9911796707
TMI Blog2014 (5) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... W.P.(C) No. 386/2001 with connected matters. X X X X Extracts X X X X X X X X Extracts X X X X ..... rces decided to constitute an Expert Committee to go into the details of the safety of the dam and advise him on raising of water level in the reservoir. 8. On 14.06.2000, the Expert Committee was constituted having the following terms of reference:- "(a) To study the safety of Mullaperiyar dam located on Periyar river in Kerala with respect to the strengthening of dam carried out by the Government of Tamil Nadu in accordance with the strengthening measures suggested by CWC and to report/advise the Hon'ble Minister of Water Resources on the safety of the dam. (b) To advise the Hon'ble Minister of Water Resources regarding raising of water level in Mullaperiyar reservoir beyond 136 ft. (41.45 m) as a result of strengthening of the dam and its safety as at (a) above." 9. After initial resistance, the Government of Kerala nominated one Member to the Expert Committee. 10. The Expert Committee gave its final report on 16.03.2001. While the matter was under consideration by the Expert Committee, it also gave certain interim directions. In its report, the Expert Committee had opined that water level in the Mullaperiyar reservoir could be raised to 142 ft. (43.28 m.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y thereafter instituted the present suit under Article 131 of the Constitution of India against the State of Kerala. It is necessary to elaborate somewhat on facts as proceedings are in the nature of suit in original jurisdiction of this Court. The plaint avers that on coming into force of the States Reorganisation Act, 1956, (for short, "SR Act"), the State of Travancore-Cochin (Part-B, State) was formed. The State of Kerala (first defendant) is the successor in interest of the State of Travancore-Cochin. The State of Tamil Nadu is the successor in interest of the Governor in Council, Secretary of State for India. Tamil Nadu has, thus, pleaded that plaintiff and the first defendant are successors in interest of the original contracting parties of the 1886 Lease Agreement. 17. It is averred by Tamil Nadu that on 29.05.1970, two supplemental agreements were executed between it and Kerala. The two supplemental agreements did not change the basic character of the 1886 Lease Agreement. By first supplemental agreement, Tamil Nadu surrendered the fishing rights in the leased lands and also agreed to the upward revision of the rent of the leased land. The second supplemental ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead with Second Schedule is a legislative judgment that the Mullaperiyar dam is endangered on account of its age, degradation, structural or other impediments and limits the water level to 136 ft. Sub-section (2) prohibits increase of water level fixed in the Second Schedule notwithstanding any judgment, decree or order of any court or any other law or any treaty, contract, agreement, instrument or document except and in accordance with the provisions of the Act. Sub-section (3) also contains a non-obstante clause and requires prior consent in writing of the authority for increasing storage capacity and for doing any act or work for such purpose. Sub-section (4) directs any act or work for preparation by any executant to stop the work immediately and to apply for consent of the authority. Section 68A protects the authority and any officer or employee from any suit, prosecution or other legal proceedings in respect of anything done under the Act and also ousts the jurisdiction of civil courts. 2006 (Amendment) Act is not a validation act but a mere device to defy, obstruct and nullify the judgment of this Court and constitutionally interfere with, restrict or extinguish the leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slature at all. 23. About 2006 (Amendment) Act, it is stated that Kerala legislature enacted the Act regulating the storage levels of 22 dams listed in the Second Schedule read with Section 62A (1), as these dams fall entirely within the territory of Kerala and these dams are considered to be endangered on account of their age, degeneration, degradation, structural or other impediments. Kerala states that such law is perfectly valid. Under Section 62A(3) of the 2006 (Amendment) Act, the FRL can be increased beyond 136 ft. after obtaining prior consent of the Dam Safety Authority headed by a retired Judge of the High Court. If Tamil Nadu approaches under Section 62A(3), Kerala reserves its right to oppose such plea by demonstrating how such increase would lead to spread of backwater beyond the contour line of 155 ft. and how the flora and fauna including ecology would be destroyed. The impact of increased storages on the safety of the dam will also be demonstrated before the Dam Safety Authority. This was not the matter that was required to be considered by this Court in the previous case, since in that case, the focal issue was the implications of the increase in height upon the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of powers on the Kerala legislature to regulate the storage level of the Mullaperiyar dam in larger public interest by legislation. Kerala states that the impugned legislation removes the legal basis of the judgment, i.e., the right of Tamil Nadu to store water up to 142 ft. in Mullaperiyar reservoir. The legislature is competent to remove the basis of any judgment and, therefore, it is not permissible for Tamil Nadu to claim any right to store water at Mullaperiyar dam beyond 136 ft. Kerala has assailed the findings and conclusions in the earlier judgment dated 27.02.2006 on all possible grounds. 28. Kerala has raised the objection about maintainability of the present suit under Article 131 of the Constitution of India. According to Kerala, because the basis of claim made by Tamil Nadu lies in the 1886 Lease Agreement which is a contractual right leading to civil dispute, if any, but it is not in dispute in the constitutional context as required under Article 131 of the Constitution of India. Kerala's further case is that 1886 Lease Agreement was executed between the Maharaja of Travancore and Secretary of State for India in England and as such the agreement is in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture of Periyar River, structural safety of Mullai Periyar Dam etc. raised by the first defendant in its defence, are finally decided by the judgment of this Court dated 27.2.2006 in WP(C) No. 386/2001, and consequently first defendant is barred from raising or reagitating those issues and pleas in this suit, by the principle of res judicata and constructive res judicata? 5. Whether the suit based on a legal right claimed under the lease deed executed between the Government of the Maharaja of Travancore and the Secretary of State for India on 29.10.1886, is barred by the proviso to Article 131 of the Constitution of India? 6. Whether the first defendant is estopped from raising the plea that the deed dated 29.10.1886 has lapsed, in view of subsequent conduct of the first defendant and execution of the supplemental agreements dated 29.05.1970 ratifying the various provisions of the original Deed dated 29.10.1886. 7. Whether the lease deed executed between the Government of the Maharaja of Travancore and Secretary of State for India on 29.10.1886 is valid, binding on first defendant and enforceable by plaintiff against the first defendant. 8. Whether the first defendant is estopp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 18.02.2010, the Constitution Bench directed the Central Government to constitute an EC under the Chairmanship of Dr. A.S. Anand, former Chief Justice of India and comprising of two members nominated by the States of Kerala and Tamil Nadu and two renowned technical experts. The EC was requested to hear parties to the suit on all issues that may be raised before it, without being limited to the issues that have been raised before the Court in the matter and furnish a report as far as possible within six months from its constitution. It was left open to the EC to frame its own procedure and issue appropriate directions as to the hearings as well as venue of its sittings and it was also left to the EC to receive such further evidence as it considered appropriate. It was, however, clarified that the legal and constitutional issues including validity of the 2006 Amendment Act, are matters that would be considered by the Court. 37. The EC submitted status reports from time to time. The time for giving final report was extended also. The report was submitted by the Empowered Committee finally on 23.04.2012. General observation 38. As a general observation, before we embark upon the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 886 Lease Agreement was an existing contract made for the purposes of the Government of Province of Madras on the commencement of 1935 Act. 1886 Lease Agreement-whether an existing contract under 1935 Act 40. The Madras Presidency (Fort St. George) was established by the Pitts Act, 1784. Thereafter, by the Government of India Act, 1858, the territories under the Government of East India Company were transferred for being vested in Her Majesty. Under this enactment, the Secretary of State in Council was empowered to enter into contracts. By the 1859 (Amendment) Act, the British Parliament authorised the Governor in Council of Fort St. George to enter into contracts referred to as Secretary of State in Council. 