TaxTMI 
TaxTMI 
2014 (5) TMI 1110
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....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....
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....ts 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 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....
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....ents 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 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 th....
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....dings 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. 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 27.0....
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.... increased storages on the safety of the dam will also be demonstrated before the Dam Safety Authority. This was not the matter that was required to be considered by this Court in the previous case, since in that case, the focal issue was the implications of the increase in height upon the safety and integrity of the dam. 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 c....
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....ny, 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....
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.... 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 documen....
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.... 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 governed by the procedure prescribed in Civil Procedure Code save and except the procedure which has been expressly made applicable by the Supreme Court Rules. It is also important to bear in mind that the contest between the states is to be settled in the large and ample way that alone becomes the dignity of litigants concerned (State of Andhra Pradesh). Unfortunately, there is a sharp conflict over each and every aspect of the subject matter between the contesting states. Even in respect of the report submitted by the EC chaired by a former Chief Justice of this Court, one nominee each o....
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....is provision. Government of India Act, 1919 did not alter the position with regard to the 1886 Lease Agreement since Presidency of Fort St. George was treated as Province for the purposes of local 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....
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....n 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, 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 p....
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....gment (Mullaperiyar Environmental Protection Forum). This Court has held therein-and we have no justifiable reason to take a different view-that 1886 Lease Agreement is an ordinary 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 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....
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....strument 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 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 an....
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....easury for the discharge of his debts, and induced the Nawab by threats and deception to pay him, in return for such help, sums 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....
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....unce 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....
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...., 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 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....
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....n. 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 Pradesh. 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 Gover....
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....atus 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 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 ....
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....dinary 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 Forum 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 Singh. The Constitution Bench in Virendra Singh was concerned with the question about the post- Constitutional rights to property situate in Indian States that were not part of British India before the Constitution but which acceded to the dominion of India shortly before the Constitution and became an integral part of the Indian Republic after it. Charkhari and Sarila were independent States under the paramountcy of the British Crown. They acknowledged the British Crown as the suzerain power. India obtained Independence and became a Dominion by reason of Act of 1....
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....a 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 applicat....
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....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 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 ....
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....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 295 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. 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 S....
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....fety 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 Cotton, learned senior counsel for Tamil Nadu submits that nullification of a judgment without removal of its legal basis is one of the categories of usurpation. A judgment on a question of fact cannot be nullified so also the effect of judgment, which enforces a legal right. By relying upon the Privy Council judgment in Liyanage, he submitted that interference with the judicial process in a pending matter also amounts to usurpation of judicial pow....
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....lature 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 Sawhney, 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 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....
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....n 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-s....
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....ne 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. Mahal Chand Sethia 94. In Mahal Chand Sethia, while dealing with the argument that although it was open to the State legislature by an Act and the Governor by an Ordinance to amend the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, it was incompetent for either of them to validate an order of transfer which had been quashed by the issue of a writ of certiorari by the High Court and the order of transfer being virtually dead, could not be resuscitated by the Governor or legislature and the validating measures could not touch any adjudication by the Court. Mitter J. speaking for the Court stated the legal position:- "......A legislature of a St....
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....covered in accordance with the relevant municipal law. 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....
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.... 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 Fields were noted by the two-Judge Bench of this Court in the Municipal Corporation of the City of Ahmedabad. While accepting that the legislature under our Constitution have within the prescribed limits, powers to make laws prospectively as well as retrospectively and that by exercise of those powers, the legislature can remove the basis of a decision rendered by a competent court thereby rendering that decision ineffective but no legislature has power to ask the instrumentalities of the State to disobey or disregard the decisions given by courts. Madan Mohan Pathak 98. Yet another important decision by the 7-Judge Constitution Bench of this Court on the subject is Madan Mohan Pa....
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....ding 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 reference, this Court was concerned with the validity of Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991. Relying upon its previous decisions in Madan Mohan Pathak and P. Sambamurthy, 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 Reforms. M.B. Shah, J. speaking for the majority noticed the earlier decisions of this Court in P. Sambamurthy, Cauvery reference, Municipal Corporation of the City of Ahmedabad, Prithvi Cotton and Mahal Chand Sethia and stated:- "The Legislature can change the basis on which a decision is rendered by this Court and change the law in gen....
