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TMI Blog2006 (2) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment Officers have been approaching the reservoir during the flood season only from Thekkady side in a boat and have not noticed any significant wave action. 2. The main question to be determined in these matters is about the safety of the dam if the water level is raised beyond its present level of 136 ft. To determine the question, we may first narrate factual background. 3. An agreement dated 29th October, 1886 was entered into between the Maharaja of Travancore and the Secretary of State for India in Council whereunder about 8000 acres of land was leased for execution and preservation of irrigation works called 'Mullaperiyar Project'. In pursuance of the said agreement, a water reservoir was constructed across Periyar river during 1887-1895. It is known as Mullaperiyar Dam consisting of main dam, baby dam and other ancillary works. 4. The salient features of the dam as mentioned in the agreement are as follows: 5. In the past, reservoir was filled up to full level of 152 ft. as per the agreement. The agreement was modified in the year 1970. The State of Tamil Nadu was allowed to generate electricity from the project and it surrendered fishing rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han 100 years, it had served the useful life. It was, therefore, dangerous to allow raising of water level beyond 136 feet. It was also stated that if something happens to the dam, serious consequences could ensue and three adjoining districts could be completely wiped out and destroyed. It was also the stand of the State that the dam was constructed at a time when the design and construction techniques were in infancy. There was no testing laboratory to get accurate and detailed tests of construction materials. The stress and other elements were observed in the dam right from the initial filling and remained there in spite of remedial measures taken out. Moreover, there were frequent tremors occurring in that area and in case of an earthquake, it could result in serious calamities and total destruction of life and property. It was also alleged that the technical officials of CWC had submitted the report without effective participation of the technicians from Kerala and view points of Kerala had not been considered at all. According to the State, CWC also could not be considered as the highest technical body in the country for giving technical advice and the decision taken by CWC w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the State of Tamil Nadu, the Committee after inspecting the dam and after holding discussions with the officials of the two States, submitted its interim report wherein recommendations were made as under: 1. The Tamil Nadu PWD Department should immediately test the masonry of the Baby dam to find out the permissible tensile strength that can be adopted for the lime surkhy mortar used in the construction of Baby dam. Central Soil and Materials Research Station (CSMRS), Government of India, New Delhi, should carry out these tests. CSMRS are specialist in carrying out geophysical and core tests and have a good reputation. These tests should be carried out in the presence of the representatives of Tamil Nadu PWD, Irrigation Department, Government of Kerala and CWC. The results of these tests should be made available to the Committee by end of November, 2000. The Government of Kerala should permit Tamil Nadu PWD CSMRS to carry out these tests without any hindrance. 2. Core samples of Baby dam shall also be extracted and tested by CSMRS, New Delhi, at the upstream and downstream faces of the dam. These results may be used to develop co- relation between the actual tests and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he water level in the Mulla Periyar reservoir be raised to EL 142.00 ft. (43.28 m) which will not endanger the safety of the Main dam, including spillway, Baby dam and earthen bund. The abstracts of the calculations for stress analysis are enclosed as Annex. XIX. 6. This raising of reservoir level upto a level where the tensile stress does not exceed 2.85 t/m2 during the earthquake condition is an interim measure and further raising of water level to the FRL EL 152.00 ft. (46.33 m) [original design FRL of the Mulla Periyar Reservoir] be studied after the strengthening measures on Baby dam are carried out and completed. 12. The State of Kerala continued to resist raising of water level. The objections raised by the representative of State of Kerala were considered by the Expert Committee and taking into account the matter in its entirety and keeping in view the safety of dam, certain suggestions were made. It required the State of Tamil Nadu to take those steps. The Expert Committee stated that it was equally obligatory on the part of State of Kerala to act in accordance with the suggestions and recommendations made by the CWC and that the State of Kerala cannot refuse to coop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d making of supplemental, incidental and consequential provisions. The pre-existing contractual obligation was reasserted and reaffirmed by the State of Kerala after its formation by signing fresh agreements in 1970. It is also urged that the Lists in Schedule Seven have no applicability as the point in issue is governed by Articles 3 4 of the Constitution of India. 17. Another contention urged for the petitioner is that in the light of later development of law, the agreement of 1886 stands frustrated. It was submitted that the lease land was declared as reserve forest in the year 1899 by the erstwhile State of Travancore under the Travancore Forest Act. The notification remained in force under Sub-section (3) of Section 85 of the Kerala Forest Act, 1961. In 1934, Periyar Wildlife Sanctuary had been declared as a 'sanctuary' covering the grassy area, marshy areas, swamps of Mullaperiyar Dam which was expanded to 777 sq. kms. under the Wild Life Protection Act, 1972. Taking into account its importance as a well known habitat of tigers which is a highly endangered species, the sanctuary has been declared as Periyar Tiger Reserve in 1978 under the special management pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vel will facilitate better environment for flora and fauna to flourish better. It will lead to development of new flora and fauna and will also act as resting place for migratory birds and number of rare species of birds. The increase of water level in the reservoir will also increase tourist attraction and generate more funds for the State of Kerala and also result in increase of aquatic life and since the fishery rights are with the State of Kerala, it will enable the said State to generate more funds. 