1886 Lease Agreement was entered into between the Secretary of State in Council and Maharaja of Travancore under this provision. Government of India Act, 1919 did not alter the position with regard to the 1886 Lease Agreement since Presidency of Fort St. George was treated as Province for the purposes of local 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 42.5. Following Instrument of Accession, on 12.08.1947 itself, a standstill agreement was entered into between State of Travancore and the Dominion of India. 42.6. On 14.08.1947, India (Provisional Constitution) Order, 1947 was promulgated whereby, inter alia, Section 177 of the 1935 Act was omitted. 42.7. On 15.08.1947, Act of 1947 came into effect. 42.8. On 24.05.1949, the two States-Travancore and Cochin-merged together. Whether 1886 Lease Agreement lapsed? 43. Mr. Harish N. Salve, learned senior counsel for Kerala, in view of the above events submits that 1886 Lease Agreement lapsed and did not survive on and from 15.08.1947. 44. By Act of 1947, the provisions were made for setting up in India of two Indian dominions to be known respectively as India and Pakistan from 15.08.1947. Section 7 of Act of 1947 reads as follows:- "7. Consequences of the setting up of the new Dominions:- (1) As from the appointed day:- (a) His Majesty's Government in the United Kingdom 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 Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreements and secondly, the Maharaja of Travancore denounced all agreements including 1886 Lease Agreement. 47. It is true that Section 7(1)(b) of Act of 1947 Act uses the expression "all treaties and agreements" but, in our opinion, the word "all" is not intended to cover the agreements which are not political in nature. This is clear from the purpose of Section 7 as it deals with lapsing of suzerainty of His Majesty over the Indian States and the consequence of lapsing of suzerainty. Obviously, the provision was not intended to cover the agreements and treaties other than political. We, accordingly, hold that Section 7(1)(b) concerns only with political treaties and agreements. 48. The nature of 1886 Lease Agreement being not political is already concluded by this Court in 2006 judgment (Mullaperiyar Environmental Protection Forum). This Court has held therein-and we have no justifiable reason to take a different view-that 1886 Lease Agreement is an ordinary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s between the Maharaja of Travancore and the Dominion of India. As the parties were different and the Act of 1947 provided for the lapse of the British suzerainty over the Princely States, the question of continuance of 1886 lease agreement does not arise. In any case, learned senior counsel for Kerala argues that standstill agreement could not survive after the deletion of Section 177 of the 1935 Act. We find no merit in these arguments. The standstill agreement is not a fresh agreement between Dominion of India and State of Travancore as suggested by Mr. Harish N. Salve. The standstill agreement was intended for the benefit of the parties who were parties to the agreements and arrangements, which were matters of common concern existing between the Crown and the State of Travancore. In the background of Instrument of Accession, it became necessary to have some arrangement so that the existing agreements and arrangements between the Crown and the Indian States continued. We do not think that standstill agreement is political in nature as contended on behalf of Kerala. 54. The argument that standstill agreement could not survive after the deletion of Section 177 with effect from 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Cochin-in 1949 all treaties entered into by the Rulers of erstwhile states lapsed. His submission is that the standstill agreement, whether it was an independent agreement or in continuation of 1886 Lease Agreement, came to an end in light of the legal position exposited in Babu Ram Saksena. Learned senior counsel in this regard also relied upon the decision of this Court in State of Himachal Pradesh. Babu Ram Saksena 58. Let us carefully consider Babu Ram Saksena. The facts in Babu Ram Saksena were as follows: Babu Ram Saksena was a member of Uttar Pradesh Civil Service and served Tonk State in various capacities. It was alleged that during service, he helped the Nawab of Tonk in obtaining the sanction of the Government of India to the payment of ₹ 14,00,000/- to the Nawab out of State treasury for the discharge of his debts, and induced the Nawab by threats and deception to pay him, in return for such help, sums totaling ₹ 3,00,000/- on various 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& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on as a binding executory contract and its provisions were in no way derogated from by the application of Section 7 of the 1903 Act in the extradition warrant issued under that Section and the arrest made in pursuance thereof were legal and valid and could not be called in question under Section 491 of the Code of Criminal Procedure. 59. It is important to note that in Babu Ram Saksena, two opinions have been given by this Court, one by Patanjali Sastri, J. and the other by Mukherjea, J. Insofar as Patanjali Sastri, J. is concerned, His Lordship did not give any opinion on the first two contentions raised by the Attorney General. This is clear when Patanjali Sastri, J. said, "As we are clearly of the opinion that the appellant's contentions must fail on this last ground, we consider it unnecessary to pronounce on the other points raised by the Attorney General especially as the issues involved are not purely legal but also of a political character, and we have not 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 extrad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Hyde on International Law, Vol. III, Pg. 1529 and (two) Oppenheim on International Law, Vol. I, Pg. 152. 59.3. Dealing with the covenant under consideration, Mukherjea, J. went on to state as follows:- "The remarks quoted above do not, however, seem quite appropriate to a case of the present description. Here there was no absorption of one State by another which would put an end to the State life of the former and extinguish its personality. What happened here was that several States voluntarily united together and integrated their territories so as to form a larger and composite State of which every one of the covenanting parties was a component part. There was to be one common executive, legislature and judiciary and the Council of Rulers would consist of the Rulers of all the Covenanting States. It may not be said, therefore, that the Covenanting States lost their personality altogether and it is to be noted that for purposes of succession of Rulership and for counting votes on the strength of population and other purposes the Covenant of Merger recognises a quasi-separation between the territories of the different States. But although such separation exists for some pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the line of reasoning in both the judgments delivered by Patanjali Sastri, J. and Mukherjea, J. 59.5. A careful consideration of the judgment by Mukherjea, J. in Babu Ram Saksena would show that His Lordship's opinion has no application to a non-political agreement such as 1886 Lease Agreement. The observation of Mukherjea, J., "When as a result of amalgamation or merger, a State loses its full independent power of action over the subject matter of a treaty previously concluded, the treaty must necessarily lapse..." is in the context of an extradition treaty which is purely political in nature. In our view, Babu Ram Saksena is clearly distinguishable and does not help Kerala in its argument that 1886 Lease Agreement lapsed on merger of the two States, Travancore and Cochin, into the United State of Travancore and Cochin. State of Himachal Pradesh 60. Mr. Harish N. Salve also placed heavy reliance upon the decision of this Court in the case of State of Himachal 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e merger of Bilaspur State with the Dominion of India." 61. The above observations in State of Himachal Pradesh must be read in the context of Bilaspur Merger Agreement dated 15.08.1948 whereby the Raja of Bilaspur ceded to the Dominion Government full and exclusive authority, jurisdiction and powers for and in relation to the governance of the State and all rights of Raja of Bilaspur had vested in the Government of India. We find it difficult to appreciate how these observations have any application insofar as the continuance of the 1886 Lease Agreement after the merger of the Travancore State and the Cochin State into a new state, namely, United State of Travancore and Cochin are concerned. The judgment of this Court in State of Himachal Pradesh, in our view, has no application to the submission advanced on behalf of Kerala. Status of Indian States on accession 62. It is important to bear in mind that accession of Indian States to the Dominion of India did not extinguish 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreements were entered into in 1970 with Tamil Nadu. There is no merit in the argument of Kerala that supplemental agreements were based on mistake of law. Is 1886 lease agreement an act of State? 64. Is 1886 Lease Agreement an act of State or International Treaty? The answer has to be in the negative. It is well settled that an act of State is the taking over of sovereign powers by a State in respect of territory which was not till then part of it, by conquest, treaty, cession or otherwise, and the municipal courts recognised by the new sovereign have the power and jurisdiction to investigate and ascertain only such rights as the new sovereign has chosen to recognise or acknowledge by legislation, agreement or otherwise, and that such a recognition may be express or may be implied from the circumstances. 1886 Lease Agreement is an ordinary contract of lease. Merely, because the contract was arrived at between the Crown through the Secretary of State and the Travancore State-a 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution came into force on 26.01.1950. The grants of Jagirs and Muafis made by the Rulers of Charkhari and Sarila were revoked somewhere in August, 1952. It was this order of revocation which was challenged before this Court by invoking Article 32 of the Constitution. 65.1. While dealing with the issue noted above and in light of various decisions cited at the bar, this Court exposited as follows:- "Now it is undoubted that the accessions and the acceptance of them by the Dominion of India were acts of State into whose competency no municipal Court could enquire; nor can any Court in India, after the Constitution, accept jurisdiction to settle any dispute arising out of them because of article 363 and the proviso to article 131; all they can do is to register the fact of accession; see section 6 of the Government of India Act, 1935 relating to the Accession of States. But what then? Whether the Privy Council view is correct or that put forward by Chief Justice 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d at all cost and could not be affected by raising certain disputes. It may be of relevance to refer to the White Paper on Indian States prepared by the Government of India in 1948 which brings out the historical perspective which necessitated the adoption of the provisions in Article 363. It says "Article 363 has therefore been embodied in the Constitution which excludes specifically the Agreements of Merger and the Covenants from the jurisdiction of courts except in cases which may be referred to the Supreme Court by the President". 68. Article 131 of the Constitution deals with the original jurisdiction of this Court. Subject to the provisions of the Constitution, this Court has original jurisdiction in any dispute, inter alia, between the Government of India and any State or States on one side and one or more other States on the other if and insofar as the dispute involves any question (whether of law or fact) on which the existence of legal right depends. However, by 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 tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come into operation at all. Article 294 and Article 295 72. By virtue of Article 294, all properties immediately before the commencement of the Constitution which vested in His Majesty for the purposes of the Government of the Dominion of India vest in the Union and all properties which vested in His Majesty for the purposes of the Government of each Governor's Province vest in the corresponding State and all rights, liabilities and obligations of the Government of Dominion of India and the Government of each Governor's Province are recognised to be rights, liabilities and obligations respectively of the Government of India and the Government of each corresponding State. In other words, this article declares which property would vest in the Union and which would vest in the State Government. There remains no doubt that by virtue of Article 294(b) read with First Schedule appended to the Constitution, leasehold rights devolved upon the State of Madras under the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of State for India in Council on 29.10.1886 is valid and binding on the first defendant and it is enforceable by plaintiff against the first defendant. Issue Nos. 2(a), 3, 4(a), 4(b) and 10 75. These issues are inter-related and, therefore, they are being discussed together. Contentions on behalf of Tamil Nadu 76. Mr. Vinod Bobde, learned senior counsel for Tamil Nadu submits that 2006 judgment had rendered a finding of fact on the safety of Mullaperiyar dam for raising water level to 142 ft. 2006 (Amendment) Act could not have taken away the legal right of Tamil Nadu flowing from the judgment. Section 62(A) of the 2006 (Amendment) Act directly seeks to nullify the judgment of this Court by declaring the dam to be endangered and by fixing the height of the water level at 136 ft. It also authorises the Dam Safety Authority to discard the judgment and to adjudge for itself whether to allow raising of water level. The Section also goes 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Maximum Flood (PMF) levels or any other matter or material contradicting or even doubting the finding of this Court in 2006 judgment which was based on the findings of the Expert Committee. 80. It is strenuously urged by learned senior counsel for Tamil Nadu that once a dispute is before a court and parties are at issue on any question of fact, the decision on that question can be rendered only by the court and not by the legislature or the executive. The legislature cannot decide that the water level shall not exceed 136 ft. when the very issue had been adjudicated upon by the court. 81. Learned senior counsel for Tamil Nadu argues that the finding of fact about safety of the dam for water level upto 142 ft. is res judicata and binds the two States. It is not within the province of the Kerala Legislature to sit in judgment on the finding of this Court and purport to reverse the same by directing that water level shall remain 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclared that 22 dams are "endangered" and restricted storages thereunder by virtue of Section 62(A)(1) and (2) read with Second Schedule. Learned senior counsel relies upon Brotherhood of Locomotive Firemen, Raymond Motor Transportation, Raymond Kassel, American Trucking Association and Pfizer Animal Health. Learned senior counsel also relies upon, "Science and Risk Regulation and International Law" by Jacqueline Peel wherein Pfizer Animal Health has been referred. 88. Mr. Harish Salve, learned senior counsel for Kerala argues that legislature is competent to remove the basis of judgment and neutralize its effect. In response to the contention of Tamil Nadu that 2006 (Amendment) Act constitutes usurpation of judicial power, learned senior counsel argues that 2003 Act was in place when the judgment was delivered by this Court on 27.02.2006 but the Court has not taken into consideration Sections 3 and 4 and so also Section 30 of the 2003 Act. It was 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Harish N. Salve, argues that 2006 (Amendment) Act is not a Validation Act in a stricto sensu. While adjudicating upon constitutional validity, he argues that the court must proceed on the premise that the legislature understands and correctly appreciates the needs of its own people and its laws are directed to the problems made manifest by its experience and are based on adequate grounds. Learned senior counsel for Kerala relies upon the decision of this Court in Elphinstone Spinning which approved the earlier decisions in Sanjeev Coke and Doypack Systems. Indian Constitution: Separation of powers 93. Indian Constitution, unlike Constitution of United States of America and Australia, does not have express provision of separation of powers. However, the structure provided in our Constitution leaves no manner of doubt that the doctrine of separation of powers runs through the Indian Constitution. It is for this reason that this Court has recognized 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 visibili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any other authority, no tax assessed or purported to have been assessed by a municipality on the basis of capital value of a building or land and imposed, collected or recovered by the municipality at any time before the commencement of the Validation Act shall be deemed to have been invalidly assessed, imposed, collected or recovered and the imposition, collection or recovery of the tax so assessed shall be valid and shall be deemed to have been always valid and shall not be called in question merely on the ground that the assessment of the tax on the basis of capital value of the building or land was not authorized by law and accordingly any tax so assessed before the commencement of the Validation Act and leviable for a period prior to such commencement but not collected or recovered before such commencement may be collected or recovered in accordance with the relevant municipal law. The Constitution Bench exposited that the validity of a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , depends upon whether the Legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the courts had found in the existing law and makes adequate provisions in the Validating Law for a valid imposition of the tax." (emphasis supplied) Janapada Sabha 96. The Constitution Bench in Janapada Sabha, considered the position with regard to legislative power and a decision of the Supreme Court and made the following weighty observations:- "..On the words used in the Act, it is plain that the Legislature attempted to overrule or set aside the decision of this Court. That, in our judgment, is not open to the Legislature to do under our constitutional scheme. It is open to the Legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the Legislature to say that a 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." ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , where the rights of the citizen against the State are concerned, we should adopt an interpretation which upholds those rights. Therefore, according to the interpretation I prefer to adopt the rights which had passed into those embodied in a judgment and became the basis of a mandamus from the High Court could not be taken away in this indirect fashion." (emphasis supplied by us) P. Sambamurthy 99. The importance of power of judicial review in rule of law has been significantly highlighted in P. Sambamurthy. In that case, this Court while holding that proviso to clause (5) of Article 371-D was violative of the basic structure doctrine, observed that if the exercise of the power of judicial review could be set at naught by the State Government by overriding the decision against it, it would sound the death knell of the rule of law. Sounding a word of caution, this Court said that the rule of law would cease to have any meaning if the State 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 previ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the limits have been transgressed has been placed on the judiciary." I.N. Saksena 103. Drawing distinction between legislative and judicial acts and functions, this Court in I.N. Saksena held (para 21 and 22 of the Report):- "21. The distinction between a "legislative" act and a "judicial" act is well known, though in some specific instances the line which separates one category from the other may not be easily discernible. Adjudication of the rights of the parties according to law enacted by the legislature is a judicial function. In the performance of this function, the court interprets and gives effect to the intent and mandate of the legislature as embodied in the statute. On the other hand, it is for the legislature to lay down the law, prescribing norms of conduct which will govern parties and transactions and to require the court to give effect to that law. 22. While, in view of this distinction between 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 Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of course, a concurrent list.) The Constitution has invested the Supreme Court and High Courts with the power to invalidate laws made by Parliament and the State Legislatures transgressing the constitutional limitations. Where an Act made by a State Legislature is invalidated by the courts on the ground that the State Legislature was not competent to enact it, the State Legislature cannot enact a law declaring that the judgment of the court shall not operate; it cannot overrule or annul the decision of the court. But this does not mean that the other legislature which is competent to enact that law cannot enact that law. It can. Similarly, it is open to a legislature to alter the basis of the judgment as pointed out by this Court in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality- all the while adhering to the constitutional limitations; in such a case, the decision of the court becomes ineffective in the sense that the basis upon which it is rendered, is changed. The new law or the amended law so made can be challenged on other grounds but not on the ground that it seeks to ineffectuate or circumvent the decision of the court. This is what is meant by "checks a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the valid law competently made; (6) The court, therefore, needs to carefully scan the law to find out:- (a) whether the vice pointed out by the court and invalidity suffered by previous law is cured complying with the legal and constitutional requirements; (b) whether the legislature has competence to validate the law; (c) whether such validation is consistent with the rights guaranteed in Part III of the Constitution. (7) The court does not have the power to validate an invalid law or to legalise impost of tax illegally made and collected or to remove the norm of invalidation or provide a remedy. These are not judicial functions but the exclusive province of the legislature. Therefore, they are not encroachment on judicial power. (8) In exercising legislative power, the legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can render judicial 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g an existing provision with retrospective effect per se shall be violative of Article 14 of the Constitution. If that stand is accepted, then the necessary corollary shall be that legislature has no power to legislate retrospectively, because in that event a vested right is effected; of course, in a special situation this Court has held that such exercise was violative of Article 14 of the Constitution........". The Constitution Bench held that the provisions of the impugned Act do not purport to affect any vested or acquired right, it only restores the position which existed when the principal Act was in force. It further held that the Amending Act did not ask the instrumentalities of the State to disobey or disregard the decision given by the High Court but what it has done is that it has removed the basis of its decision. Elphinstone Spinning and Weaving Company 107. The Constitution Bench of this Court in Elphinstone Spinning and Weaving 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 challen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment of the Single Judge had the effect of leaving the matter at large. Upon the lapsing of the earlier Ordinance pending an appeal before a Division Bench, the judgment of the Single Judge about the illegality of the earlier Ordinance, cannot any longer bar this Court from deciding about the validity of a fresh law on its own merits, even if the fresh law contains similar provisions." 108.2. The Court, however, did not invalidate the impugned Act. This is what the court said in para 70 (pg.753) of the Report:- "...The doctrine of separation of powers and the constitutional convention of the three organs of the State, having regard and respect for each other, is enough answer to the plea raised on behalf of the petitioners founded on the doctrine of separation of powers. We cannot strike down a legislation which we have on an independent scrutiny held to be within the legislative competence of the enacting legislature merely because the legislature has re-enacted the same legal provisions into an Act which, ten years before, were incorporated in an Ordinance and were found to be unconstitutional in an erroneous judgment of the High Court and before the error could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etrospective effect but has no power to change a judgment of court of law either retrospectively or prospectively. The Constitution clearly defines the limits of legislative power and judicial power. None can encroach upon the field covered by the other. The laws made by the legislature have to conform to the constitutional provisions....". 109.1 The Court further said: "It is well settled that if the legislature has the power over the subject-matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject matter and whether in making the validation it removes the defect which the courts had found in the existing law". 109.2. The Court also said: "It is equally well-settled that the legislature cannot by a bare declaration, without anything more, directly overrule, reverse or override a judicial decision; it may, at any time in exercise of the plenary power conferred on it by the Constitution render a judicial decision ineffective by enac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions) Act No. 1 of 1962 usurped and infringed judicial power and was, therefore, invalid. This Act modified the Criminal Procedure Code applicable in Ceylon by purporting to legalise ex-post facto the detention of persons imprisoned in respect of an attempted coup, to widen the class of offences for which trial by three Judges, nominated by the Minister of Justice sitting without a jury, could be ordered to validate retrospective arrests for certain offences made without warrant and to prescribe new minimum penalties for the offence of waging war against the Queen. The legislation was held to involve "a grave and deliberate incursion into the judicial sphere" which was inconsistent with the separation of judicial power from legislative power required by the Constitution of Ceylon. Liyanage effectively lays down that judicial power is usurped (i) when there is legislative interference in a specific proceeding, (ii) the interference affects the pending 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court had held the defendant's bridge to be an unlawful structure to the extent that it obstructed navigation on the Ohio River in breach of the federal statutes and thereby obstructing public right of free navigation. The State of Pennsylvania which filed the suit was granted an injunctive relief. The defendant (Wheeling and Belmont Bridge Company) was ordered to remove the bridge, or elevate it to the levels prescribed by statute. Subsequently, Congress enacted legislation by which the bridge was rendered a lawful structure and ships were mandated to be modified so as not to interfere with the bridge. As the luck would have been, the bridge was destroyed by high winds. The State of Pennsylvania applied for injunction from reconstructing the bridge except in a manner consistent with the order of the court in the previous proceedings which was granted. The company despite the injunction order proceeded to construct the bridge lower than that required by the original court order. The State of Pennsylvania brought the matter again before the court. The defendant relied upon the federal statute which declared the original bridge lawful, and argued that the requirements for a lawfu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned, the legislature having the power to control and regulate it, the statute authorizing the structure, though it may be a real impediment to the navigation, makes it lawful." 