitutes an endangered  

dam is a matter of legislative policy and safety is accepted to be a matter  

primarily of policy. A court through the process of adjudication renders findings  

and adjudication is always as per law in force. Once the law is altered, the  

adjudication cannot stand on its own.  According to Mr. Salve, the argument of  

Tamil  Nadu  that  impugned  legislation  is  usurpation  of  judicial  power  is  

misconceived.  

91. Learned senior counsel for Kerala relies upon  Wheeling Bridge29  

in support of  the principle that private rights pass into judgments but not the  

public  rights  and  also  submits  that  Wheeling  Bridge29  principle  has  been  

29  The State of Pennsylvania v. The Wheeling and Belmont Bridge Company, et al.;[ (1855) 59 U.S. 421]

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applied  in  the  subsequent  cases  viz.,  The  Clinton  Bridge30,  Hodges31 and  

Charles B. Miller32.  

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 Spinning33 which approved the earlier  

decisions in Sanjeev Coke34 and Doypack Systems35.

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 separation of  

power as a basic feature of the Constitution and  an essential constituent of  

the rule of law. The doctrine of separation of powers is, though, not expressly  

engrafted in the Constitution, its sweep, operation and visibility are apparent  30  The Clinton Bridge case; [(1870) 77 US 454] 31  Hodges et al. v. Snyder et al.; [(1923) 261 US 600] 32  Charles B. Miller, Superintendent, Pendleton Correctional Facility et al.  v. Richard A. French et al.;  [(2000)  

    530 U.S. 327] 33  Union of India v. Elphinstone Spinning and Weaving Co. Ltd. and Ors.; [(2001) 4 SCC 139].  34  Sanjeev Coke Manufacturing Co. v. M/s. Bharat Coking Coal Ltd. and Anr.; [(1983) 1 SCC 147]  35  M/s. Doypack Systems Pvt. Ltd. v. Union of India and Ors.; [(1988) 2 SCC 299]

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from  the  Constitution.   Indian  Constitution  has  made  demarcation  without  

drawing formal lines between the three organs – legislature, executive and  

judiciary.      

Mahal Chand Sethia

94. In  Mahal  Chand Sethia36,  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 above limitations laws can be prospective  as also retrospective in operation. A court of law can pronounce upon  the validity of any law and declare the same to be null and void if it was  beyond the legislative competence of the Legislature or if it infringed  the rights enshrined in Part III of the Constitution. Needless to add it  can  strike  down  or  declare  invalid  any  Act  or  direction  of  a  State  Government  which  is  not  authorised  by  law.  The  position  of  a  Legislature is  however different.  It  cannot  declare any decision of a   Court of law to be void or of no effect.”   

36  Mahal Chand Sethia v. State of West Bengal;  Crl. A. No. 75 of 1969, decided on 10 th September, 1969;       [1969 (2) UJ 616 SC]

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                                                                           (emphasis supplied)

Prithvi Cotton  

95. One  of  the  leading  cases  of  this  Court  on  the  legislative  

competence vis-à-vis decision of the Court is Prithvi Cotton11. In that case, the  

validity of the Gujarat Imposition of Taxes by Municipalities (Validation) Act,  

1963 was assailed on behalf of the petitioners. The Validation Act had to be  

enacted  in  view  of  the  decision  of  this  Court  in  Patel  Gordhandas  

Hargovindas37.   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.  

37 Patel Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad ; [(1964) 2 SCR 608]   

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The  Constitution  Bench  exposited   that  the  validity  of  a  validating  law  

depended upon whether the legislature possesses the competence which it  

claims over the subject matter and whether in making the validation it removed  

the defect which the courts had found in the existing law and made adequate  

provisions in the validating law for a valid imposition of the taxes. In the 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 capable of being removed and  are in fact removed and the tax thus made legal.  Sometimes this is  done  by  providing  for  jurisdiction  where  jurisdiction  had  not  been  properly  invested  before.  Sometimes  this  is  done  by  re-enacting  retrospectively a valid and legal  taxing provision and then by fiction  making the tax already collected to stand under the re-enacted law.  Sometimes the Legislature gives its own meaning and interpretation of  the law under which tax was collected and by legislative fiat makes the  new meaning binding upon courts. The Legislature may follow any one  method or all of them and while it does so it may neutralise the effect   of the earlier decision of the court which becomes ineffective after the  change of the law. Whichever method is adopted it must be within the  competence of the legislature  and legal  and adequate to attain  the  object of validation. 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  

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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  Sabha17,  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 judgment of a Court properly constituted and  rendered in exercise of its powers in a matter brought before it shall be  deemed to  be  ineffective  and  the  interpretation  of  the  law shall  be  otherwise than as declared by the Court.”

(emphasis supplied by us)

Municipal Corporation of the City of Ahmedabad  

97. The above three decisions and one more decision of this Court in  

Amalgamated Coal Fields38 were noted by the  two-Judge Bench of this Court  

in the Municipal Corporation of the City of Ahmedabad16. While accepting that  

the legislature under our Constitution have within the prescribed limits, powers  

38 State of M.P. v. Amalgamated Coalfields Ltd. and Anr; [(1970) 1 SCC 509].

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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 Pathak14.   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  bound  to  obey  the  writ  of  

mandamus issued by the Calcutta High Court. M.H. Beg, C.J., agreeing with  

the view of P.N. Bhagwati,  J. that the benefits of rights recognized by  the  

judgment of the Calcutta High Court could not be indirectly taken away under  

Section 3 of the impugned Act selectively, said that if the right conferred by the  

judgment independently is sought to be set aside, then Section 3 would be  

invalid for trenching upon the judicial power.  M.H. Beg, C.J. further said:

“ I may, however, observe that even though the real object of the Act  may be to set aside the result of the mandamus issued by the Calcutta  

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High  Court,  yet,  the  section  does  not  mention  this  object  at  all.   Probably this was so because the jurisdiction of a High Court and the  effectiveness of its orders derived their force from Article 226 of the  Constitution itself. These 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. Sambamurthy39.  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 Government were to defy the law and yet to get away with it.    

Cauvery Reference  

100. In Cauvery reference18, this Court was concerned with the validity  

of Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991.  Relying  

upon its previous decisions in Madan Mohan Pathak14 and P. Sambamurthy39,  

39  P. Sambamurthy and Ors.  v. State of A.P. and Anr.;[ (1987) 1 SCC 362]

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this Court declared the  Ordinance unconstitutional 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  

Reforms40.  M.B.  Shah,  J.  speaking  for  the  majority  noticed  the  earlier  

decisions of this Court in  P. Sambamurthy39, Cauvery reference18  ,  Municipal  

Corporation of  the City of  Ahmedabad16,  Prithvi Cotton11  and  Mahal  Chand  

Sethia36 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 separation of powers between the legislature, the executive  

and the judiciary is the basic structure of the Constitution is expressly stated  

by Sikri, C.J. in  Kesavananda Bharti41. Shelat and Grover, JJ. reiterating the  

40  Union of India v. Association for Democratic Reforms and Anr.; [(2002) 5 SCC 294] 41 His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr.;[(1973) 4 SCC 225]

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views of Sikri, J. said that demarcation of power between the legislature, the  

executive  and  the  judiciary  could  be  regarded  as  basic  elements  of  the  

Constitutional structure.  The same view is expressed in subsequent decisions  

of this Court in  Indira Nehru Gandhi42, Bal Mukund Sah43 and I.R. Coelho44.   

The  nine-Judge  Constitution  Bench  in  I.R.  Coelho44 has  described  that  

equality, rule of law, judicial review and separation of powers form parts of the  

basic structure of the Constitution.  The Court in I.R. Coelho44  said:  

“. . . . . .. Each of these concepts are intimately connected. There can  be no rule of law, if there is 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. Saksena45 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  

42  Smt. Indira Nehru Gandhi v. Shri Raj Narain and Anr; [1975 (Supp.) SCC 1] 43  State of Bihar and Anr. v. Bal Mukund Sah and Others; [(2000) 4 SCC 640] 44  I.R. Coelho (Dead) by LRs. v. State of T.N.; [(2007) 2 SCC 1] 45  I.N. Saksena v. State of Madhya Pradesh; [(1976) 4 SCC 750]

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parties and transactions and to require the court to give effect to that  law. 22. While,  in  view of  this  distinction  between legislative  and judicial   functions, the legislature cannot by a bare declaration, without more,  directly overrule, reverse or override a judicial decision, it may, at any  time in exercise of the plenary powers conferred on it by Articles 245  and 246 of  the  Constitution  render  a judicial  decision  ineffective  by  enacting a valid law on a topic within its legislative field fundamentally  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. Saksena45, this Court referred to an earlier decision  

in Hari Singh46 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. Saksena45 added a third test: whether it is consistent with the provisions of  

Part III of the Constitution.

P. Kannadasan  

104. Prithvi  Cotton11 has  been  followed  in  Hindustan  Gum  and  

Chemicals47, Vijay Mills Company48 and P. Kannadasan49.   It is not necessary  

to burden this judgment with all the three judgments as, in our view, reference  46  Hari Singh and Ors. v. Military Estate Officer and Anr.; [(1972) 2 SCC 239] 47  Hindustan Gum and Chemicals Ltd. v. State of Haryana and Others; [(1985) 4 SCC 124] 48 Vijay Mills Company Limited and Others v. State of Gujarat and Ors.; [(1993) 1 SCC 345] 49 P. Kannadasan and Others v. State of T.N. and Others; [(1996) 5 SCC 670]

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to one of them, i.e.,  P. Kannadasan49 will  suffice.   In P. Kannadasan49 this  

Court noted that the Constitution of India recognised the doctrine of separation  

of powers between the three organs of the State, namely, the legislature, the  

executive and the judiciary.  The Court said :

“15.……. It must be remembered that our Constitution recognises and  incorporates the doctrine of separation of powers between the three  organs  of  the  State,  viz.,  the  Legislature,  the  Executive  and  the  Judiciary. Even though the Constitution has adopted the parliamentary  form of  government where the  dividing  line  between the  legislature  and the executive becomes thin, the theory of separation of powers is  still  valid. 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  it  is  rendered,  is  changed.  The  new law or  the  amended law so made can be challenged on other grounds but not on  the ground that it seeks to ineffectuate or circumvent the decision of  the court. This is what is meant by “checks and balances” inherent in a  system  of  government  incorporating  the  concept  of  separation  of  powers. This aspect has been repeatedly emphasised by this Court in  numerous 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  

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105. In  Indian  Aluminium  Company50, 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 balance in the exercise of the  sovereign power by the legislature, executive and judiciary; (3) In a democracy governed by rule of law, the legislature exercises  the power under Articles 245 and 246 and other companion articles  read with the entries in the respective lists in the Seventh Schedule to  make the law which includes power to amend the law.  (4) Courts in their concern and endeavour to preserve judicial power  equally must be guarded to maintain the delicate balance devised by  the Constitution between the three sovereign functionaries.  In order  that  rule  of  law  permeates  to  fulfil  constitutional  objectives  of  establishing  an  egalitarian  social  order,  the  respective  sovereign  functionaries need free play in their joints so that the march of social  progress and order 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  

50  Indian Aluminium Company and Others v. State of Kerala and Others; [(1996) 7 SCC 637]

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judicial decision. It can render judicial decision ineffective by enacting  valid law on the topic within its legislative field fundamentally altering  or  changing  its  character  retrospectively.  The  changed  or  altered  conditions are such that the previous decision would not have been  rendered by the court, if those conditions had existed at the time of  declaring  the  law as invalid.  It  is  also  empowered to  give  effect  to  retrospective  legislation  with  a  deeming  date  or  with  effect  from 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  Sugars51, the  matter  reached  this  Court  from  the  

judgment  of  the  Madras  High  Court.   Before  the  Madras  High  Court,  the  

challenge was laid to the constitutional validity of T.N. Land Reforms (Fixation  

of Ceiling on Land) Amendment Act, 1978 on diverse grounds.  The Division  

Bench of the Madras High Court allowed the writ petitions. The  State of Tamil  

Nadu being not  satisfied  with that  judgment  approached this  Court.  While  

dealing with the power of the legislature, the Constitution Bench of this Court  

observed:  “The  power  of  the  legislature  to  amend,  delete  or  obliterate  a  

statute  or  to  enact  a  statute  prospectively  or  retrospectively  cannot  be  

51  State of T.N. v. Arooran Sugars Ltd.; [(1997) 1 SCC 326]

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questioned and challenged unless the court is of the view that such exercise is  

in violation of  Article  14 of the Constitution.  It  need not be impressed that  

whenever any Act or amendment is brought in force 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 Elphinstone Spinning and  

Weaving Company33   laid down: (a) there is always a presumption that the  

legislature does not exceed its jurisdiction, (b) the burden of establishing that  

the legislature has transgressed constitutional  mandates  is  always on the  

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person who challenges  its  vires,  and (c)  unless  it  becomes clear  beyond  

reasonable  doubt  that  the  legislation  in  question  has  transgressed  the  

constitutional limits, it must be allowed to stand.  

Dharam Dutt  

108.  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 Dutt52.  Relying upon earlier decisions in K.C. Gajapati  

Narayan  Deo53 and Ayurvedic  and  Unani  Tibia  College54,  the  Court  in  

Dharam Dutt52 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 Dutt52   

referred  to  Madan  Mohan  Pathak14,  Prithvi  Cotton11,  Indian  Aluminium  

Company50,  Indira Nehru Gandhi42 and other decisions of this Court and held  

in paragraph 69 (pg. 753) of the Report as follows:

52 Dharam Dutt and Ors. v. Union of India and Ors.; [(2004) 1 SCC 712] 53  Sri Sri Sri K.C. Gajapati Narayan Deo v. State of Orissa; [AIR 1953 SC 375] 54  Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. State of Delhi (now Delhi Administration)  

    and Anr.; [AIR 1962 SC 458]

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“69. That  decision  of  the  learned  Single  Judge  was  not  left   unchallenged. In fact, the correctness of the judgment of the learned  Single Judge was put in issue by the Union of India by filing an intra- court appeal. Filing of an appeal destroys the finality of the judgment  under  appeal.  The  issues  determined  by  the  learned  Single  Judge  were open for consideration before the Division Bench. However, the  Division  Bench  was  denied  the  opportunity  of  hearing  and  the  aggrieved  party  could  also  not  press  for  decision  of  the  appeal  on  merits, as before the appeal could be heard it was rendered infructuous  on account of the Ordinance itself 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  legislature  merely because the legislature has re-enacted the same  legal provisions into an Act which, ten years before, were incorporated  in an Ordinance and were found to be unconstitutional in an erroneous  judgment of the High Court and before the error could be corrected in  appeal the Ordinance itself lapsed. It has to be remembered that by  the impugned Act Parliament has not overruled the judgment of the  High Court  nor has it  declared the same law to be valid  which has  been pronounced 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  

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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)55, 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 Singh Hooda (I)56 and Sandeep Singh57.  

Having  regard  to  the  contentions  of  the  petitioners,  one  of  the  questions  

framed by the Court for determination was, whether the Act, to the extent of its  

retrospectivity, is  ultra vires as it amounts to usurpation of judicial power by  

the State legislature or it  removes the basis of decisions in  Virender Singh  

Hooda (I)56 and Sandeep Singh57 cases. The Court noted that one of the facets  

of the question under consideration was whether a writ of Mandamus can be  

made  ineffective  by  an  enactment  of  the  legislature.  Dealing  with  the  

legislative power, the Court observed, “The legislative power to make law with  

retrospective effect is well recognised. It is also well-settled that 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  

55  Virender Singh Hooda (II) and Ors. v. State of Haryana and Another; [(2004) 12 SCC 588] 56  Virender Singh Hooda (I) and Ors. v. State of Haryana and Another; [(1999) 3 SCC 696] 57  Sandeep Singh  v. State of Haryana and Anr.; [(2002) 10 SCC 549]

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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  

cannot by a bare declaration, without anything more, directly overrule, reverse  

or override a judicial decision; it may, at any time in exercise of the plenary  

power conferred on it by the Constitution render a judicial decision ineffective  

by enacting a valid law on a topic within its legislative field,  fundamentally  

altering  or  changing  with  retrospective,  curative  or  neutralizing  effect  the  

conditions on which such decision is based……”   

109.3. While drawing distinction between encroachment 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  Nath58 and  

58  Tirath Ram Rajinder Nath, Lucknow  v. State of U.P. and Anr.; [(1973) 3 SCC 585]

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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. Bola59, 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 to examine the new set of laws enacted by the  legislature and to find out whether in fact the legislature has exercised  the legislative power by merely declaring an earlier judicial decision to  be invalid and ineffective or the legislature has altered and changed  the character of the legislation which ultimately may render the judicial   decision ineffective.”

Liyanage  

110. Having surveyed good number of decisions of this Court on the  

separation of powers doctrine, it is time that we consider some leading foreign  

judgments on this aspect.  The first judgment in this category that deserves  

consideration, which was also referred to by Mr. Vinod Bobde, learned senior  

counsel  for  Tamil  Nadu is  Liyanage12.   The  facts  in  Liyanage12  provide  a  

59  S.S. Bola and Ors. v. B.D. Sardana and Ors.; [(1997) 8 SCC 522]

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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.  

Liyanage12 effectively lays down that judicial power is usurped (i) when there is  

legislative interference in a specific proceeding, (ii) the interference affects the  

pending litigation and (iii)  the interference affects the judicial  process itself,  

i.e.,  the  discretion  or  judgment  of  the  judiciary  or  the  rights,  authority  or  

jurisdiction of the Court.   Liyanage12 inter alia holds that powers in case of  

countries with written Constitutions must be exercised in accordance with the  

terms of Constitution from which they are derived.  Making observations on the  

true nature and purpose of  the impugned enactment,  Liyanage12 says that  

alterations made by Parliament in the function of the judiciary constituted a  

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grave and deliberate incursion in the judicial sphere.  It is worth noticing the  

following passage from Liyanage12 :

“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. Liyanage12 is based on the principle of implied limitations  

on  the  legislative  power.   This  position  is  accepted  by  our  own Court  in  

Kesavananda Bharati41 (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 legislative and judicial  organs of the Government. The  

Australian Constitution has imperatively separated the three branches of the  

Government, and has assigned to each, by its own authority the appropriate  

organ.  

112. In Nicholas60,  the High Court of Australia, dealing with the  

infringement and usurpation of judicial power, held the legislation to be invalid  

on the ground that it revised the final judgment of a federal court in breach of  

60  Nicholas v. the Queen; [(1998) 193 CLR 173]  

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separation of powers. It lays down that usurpation occurs when the legislature  

has exercised judicial power on its own behalf.

Wheeling Bridge

113. The  decision  of  the  US  Supreme  Court  in  Wheeling  Bridge29  

deserves a little  elaborate consideration 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 by the original court order.  The State of Pennsylvania brought the  

matter again before the court.  The defendant relied upon the federal statute  

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which declared the original bridge lawful, and argued that the requirements for  

a lawful structure were set out therein, rendering the requirements on which  

the original  judgment  was  based redundant.   The question  that  arose  for  

consideration was whether the statute that overturned the final judgment of the  

US  Supreme  Court  in  the  form  of  injunction  in  the  earlier  suit  was  

constitutional?  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 consented to it, after  

the rendition of the decree…….”  Nelson, J., opined that although bridge could  

still  be an obstruction in fact but it  was not so in contemplation of the law.  

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Consequently,  the  court  vacated  its  injunction.   Nelson,  J.  distinguished  

adjudication upon private rights from adjudication upon public rights and held :  

“In respect to these purely internal streams of a State, the public right   of  navigation  is  exclusively  under  the  control  and regulation  of  the  state legislature; and in cases where these erections or obstructions to  the navigation are constructed under a law of the State, or sanctioned  by legislative authority, they are neither a public 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 Bridge29  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 Bridge29  that the earlier decree was the  

result of a judicial investigation, founded upon facts ascertained in the course  

of the hearing and it  was strictly a judicial  question. The complaint was an  

obstruction of commerce, by the bridge, to the injury of the complainant, and  

the court found the fact to be as alleged in the bill.  Following the statement of  

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Chief Justice Marshall that congress could do many things but that it cannot  

alter a fact, McLean, J. in his opinion stated :

“The  judicial  power  is  exercised  in  the  decision  of  cases;  the  legislative,  in making general  regulations by the enactment of laws.  The latter acts from considerations of public policy; the 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.

113.4. In another minority opinion in Wheeling Bridge29, Wayne, J.,  

while dissenting with the majority and concurring with McLean J. stated that  

Congress had no power to interfere with the judgment of the U.S. Supreme  

Court under the pretence of a power to legalize the structure of bridges over  

the public navigable rivers of the United States, either within the States, or  

dividing States from each other, or under the commercial powers of Congress  

to regulate commerce among the States.  

Clinton Bridge  

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114. Nelson,J.,  who delivered majority  opinion in  Wheeling Bridge29,  

also  delivered  opinion  of  the U.S.  Supreme Court  in  the  Clinton  Bridge30.  

Although  in  Wheeling  Bridge29 a  decree  had  been  rendered  by  the  court  

against  the  bridge,  while  in  the  Clinton  Bridge30 the  cause  was  pending  

undecided, but he followed the majority opinion in Wheeling Bridge29.

Manigault

115. Mr. Harish  Salve, learned counsel for the State of Kerala, placed  

reliance upon  Arthur M. Manigault21.  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  ordinarily  will  not  interfere  with.  

Dealing with the exposition of law, flowing from some of its previous decisions,  

the U.S. Supreme Court, observed:  

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“…….We see no reason why the same principle should not apply to  cases where the state legislature, exercising its police power, directs a  certain  dam to  be built,  and thereby  incidentally  impairs  access to  lands above the dam. In both cases the sovereign  is  exercising  its  constitutional  right,  in  one  case  in  improving  the  navigation  of  the  river, and in the other, in draining its lowlands, and thereby enhancing   their value for agricultural purposes.”  

Hodges

116. In Hodges31, the U.S. Supreme Court, following Wheeling Bridge29  

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. Hodges31 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  

in the previous decision making to an award of damages.  

Brotherhood of Locomotive Firemen

117. In Brotherhood of Locomotive Firemen23, the U.S. Supreme Court  

was  confronted  with  the  question  whether  the  Arkansas  “full-crew”  laws  

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specifying a minimum number of employees who must serve as part of a train  

crew  under  certain  circumstances,  violate  the  commerce  clause  or  the  

Fourteenth Amendment of the U.S. Constitution. The constitutionality of these  

Arkansas Laws had been specifically  upheld  against  challenges under the  

same constitutional provisions in three decisions earlier.  However, from the  

case that reached the U.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  extent  to  which  these  laws  contribute  to  safety  and  other  public   interests, and the extent to which such contributions are justified by  the cost of the additional manpower.  These disputes will continue to  be worked out in the legislatures and in various forms of collective   

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bargaining between   management and the unions. As we have said  many  times,   Congress  unquestionably   has  power  under  the  Commerce Clause to regulate the number of employees who shall be  used to man trains used  in interstate commerce.  In the absence of  congressional action, however, we cannot invoke the judicial 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  Transportation24   and  the  other,  Raymond  Kassel25 may  now  be  

considered.   Raymond  Motor  Transportation24 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  they  placed  a  substantial  burden on  interstate  

commerce  and they  cannot  be  said  to  make  more  than most  speculative  

contribution to highway safety.

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118.1. Blackmun,  J.,  with  whom  Brennan,  CJ.  and  Rehnquist,  J.  

concurred, held that if  safety justifications were not illusory, the Court will not  

second-guess legislative judgment about their importance in comparison with  

related burdens on interstate commerce. Blackmun J, also held :  

“Here, the Court does not engage in a balance of policies it does not  make a legislative choice.  Instead, after searching the factual record  developed by the parties, it concludes that the safety interests have  not been shown to exist as a matter of law.”

Raymond Kassel

119. In Raymond Kassel25, after recording evidence and conclusion of  

trial, the District Court applied the standard which was accepted in Raymond  

Motor Transportation24 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  

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state  law  makers  in  the  field  of  safety  is  largely  attributable  to  a  judicial   

disinclination to weigh the interest of safety against other societal  interests,  

such as the economic interest in the free flow of commerce………..”  

Plaut

120. The judgment of the US Supreme Court in Plaut61 on the doctrine  

of separation of powers is significant and deserves appropriate consideration.  

In that case, the US Supreme Court was presented with the question whether  

Section 27A(b)  of  the Securities  Exchange Act,  1934 was  violative  of  the  

Constitution’s  separation of  powers  or  the due process clause of  the Fifth  

Amendment to the extent it required Federal Courts to reopen final judgments  

in private civil actions 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 :

61  Plaut et al. v. Spendthrift Farm, Inc., et al.; [(1995) 514 U.S. 211]

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"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, ordering the discharge  of offenders, or directing what particular steps shall  be taken in the  progress of a judicial inquiry."

120.2. Scalia J, observed that the power to analyze a final judgment was  

“an assumption of judicial power” and, therefore, forbidden. Finality rule was  

given pre-eminence. This becomes evident from his following observations:  

“……Having achieved finality, however, a judicial  decision becomes the last  

word of the judicial department with regard to a particular case or controversy,  

and  Congress  may  not  declare  by  retroactive  legislation  that  the  law  

applicable to that very case was something other than what the courts said it  

was…..”

120.3. In Plaut61, 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.

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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  

of India.  The doctrine of separation of powers informs the Indian constitutional  

structure and it is an essential constituent of rule of law.  In other words, the  

doctrine  of  separation  of  power  though  not  expressly  engrafted  in  the  

Constitution, its sweep, operation and visibility are apparent from the scheme  

of Indian Constitution.  Constitution has made demarcation, without drawing  

formal lines between the three organs - legislature, executive and judiciary.  In  

that sense, even in the absence of express provision for separation of power,  

the separation of  power between legislature,  executive and judiciary is  not  

different  from  the  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.   

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(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  final  

judgments of the courts. Legislature cannot declare any decision of a court of  

law to be void or of  no effect.   It  can, however,  pass an amending Act to  

remedy the defects pointed out by a court of law or on coming to know of it   

aliunde.  In  other  words,  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.   

(vi) If  the  legislature  has  the  power  over  the  subject-matter  and  

competence  to  make  a  validating  law,  it  can  at  any  time  make  such  a  

validating law and make it  retrospective.   The validity  of  a validating law,  

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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  affirmative  and  the  consideration  of  aspects  noted  in  question  (iii)  

sufficiently  establishes  that  the  impugned  law  interferes  with  the  judicial  

functions, the Court may declare the law unconstitutional.

Analysis of the Mullaperiyar Environmental Protection Forum Judgment  (2006 Judgment)

122. In light of the above constitutional principles relating to separation  

of powers between legislature, executive and judiciary, we shall now examine  

the constitutional validity of the 2006 (Amendment) Act in its application to and  

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effect on the Mullaperiyar dam.  For deciding this question, it is appropriate to  

first refer to the decision of this Court in Mullaperiyar Environmental Protection  

Forum1  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 specific direction for raising water level to  

142 ft. and after strengthening, to its full level of 152 ft.

122.1. The Court  noted the following terms of  reference and the task  

given to the Expert Committee:   

“(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  

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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.

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  baby dam, including the earthen bund, so that monitoring of the health  of Mullaperiyar dam, baby dam and earthen bund can be done on a  continuous basis.

4. The water level  in the Mullaperiyar reservoir  be raised to a level   where the tensile stress in the baby dam does not exceed 2.85 t/m2  (as  suggested  by  Shri  Parameswaran  Nair,  Kerala  representative)  especially in condition E (full  reservoir level with earthquake) as per  BIS Code IS 6512-1984 with ah= 0.12 g and analysis as per clauses  3.4.2.3 and 7.3.1 of BIS Code 1893-1984.

5.  The committee members discussed the issue of  raising  of  water  level above EL 136.00 ft (41.45 m) after studying the analysis of safety  of  baby  dam.  Prof.  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  

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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?

2. Whether the jurisdiction of this Court is barred in view of Article 262  read with Section 11 of the Inter-State Water Disputes Act, 1956?

3. Whether Article 363 of the Constitution bars the jurisdiction of this   Court?

4. Whether disputes are liable to be referred to arbitration?

5. Whether the raising of water level of the reservoir from 136 ft to 142  ft  would  result  in  jeopardising  the  safety  of  the  people  and  also  degradation of the environment?”

122.4 While 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.

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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 Tamil  Nadu to carry out certain strengthening measures  

suggested  by  the CWC.  The Court,  thus,  held  that  safety  of  the dam on  

increase of water level to 142 ft. was not the issue hit by Article 262 of the  

Constitution or the Inter-State River Water Disputes Act, 1956.

122.6 With regard to question No. 3, the Court held that there was no  

question of the jurisdiction of this Court being barred as Article 363 has no  

application  to  an agreement  such as  1886  Lease Agreement  which is  an  

ordinary agreement of lease and is not a political arrangement.

122.7 On question No. 4, the Court observed that present dispute was  

not about the rights, powers and obligations or interpretation of any part of the  

agreement but the controversy was 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.

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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 a Member (D&R) of the Central Water  Commission, two Chief Engineers of the Central Water Commission,  Director,  Dam Safety,  Government  of  Madhya  Pradesh  and  retired  Engineer-in-Chief,  U.P.  besides  two  representatives  of  the  Governments  of  Tamil  Nadu  and  Kerala,  were  members  of  the  Committee. All appended their signatures except the representative of  the  Kerala  Government.  The  summary  of  the  results  of  stability  analysis of Mullaperiyar baby dam contains 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  including  cross-sections  of  the  

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Periyar dam to demonstrate the strengthening measures. Further, it is  pertinent to note that the dam immediately in line after Mullaperiyar  dam is Idukki dam. It is the case of the State of Kerala that despite the  “copious rain”, the Idukki reservoir is not filled to its capacity, while the  capacity of the reservoir is 70.500 TMC, it was filled only to the extent  of  57.365 TMC.  This  also shows that  assuming the worst happens,  more than 11 TMC water would be taken by Idukki dam. The Deputy  Director,  Dam  Safety,  Monitoring  Directorate,  Central  Water  Commission, Ministry of Water Resources in the affidavit of April 2004  has, inter alia, stated that during the recent earthquake mentioned by  the  Kerala  Government 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 Forum1  

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,  seen  that  one  of  the  issues  that  directly  fell  for  

consideration  before  this  Court  in  Mullaperiyar  Environmental  Protection  

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Forum1  was whether the raising of water level of the reservoir from 136 ft. to  

142 ft. would result in jeopardising the safety of the people?  From the various  

reports  including  the  report  of  the  Expert  Committee,  the  Court  held  that  

apprehensions  (wiping  out  of  three  districts)  of  Kerala  were  found  to  be  

baseless in these reports 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 Forum1  case was the result of judicial investigation,  

founded upon facts ascertained in the course of  hearing.   It  was strictly  a  

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judicial question.  The claim of the State of Kerala was that water level cannot  

be raised from its present level  of 136 ft.   On the other hand, Tamil  Nadu  

sought direction for raising the water level to 142 ft. and, after strengthening,  

to its full level of 152 ft.   The obstruction by Kerala to the water level in the  

Mullaperiyar dam  being raised to 142 ft. on the ground of safety was found  

untenable, and, in its judgment, this Court so pronounced.  

Whether 2006 (Amendment) Act in its application to Mullaperiyar dam  amounts to usurpation of judicial power

127. The question now is:  Does the impugned legislation amount to  

usurpation of judicial power and whether it is 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  

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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  of  the  Government  

(Government of Kerala), and the Government shall be entitled to conserve and  

regulate the use of such water courses and the water in all those water courses  

for the purposes of irrigation and the generation of electricity and for matters  

connected therewith or for both. Section 4 makes provision for regulation on  

abstraction of water from water course. Section 5 provides for regulation on  

construction  of  reservoirs,  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  

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in the State; (2) to advice Government to suspend the functioning of any dam if  

the public safety so demands; (3) to examine the precariousness of any dam in  

public interest and to submit its recommendations including decommissioning  

of  dam to  the  Government;  (4)  to  inspect  and  advice  the  Government  on  

advisability of raising or lowering of the reservoir level of any dam taking into  

account  the  safety  of  the  dam  concerned  and  the  environmental  aspects  

involved; and (5) to inspect and advice the Government on the sustainability of  

any dam to hold the water in the reservoir thereof. Sub-section (3) of Section  

62 provides that where the advice or recommendations of the Authority relate  

to a dam owned or controlled by person other than the Government, it shall be  

lawful for the Government to issue orders or directions 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  Forum1  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 Forum1.  It was rightly so because 2003  

Act  had  no  direct  bearing  on  the  issues  which  were  under  consideration.  

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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 Forum1 were concluded. We are informed that Dam Safety Authority  

came to be constituted on 18.2.2006, i.e., few days before the judgment was  

pronounced  by  this  Court  in  that  case.  We  have  carefully  considered  the  

provisions of amended 2003 Act and, in our view, in whatever way 2003 Act is  

seen,  there  was  no  impediment  for  this  Court  to  consider  and decide  the  

question whether raising the water level from 136 ft. to 142 ft. would jeopardize  

the  safety  of  the  dam.  This  Court  answered  the  question  based  on  the  

materials on record, in the negative. The judgment of this Court in Mullaperiyar  

Environmental Protection Forum1 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:

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“(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 functioning of any dam, to  decommission any dam or restrict the functioning of any dam if public  safety or threat to human life or property so requires;

(f)  to  advise  the  Government,  custodian,  or  other  agencies  about  policies and procedures to be followed in site investigation,  design,   construction, operation and maintenance of dams;  

(g) to conduct studies, inspect and advise the custodian or any other   agency on the advisability of raising or lowering of the maximum water  level  or full  reservoir  level  of any dam, not being a scheduled dam,  taking into account the safety of the dam concerned;

(h) to (j) xxx xxx xxx”  

132. The functions conferred on the Dam Safety Authority under new  

Section 62 override the judgment, decree or order of any Court or any treaty,  

agreement, contract, 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  

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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. Such level shall not be altered except  in  accordance  with  the  provisions  of  this  Act  in  respect  of  any  Scheduled dam.

(3)  Notwithstanding  anything  contained  in  any other  law,  or  in  any  judgment, decree, order, direction of any court or any treaty, contract,  agreement,  instrument  or  document,  any Government,  custodian  or  any other agency intending to, or having secured any right under any  treaty, 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  

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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 point of the level of Periyar river at  

the site of the main dam.  

134. Tamil  Nadu says  that  2006  (Amendment)  Act  to  the  extent  it  

applies  to  Mullaperiyar  dam seeks  to  nullify  the  judgment  of  this  Court  in  

Mullaperiyar  Environmental  Protection  Forum1  by  declaring  the  dam  to  be  

endangered  and  by  fixing  the  height  of  the  water  level  at  136  ft.;  that  It  

authorizes the Dam Safety Authority to disregard the judgment and to adjudge  

for itself whether to allow raising of water level and Section 62(1)(e) authorizes  

the  Dam  Safety  Authority  to  order  inter  alia decommissioning  of  the  dam  

despite the finding of safety recorded by this Court in the 2006 judgment and,  

thus,  the  2006  (Amendment)  Act  is  unconstitutional  being  violative  of  

separation of powers doctrine and consequently rule of law.  

135. On the other hand, the argument of Mr. Harish N. Salve, learned  

senior counsel for Kerala, is that the legislature of every State has not just the  

power but the obligation to take appropriate legislative measures to ensure the  

safety and security of its residents. Where the legislature of a State is satisfied  

that there is a need to curtail the use or storage of a water reservoir to protect  

its  citizenry and elects to enact legislation as a precautionary measure, the  

legislation cannot be said to be in excess of the legislative competence of the  

State  if  it  relates  to  reservoir  and dam within  the  legislating  State.  Kerala  

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legislature  has  imposed  precautionary  measures  by  placing  pro  tem  

restrictions on the storage level of the dams mentioned in the Second Schedule  

read with Section 62A(2) of the 2006 (Amendment) Act and the said restrictions  

are based on the legislative wisdom of the Kerala legislature that these dams  

are endangered on account of their age, degeneration, degradation, structural  

or other impediments. While adjudicating upon the constitutional validity, Mr.  

Harish  Salve  argues  that  the Court  must  proceed on the premise  that  the  

legislature understands and correctly appreciates the needs of its own people  

and its laws are directed to the problems made manifest by its experience and  

are based on adequate grounds.

136. Mr.  Harish N. Salve,  learned senior  counsel  for Kerala  heavily  

relies upon ‘precautionary principle’ and ‘public trust doctrine’ and argues that  

Kerala legislature was competent to override the contracts and regulate safety  

of the Mullaperiyar dam situated within its territory across river  Periyar.  His  

submission is that the State as sovereign retains continuing supervisory control  

over navigable waters and underlying beds. It is his submission that the State  

has a duty of ‘continuing supervision’ even after such rights have been granted.  

In this regard strong reliance is placed by him on Pfizer Animal Health27.  

137. In Pfizer Animal Health27, 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  

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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 required.  

138. Dealing  with  precautionary  principle,  the  Court  made  these  

observations:

“First, it must be borne in mind that, when the precautionary principle  is  applied,  the  fact  that  there  is  scientific  uncertainty  and that  it  is   impossible  to  carry  out  a  full  risk  assessment in  the  time available  does not prevent the competent public authority from taking preventive  protective measures if such measures appear essential, regard being  had to the level of risk to human health which the public authority has  decided is the critical  threshold above which it  is necessary to take  preventive measures. …………. The precautionary principle  allows the competent public authority  to  take, on a provisional basis, preventive protective measures on what  is  as  yet  an  incomplete  scientific  basis,  pending  the  availability  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. Walston22. The author has culled  

out following four principles of the Public Trust doctrine:

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“(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 exercise of sovereign state regulatory,  analogous to the police  

power.

140. In our opinion, the principle of ‘public trust doctrine’ in the context  

of  water  rights  culled  out  by  Roderick  E.  Walston  or  the  ‘precautionary  

principle’ explained in  Pfizer Animal Health27  can hardly be doubted but these  

principles have 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  

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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 directly or indirectly set  

aside the authoritative and binding finding of fact by the Court, particularly, in  

situations where the executive branch (Government of the State) was a party in  

the litigation and the final judgment was delivered after hearing them.   

142. 2006  (Amendment)  Act  in  its  application  to  and effect  on  the  

Mullaperiyar dam seeks to attain the following:

(a) It substitutes Section 62 with a new provision whereby, notwithstanding  

the  judgment  of  this  Court  and notwithstanding  anything  contained  in  any  

treaty, contract, 1886 Lease Agreement and 1970 supplemental agreements,  

the function of evaluation of safety of the Mullaperiyar dam and the power to  

issue directions to Tamil Nadu as custodian are conferred upon Dam Safety  

Authority;

(b) the  Dam  Safety  Authority  is  empowered,  inter  alia, to  restrict  the  

functioning of Mullaperiyar dam and/or to conduct studies on the advisability of  

raising or lowering of the maximum water level or the full reservoir level;  

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(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 Forum1, after  

hearing the State of  Kerala,  was not persuaded by Kerala’s  argument that  

Mullaperiyar  dam was  unsafe  or  storage  of  water  in  that  dam cannot  be  

increased. Rather, it permitted Tamil Nadu to increase the present water level  

from 136 ft. to 142 ft. and restrained Kerala from interfering in Tamil Nadu’s  

right  in  increasing the water  level  in  Mullaperiyar  dam to 142 ft.   Thus, a  

judgment has been given by this court in contest between the two States in  

respect of safety of Mullaperiyar dam for raising water level  to 142 ft.  The  

essential element of the judicial function is the decision of a dispute actually  

arising between the parties and brought before the court.  Necessarily, such  

decision must be binding upon the parties and enforceable according to the  

decision.  A plain and simple judicial decision on fact cannot be altered by a  

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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 court  in  

appropriate proceedings.   

144. 2006 (Amendment) Act plainly  seeks to nullify  the judgment of  

this court which is constitutionally impermissible. Moreover, it is not disputed  

by Kerala that 2006 (Amendment) Act is not a validation enactment. Since the  

impugned law is not a validating law, it is not required to inquire whether in  

making the validation the legislature has removed the defect which the Court  

has found in existing law. The 2006 (Amendment) Act in its application to and  

effect on Mullaperiyar dam is a legislation other than substantially legislative  

as it is aimed at nullifying the prior and authoritative decision of this Court. The  

nub  of  the  infringement  consists  in  Kerala  legislator's  revising  the  final  

judgment of this Court in utter disregard of the constitutional principle that the  

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revision of such final judgment must remain exclusively within the discretion of  

the 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 of the Wheeling Bridge29. Firstly, public right qualification  

in  Wheeling Bridge29 has no application in  the present  case as there is  a  

critical  difference  between  the  provisions  impugned  before  us  and  the  

provisions  which  were  impugned  before  US  Supreme  Court  in  Wheeling  

Bridge29.   The principle question before the US Supreme Court in  Wheeling  

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Bridge29 was whether or not the compact could operate as a restriction upon  

the  power  of  courts  under  the  Constitution  to  regulate  commerce  among  

several States.  In response to the argument urged before it that the Congress  

cannot have the effect to annul the judgment of the court already rendered or  

the rights determined thereby was accepted as a general proposition but this  

proposition was held not applicable in the matters of adjudication upon the  

public  rights.   In our view,  a legislation violating the separation of  powers  

principle cannot be saved by carving out an exception that the legislature has  

regulated  a  public  right.   We  think  that  the act  of  legislature  designed to  

achieve  a  legitimate  regulatory  measure  does  not  grant  constitutional  

immunity to such law enacted in violation of separation of powers principle or  

in other words, rule of law.  Once a judicial  decision on ascertainment of a  

particular fact achieves finality,  we are afraid the legislature cannot reopen  

such final judgment directly or indirectly. In such cases, the courts, if brought  

before them, may reopen such cases in exercise of their own discretion.  

