2014 Supreme(SC) 401

SUPREME COURT OF INDIA
R.M. Lodha, CJI., H.L. Dattu, Chandramauli Kr. Prasad, Madan B. Lokur, M.Y. Eqbal, JJ.
State of Tamil Nadu – Plaintiff
Versus
State of Kerala & Anr. – Defendants
ORIGINAL SUIT NO. 3 OF 2006
Decided On : 07-05-2014

IMPORTANT POINTS
Suit filed on original jurisdiction of the Supreme Court under Article 131 is not governed by procedures prescribed in CPC or subject to Supreme Court Rukles 1966.
Doctrine of separation of powers, although not expressly provided in the Constitution of India, is a basic feature of the Constitution.
Provisions of Article 363 and 131 (Proviso) apply to political settlement/agreements/ treaty only; not to ordinary contractual agreements.
A judgment rendered under Article 32/ 226 recording finding of fact operates as res judicata.
Kerala Irrigation and Water Conservation (Amendment) Act, 2006 seeking to nullify judicial decision rendered by recording a finding of fact is breach of Constitutional principle of separation of powers, held unconstitutional.

Headnote:(a) Constitution of India – Article 131 – Suit filed in original jurisdiction – Not governed by procedures prescribed in CPC or subject to Supreme Court Rukles 1966 – Such suit cannot and ought not to be decided with very technical approach as regards pleadings and procedure. (Para 38)

       (2013) 5 SCC 68 – Relied upon

       (b) Government of India Act, 1858 (1859 Amendment) – Governor in Council authorised to enter into contracts, referred to as Secretary of State in Council – Lease Agreement, 1886 entered into between the Secretary of State in Council and Maharaja of Travancore –Section 117, Government of India Act 1935 – Government of the Province of Madras deemed to be substituted as the lessee in the 1886 Lease Agreement (Para 40, 41)

       (c) Indian Independence Act, 1947 – Section 7(1)(b) – Suzerainty of His Majesty over the Indian States lapsing – Thereby “all treaties and agreements” also lapsing – Section 7 dealing with suzerainty – “All treaties and agreements” covers only political treaties and agreements and not ‘all’ – 1886 Lease Agreement being ordinary lease agreement is wholly non-political – Being non-politcal agreement, did not lapse under section 7(1)(b). (Para 46, 47, 48, 49)

       (2006) 3 SCC 643 – Relied upon

       (d) Indian Independence Act, 1947 – Section 7(1)(b) Proviso – The expression “denounced by the Ruler of the Indian State” – Refers to unambiguous, unequivocal and express denouncement – Bulletin issued on 18.07.1947 cannot be taken as clearly or finally denouncing 1886 lease agreement – Denouncement made on 18.07.1947, i.e., before coming into force of the Act 1947, i.e. 15.08.1047 – Denouncement held not valid. (Para 50, 51)

       (e) Standstill agreement dated 12.08.1947 – Executed to fill in the gap after signing of Instrument of Accession – To continue non-political agreements etc. – Standstill agreement not a political agreement – Section 177 of 1935 Act deleted after it became unworkable upon India becoming independent and there being no Secretary of State in Council – Further, the deletion was propsective – Deletion of section 177 could not wipe out the standstill agreement. (Para 53, 54, 56)

       (f) 1886 Lease Agreement – Between Ruler of Travancore and Secretary of State in Council – Merger of states of Travancore and Cochin in 1949 – Effect – Merger being political and the 1886 Lease agreement being non-political contractual agreement – Not affected by merger – Merger of Travancore and Cochin in 1949 showing that accession of Indian States to the Dominion of India did not extinguish those States as entities – Hence Madras continued to be leassee under 1886 lease agreement – Further, supplemental agreements, 1970 stating continuance of 1886 agreement and leasing out additional areas to Tamil Nadu – Plea of mistake of law rejected. (Para 57, 59, 61, 62, 63)