113.1. The opinion of Nelson, J., which is majority opinion in The Wheeling Bridge though maintains the general principle of the inviolability of final judgments pursuant to the separation of powers doctrine but it is made subject to qualification that unlike private rights, public rights do not pass into judgments. In the opinion of Nelson, J., the nature of judicial remedy is relevant; an equitable relief such as injunction is not beyond the reach of the power of the congress but a decree of damages or costs is unaffected by the subsequent law. 113.2. McLean, J., who dissented from the majority opinion, on the other hand, emphasized in Wheeling Bridge that the earlier decree was the result of a judicial investigation, founded upon facts ascertained in the course of the hearing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Salve, learned counsel for the State of Kerala, placed reliance upon Arthur M. Manigault. In that case, the U.S. Supreme Court followed the principle that interdiction of the statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. While explaining that this power is known as the 'police power', it is an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort, and general welfare of the people, and is paramount to any right under the contracts between the individuals. It is stated that subject to limitations in certain cases, there is wide discretion on the part of the legislature in determining what is and what is not necessary. In such discretion, the courts 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had formerly been sustained. The Supreme Court of United States struck down the impugned laws as contrary to the commerce clause of the Constitution and the due process clause of the Fourteenth Amendment. Black, J., who delivered the opinion on behalf of the majority, held that the District Court indulged in a legislative judgment wholly beyond its limited authority to review state legislation under the commerce clause. The Court said that it was not open for the District Court to place a value on the additional safety in terms of dollars and cents in order to see whether this value as calculated by the Court exceeded the financial cost to the rail roads. The majority view, thus, concluded:- "Under all the circumstances we see no reason to depart from this Court's previous decisions holding that the Arkansas full-crew laws do not unduly burden interstate commerce or otherwise violate the Constitution. Undoubtedly heated disputes will continue as to the extent to which these laws contribute to safety and other public interests, and the extent to which such contributions are justified by the cost of the additional manpower. These disputes will continue to be worked out in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard which was accepted in Raymond Motor Transportation and concluded that the state law impermissibly created burden on inter-state commerce. The Court of appeals accepted the District Court's findings and the view. This is how the matter reached the U.S. Supreme Court. Powell, J., who delivered the opinion of the Court in which White, Blackmun and Stevens JJ. joined, observed: "while Supreme Court has been most reluctant to invalidate state regulations that touch upon safety, especially highway safety, constitutionality of such regulations nevertheless depends upon sensitive consideration of weight and nature of state regulatory concern in light of extent of burden imposed on course of interstate commerce". 119.1. Brennan, J., with whom Marshall, J. joined, concurring with the judgment observed: "This Court's heightened deference to the judgments of state law makers in the field of safety is largely attributable to a judicial disinclination to weigh the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislation was motivated by a genuine concern to implement public policy was irrelevant. The majority opinion exposited that prohibition (separation of power) was violated when an individual final judgment is legislatively rescinded for even the best of reasons, such as legislature's genuine conviction (supported by all the professionals in the land) that the judgment was wrong,......." 120.4. The US Supreme Court, thus, by majority declared that Section 27A(b) of the Act was violative of the separation of the powers doctrine. Summary of Separation of powers doctrine under the Indian Constitution 121. On deep reflection of the above discussion, in our opinion, the constitutional principles in the context of Indian Constitution relating to separation of powers between legislature, executive and judiciary may, in brief, be summarized thus:- (i) Even without express provision of the separation of powers, the doctrine of separation of powers is an entrenched principle in the Constitution 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject-matter and whether in making the validation law it removes the defect which the courts had found in the existing law. (vii) The law enacted by the legislature may apparently seem to be within its competence but yet in substance if it is shown as an attempt to interfere with the judicial process, such law may be invalidated being in breach of doctrine of separation of powers. In such situation, the legal effect of the law on a judgment or a judicial proceeding must be examined closely, having regard to legislative prescription or direction. The questions to be asked are, (i) Does the legislative prescription or legislative direction interfere with the judicial functions? (ii) Is the legislation targeted at the decided case or whether impugned law requires its application to a case already finally decided? (iii) What are the terms of law; the issues with which it deals and the nature of the judgment that has attained finality? If the answer to (i) to (ii) is in the affirmative and the consideration of aspects noted in question (iii) sufficiently establishes that the impugned law interferes with the judicial functions, the Court may declare the law unconstitutional. Anal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Committee will visit the dam to have first-hand information and to assess the safety aspects of the dam. It will hold discussions with the Secretary, Irrigation of the Kerala Government as well as Secretary, PWD, Government of Tamil Nadu with respect to safety of the dam and other related issues." 122.2. Then the Court adverted to the recommendations of the Expert Committee as follows:- "1. The strengthening measures pertaining to baby dam and the earthen bund, as already suggested by CWC and formulated by the Government of Tamil Nadu, should be carried out at the earliest. 2. The Government of Kerala should allow the execution of strengthening measures of baby dam, earthen bund and the remaining portion of about 20 m of parapet wall on the main Mullaperiyar dam up to EL 160 ft. (48.77 m) immediately. 3. CWC will finalise the instrumentation for installation at the main dam. In addition, instruments will be installed during strengthening of baby dam, including the earthen bund, so that monitoring of the health of Mullaperiyar dam, baby dam and earthen bund can be done on a continuous basis. 4. The water level in the Mullaperiyar reservoir be raised to a level wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt also held that power of Parliament to make law under Articles 3 and 4 was plenary and traverses over all legislative subjects as are necessary for effectuating a proper reorganization of the states. Accordingly, the Court found no merit in challenge to the validity of Section 108 of the States Reorganisation Act, 1956. 122.5 Dealing with question No. 2, the Court noted that the dispute relating to raising the water level in the Mullaperiyar dam was not a water dispute since the right of Tamil Nadu to divert water from Periyar reservoir to Tamil Nadu for integrated purpose of irrigation or to use the water to generate power or for other uses was not in dispute. It was observed that there was no dispute about the lease granted to Tamil Nadu in 1886 or about supplementary agreements of 1970 and that till 1979 there was no dispute with regard to water level at all. In 1979, the water level was brought down to 136 ft. to facilitate Tamil Nadu to carry out certain strengthening measures suggested by the CWC. The Court, thus, held that safety of the dam on increase of water level to 142 ft. was not the issue hit by Article 262 of the Constitution or the Inter-State River Water Dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Committee held on 9/10-2-2001. It also shows the various strengthening measures suggested by CWC having been completed by the Tamil Nadu PWD on the dam including providing of RCC backing to the dam. The report also suggests that the parapet wall of baby dam and main dam have been raised to 160 ft (48.77 m) except for a 20 m stretch on the main dam due to denial of permission by the Government of Kerala. Some other works as stated therein were not allowed to be carried on by the State of Kerala. The report of CWC after inspection of the main dam, the galleries, baby dam, earthen bund and spillway, concludes that the dam is safe and no excessive seepage is seen and that Mullaperiyar dam has been recently strengthened. There are no visible cracks that have