147. In  our  view,  Wheeling  Bridge29 qualification  by  the  majority  

decision of U.S. Supreme Court cannot be read to permit the actual revision of  

the final  judgment by the legislature.   If  Wheeling Bridge29   lays down the  

proposition  that  a  judgment  declaring  a  public  right  may  be  annulled  by  

subsequent legislation as contended by Mr. Harish Salve, then we say, as we  

must,  that  we  are  not  persuaded  to  accept  such  proposition  of  majority  

judgment  in  Wheeling  Bridge29.  The  two  separate  opinions  in  Wheeling  

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Bridge29 one by McLean J. and the other by Wayne J. - though in minority-  

also did not accept such proposition.

148. The  above  discussion  must  also  answer  the  argument  of  Mr.  

Harish Salve that rules of inter partes litigation do not determine the obligation  

of the State for safety of its people. We do not think it is necessary to consider  

the  opinion  of  Weeramantry,  J.  in  Gobcikovo-Nagymaros  Project  (ICJ)  in  

detail.  The stress laid by Weeramantry, J. is that where issue of serious or  

catastrophic environmental danger arises, the Court must look beyond  inter  

partes adversarial procedures.  

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  

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sets up an Authority to regulate it,  is  noted to be rejected. What has been  

found as a fact  by judicial  determination cannot be declared  otherwise  by  

applying legal fiction. We are, however, persuaded to accept the submission  

of Mr. Vinod Bobde, learned senior counsel for Tamil Nadu that the fact that  

the Mullaperiyar dam is safe was found by this Court and that finding of fact  

can never be deemed to be imaginary by a legal fiction which then proceeds  

to deem the opposite to be real, viz., that the dam is endangered. This is not a  

matter of legislative policy as it is being made out to be, rather in our opinion,  

it  is  incursion  in  the  judicial  process  and functions  of  judicial  organ.  The  

declaration  in  Section  62A read  with  item No.  1  of  the  Second Schedule  

leaves  no  manner  of  doubt  that  the  enactment  is  intended  to  reach  the  

question decided by the Court.

151. The  question  whether  or  not  the  legislature  has  usurped  the  

judicial  power or enacted a law in breach of separation of powers principle  

would depend on facts of each case after considering the real effect of law on  

a judgment or a judicial proceeding.  One of the tests for determining whether  

a  judgment  is  nullified  is  to  see  whether  the  law  and  the  judgment  are  

inconsistent and irreconcilable so that both cannot stand together.  In what we  

have already discussed above, it  is  abundantly clear  that on the one hand  

there is a finding of fact determined by this Court on hearing the parties on the  

basis of the evidence/materials placed on record in the judgment of this Court  

in  Mullaperiyar  Environmental  Protection Forum1 and on the other  in  2006  

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(Amendment)  Act,  the  Kerala  legislature  has  declared  the  dam  being  an  

endangered one and fixed the water level in the dam at 136 ft.  If the judgment  

of this Court in  Mullaperiyar Environmental Protection Forum1 and the 2006  

(Amendment) Act are placed side by side insofar as safety of the Mullaperiyar  

dam for raising the water level from 136 ft. to 142 ft. is concerned, it is obvious  

that the judgment of this Court and the law enacted by Kerala State legislature  

cannot  stand  together  and  they  are  irreconcilable  and  inconsistent.  The  

impugned law is a classic case of nullification of a judgment simpliciter, as in  

the judgment of this Court the question of safety of dam was determined on  

the basis  of materials  placed before it  and not on the interpretation of any  

existing law and there was no occasion for the legislature to amend the law by  

altering the basis on which the judgment was founded. When the impugned  

law is not a validation law, there is no question of the legislature removing the  

defect, as the Court has not found any vice in the existing law and declared  

such law to be bad.

152. There is yet another facet that in federal disputes, the legislature  

(Parliament and State legislatures) cannot be judge in their own cause in the  

case of any dispute with another State. The rule of law which is basic feature  

of our Constitution forbids the Union and the States from deciding, by law, a  

dispute between two States or between the Union and one or more States.  If  

this  was permitted under the Constitution,  the Union and the States which  

have any dispute between them inter se would enact law establishing its claim  

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or  right  against  the  other  and  that  would  lead  to  contradictory  and  

irreconcilable laws.  The Constitution makers in order to obviate any likelihood  

of  contradictory  and  irreconcilable  laws  being  enacted  has  provided  for  

independent adjudication of federal disputes.  Article 131 of the Constitution  

confers original jurisdiction upon this Court in relation to the disputes between  

the Government of India and one or more States or between the Government  

of India and any State or States on one side and one or more States on the  

other or between two or more States insofar as dispute involves any question  

on  which  the  existence  or  extent  of  a  legal  right  depends.  The  proviso  

appended to Article  131 carves out an exception to the jurisdiction of  this  

Court to a dispute arising out of  treaty, agreement, covenant, engagement,  

sanad or other similar instrument which have been  entered into or executed  

before the commencement of the Constitution and continues in operation after  

such commencement,  which are  political  in  nature.   In  relation  to  dispute  

relating to waters of inter-State river or river valleys, Article 262 provides for  

creation  of  tribunal  or  forum  for  their  adjudication.   In  federal  disputes,  

Parliament or State legislatures by law, if seek to decide a dispute between  

the two  States  or  between the Union and one or  more  States  directly  or  

indirectly, the adjudicatory mechanism provided in Articles 131 and 262 of the  

Constitution  would  be  rendered  nugatory  and,  therefore,  such  legislation  

cannot  be  constitutionally  countenanced  being  violative  of  separation  of  

powers doctrine.

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153. Mr. Harish Salve, learned senior counsel is right in his submission  

that a legislation can never be challenged on the principles of res judicata and  

that it binds a party and not the legislature. The question here is not that the  

2006 (Amendment) Act is unconstitutional on the ground of res judicata but the  

question is, when a categorical finding has been recorded by this Court in the  

earlier judgment that the dam is safe for raising the water level to 142 ft. and  

permitted the water lever of the dam being raised to 142 ft. and that judgment  

has become final and binding between the parties, has the Kerala legislature  

infringed the separation of powers doctrine in enacting such law? In what has  

already been discussed above, the answer to the question has to be in the  

affirmative and we hold so.

154. Where  a  dispute  between  two  States  has  already  been  

adjudicated  upon by  this  Court,  which  it  is  empowered  to  deal  with,  any  

unilateral law enacted by one of the parties that results in overturning the final  

judgment is bad not because it is affected by the principles of res judicata but  

because it infringes the doctrine of separation of powers and rule of law, as by  

such law, the legislature has clearly usurped the judicial power.

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  

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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 Kingston62,  

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 jurisdiction, directly upon the point, is as a  

plea, a bar, or as evidence, conclusive, between the same parties, upon the  

same matter, directly in question in another court; secondly, that the judgment  

of a court of exclusive jurisdiction, directly upon the point, is, in 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  

62 Duchess of Kingston; 2 Smith Lead Cas 13 Ed. Pp. 644, 645.

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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 Singh63, 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 Daryao64, 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  

in  M.S.M. Sharma65 wherein the application of the rule of  res judicata to a  

petition filed under Article 32 was considered and it  was observed that the  

question  determined  by  the  previous  decision  of  this  Court  cannot  be  

reopened and must govern the rights and obligations of the parties which are  

subsequently the same.

160. In  Gulab  Chand  Chhotalal  Parikh66,  this  Court  stated  that  a  

decision in a writ petition is res judicata in a subsequent suit.  

63 Sheoparsan Singh v. Ramnandan Prashad Narayan Singh; [AIR 1916 PC 78] 64 Daryao and Ors. v. State of U.P. and Ors.; [AIR 1961 SC 1457] 65 Pandit M.S.M. Sharma v. Dr. Shree Krishna Sinha and Ors.; [AIR 1960 SC 1186] 66 Gulab Chand Chhotalal Parikh v. State of Bombay; [(1965) 2 SCR 547]

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161. In  Nanak  Singh67 the  question  whether  the  decision  in  a  writ  

petition operates as res judicata in a subsequent suit filed on the same cause  

of action has been settled. In Nanak Singh67, this court observed that there is  

no  good  reason  to  preclude  decisions  on  matters  in  controversy  in  writ  

proceedings under Article 226 or Article 32 of the Constitution from operating  

as res judicata in subsequent regular suits on the same matters in controversy  

between the same parties and, thus, to give limited effect to the principle of  

finality of decision after full contest.

162. Nanak Singh67 has been followed by a three Judge Bench of this  

Court  in  Bua Das Kaushal68.  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  

67 Union of India v. Nanak Singh; [(1968) 2 SCR 887 : AIR 1968 SC 1370] 68 State of Punjab v. Bua Das Kaushal; [ (1970) 3 SCC 656]

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a suit, will be binding on the parties in the subsequent suit on the principle of  

res judicata.  

163. For the applicability of rule of res judicata, the important thing that  

must be seen is that the matter was directly and substantially in issue in the  

previous proceeding and a decision has been given by the Court on that issue.  

A decision on issue of fact in the previous proceeding – 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.  

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165. Shri  Harish  Salve,  learned  senior  counsel  for  Kerala,  placed  

reliance  upon  the  decision  of  this  Court  in  N.D.  Jayal69.  In  N.D.  Jayal69  

Dharmadhikari, J. made general observations on the dam safety aspect that  

plea like  res judicata on the earlier decisions passed by the Supreme Court  

cannot be allowed to be raised. The observations made by Dharmadhikari, J.  

in N.D. Jayal69 have to be read as an exception to the res judicata rule in the  

matters  where,  by  their  very  nature,  the  factual  situation  has  drastically  

changed in course of time. If substantial changes in the circumstances occur  

and such circumstances are shown to the Court necessitating departure from  

the earlier finding on the issue of safety, the Court can be approached and in  

that event the Court  itself  may exercise its  discretion to reopen the safety  

aspect having regard to the drastic change in circumstances or in emergent  

situation  as  to  the  safety  of  dam.  In  our  view,  a  judicial  decision,  having  

achieved finality, becomes the last word and can be reopened in the changed  

circumstances by that Court alone and no one else.