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....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. Saksena, this Court referred to an earlier decision in Hari Singh wherein a Bench of seven Judges of this Court noted the two tests for judging the validity of a validating law: (i) wh....
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....e, 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 105. In Indian Aluminium Company, one of the contentions addressed to this Court was that the Kerala legislature had no power to enact Section 11 of the impugned Act validating the levy with retrospective effect as it amounted to encroachment upon....
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....evise or override a 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....
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....mpany 107. The Constitution Bench of this Court in Elphinstone Spinning and Weaving Company 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 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 Dutt. Relying upon earlier decisions in K.C. Gajapati Narayan Deo and Ayurvedic and Unani Tibia College, the Court in Dharam Dutt further observed:- "16......The whole doctrine resolves itself into the question of the competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all. W....
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....in 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 present case. The impugned Act is not liable to be annu....
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....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 Nath and stated, "the former is outside the competence of the legislature but the latter is within its permissible limits. The reason for this lies in the concept of separation of powers adopted by our constitutional scheme. The adjudication of the rights of the parties according to law is a judicial function. The legislature has to lay down the law prescribing norms of conduct which will govern parties and transactions and to require the court to give effect to that law". 109.4. Relyin....
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...., (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. Liyanage 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, Liyanage says that alterations made by Parliament in the function of the judiciary constituted a grave and deliberate incursion in the judicial sphere. It is worth noticing the following passage from Liyanage:- "If such Acts as these were valid the judicial power could be wholly absorbed by the Legislature and taken out of the hands of the Judges. It is appreciated that the Legislature has no such general intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringe the Constitution. What is done once, if it be allowed, ma....
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....t 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 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 again....
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....ned 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 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, a....
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....cretion, 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:- ".......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 Hodges, the U.S. Supreme Court, following Wheeling Bridge held as follows:- "In the Wheeling Bridge Case, as in the Clinton Bridge Case, the public right involved was that of abating an obstruction to the navigation of a river. The right involved in the present suit, of enjoining the maintenance of an illegal school district and the issuance of its bonds, is likewise a public right shared by the plaintiffs with all other resident taxpayers. and while in the Wheeling Bridge Case the bill was filed by the State, although partly in its pro....
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....ntinue 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 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 Transportation and the other, Raymond Kassel may now be considered. Raymond Motor Transportation was concerned with the question whether administrative regulations of the State of Wisconsin governing the length and configuration of contracts that may be operated within the state violated the commerce clause. The t....
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....gh 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 Plaut 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 i....
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....n 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. (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, ....
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....ve 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 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 Forum at some length. That decision was rendered by this Court in a writ petition filed by Mullaperiyar Environment Protection Forum under Article 32 of the Constitution of India and few transferred cases. In that case, the petitioner's claim was that water level in the reservoir cannot be raised from its present level of 136 ft. That was the stand of Kerala as well. According to Kerala, the life of Mullaperiyar dam was fifty years from the date of construction but it had already completed more than hundre....
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.... 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 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 safet....
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....ng 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. 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....
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....m 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 su....
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....e course of hearing. It was strictly a 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 includ....
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....ands; (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 Mulla....
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....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 Se....
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.... 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 Forum 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 measu....
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.... 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....
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....ourt, 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; (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 provisio....
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....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 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 wate....
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....read to permit the actual revision of the final judgment by the legislature. If Wheeling Bridge lays down the proposition that a judgment declaring a public right may be annulled by subsequent legislation as contended by Mr. Harish Salve, then we say, as we must, that we are not persuaded to accept such proposition of majority judgment in Wheeling Bridge. The two separate opinions in Wheeling Bridge one by McLean J. and the other by Wayne J.-though in minority-also did not accept such proposition. 148. The above discussion must also answer the argument of Mr. Harish Salve that rules of inter partes litigation do not determine the obligation of the State for safety of its people. We do not think it is necessary to consider the opinion of Weeramantry, J. in Gobcikovo-Nagymaros Project (ICJ) in detail. The stress laid by Weeramantry, J. is that where issue of serious or catastrophic environmental danger arises, the Court must look beyond inter partes adversarial procedures. 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 ....
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....r 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 Forum 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 a....
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....nding 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 judgment does not bind this Court while deciding t....
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....e 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 Parikh, this Court stated that a decision in a writ petition is res judicata in a subsequent suit. 161. In Nanak Singh 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 Singh, 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 Singh has been followed by a three Judge Bench of this Court in Bua Das Kaushal. In our view, the rule of res judicata which is founded on public policy prevents not only a new decision in the subsequent suit but also prevents new investigation. It prevents the d....
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....lea like res judicata on the earlier decisions passed by the Supreme Court cannot be allowed to be raised. The observations made by Dharmadhikari, J. in N.D. Jayal have to be read as an exception to the res judicata rule in the matters where, by their very nature, the factual situation has drastically changed in course of time. If substantial changes in the circumstances occur and such circumstances are shown to the Court necessitating departure from the earlier finding on the issue of safety, the Court can be approached and in that event the Court itself may exercise its discretion to reopen the safety aspect having regard to the drastic change in circumstances or in emergent situation as to the safety of dam. In our view, a judicial decision, having achieved finality, becomes the last word and can be reopened in the changed circumstances by that Court alone and no one else. 166. On behalf of Kerala, it is contended that the jurisdiction of this Court under Article 32 of the Constitution for enforcement of the fundamental rights conferred by Part III of the Constitution is ousted or excluded in respect of disputes between two or more States: since such disputes fall within the ....
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....tion 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. 171. It is argued by Mr. Harish Salve, learned senior counsel for Kerala, that even agreements entered into between foreign s....
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.... 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 Orissa. In State of Orissa, 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 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....
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....am 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 ....
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....d 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. 186. In Chapter III, the EC has recorded the issues for consideration. One....
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....il Nadu, and iii) Requirement for environmental flow. B. Structural Safety:- Title Purpose of ITS Verification of the Probable To determine: Mapping of upstream face of dam above water level by means of photography To scan upstream face of Dam for discontinuities, cracks, hollows, voids and joints etc. above water level by grid based photography. 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 and joints etc. under water by means of a Remote Operated Vehicle. To compile measured values of seepage from dam body and foundation. Studies of seepage and its free lime content. To determine proportion of seepage through dam body/foundation by flow net studies. To determine leached free lime content in seepage. Determination of in-situ/ex-situ strength and 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 Te....
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....ead together 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, ....
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....s 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/pol....
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....demanded that the EC should have disclosed the results and reports of ITS relied upon by it and given an opportunity to Kerala on the acceptability of the ITS reports. It is strenuously urged by learned senior counsel for Kerala that the ITS reports are the opinions of experts and, therefore, the EC could not have relied upon such results and reports without giving an opportunity to it to meet the adverse contents and Kerala has the right to cross-examine the authors and also to lead evidence of experts, if any, challenging the adverse results and reports of the ITS. In this regard, Kerala referred to the application made before EC on 21.11.2011. Kerala also relied upon the decision of Queens Bench in Regina. 197. We are not persuaded by the submissions of Mr. Harish Salve. It is true that 50 CDs and 4 DVDs containing ITS reports were supplied to Kerala pursuant to the order of this Court dated 31.8.2012 after the report had been submitted by the EC but the fact of the matter is that the EC decided to conduct the investigations, tests and studies on various aspects relating to the safety of the Mullaperiyar dam through the apex organizations pursuant to the task given to it by t....
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....d 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............." 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 replicati....
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....raphical 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 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....
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....xisting dam shall not be dismantled, demolished or decommissioned till the new dam construction is completed and it becomes operational. Till 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 wate....
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....rned 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. 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.....
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....olution 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 Pradesh 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 requ....
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....istricts 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 Pradesh. 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....