SC quashes Kerala law, allows Mullaperiyar water level to raised to 142 ft
The Supreme Court today held as unconstitutional a law passed by Kerala in 2006 under which it had set up a Dam Safety Authority to prevent neighbouring Tamil Nadu from raising the level of water in the Mullaperiyar dam from 136 feet to 142 feet.
A five-judge bench headed by Chief Justice R M Lodha and comprising Justices H. L. Dattu, Chandramauli Kumar Prasad, Madan B. Lokur and M. Y. Eqbal, also restrained Kerala by a decree of permanent injunction from applying and enforcing the impugned legislation or in any manner interfering with or obstructing Tamil Nadu from increasing the water level to 142 ft. and carrying out repair works as per the judgement of the apex court of February 27, 2006 in a writ petition filed by the Mullaperiyar Environmental Protection Forum.
However, in the judgement, written by Justice Lodha, the court constituted a three-member Supervisory Committee to allay the apprehensions of Kerala about the safety of the Mullaperiyar dam, though it felt none existed, about the safety of the Mullaperiyar dam on restoration of the full reservoir level (FRL) to 142 ft.
The committee shall have one representative from the Central Water Commission (CWC) and one representative each from the two States.
The representative of the CWC will be the chairman of the committee. The committee will select the place for its office, which shall be provided by Kerala. Tamil Nadu shall bear the entire expenditure of the committee.
The court said the committee shall supervise the restoration of FRL in the Mullaperiyar dam to the elevation of 142 ft. It shall inspect the dam periodically, more particularly, immediately before the monsoon and during the monsoon, and keep close watch on its safety and recommend measures which are necessary. Such measures shall be carried out by Tamil Nadu.
The committee shall be free to take appropriate steps and issue necessary directions to the two States or any of them if so required for the safety of the Mullaperiyar dam in an emergent situation. Such directions shall be obeyed by all concerned, the court said.
The committee shall permit Tamil Nadu to carry out further precautionary measures that may become necessary upon its periodic inspection of the dam in accordance with the guidelines of the CWC and Dam Safety Organisation.
In the law enacted by the Kerala Legislative Assembly in 2006, it had fixed and limited the FRL to 136 feet.
Mullaperiyar dam – a masonry dam – was constructed pursuant to the Periyar Lake Lease Agreement dated 29.10.1886 across Periyar river. It is situated in Idukki district of Kerala but owned and operated by the government of Tamil Nadu.
The length of the main dam is 1200 ft. (365.76 m.) and top of the dam is 155 ft. (47.24 m.). The top of solid parapet and maximum height of the dam from deepest foundation are 158 ft. (48.16 m.) and 176 ft. (53.64 m.), respectively. The FRL of the dam is 152 ft. (46.33 m.).
In 1979, the Kerala government wrote to the Tamil Nadu government to take immediate steps to strengthen the dam. Simultaneously, it also requested the Central Government to depute a team from the CWC to inspect the dam and suggest strengthening measures.
In pursuance of the request from the Kerala Government, the then Chairman, CWC inspected the dam and held a meeting on 25.11.1979 in which the officers from Tamil Nadu and Kerala participated. In that meeting, three levels of measures -- emergency, medium and long term -- were suggested to strengthen the dam. In the meantime, it was recommended that water level in the reservoir be kept at 136 ft.
In the second meeting held on 29.04.1980, it was opined that after the completion of emergency and medium-term strengthening measures, the water level in the reservoir can be restored up to 145 ft. (44.2 m.).
Tamil Nadu says that all measures – emergency, medium and long term -- as suggested by the CWC have been undertaken by it but despite that no consensus could be reached between the two State Governments to raise the water level in the Mullaperiyar reservoir beyond 136 ft.
This led to the filing of a number of writ petitions in the Kerala High Court as well as in the Madras High Court sometime in 1998 on the issue for and against raising of water level in the Mullaperiyar reservoir and the safety of the dam. As the controversy was pending before the two High Courts and there was likelihood of conflicting judgments, some transfer petitions were filed before the Supreme Court.