166. On behalf of Kerala,  it  is  contended that the jurisdiction of this  

Court under Article 32 of the Constitution for enforcement of the fundamental  

rights conferred by Part III of the Constitution is ousted or excluded in respect  

of disputes between two or more States: since such disputes fall  within the  

ambit  of  the  original  jurisdiction  of  this  Court  under  Article  131  of  the  

Constitution or  jurisdiction of  a  tribunal  constituted under the provisions of  

69 N.D. Jayal and Anr. v. Union of India and Ors.; [(2004) 9 SCC 362]  

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Inter-State River Water Disputes Act, 1956 read with the provisions of Article  

262 of the Constitution. Thus, it was submitted that the 2006 judgment is not  

binding  and  that  the  rule  of  res  judicata can  hardly  be  attracted  in  this  

situation.

167. We are unable to accept the submission of  the learned senior  

counsel  for  Kerala.  The label  of  jurisdiction exercised  by this  Court  is  not  

material for applicability of principles of res judicata if the matter in issue in the  

subsequent suit  has already been concluded by the earlier  decision of this  

Court between the same parties. The 2006 judgment was the result of judicial  

investigation, founded upon facts ascertained in the course of hearing. The  

plea of lack of jurisdiction of this Court was taken in the earlier proceedings on  

both the grounds, viz., (1) whether the jurisdiction of this Court is barred in  

view  of  Article  262  read  with  Section  11  of  the  Inter-State  River  Water  

Disputes Act, 1956, and (2) whether Article 363 of the Constitution bars the  

jurisdiction of this Court. On both these questions the findings were recorded  

against Kerala.  It  is  too much for Kerala to say that the 2006 judgment is  

without jurisdiction and not binding.

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168. The rule of res judicata is articulated in Section 1170 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,  

70 Section 11 – Res judicata No Court shall try any suit or issue in which the matter directly and substantially in issue has been  

directly and substantially in issue in a former suit between the same parties, or between parties under whom  they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or   the suit in which such issue has been subsequently raised, and has been heard and finally decided by such   Court.

Explanation I. – The expression “former suit” shall denote a suit which has been decided prior to the   suit in question whether or not it was instituted prior thereto.

Explanation  II.  – For the purposes of this section,  the competence of a Court  shall  be determined   irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III. – The matter above referred to must in the former suit have been alleged by one party  and either denied or admitted, expressly or impliedly, by the other.

Explanation IV. – Any matter which might and ought to have been made ground of defence or attack  in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V. – Any relief claimed in the plaint, which is not expressly granted by the decree, shall,   for the purposes of this section, be deemed to have been refused.

Explanation VI. – Where persons litigate bona fide in respect of a public right or of a private right   claimed in common for themselves and others, all persons interested in such right shall, for the purposes of   this section, be deemed to claim under the persons so litigating.

Explanation VII. – The provisions of this section shall apply to a proceeding for the execution of a   decree and  references in  this  section  to any suit,  issue or  former  suit  shall  be construed  as  references,   respectively, to a proceeding  for the execution of the decree,  question arising  in  such proceeding and  a   former proceeding for the execution of that decree.  

Explanation VIII. – An issue heard and finally decided by a Court of limited jurisdiction, competent   to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of  limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been   subsequently raised.

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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 is  

not triable  by it,  a fortiori,  the decision of  the highest  Court  of  the land in  

whatever jurisdiction given on an issue which was directly raised, considered  

and  decided  must  operate  as  res  judicata in  the  subsequent  suit  triable  

exclusively  by the highest Court  under Article  131 of  the Constitution.  Any  

other view in this regard will  be inconsistent with the high public policy and  

rule of law. The judgment of this Court directly upon the point, is as a plea, a  

bar,  or as evidence, conclusive between the same parties,  upon the same  

matter, directly  in question before this Court, though, label  of jurisdiction is  

different.

170. The principles of  res judicata are clearly attracted in the present  

case. The claim of Kerala in the earlier proceeding that water level cannot be  

raised from its present level  of 136 ft. was expressly not accepted and the  

obstruction by Kerala to the water level in the Mullaperiyar dam being raised  

to 142 ft. on the ground of safety was found untenable. The judgment dated  

27.2.2006 of this Court, thus, operates as res judicata in respect of the issue  

of safety of the dam by increasing its water level from 136 ft. to 142 ft.

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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  Baksh19 and  

Maharaj Umeg Singh20. 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 1886 Lease Agreement and if Section 108 of SR  

Act is construed to impose a permanent fetter on the State’s legislative power,  

such provision is unconstitutional.  

173. It may be stated immediately that the constitutionality of the 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  

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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 Baksh19 and  Maharaj Umeg Singh20 have no  

application  to  the  situation  obtaining  in  the  present  case.  The effect  of  a  

judgment which enforces a legal right flowing from a contract is that the right is  

incorporated  as  a  right  under  the  judgment  and  such  a  right  cannot  be  

overridden by legislature as it tantamounts to overriding a judgment.  

176. Learned senior counsel for Kerala also relied upon a decision of  

this Court in  State of Orissa71. In  State of Orissa71, while dealing with Article  

131, this Court stated, “Article 131 has no doubt given the Supreme Court  

exclusive jurisdiction to resolve any dispute between,  inter alia, two or more  

States. This exclusive jurisdiction is, however, subject to two limitations — one  71  State of Orissa Vs. State of A.P.; [(2006) 9 SCC 591]

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contained  in  the  opening  words  of  the  Article,  namely,  “subject  to  the  

provisions of this Constitution” and the other which is contained in the proviso  

to the Article.”

177. There  is  no  doubt  that  the  jurisdiction  to  resolve  any  dispute  

between two or 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. Mr.  Harish Salve argues that the doctrine of  finality  

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does  not  preclude  this  Court  from  correcting  the  errors.  Learned  senior  

counsel in this regard places reliance upon three decisions of this Court in  

A.R. Antulay72, Isabella Johnson73, and Rupa Ashok Hurra74.

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  Hurra74 are  satisfied.  The  present  case  does  not  fall  within  the  

parameters laid down in Rupa Ashok Hurra74. 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 2.12 lakh cusecs estimated by the CWC in 1986. Kerala asserts  

72 R.S. Nayak v. A.R. Antulay; [(1984) 2 SCC 183] 73  Isabella Johnson (Smt.) v. M.A. Susai (Dead) by Lrs.; [(1991) 1 SCC 494] 74  Rupa Ashok Hurra v. Ashok Hurra and Anr.; [(2002) 4 SCC 388]

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that the observed flood at Mullaperiyar dam in 1943 was 2.98 lakh cusecs and  

according to Tamil  Nadu’s own witness (PW-1), the PMF ought to be more  

than observed flood. Hence, estimation of PMF as 2.12 lakh cusecs by the  

CWC in 1986 is an underestimation.  

181. As regards impact  of MCE, Kerala has heavily  relied upon the  

study conducted by Dr.  D.K. Paul  and Dr. M.L. Sharma, Professors of  IIT,  

Roorkee.  Kerala  says that  these two experts  have categorically  concluded  

that,  “………..both the Main Mullaperiyar  dam and Baby Dam are likely  to  

undergo  damage  which  may  lead  to  failure  under  static  plus  earthquake  

condition and therefore needs serious attention….”.

182. Kerala submits that the dam suffered heavy lime loss between  

1930 and 1960 forcing Tamil Nadu to grout admittedly 542 MT of cement in  

this period.  

183. On  the  aspect  of  impact  of  structural  degeneration,  Kerala’s  

submission is that Mullaperiyar 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  

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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  technical  experts.  Kerala  

nominated Justice K.T. Thomas, a former Judge of this Court, and Tamil Nadu  

nominated Justice (Dr.) A.R. Lakshmanan, a former Judge of this Court, to the  

EC. Two renowned technical  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  

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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  

submitted their report.

185. The reports and investigations, tests and studies (ITS reports) are  

contained in 50 CDs and 4 DVDs. The report of EC consists of 8 Chapters.  

Chapter  I  has the title  “Dams – An Overview”.  Chapter  II  deals  with three  

aspects, viz., (a) Use of Periyar waters; (b) Evolution of Periyar Project; and  

(c) Mullaperiyar dam Dispute in the Supreme Court. Chapter III refers to the  

issues settled by the EC. Chapter IV contains – (i) Report of visit of the EC to  

Mullaperiyar dam site/areas during 19-22.12.2010; (ii)  Resolutions of the EC  

dated 21.12.2010,  7.1.2011 and 5.12.2011;  and (iii)  Report  of  visit  by two  

technical  members  (Dr.  C.D.  Thatte  and  Shri  D.K.  Mehta)  during  22-

26.12.2011. Chapter V records responses in brief of the parties to the issues  

framed by EC. Chapter VI is appraisal and analysis of the reports of technical  

investigations, tests and studies. Chapter VII records conclusions. Chapter VIII  

deals  with  general  observation  with  the  title,  “Way  Forward-Towards  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.  

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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 1. Verification of the Probable  

Maximum  Flood  (PMF)  computations  with  flood  routing  for  revisiting  spillway capacity.  

To determine:  

(i) Probable  Maximum  Flood (PMF)

(ii) Outflow  PMF  hydrograph  and  its  moderation  from  Mulla  Periyar Dam upto tip of  Idukki reservoir.

(iii) Outflow  PMF  hydrograph  of  Idukki  reservoir.

(iv) Maximum Water  Level  (MWL)  for  various  scenarios of operative /  inoperative  gates  for  different FRLs.  

(v) Free board 2. Integrated  Dam  Break  

Flood  study  from  Mulla  Periyar Dam to Idduki Dam  and  beyond  to  enable  

To  assess  Dam Break  Flood  that  may  be  caused  by  different  modes  of  failure/cascade effect  in  case  

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preparation  of  an  Emergency  Action  Plan.  Preparation of a sample of  likely inundation map.  

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.  

3. Back-water  studies  upstream  of  tip  of  Mulla  Periyar Reservoir into main  stem and tributaries.  

4. 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.  

5. Computerized  Reservoir  Sedimentation  Survey  for  assessment  of  present  elevation-area-capacity  relations.   Assessment  in  higher  elevations  by  Remote Sensing.

To determine loss  of  storage  due  to  sedimentation  and  its  effect  (if  any)  on  Probable  Maximum Flood attenuation.  

Note: Side items of ITS pertain to i) Dams built  with spillway design  flood less than PMF, ii)  Availability of water for Tamil  Nadu, and iii)   Requirement for environmental flow.  

B. STRUCTURAL SAFETY  6. Mapping  of  upstream  face  

of  dam  above  water  level  by means of photography    

To scan upstream face of Dam  for  discontinuities,  cracks,  hollows,  voids  &  joints  etc.  above  water  level  by  grid  based photography.  

