Case: State of Tamil Nadu Vs. State of Kerala &amp; Another

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 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 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 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. 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

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]. As a general observation, before we embark upon the discussion on diverse issues, it must be stated, that a suit of this nature cannot and ought not to be decided with very technical approach insofar as pleadings and procedure are concerned. A suit filed in original jurisdiction of this Court is not governed by the procedure prescribed in Civil Procedure Code save and except the procedure which has been expressly made applicable by the Supreme Court Rules. It is also important to bear in mind that the contest between the states is to be settled in the large and ample way that alone becomes the dignity of litigants concerned (State of Andhra Pradesh [State of Andhra Pradesh v. State of Maharashtra and Ors.; [(2013) 5 SCC 68] .]). 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.It is true that Section 7(1)(b) of Act of 1947 Act uses the expressionbut, in our opinion, the wordis 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 andwe 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 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,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 or International Treaty? The answer has to be in the negative. It is well settled that an act of State is the taking over of sovereign powers by a State in respect of territory which was not till then part of it, by conquest, treaty, cession or otherwise, and the municipal courts recognised by the new sovereign have the power and jurisdiction to investigate and ascertain only such rights as the new sovereign has chosen to recognise or acknowledge by legislation, agreement or otherwise, and that such a recognition may be express or may be implied from the circumstances. 1886 Lease Agreement is an ordinary contract of lease. Merely, because the contract was arrived at between the Crown through the Secretary of State and the Travancore State –a 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.The documents referred to in Article 363 are those which are political in nature. Any dispute regarding such documents is 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 says363 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 theConstitution, 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 from the Constitution. Indian Constitution has made demarcation without drawing formal lines between the three organs – legislature, executive and judiciary.It is true that thesovereign 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 trustindirectly 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.The contention of Mr. Harish Salve that by declaring dam unsafe, the legislature has not rendered any finding of fact; it deems dam unsafe and sets up an Authority to regulate it, is noted to be rejected. What has been found as a fact by judicial determination cannot be declared otherwise by applying legal fiction. We are, however, persuaded to accept the submission of Mr. Vinod Bobde, learned senior counsel for Tamil Nadu that the fact that the Mullaperiyar dam is safe was found by this Court and that finding of fact can never be deemed to be imaginary by a legal fiction which then proceeds to deem the opposite to be real, viz., that the dam is endangered. This is not a matter of legislative policy as it is being made out to be, rather in our opinion, it is incursion in the judicial process and functions of judicial organ. The declaration in Section 62A read with item No. 1 of the Second Schedule leaves no manner of doubt that the enactment is intended to reach the question decided by the Court.151. The question whether or not the legislature has usurped the judicial power or enacted a law in breach of separation of powers principle would depend on facts of each case after considering the real effect of law on a judgment or a judicial proceeding. One of the tests for determining whether a judgment is nullified is to see whether the law and the judgment are inconsistent and irreconcilable so that both cannot stand together. In what we have already discussed above, it is abundantly clear that on the one hand there is a finding of fact determined by this Court on hearing the parties on the basis of the evidence/materials placed on record in the judgment of this Court in Mullaperiyar Environmental Protection Forum (supra) and on the other in 2006 (Amendment) Act, the Kerala legislature has declared the dam being an endangered one and fixed the water level in the dam at 136 ft. If the judgment of this Court in Mullaperiyar Environmental Protection Forum1 and the 2006 (Amendment) Act are placed side by side insofar as safety of the Mullaperiyar dam for raising the water level from 136 ft. to 142 ft. is concerned, it is obvious that the judgment of this Court and the law enacted by Kerala State legislature cannot stand together and they are irreconcilable and inconsistent. The impugned law is a classic case of nullification of a judgment simpliciter, as in the judgment of this Court the question of safety of dam was determined on the basis of materials placed before it and not on the interpretation of any existing law and there was no occasion for the legislature to amend the law by altering the basis on which the judgment was founded. When the impugned law is not a validation law, there is no question of the legislature removing the defect, as the Court has not found any vice in the existing law and declared such law to be bad.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.It is true that averment of Tamil Nadu in the plaint that the two States – Kerala and Tamil Nadu – are riparian States is not right in its entirety because Tamil Nadu is not a riparian State but the status of Periyar river as inter-State river, on the basis of what we have observed above, cannot be overlooked. It is not open to Kerala to take a totally inconsistent plea and begin fresh controversy about the status of Periyar river on the ground that the earlier plea was founded on some erroneous premise. In our view, Kerala cannot be permitted to contend that Periyar river is not an inter-State