       (2013) 5 SCC 68 – Relied upon

       AIR 1950 SC 155; (2011) 13 SCC 344 – Distinguished

       (g) Constitution of India – Article 363 and 131, Proviso – Accession of an Indian State to the dominion of India and acceptance of it by the Dominion are acts of State – Justiciability of the same, being in the nature of political settlement, barred under Article 363 and the proviso to Article 131 – 1886 lease agreement, not being a political settlement is jucticiable – Hence suit filed by the State of Tamil Nadu held maintainable under Article 131. (Para 65, 67, 70, 71, 74)

       (2006) 3 SCC 643; (1955) 1 SCR 415 : AIR 1954 SC 447 – Reluied upon

       (h) Constitution of India – Article 294(b) r/w First Schedule and Article 295(2) – Leasehold rights under the 1886 Lease Agreement – Devolved upon the State of Madras. – Expression ‘Government of the corresponding Indian State” – Government of Part B State of Travancore-Cochin meant not only the merged erstwhile State of Travancore and Cochin but also its components – Thus Government of Part B State of Travancore-Cochin became successor of the corresponding State of Travancore as regards all rights, liabilities and obligations arising out of 1886 Lease Agreement – 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 State of Kerala and it is enforceable by State of Tamil Nadu against the State of Kerala. (Para 72, 73, 74)

       (i) Constitutional Law – Doctrine of separation of powers – No express provision in Constitution of India – Nevertheless a basic feature of the Constitution – Constitution, without drawing formal lines, makes demarcation between the legislature, executive and judiciary – Accordingly, independence of courts from the executive and legislature is fundamental to the rule of law and one of the basic tenets of Indian Constitution – Breach of separation of judicial power may amount to negation of equality under Article 14 – A legislation can be invalidated on the basis of breach of the separation of powers – Impact of separation of powers on functioning of Legislature and Judiciary discussed. (Para 93 to 109, 121)

       (1969) 2 SCC 283; (1966) 1 All E.R. 650; (1978) 2 SCC 50; (2003) 4 SCC 399; (1970) 2 SCC 280; (1970) 1 SCC 509; 1993 Supp (1) SCC 96 (2); (1870) 77 US 454; (2000) 530 U.S. 327; 1969 (2) UJ 616 SC; (1964) 2 SCR 608; (1973) 4 SCC 225; (1976) 4 SCC 750; (1996) 5 SCC 670; (1996) 7 SCC 637; (2004) 12 SCC 588; (1997) 8 SCC 522; (1998) 193 CLR 173; (1995) 514 U.S. 211 – Relied upon

       (2000) 1 SCC 168; 73 IA 123; (1955) 2 SCR 164; (1905) 199 US 473; (1968) 393 US 129; (1981) 450 US 662; (1982) 683 F.2d 787; (1923) 261 US 600; (1983) 1 SCC 147; (1988) 2 SCC 299; (1968) 3 SCR 489; (1985) 4 SCC 124; (1993) 1 SCC 345; (1996) 7 SCC 637; 1975 (Supp.) SCC 1; (1999) 3 SCC 696; (2002) 10 SCC 549; (1973) 3 SCC 585 – Refererd

       (2002) ECR II-03305; (1855) 59 U.S. 421 – Distinguished

       (j) Interpretation of Judgments – Per incuriam – Contention that Mullaperiyar Environmental Protection Forum1 was per incuriam Kerala Irrigation and Water Conservation Act, 2003 – Act 2003 neither referred nor relied upon at the time of hearing in Mullaperiyar Environmental Protection Forum1 – Section 3 of Act 2003 referring to “water course” and not a dam such as Mullaperiyar dam – Kerala Dam Safety Authority was not in place when the arguments in Mullaperiyar Environmental Protection Forum1 were concluded – Judgment not per incuriam. (Para 130)

       (2006) 3 SCC 643 – Referred

       (k) Kerala Irrigation and Water Conservation (Amendment) Act, 2006 – