Supreme Court Of India

Disposing of the writ petition and connected matters, the Court HELD: 1.1. Regarding the safety of the dam on water level being raised to 142 ft. from the present level of 136 ft., various reports have been examined, the safety angle in depth including the viewpoint of earthquake resistance. The apprehensions have been found to be baseless. In fact, the reports suggest an obstructionist attitude on the part of State of Kerala. There is no report to suggest that the safety of the dam would be jeopardised if the water level is raised for the present to 142 ft. The report is to the contrary. [758-f-g; 759-h] 1.2. Water level of the Mullaperiyar dam is permitted to be raised to 142 ft. [760-d] 2. The State of Tamil Nadu is permitted to carry out further strengthening measures as suggested by CWC. The State of Kerala and its officers are restrained from causing any obstruction. After the strengthening work is complete to the satisfaction of the CWC, independent experts would examine the safety angle before the water level is permitted to be raised to 152 ft. [760-b-c] 3.1. The effect of Section 108 of the States Re-organisation Act, 1956, enacted under Articles 3 and 4 of the Constitution of India, 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 effected 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 reorganization of the States. Contention as to invalidity of Section 108 is rejected. [755-b-c] 3.2. It would be incongruous to say that the provision in States Reorganisation Act, 1956 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. [754-g-h; 755-a] 4.1. The dispute between States of Tamil Nadu and Kerala is not a `water dispute' as contemplated by Section 2(c) of Inter-State Water Disputes Act, 1956. 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 is not in dispute. The dispute is also not about the lease granted to Tamil Nadu in the year 1886 or about supplementary agreements of 1970. It is also not in dispute that the dam always had and still stands at the height of 155 ft. and its design of full water level is 152 ft. [755-g-h] 4.2. The main issue now is about the safety of the dam on increase of the water level to 142 ft. For determining this issue, neither Article 262 of the Constitution of India nor the provisions of the Inter-State Water Dispute Act, 1956 have any applicability. There is no substance in the contention that Article 262 read with Section 11 of the Inter-State Water Disputes Act, 1956 bars the jurisdiction of the court in regard to nature of disputes between the two States. [756-a-b] 5.1. 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. [756-c-d] 5.2. 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. The contention also runs counter to Section 108 of the States Re-organisation Act, 1956 which expressly continues the agreement. [756-e-f] Madhav Rao Scindia v. Union of India, [1971] 3 SCR 9, relied on. 6.1. Contention of State of Kerala that in view of the arbitration clause in the lease deed of 1886, the parties should be directed to resort to alternate remedy of arbitration and discretionary relief in these petitions may not be granted to State of Tamil Nadu, is not acceptable. [756-h; 757-a] 6.2. The present dispute is not about the rights, duties and obligations or interpretation of any part of the agreement. The controversy herein is whether the water level in the reservoir can presently be increased to 142 ft. having regard to the safety of the dam. The full water level was 152 ft. It was reduced to 136 ft. in 1979. The aspect of increase of water level is dependent upon the safety of the dam after strengthening steps have been taken. This aspect has been examined by experts. [757-b-c] 7.1. There is no violation of Section 26A of the Wild Life (Protection) Act, 1972 which stipulates that the boundaries of a sanctuary shall not be altered except on a recommendation of the National Board constituted under Section 5-A of the Act. [757-d-e] 7.2. The total area of the sanctuary is about 777 square kilometers. The leased area of about 8,000 acres is a part of the total area. By raising the water level, the boundaries of the sanctuary do not get altered. The total area of the sanctuary remains 777 square kilometers. [757-e-f] 8.1. 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 Forest (Conservation) Act, 1980, requiring prior approval of Union of India. [757-f-g] 8.2. The Expert Committee has reported that it will be beneficial for the Wildlife in the surrounding areas as it will increase the carrying capacity for wildlife like elephants, ungulates and in turn tigers. The apprehension regarding adverse impact on environment and ecology have been found by the experts to be unfounded. A. Sharan, ASG, Ranjit Kumar, V.A. Bobde, T.L.V. Iyer, T.S. Doabia, A.K. Ganguli, E.M.S. Natchiappan, C.K. Sasi, R. Ayyam Perumal, S. Vallinayagam, G. Umapathy, Ms. Roxna Swamy, for In-Person (N.P.), Ramesh Babu M.R., S.W.A. Qadri, Navin Prakash, D.S. Mahra, S.N. Terdal, B.V. Balaram Das, P.N. Ramalingam (N.P.), K.R. Sasiprabhu (N.P.), Ms. T. Kanaka Durga (N.P.), S. Ravi Shankar, Ms. R. Yamunah Nachiar, Ms. Hemanandhini Deori, R.D. Upadhyay (N.P.), R. Nedumaran and V. Rajiv Rufus for the appearing parties.