occurred in the body of the dam and seepage measurements indicate no cracks in the upstream side of the dam. Our attention has also been drawn to various documents and drawings including cross-sections of the Periyar dam to demonstrate the strengthening measures. Further, it is pertinent to note that the dam immediately in line after Mullaperiyar dam is Idukki dam. It is the case of the State of Kerala that despite the "copio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 136 ft., in these words: "the various reports have examined the safety angle in-depth including the viewpoint of earthquake resistance. The apprehensions have been found to be baseless." and, "The report of CWC after inspection of main dam, the galleries, baby dam, earthen bund and spillway, concludes that the dam is safe........" 125. For these reasons, and others contained in the judgment, this Court reached to the firm conclusion that raising the water level from 136 ft. to 142 ft. would not jeopardise the safety of the dam in any manner. Consequently, this Court restrained Kerala and its officers from causing any obstruction from carrying out further strengthening measures by Tamil Nadu as suggested by CWC and Tamil Nadu was permitted to increase water level of Mullaperiyar dam to 142 ft. 126. The decision of this Court on 27.02.2006 in the Mullaperiyar Environmental Protection Forum case was the result of judicial investigation, founded upon facts ascertained in the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State or Union Territory, except in accordance with an agreement between the State Government and the Government of such other State or the Union Territory in terms of a resolution to that effect passed by the Legislative Assembly of the State. Section 57 provides for constitution of Dam Safety Authority for the purpose of surveillance, inspection and advice on maintenance of dams situated within the territory of the State. For the purposes of this section "dam" means any artificial barrier including appurtenant work constructed across a river or tributaries thereof with a view to impound or divert water for irrigation, drinking water supply or for any other purpose. Section 62 spells out the functions of the Authority. This section says that notwithstanding anything contained in any treaty, agreement or instrument, the Dam Safety Authority, inter alia, has the functions (1) to arrange for the safety evaluation of all dams in the State; (2) to advice Government to suspend the functioning of any dam if the public safety so demands; (3) to examine the precariousness of any dam in public interest and to submit its recommendations including decommissioning of dam to the Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... binds the parties including Kerala. 131. The Kerala legislature amended the 2003 Act by 2006 (Amendment) Act. By the 2006 (Amendment) Act, in Section 2, clauses (ja) and (jb) defining "custodian" and "dam" were inserted after clause (j). Clause (ala) defining "scheduled dam" was also inserted after clause (al). In sub- section (1) of Section 57 of the principal Act, the words "surveillance, inspection" were substituted by "ensuring the safety and security". The explanation in sub-section (2) of Section 57 was deleted. Section 62 of the principal Act was substituted by new Section 62. The new Section 62, inter alia, empowers the Dam Safety Authority with following functions:- "(1) xxx xxx xxx (a) to evaluate the safety and security of all dams in the State considering among other factors, the age of the structures, geological and seismic factors, degeneration or degradation caused over time or otherwise; (b) to (d) xxx xxx xxx (e) to direct the custodian to suspend the functioning of any dam, to decommission any dam or restrict the functioning of any dam if public safety or threat to human life or property so requires; (f) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Level Fixed of any Scheduled dam, shall not do any act or work for such purpose without seeking prior consent in writing of the Authority and without obtaining an order permitting such work by the Authority. (4) and (5) xxx xxx xxx" 133. Section 62B gives powers of a Civil Court to the Dam Safety Authority in respect of the matters specified therein while dealing with applications for consent in writing for increasing, augmenting, adding to or expanding the storage capacity or the water spread area or for increasing of Maximum Water Level or Full Reservoir Level fixed for Scheduled dams. Section 68A bars the jurisdiction of Civil Court from settling, deciding or dealing with any question of fact or to determine any matter which under the 2003 Act, as amended by 2006 (Amendment) Act, is required to be settled, decided or dealt with or to be determined by the Authority under the Act. In Second Schedule, at item No.1 is the subject "Mullaperiyar Dam" for which FRL is fixed at 41.45 meter (136 ft.) from the deepest point of the level of Periyar river at the site of the main dam. 134. Tamil Nadu says that 2006 (Amendment) Act to the extent it applies to Mullaperiyar da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r navigable waters and underlying beds. It is his submission that the State has a duty of 'continuing supervision' even after such rights have been granted. In this regard strong reliance is placed by him on Pfizer Animal Health. 137. In Pfizer Animal Health, the Court of First Instance of European Communities (Third Chamber) was concerned with the legality and validity of the regulations which, inter alia, banned particular use of the substance in question. Pfizer argued that it was directly concerned by the contested regulation as it withdraws authorization of Virginiamycin. The counsel for the European Union argued that the regulations were enacted to general application which was applicable to objectively determined situations and that they ban the particular use of the substance in question, whether they are marketed by Pfizer or by any one else under a different name. The Court observed that for the purpose of taking preventive action, to wait for the adverse effects of the use of the products was not required. 138. Dealing with precautionary principle, the Court made these observations:- "First, it must be borne in mind that, when the precautionary principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in issue and has been expressly, categorically and unambiguously determined by the Court. This Court has found-supported by the Expert Committee Reports-that the safety of the subject dam is not at all jeopardized if the water level is raised from the present level to 142 ft. Kerala, which is contesting party, by applying 'public trust doctrine' or 'precautionary measure', cannot through legislation do an act in conflict with the judgment of the highest Court which has attained finality. If a legislation is found to have breached the established constitutional limitation such as separation of powers, it has to go and cannot be allowed to remain. 141. It is true that the State's sovereign interests provide the foundation of the public trust doctrine but the judicial function is also a very important sovereign function of the State and the foundation of the rule of law. The legislature cannot by invoking 'public trust doctrine' or 'precautionary principle' indirectly control the action of the Courts and directly or indirectly set aside the authoritative and binding finding of fact by the Court, particularly, in situations where the executive bran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in and simple judicial decision on fact cannot be altered by a legislative decision by employing doctrines or principles such as 'public trust doctrine', 'precautionary principle' 'larger safety principle' and, 'competence of the State legislature to override agreements between the two States'. The Constitutional principle that the legislature can render judicial decision ineffective by enacting validating law within its legislative field fundamentally altering or changing its character retrospectively has no application where a judicial decision has been rendered by recording a finding of fact. Under the pretence of power, the legislature, cannot neutralize the effect of the judgment given after ascertainment of fact by means of evidence/materials placed by the parties to the dispute. A decision which disposes of the matter by giving findings upon the facts is not open to change by legislature. A final judgment, once rendered, operates and remains in force until altered by the court in appropriate proceedings. 144. 2006 (Amendment) Act plainly seeks to nullify the judgment of this court which is constitutionally impermissible. Moreover, it is not d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommerce among several States. In response to the argument urged before it that the Congress cannot have the effect to annul the judgment of the court already rendered or the rights determined thereby was accepted as a general proposition but this proposition was held not applicable in the matters of adjudication upon the public rights. In our view, a legislation violating the separation of powers principle cannot be saved by carving out an exception that the legislature has regulated a public right. We think that the act of legislature designed to achieve a legitimate regulatory measure does not grant constitutional immunity to such law enacted in violation of separation of powers principle or in other words, rule of law. Once a judicial decision on ascertainment of a particular fact achieves finality, we are afraid the legislature cannot reopen such final judgment directly or indirectly. In such cases, the courts, if brought before them, may reopen such cases in exercise of their own discretion. 