19. In the aforesaid background, the questions that arise for determination are these: 1. Whether Section 108 of the States Reorganisation Act, 1956 is unconstitutional? 2. Whether the jurisdiction of this Court is barred in view of Article 262 read with Section 11 of the Inter-State Water Disputes Act, 1956? 3. Whether Article 363 of the Constitution bars the jurisdiction of this Court? 4. Whether disputes are liable to be referred to Arbitration? 5. Whether the raising of water level of the reservoir from 136 ft. to 142 ft. would result in jeopardising the safety of the people and also degradation of environment? 1. RE: Validity of Section 108 of the States R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The new State owes its very existence to the law made by the Parliament. It would be incongruous to say that the provision in an Act which gives birth to a State is ultra vires a legislative entry which the State may operate after it has come into existence. The power of the State to enact laws in List II of Seventh Schedule are subject to Parliamentary legislation under Articles 3 and 4. The State cannot claim to have legislative powers over such waters which are the subject of Inter-State agreement which is continued by a Parliamentary enactment, namely, the States Organisation Act, enacted under Articles 3 and 4 of the Constitution of India. The effect of Section 108 is that the agreement between the predecessor States relating to irrigation and power generation etc. would continue. There is a statutory recognition of the contractual rights and liabilities of the new States which cannot be affected unilaterally by any of the party States either by legislation or executive action. The power of Parliament to make law under Articles 3 and 4 is plenary and traverse over all legislative subjects as are necessary for effectuating a proper reorganisation of the States. We are unable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RE: Whether Article 363 of the Constitution bars the jurisdiction of this Court? 23. The jurisdiction of the courts in respect of dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument entered into or executed before the commencement of the Constitution is barred in respect of matters and in the manner provided in Article 363 of the Constitution of India. The main reason for ouster of jurisdiction of courts as provided in Article 363 was to make certain class of agreements non-justiciable and to prevent the Indian Rulers from resiling from such agreements because that would have affected the integrity of India. The agreement of the present nature would not come within the purview of Article 363. This Article has no applicability to ordinary agreements such as lease agreements, agreements for use of land and water, construction works. These are wholly non-political in nature. The present dispute is not in respect of a right accruing or a liability or obligation arising under any provision of the Constitution {see Madhav Rao Scindia v. Union of India [1971]3SCR9 } 24. The contention also runs counter to Section 108 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich defines land includes canals, creeks and other water channels, reservoirs, rivers, streams and lakes, whether artificial or natural, marshes and wetlands and also includes boulders and rocks. It cannot be said that forest or wildlife would be affected by carrying out strengthening works and increase of the water level. On the facts and circumstances of the case, the strengthening work of existing dam in the forest cannot be described as a non-forestry activity so as to attract Section 2 of the Forest (Conservation) Act, 1980, requiring prior approval of Union of India. 28. As already noticed, it was only in 1979 that the water level was brought down to 136 ft from 152 ft. The increase of water level will not affect the flora and fauna. In fact, the reports placed on record show that there will be improvement in the environment. It is on record that the fauna, particularly, elephant herds and the tigers will be happier when the water level slowly rises to touch the forest line. In nature, all birds and animals love water spread and exhibit their exuberant pleasure with heavy rains filling the reservoir resulting in lot of greenery and ecological environment around. The Exper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber (D R) of Central Water Commission, two Chief Engineers of Central Water Commission, Director, dam safety, Government of Madhya Pradesh and retired Engineer-in-Chief, UP besides two representatives of Governments of Tamil Nadu and Kerala, were members of the Committee. All appended their signatures except the representative of the Kerala Government. The summary of results of stability analysis of Mullaperiyar Baby Dam contains note which shows that the permissible tensile strength was masonry as per the specifications mentioned therein based on test conducted by CSMRS, Delhi on the time and agreed by all Committee members including the Kerala representative in the meeting of the Committee held on 9-10th February, 2001. It also shows the various strengthening measures suggested by CWC having been completed by Tamil Nadu PWD on the dam including providing of RCC backing to the dam. The report also suggests that the parapet wall of the baby dam and main dam have been raised to 160 ft. (48.77 mt.) except for a 20 mt. 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 Ke ..... X X X X Extracts X X X X X X X X Extracts X X X X
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