On 28.04.2000, in the transfer petitions, the apex court desired Union Minister of Water Resources to convene a meeting of the Chief Ministers of Kerala and Tamil Nadu to amicably resolve the issue. The meeting was convened on 19.05.2000 but no consensus could be reached in the meeting as well. However, in that meeting, the Union Minister of Water Resources decided to constitute an Expert Committee to go into the details of the safety of the dam and advise him on raising of water level in the reservoir.
In its report, the Expert Committee had opined that water level in the Mullaperiyar reservoir could be raised to 142 ft. (43.28 m.) as that will not endanger the safety of the main dam, including spillway, baby dam and earthen bund.
The Kerala government continued to resist raising of water level in the reservoir beyond 136 ft. It was then that a writ petition was filed by the Mullaperiyar Environmental Protection Forum directly before the Supreme Court wherein diverse prayers were made. The apex court also transferred the writ petitions which were pending before the Kerala High Court and Madras High Court to itself.
The Supreme Court on 27.02.2006 permitted the water level in the Mullaperiyar dam to be raised up to 142 ft. The State of Kerala and its officers were also restrained from causing any obstruction to this. It was also observed that, after the strengthening work was complete to the satisfaction of CWC, independent experts would examine the safety angle before the water level is permitted to be raised up to 152 ft.
The Kerala Irrigation and Water Conservation Act, 2003 was enacted by Kerala legislature, which came into force on 18.09.2003. The Act was enacted to consolidate and amend the laws relating to construction of irrigation works, conservation and distribution of water for the purpose of irrigation and levy of betterment, contribution and water cess on lands benefited by irrigation works in the State of Kerala and to provide for involvement of farmers in water utilisation system and for matters connected therewith or incidental thereto. The 2003 Act was neither referred to nor relied upon by Kerala at the time of hearing the petition filed by the Mullaperiyar Environmental Protection Forum.
On 18.03.2006, in less than three weeks of the decision of the Supreme Court in Mullaperiyar Environmental Protection Forum, the Kerala State legislature amended the 2003 Act by the Kerala Irrigation and Water Conservation (Amendment) Act, 2006.
In the Second Schedule, appended to the 2006 (Amendment) Act, the Mullaperiyar dam owned and maintained by Tamil Nadu is included as Item No. 1 where the height of the FRL has been fixed at 136 ft.
The State of Tamil Nadu immediately thereafter instituted the present suit under Article 131 of the Constitution of India against the State of Kerala. It urged the Supreme Court to declare the 2006 (Amendment) Act passed by the Kerala legislature as unconstitutional in its application to and effect on the Mullaperiyar dam.
It also urged it to pass a decree of permanent injunction restraining the Kerala government from applying and enforcing the impugned legislation interfering with or obstructing the plaintiff from increasing the water level to 142 ft. and from carrying out the repair works as per the judgment of the court of 27.2.2006.
The Union of India was impleaded as defendant no. 2 in the suit.
The Court, in its findings, held that the State of Kerala is estopped from raising the plea that the lease deed dated 29.10.1886 has lapsed, in view of the supplemental agreements dated 28.05.1970.
"The lease deed executed between the Government of the Maharaja of Travancore and Secretary of State for India in Council on 29.10.1886 is valid and binding on the first defendant and it is enforceable by plaintiff against the first defendant," it said.
The court held that the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 is unconstitutional and ultra vires in its application to and effect on the Mullaperiyar dam.
It said that the rights of Tamil Nadu, crystallized in the judgment dated 27.2.2006 passed by the apex court earlier, cannot be nullified by a legislation made by the Kerala State legislature.
"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.
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 the court dated 27.2.2006 and Kerala is estopped from raising or re-agitating these issues in the present suit, it said.
Kerala cannot obstruct Tamil Nadu from increasing the water level of Mullaperiyar dam to 142 ft. and from carrying out repair works as per judgement dated 27.2.2006, it said.
The court also held that Kerala cannot be permitted to contend that river Periyar is an intra-State river.
It said that Kerala's offer to construct a new dam needed agreement of both the parties and could not be thrust upon Tamil Nadu.
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