2006 Supreme(SC) 186

2006(2) Supreme 579
Supreme Court of India
(Under Art. 32 of the Constitution of India)
Y.K. Sabharwal, CJI., C.K. Thakker and P.K. Balasubramanyan, JJ.
Mullaperiyar Environmental Protection Forum —Petitioner
versus
Union of India & Ors. —Respondents
Writ Petition (Civil) No. 386 of 2001
With
TC (C) Nos. 56-59 and 96-99 of 2002
All Decided on 27-2-2006
Counsel for the Parties :
For the Appearing Parties : A. Sharan, ASG, Ranjit Kumar, V.A. Bobde, T.L.V. Iyer, T.S. Doabia, A.K. Ganguli, E.M.S. Natchiappan, Sr. Advocates, C.K. Sasi, R. Ayyam Perumal, S. Vallinayagam, G. Umapathy, Ms. Roxna Swamy, Advocate for In-Person (N.P.), Rames 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, Advocates.

Important PointThe water level of the Mullaperiyar dam is permitted to be raised to 142 feet by permitting the further strengthening of the dam.

Headnote:Constitution of India—Articles 32, 262 and 363—States Reorganisation Act, 1956—Section 108—Validity of Section 108 of the Act—Mullaperiyar Reservoir—Proposal of raising water level of the reservoir from 136 ft. to 142 ft.—Question about safety of the dam—In the past, reservoir was filled upto full level of 152 ft. as per the agreement between States—Agreement was modified in the year 1970—State of Tamil Nadu was allowed to generate electricity from the project and it surrendered fishing rights in the leasehold land in favour of State of Kerala—According to the petitioner, there was leakage in the gallery of the dam which affected its security, therefore, water level was stopped at 136 ft. instead of 152 ft.—After thorough study and considering all aspects, CWC reported that both the States of Tamil Nadu and Kerala ought to cooperate and on taking those steps, water would be allowed to be filled upto 142 ft.—State of Kerala expressed reservations against the report submitted by CWC—Whether water level can be allowed to be increased to 142 feet or not—Whether Section 108 of the States Reorganisation Act is unconstitutional—(No)—Whether jurisdiction of this Court is barred in view of Article 262 read with Section 11 of the Inter State Water Disputes Act—(No)—Whether Article 363 of the Constitution bars the jurisdiction of this Court—(No)—Whether disputes are liable to be referred to Arbitration—(No)—Present dispute is not about the rights, duties and obligations or interpretation of any part of the agreement—Matter disposed of by permitting the water level of the Mullaperiyar dam being raised to 142 ft.

       Held : 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 to accept the contention as to invalidity of Section 108 of the Act. (Para 21)

       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 bars the jurisdiction of the court in regard to nature of disputes between the two States. (Para 23)

       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. (Para 24)

       The experts having reported about the safety of the dam and the Kerala Government having adopted an obstructionist approach, cannot now be permitted to take shelter under the plea that these are disputed questions of fact. There is no report to suggest that the safety of the dam would be jeopardized if the water level is raised for the present to 142 ft. The report is to the contrary. Regarding raising the water level to 152 ft., the stage has still not reached. At present, that is not the prayer of the State of Tamil Nadu. In this regard, at this stage, the only prayer of the State of Tamil Nadu is that State of Kerala be directed not to obstruct it in carrying out strengthening measures, as suggested by CWC. We see no reason for the State of Kerala to cause any obstruction. Under the aforesaid circumstances, we permit State of Tamil Nadu to carry out further strengthening measures as suggested by CWC and hope that State of Kerala would cooperate in the matter. 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. (Paras 31 to 33)