147. In our view, Wheeling Bridge qualification by the majority decision of U.S. Supreme Court cannot be read to permit the actual revision of the final judgment by the legislature. If Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am 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 and on the other in 2006 (Amendment) Act, the Kerala legislature has declared the dam being an endangered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imilar instrument which have been entered into or executed before the commencement of the Constitution and continues in operation after such commencement, which are political in nature. In relation to dispute relating to waters of inter-State river or river valleys, Article 262 provides for creation of tribunal or forum for their adjudication. In federal disputes, Parliament or State legislatures by law, if seek to decide a dispute between the two States or between the Union and one or more States directly or indirectly, the adjudicatory mechanism provided in Articles 131 and 262 of the Constitution would be rendered nugatory and, therefore, such legislation cannot be constitutionally countenanced being violative of separation of powers doctrine. 153. Mr. Harish Salve, learned senior counsel is right in his submission that a legislation can never be challenged on the principles of res judicata and that it binds a party and not the legislature. The question here is not that the 2006 (Amendment) Act is unconstitutional on the ground of res judicata but the question is, when a categorical finding has been recorded by this Court in the earlier judgment that the dam is safe for raising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a rule of universal law pervading every well-regulated system of jurisprudence, and is put upon two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the interest of the State that there should be an end to litigation; and the other, the hardship on the individual that he should be vexed twice for the same cause. 158. In Sheoparsan Singh, Sir Lawrence Jenkins noted the statement of law declared by Lord Coke, 'interest reipublica ut sit finis litium,' otherwise great oppression might be done under colour and pretence of law:-(6 Coke, 9A.) 159. In Daryao, P.B. Gajendragadkar, J. while explaining the rule of res judicata stated that on general considerations of public policy there seems to be no reason why rule of res judicata should be treated as inadmissible or irrelevant while dealing with the petitions filed under Article 32 of the Constitution. P.B. Gajendragadkar, J. referred to earlier decision of this Court in M.S.M. Sharma wherein the application of the rule of res judicata to a petition filed under Article 32 was considered and it was observed that the question determined by the previous decision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidering the contentions of the parties and examining the reports of Expert Committee, this Court posed the issue for determination about the safety of the dam to increase the water level to 142 ft. and came to a categorical finding that the dam was safe for raising the water level to 142 ft. and, accordingly, in the concluding paragraph the Court disposed of the writ petition and the connected matters by permitting the water level of Mullaperiyar dam being raised to 142 ft. and also permitted further strengthening of the dam as per the report of the Expert Committee appointed by the CWC. The review petition filed against the said decision was dismissed by this Court on 27.7.2006. The 2006 judgment having become final and binding, the issues decided in the said proceedings definitely operate as res judicata in the suit filed under Article 131 of the Constitution. 165. Shri Harish Salve, learned senior counsel for Kerala, placed reliance upon the decision of this Court in N.D. Jayal. In N.D. Jayal Dharmadhikari, J. made general observations on the dam safety aspect that plea like res judicata on the earlier decisions passed by the Supreme Court cannot be allowed to be raised. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment is without jurisdiction and not binding. 168. The rule of res judicata is articulated in Section 11 of the Code of Civil Procedure. 169. Explanations VII and VIII were inserted in the above provision by Code of Civil Procedure (Amendment) Act, 1976 w.e.f. 1.2.1977. Explanation VIII in this regard is quite relevant. The principles of res judicata, thus, have been made applicable to cases which are tried by Courts of limited jurisdiction. The decisions of the Courts of limited jurisdiction, insofar as such decisions are within the competence of the Courts of limited jurisdiction, operate as res judicata in a subsequent suit, although, the Court of limited jurisdiction that decided the previous suit may not be competent to try such subsequent suit or the suit in which such question is subsequently raised. If a decision of the Court of limited jurisdiction, which was within its competence, operates as res judicata in a subsequent suit even when the subsequent suit is not triable by it, a fortiori, the decision of the highest Court of the land in whatever jurisdiction given on an issue which was directly raised, considered and decided must operate as res judicata in the subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenged. In the 2006 judgment, one of the questions framed for consideration was, whether Section 108 of the SR Act is unconstitutional. The Court held that law making power under Articles 3 and 4 of the Constitution was paramount and it was neither subjected nor fettered by Article 246 and Lists II (State List) and III (Concurrent List) of the Seventh Schedule. The Court also held that power of Parliament to make law under Articles 3 and 4 is plenary and traverses over all legislative subjects as are necessary for effecting a proper reorganization of the States. Consequently, the Court found no merit in the challenge as to the validity of Section 108 of the SR Act. 174. We are, therefore, not persuaded to consider constitutional validity of Section 108(1) of the SR Act again. Moreover, it is not necessary to consider this aspect in view of our finding that 2006 (Amendment) Act enacted by Kerala legislature is unconstitutional. 175. Thakur Jagannath Baksh and Maharaj Umeg Singh have no application to the situation obtaining in the present case. The effect of a judgment which enforces a legal right flowing from a contract is that the right is incorporated as a right under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case does not fall within the parameters laid down in Rupa Ashok Hurra. Though there is no justification to reopen the dam safety aspect in view of the judgment of this Court passed on 27.2.2006, yet for our satisfaction as to whether there is any danger to the Mullaperiyar dam, despite strengthening of dam carried out by Tamil Nadu in accordance with the strengthening measures suggested by CWC, we briefly intend to look into this aspect. 180. Learned senior counsel for Kerala submits that danger posed to the safety of the Mullaperiyar dam arises from, (i) the impact of Probable Maximum Flood (PMF), i.e., floods which impact the dam; (ii) the impact of Maximum Considered Earthquake (MCE), i.e., if earthquake happens, the impact of such event on the dam; and (iii) the impact on structural degeneration, i.e., with the age, the dam structure has been rendered unsafe. Kerala's emphasis is that in the 2006 judgment this Court wrongly endorsed the PMF of 2.12 lakh cusecs estimated by the CWC in 1986. Kerala asserts that the observed flood at Mullaperiyar dam in 1943 was 2.98 lakh cusecs and according to Tamil Nadu's own witness (PW-1), the PMF ought to be more than observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, Dr. C.D. Thatte and Shri D.K. Mehta have long experience in all facets of water sector. EC got investigations, tests and technical studies carried out through the three apex organizations, besides other specialized organizations of the Government of India and, especially, expert agencies with a view to appreciate the diverse stand of the two States. In all, 12 investigations and technical studies, besides some site studies, were directed to be carried out to assist the EC to appreciate the stand of the two States and for submission of its report to this Court. The EC also visited Mullaperiyar dam (main dam), Baby dam and earthen bund from the Periyar lakeside as well as from the downstream side. Before EC, the representative of both States explained theories of the existing dam. The two technical members made a visit to drainage galleries and spillway for better appraisal of the dam site. The two experts again visited the dam site for site appraisal and submitted their report. 185. The reports and investigations, tests and studies (ITS reports) are contained in 50 CDs and 4 DVDs. The report of EC consists of 8 Chapters. Chapter I has the title "Dams-An Overview". Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different modes of failure/cascade effect in case of occurrence of MPD break. To identify the plausible worst case of Dam Break Flood going down Periyar river from MPD to Idukki reservoir tip (in 1st phase) and beyond (in other 2 phases). To determine maximum inundation on both banks for preparation of Emergency Action Plan under Disaster Management Plan. Back-water studies upstream of tip of Mulla Periyar Reservoir into main stem and tributaries. Contour map of reservoir area from present water level to 165 ft (50.29 m) elevation. To determine afflux (swelling) above the MWL in the upstream from tip of the reservoir caused due to inflow congestion. Computerized Reservoir Sedimentation Survey for assessment of present elevation-area-capacity relations. Assessment in higher elevations by Remote Sensing. To determine loss of storage due to sedimentation and its effect (if any) on Probable Maximum Flood attenuation. Note: Side items of ITS pertain to i) Dams built with spillway design flood less than PMF, ii) Availability of water for Tamil Nadu, and iii) Requirement for environmental flow. B. Structural Safety:- Title Purpose of ITS Verification of the Probable To det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TS pertain to i) Study of 3D FEM Analysis by Prof. R.N. Iyengar of Indian Institute of Sciences, Bangalore, ii) Seismic Design Parameters of Mulla Periyar Dam, and iii) Impact of recent earthquake events." 189. The above reports have then been carefully analysed and on the basis of the appraisal of the ITS reports, EC held that Probable Maximum Precipitation (PMP) considered earlier was correct and the determination of observed maximum flood in 1943 was not reliable. EC's assessment is that peak of PMF reaching the Mullaperiyar dam reservoir/periphery/upstream tip remains at 2.12 lakh cusecs (6003 cumecs). 190. EC has been of the view that spillway designed capacity of Mullaperiyar dam for flood lower than PMF is acceptable. The EC carefully analysed the two studies, viz., (i) study above water level by photography, and (ii) study below water level by means of a Remote Operated Vehicle, upto a safely reachable level, and on appraisal from both scans/studies read together 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 ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Action Plan for Dams, May, 2006'. EC, accordingly, depended on maps developed by using Archived Satellite Imagery and Survey of India toposheets, through 'Mapsets', and accomplished illustrative contouring of area between Mullaperiyar dam and Idukki complex. EC has observed that all the projections/concerns by Kerala were not based on computations/studies. Despite the request made to Kerala to supply contour map, Kerala did not do so. EC has further observed that Kerala's projection is conjectural since there is deficiency in assessing the likely inundated area. EC, therefore, did not accept the scare of dam break flood. 195. Having done elaborate and detailed appraisal and analysis of the voluminous tests and reports of experts and having regard to the concerns expressed by Kerala about the safety of the Mullaperiyar dam, EC has summarized its conclusions on the three aspects, viz., (a) hydrologic safety; (b) structural safety; and (c) seismic safety as follows:- "A) Hydrologic Safety 23. The MPD is found hydrologically safe. The Probable Maximum Flood (PMF), with a peak flow of 2.12 lakh cusecs (6003 cumecs) is accepted by EC. It can be routed over the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordination Committee, but their role was limited to more of being an observer and unilateral decisions regarding the studies, etc., were taken by Dr. C.D. Thatte, which were prejudicial to the interest of Kerala. Kerala's grievance is that the EC on 5.12.2011 declined to disclose and supply the copies of results and ITS reports without dealing with the question of prejudice. Subsequently, EC submitted its report before this Court and the Court directed the Registry on 4.5.2012 to supply copy of the report of the EC to party States and, accordingly, the Registry of this Court made available a photocopy of the report. The report supplied by the Registry to Kerala did not include the results and reports of the ITS listed in Annexure 6.1 of the report but later on pursuant to the order of this Court dated 31.8.2012, all 50 CDs and 4 DVDs were supplied to the counsel for Kerala. It is submitted on behalf of Kerala that the fair procedure and rules of natural justice demanded that the EC should have disclosed the results and reports of ITS relied upon by it and given an opportunity to Kerala on the acceptability of the ITS reports. It is strenuously urged by learned senior counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reopening of safety aspect of Mullaperiyar dam which has been determined by this Court in the earlier judgment. Findings on Issue Nos. 2(a), 3, 4(a), 4(b) and 10 199. In light of the above discussion, our findings on Issue Nos. 2(a), 3, 4(a), 4(b) and 10 are as follows:- (i.) Kerala Irrigation and Water Conservation (Amendment) Act, 2006 is unconstitutional and ultra vires in its application to and effect on the Mullaperiyar dam. (ii.) The rights of Tamil Nadu, crystallized in the judgment dated 27.2.2006 passed by this Court in W.P. (C) No.386/2001 cannot be nullified by a legislation made by the Kerala State legislature. (iii.) The earlier judgment of this Court given on 27.2.2006 operates as res judicata on the issue of the safety of Mullaperiyar dam for raising water level to 142 ft. and ultimately to 152 ft. after completion of further strengthening measures on the Mullaperiyar dam. (iv.) The plea raised by Kerala relating to the lease deed dated 29.10.1886 and structural safety of Mullaperiyar dam have been finally decided by the judgment of this Court dated 27.2.2006 and Kerala is estopped from raising or re-agitating these issues in the present suit. (v.) Kerala cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... river. While deciding this point, obviously, the court proceeded on the footing that river Periyar is an inter-State river. This court decided this point against Kerala. It appears that in the review petition, for the first time, Kerala took the specific plea that Periyar is an intra-State river but covered by an inter-State agreement. The review petition has been rejected by this Court on 27.7.2006. 206. It is true that in the earlier proceedings there is no express and categorical admission of Kerala that river Periyar is an inter-State river, but the very plea of lack of jurisdiction of this court for considering the applicability of Article 262, as noted above, would not have been raised by Kerala if river Periyar was an intra-State river. Moreover, the entire area drained by the river and its tributaries is called the river basin. It is well-understood in the water laws that the basin of any river includes the river valley. The topographical map of Periyar river-basin shows that part of Periyar basin (about 114 sq. km.) is in Tamil Nadu. This is established from Water Atlas of Kerala published by Centre for Water Resources Development and Management, Kazhikode, Kerala. Thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Kerala cannot be permitted to contend that river Periyar is an intra-State river. Issue No.8 is answered accordingly. Issue No.9 211. This issue is founded on the offer made by Kerala to Tamil Nadu to construct a new dam across river Periyar in the downstream region of Mullaperiyar dam. EC in Chapter VIII under the title "Way Forward-Towards An Amicable Resolution" has dealt with this aspect as a first alternative and suggested as follows:- "1. That the SoK may construct a new dam, at its own expense to serve its own perceptions, if techno-economically cleared by the Planning Commission, and cleared by MoEF in accordance of their regulations. The construction of a new dam, giving due margin for inflation etc, may cost the exchequer more than Rupees one thousand crores. The statutory clearances, fixing of a construction agency, preliminary works, the actual construction and decommissioning with demolition of existing dam is likely to take 8 to 10 years. The existing dam shall not be dismantled, demolished or decommissioned till the new dam construction is completed and it becomes operational. Till such time, the rights of the SoTN in the existing Dam to all wate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adu. Issue No.9, therefore, has to be decided against Kerala and it is so held. 214. EC has also suggested the following second alternative:- "2. The Dam Safety Organization Central Water Commission, the Government of India (Ministry of Water Resources), has laid down the Criteria and Guidelines for Evacuating Storage Reservoirs, Sizing Low Level Outlets and Initial Filling of Reservoirs. i) According to the criteria, generally speaking, Dams should be provided with low level outlets of adequate capacity to lower the reservoir water level to a specified elevation for inspection, maintenance and repair, and ii) to control the rate of reservoir pool rise during initial filling. ii) The Guidelines recommend that an outlet should be provided at the lowest possible level and should be of sufficient dimensions to cater to evacuation of storage with requisite flow capacity. The decision about level at which the outlet has to be provided is left to the concerned dam owning entity. The level will depend upon assessment of the dam's condition, a judgment on location at which distress may be caused, its nature and the time of evacuation needed for enabling completion of restorati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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 and 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 sto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh 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 sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