7. Underwater  scanning  of  upstream face  of  the  dam  by  means  of  a  Remotely  Operated Vehicle to assess  its condition.  

To scan upstream face of Dam  for  discontinuities,  cracks,  hollows,  voids  &  joints  etc.  under  water  by  means  of  a  Remote Operated Vehicle.  

8. Studies of seepage and its  free lime content.  

(i) To  compile  measured  values  of  seepage  from  dam  body  and  

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foundation.  (ii) To  determine  proportion  

of seepage through dam  body/foundation  by  flow  net studies.

(iii) To  determine  leached  free  lime  content  in  seepage.

9. Determination of in-situ/ex- situ strength & integrity of  the dam body materials 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:

(i) Sonic test (ii) Gamma – Gamma /  

Neutron-Neutron (iii) Dye Tracer  (iv) Electrical  Resistivity  &  

Geophysical   Tomographic Study  

Ex-situ Tests:

(i) Compressive strength (ii) Tensile Strength (iii) Modulus  of  Elasticity  

(Static  as  well  as  dynamic)

(iv) Poisson’s ratio (v) Density (vi) Free Lime (vii) Chemical  analysis  of   

materials  10.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  11.Finite Element Method (FEM) To  determine  tensile  stress  

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analysis  employing  (response  spectra)  /  (time  histories)  to  asses  stability  of  dam  under  design  basis/maximum  credible  earthquake forces.   

caused  due  to  Earthquake  forces based on:

(i) 2D  FEM  Studies  based  on  Response  Spectra  method  (in  two  parts)  submitted by SoK.

(ii) 3D  FEM  studies  (two  times)  submitted  by  SoTN.

(iii) 2D  FEM  studies  (in  two  parts)  based  on  Time- History analysis.  

12. 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  

basis  of  the appraisal  of  the ITS reports,  EC held that Probable Maximum  

Precipitation (PMP) considered earlier was correct and the determination of  

observed maximum flood in 1943 was not reliable. EC’s assessment is that  

peak of PMF reaching the Mullaperiyar dam reservoir / periphery / upstream  

tip remains at 2.12 lakh cusecs (6003 cumecs).  

190. EC  has  been  of  the  view  that  spillway  designed  capacity  of  

Mullaperiyar dam for flood lower than PMF is acceptable. The EC carefully  

analysed the two studies, viz., (i) study above water level by photography, and  

(ii) study below water level by means of a Remote Operated Vehicle, upto a  

safely reachable level, and on appraisal from both scans/studies read together  

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did not apprehend cause for concern about manifestation of any distress for  

the dam.  

191. EC  has  also  carefully  considered  the  concerns  expressed  by  

Kerala with regard to (a) seepage measurement and assessment of loss of  

free lime; (b) loss of strength of dam body constituents due to lime loss; and  

(c) vulnerability due to free lime loss. According to EC appraisal, the total lime  

leaching in 116 years of dam’s existence was about 3.66%, which is less than  

the upper permissible limit of 15-20%. EC held that as lime loss as assessed  

was far within permissible limits, there is no cause for concern about loss of  

strength of Mullaperiyar dam.  

192. The  physical  properties  of  dam  body  material  has  also  been  

reviewed and assessed by applying in situ non destructive tests, viz., (a) sonic  

test  from  dam’s  upstream  face;  (b)  neutron-logging  and  tracer  study;  (c)  

geophysical tomographic study; and (d) scanning of internal surface of bore  

hole  walls  using  digital  video  recording  system.  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  

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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  

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 observed that all the projections / concerns by Kerala were not based  

on computations  /  studies.  Despite  the request  made to  Kerala  to  supply  

contour map,  Kerala did not do so. EC has further observed that Kerala’s  

projection  is  conjectural  since  there  is  deficiency  in  assessing  the  likely  

inundated area. EC, therefore, did not accept the scare of dam break flood.

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195. Having done elaborate and detailed appraisal and analysis of the  

voluminous tests and reports of experts and having regard to the concerns  

expressed  by  Kerala  about  the  safety  of  the  Mullaperiyar  dam,  EC  has  

summarized its conclusions on the three aspects, viz., (a) hydrologic safety;  

(b) structural safety; and (c) seismic safety as follows:

“A) Hydrologic Safety  

23. The  MPD  is  found  hydrologically  safe.   The  Probable  Maximum Flood (PMF), with a peak flow of 2.12 lakh cusecs (6003  cumecs) is accepted by EC.  It can be routed over the reservoir FRL  142 ft (43.28 m) to safely pass over the MPD spillway with 13 gates  operative,  resulting  into  a  peak  out  flow of  1,43,143  cusecs  (4053  cumecs), raising the Maximum Water Level (MWL) to elevation 153.47  ft (46.78 m)  transiently.  Even for the Test Case of one gate remaining  inoperative,  the MWL raises  to  elevation  154.10 ft  (46.97 m) when  PMF impinges the reservoir at FRL 142 ft (42.28 m).   

B) Structural Safety  

24. Both the main and Baby Dam (gravity and earth), are structurally   safe.   FRL  can  be  restored  to  the  pre-1979  position.   Following  maintenance and repair measures, should however be carried out in a  time-bound manner: i)  treatment of  upstream surface,  ii)  reaming of  drainage holes, iii) instrumentation, iv) periodical monitoring, analysis  and  leading  away  the  seepage  from  toe  of  the  dam  towards  downstream, v) geodetic re-affirmation, etc., vi) the dam body should  be grouted with a properly designed grout mix of fine cement / suitable  chemical / epoxy / polymer according to expert advice so that its safety  continues to remain present.   

C) Seismic Safety

25. MPD is found to be seismically safe for FRL 152 ft (46.33 m) /  MWL 155 ft  (47.24 m) for  the identified  seismic design parameters  with acceleration time histories under 2-D FEM Analysis.  The strength  and  other  properties  of  dam material  presently  available,  indicate  ample reserve against the likely  stresses /  impacts assessed under  this analysis.  In addition, reserve strength of cable anchors makes the  dam further safe.  The suspicion about existence of a geological fault  in  the  Baby  Dam foundation  is  ruled  out.   The  recent  earthquake  

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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 declined to disclose and supply the copies of results and ITS  

reports  without  dealing  with  the  question  of  prejudice.  Subsequently,  EC  

submitted its report before this Court and the Court directed the Registry on  

4.5.2012  to  supply  copy  of  the  report  of  the  EC  to  party  States  and,  

accordingly,  the Registry  of  this  Court  made available  a  photocopy of  the  

report.   The report  supplied  by the Registry  to  Kerala  did  not  include the  

results and reports of the ITS listed in Annexure 6.1 of the report but later on  

pursuant to the order of this Court dated 31.8.2012, all 50 CDs and 4 DVDs  

were supplied to the counsel for Kerala. It is submitted on behalf of Kerala that  

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the fair procedure and rules of natural justice demanded that the EC should  

have disclosed the results and reports of ITS relied upon by it and given an  

opportunity to Kerala on the acceptability of the ITS reports. It is strenuously  

urged  by  learned  senior  counsel  for  Kerala  that  the  ITS  reports  are  the  

opinions of experts and, therefore, the EC could not have relied upon such  

results  and reports  without giving an opportunity  to it  to  meet the adverse  

contents and Kerala has the right to cross-examine the authors and also to  

lead evidence of experts, if any, challenging the adverse results and reports of  

the ITS. In this regard, Kerala referred to the application made before EC on  

21.11.2011.  Kerala  also  relied  upon  the  decision  of  Queens  Bench  in  

Regina75.

197. We are not persuaded by the submissions of Mr. Harish Salve. It  

is true that 50 CDs and 4 DVDs containing ITS reports were supplied to Kerala  

pursuant to the order of this Court dated 31.8.2012 after the report had been  

submitted  by the EC but  the fact  of  the matter  is  that  the EC decided to  

conduct the investigations, tests and studies on various aspects relating to the  

safety of the Mullaperiyar dam through the apex organizations pursuant to the  

task given to  it  by  this  Court.  The EC in  its  proceedings dated 17.2.2011  

formed  a  Coordination  Committee  which comprised  the  representatives  of  

both the States. It is very difficult to accept that the role of the representatives  

of the States in the Coordination Committee was limited to that of being an  

observer. The ITS reports have been given by the organizations and bodies  

75 Regina v. Deputy Industrial Injuries Commissioner, Ex parte Jones; [(1962) 2 QB 677].

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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 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 as follows:

(i.) Kerala  Irrigation and Water  Conservation (Amendment)  Act,  2006 is  

unconstitutional  and  ultra vires in  its  application to and effect  on the  

Mullaperiyar dam.

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(ii.) The rights of Tamil Nadu, crystallized in the judgment dated 27.2.2006  

passed by this Court in W.P. (C) No.386/2001 cannot be nullified by a  

legislation made by the Kerala State legislature.

(iii.) The earlier judgment of this Court given on 27.2.2006 operates as res  

judicata on the issue of the safety of Mullaperiyar dam for raising water  

level  to  142  ft.  and  ultimately  to  152  ft.  after  completion  of  further  

strengthening measures on the Mullaperiyar dam.

(iv.) The plea raised by Kerala relating to the lease deed dated 29.10.1886  

and structural safety of Mullaperiyar dam have been finally decided by  

the judgment of this Court dated 27.2.2006 and Kerala is estopped from  

raising or re-agitating these issues in the present suit.

(v.) Kerala cannot obstruct Tamil  Nadu from increasing the water level  of  

Mullaperiyar dam to 142 ft. and from carrying out repair works as per  

judgment dated 27.2.2006.

Issue No. 8.    

200. This  issue  covers  the  controversy  as  to  whether  Kerala  is  

estopped from contending that Periyar river is not an inter-State river.

201. Tamil Nadu in the plaint has averred as follows:

“The plaintiff, defendant no.1, State of Kerala are the two riparian  States through which the Inter-State river Periyar flows.  The river  is one of the west flowing rivers in the State of Kerala,  with a  portion  of  its  catchment  lying  with  the  State  of  Tamil  Nadu………….”

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202. Traversing the above pleading of the Tamil Nadu, Kerala has set  

up the case that river Periyar is not an inter-State river but it  is intra-State  

river; that it rises in Quilon 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 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  

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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, Kerala took the specific plea that Periyar  

is an intra-State river but covered by an inter-State agreement. The review  

petition has been rejected by this Court on 27.7.2006.

206. It is true that in the earlier proceedings there is no express and  

categorical admission of Kerala that river Periyar is an inter-State river, but the  

very plea of lack of jurisdiction of this court for considering the applicability of  

Article 262, as noted above, would not have been raised by Kerala if  river  

Periyar was an intra-State river. Moreover, the entire area drained by the river  

and its tributaries is called the river basin. It is well-understood in the water  

laws that the basin of any river includes the river valley. The topographical  

map of Periyar river-basin shows that part of Periyar basin (about 114 sq. km.)  

is in Tamil Nadu. This is established from Water Atlas of Kerala published by  

Centre  for  Water  Resources  Development  and  Management,  Kazhikode,  

Kerala. Though the Periyar basin area that falls in Tamil Nadu is very small  

but, in our view, that does not make any difference insofar as the status of  

Periyar river as inter-State river is concerned. The fact of the matter is that 114  

sq. km. of Periyar basin area falls in Tamil Nadu. This is also fortified by the  

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advance report of Public  Works Department, Government of Kerala,  which,  

inter alia, states, “the rivers which have their drainage area lying in more than  

one State have been brought under the category of Inter-State rivers and a  

consolidated study has been admitted in this chapter……………”  “Of the west  

flowing rivers,  those which have a portion of  their  catchment area lying in  

Madras State  are  …………..(iv) Periyar.”  

207. Kerala’s witness M.K. Parameswaran Nair  has admitted that in  

Chapter LXIII under 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  

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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  the downstream region of  

Mullaperiyar dam. EC in Chapter VIII under the title “Way Forward – Towards  

An Amicable Resolution” has dealt with this aspect as a first alternative and  

suggested as follows:

“1. That the SoK may construct a new dam, at its own expense to  serve  its  own  perceptions,  if  techno-economically  cleared  by  the  Planning Commission,  and cleared by MoEF in  accordance of  their  regulations.  The  construction  of  a  new dam, giving  due margin  for   inflation etc, may cost the exchequer more than Rupees one thousand  crores.  The  statutory  clearances,  fixing  of  a  construction  agency,  preliminary works, the actual construction and decommissioning with  demolition of existing dam is likely to take 8 to 10 years. The existing  dam shall  not be dismantled, demolished or decommissioned till  the  new dam construction is completed and it  becomes operational.  Till   

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such time, the rights of the SoTN in the existing Dam to all waters of  Mulla Periyar Dam arising out of the Lease Deed of 1886 and the  Agreements of 1970, shall be fully honoured.  

2. However, the operation of the New Dam would commence only  after:  

2(a) A fresh MOU is executed between the SoK and the SoTN.

2(b) That  to  control,  manage,  operate,  maintain  and  regulate  the  waters of the New Dam, an Independent Committee / Board, to  be  chaired  by  a  representative  of  the  Union  of  India,  with  representatives of the SoK and the SoTN as its Members, is put  in place;

2(c) That the terms of rent/levies etc payable by the SoTN to the  SoK are  settled  and  the  power  generation  rights  of  the  two  States are settled beforehand;

2(d) That  before  construction  of  the  new  dam  and  till  its  commissioning,  the  existing  dam will  be  strengthened by the  measures  suggested  by  the  CWC,  including  Dam  Safety  requirements as already voiced, which still remain 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  

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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 India (Ministry of Water Resources), has laid down the  Criteria and Guidelines for Evacuating Storage Reservoirs, Sizing Low  Level Outlets and Initial Filling of Reservoirs.

i) According to the criteria, generally speaking, Dams should be  provided with low level outlets of adequate capacity to lower the  reservoir  water  level  to  a  specified  elevation  for  inspection,  maintenance and repair, and ii) to control the rate of reservoir   pool rise during initial filling.

ii) The Guidelines recommend that an outlet should be provided at  the lowest possible level and should be of sufficient dimensions  to cater to evacuation of storage with requisite  flow capacity.  The decision about level at which the outlet has to be provided  is  left  to  the  concerned  dam  owning  entity.  The  level  will   depend upon assessment of the dam's condition, a judgment on  location at which distress may be caused, its nature and the  time  of  evacuation  needed  for  enabling  completion  of  restoration measures.

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3.  In  the  existing  MPD project,  as  noted  in  Chapter-ll(b)  (supra),  a  tunnel  had been designed with a D-Section 12 feet wide and 7.5 ft  high with provision of the sluice head gate having sill at El 106.5 ft for  diversion of water from Periyar reservoir to Vaigai basin in the SoTN.  This tunnel was modernized by widening and lining in the year 1958.  The tunnel  can allow reservoir  draw-down to 106.5 ft as per criteria   laid  down  in  (i).  Storage  lower  than  El  106.5  ft  to  an  identified  elevation  based on assessment of  likely  distress  cannot  be drawn- down through the present arrangement of drawl of water for the SoTN  through the existing tunnel.

4. Further, digging of a New Tunnel at say at EL 50 ft., of course, after   conducting surveys, designs, and techno-economic feasibility studies,  with requisite sluice gates for evacuation of reservoir  water from EL  106.5 ft to say 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 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  

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Environmental Flow as firmed up by the SoTN in consultation  with CWC & the SoK.

5. That a MoU would have to be executed by the SoTN and the  SoK, in the presence of a representative of the Govt. of India, Ministry  of  Water  Resources,  regarding  the  construction  of  the  new tunnel   within a specified time.”

215. EC has itself  noted that the second alternative is dependent on  

agreement between the two States but to us there appears to be no possibility  

of mutual agreement on this aspect as well. The alternatives suggested by EC  

are worth exploring by the two States but having regard to the unbending  

stance adopted by them, this does not seem to be possible. We,  however,  

grant liberty to the parties to apply to the Court if they are able to arrive at  

some amicable solution on either of the two alternatives suggested by the EC.

Issue Nos. 2(b) and 11

216. With reference to these issues, it is strenuously urged by Kerala  

that Tamil  Nadu has not suffered any injury because of the reduction of the  

storage at Mullaperiyar dam to 136 ft. since 1979. According to Kerala, more  

water was drawn and more area was irrigated after 1979. Kerala has in this  

regard relied upon the data supplied by Tamil Nadu Public Works Department  

and the analysis thereof. It is submitted that average water drawn during the  

pre-1979 period was 19,277 Mcft.  while  in the post-1979 period the water  

drawn was 21,434 Mcf. As regards extent of irrigation, Kerala submits that the  

extent  of  irrigation  in  Tamil  Nadu from Mullaperiyar,  water  has admittedly  

increased from about 1,71,307 acres before 1979 to 2,31,412 acres. Kerala  

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has also relied upon the answers of PW-1 to question Nos. 585 to 601 and 58  

to 59. Kerala has also relied upon the decision of this Court in State of Andhra  

Pradesh3 wherein this Court observed, “…….that in a suit for injunction filed by  

one State against  the other State,  the burden on the 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 1974, which worked as a balancing  reservoir for release from power station in non-irrigation months  

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from 1954 onwards, and ii) World Bank assisted Modernization of  Periyar  Vaigai  Irrigation  Project,  phase-I  &  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  /  municipal  /  industrial  needs  of  the  area  are  significant.   These  present  requirements remain unmet, if FRL is not restored even partially.  

EC is unable to accept the submission of the SoK that no harm  will be done under these circumstances to the SoTN if FRL is not  restored.”

219. Insofar  as  drawal  of  water  in  pre-1979  period  and  post-1979  

period is concerned, the sole witness of Tamil Nadu has admitted that in the  

post-1979 period the water drawn was 21,434 Mcft. and the average water  

drawn pre-1979 period was 19,277 Mcft. Similarly, he has admitted increase  

of irrigation from 1,71,307 acres before 1979 to 2,31,412 acres in 1992-93,  

but, as observed by EC, this has been due to construction of Vaigai dam in  

1954 and related canal distribution system post-1974. The five districts Theni,  

Dindigul,  Madurai,  Sivagangai  and  Ramanathanpuram  that  are  served  by  

Periyar project are drought prone.  About 2 lakh acres of land fall in these five  

districts which needs to be irrigated. The inadequate timely water supply of  

water for irrigation and drinking purposes to the population of these districts  

may affect their lives as well as livelihood.  The increase of irrigation and more  

drawal of water post 1979 still  appears to be deficient for the population of  

more than 80 lakh people in these districts.  

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220. In these facts, therefore, it can safely be said that Tamil Nadu has  

been able to establish that invasion on its rights is substantial. Tamil Nadu has  

been able to make out a case for grant of injunction on the principles laid  

down by this Court in State of Andhra Pradesh3. Moreover, present suit is not  

a suit for injunction simpliciter as the main prayer is that Kerala Irrigation and  

Water Conservation (Amendment) Act, 2006 be declared unconstitutional and  

ultra vires in its application to and effect on the Mullaperiyar dam.

Findings on Issue Nos. 2(b) and 11

221. In view of the foregoing discussion, we hold 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  

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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 recommend  

measures which are necessary.  Such measures shall be carried  

out by Tamil Nadu.

(iii) The Committee shall be free to take appropriate steps and issue  

necessary directions to the two States - Tamil Nadu and Kerala –  

or any of them if  so required for the safety of the Mullaperiyar  

dam in an emergent situation.  Such directions shall be obeyed by  

all concerned.

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(iv) The  Committee  shall  permit  Tamil  Nadu  to  carry  out  further  

precautionary  measures  that  may  become  necessary  upon its  

periodic inspection of the dam in accordance with the guidelines  

of the Central Water Commission and Dam Safety Organisation.

224. The suit is decreed as above, with no order as to costs.

………..……………………CJI.        (R.M. Lodha)

………..……………………...J.      (H.L. Dattu)

………..……………………...J.      (Chandramauli Kr. Prasad)

………..……………………...J.      (Madan B. Lokur)

………..……………………...J.         (M.Y. Eqbal)

NEW DELHI; MAY 07, 2014.

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IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) No.13955 of 2012

C.R. NEELAKANDAN & ANR. … PETITIONERS

VERSUS

UNION OF INDIA & ORS.        … RESPONDENTS

O R D E R

In view of our separate judgment pronounced today in Original Suit No.3  

of 2006 (State of Tamil Nadu v. State of Kerala and another), nothing further  

remains  to  be  decided  in  this  special  leave  petition  and  it  is  dismissed  

accordingly.

……..……………………...CJI.            (R.M. Lodha)

………..……………………...J.            (H.L. Dattu)

………..……………………...J.            (Chandramauli Kr. Prasad)

………..……………………...J.            (Madan B. Lokur)

………..……………………...J.            (M.Y. Eqbal)

NEW DELHI MAY 07, 2014

158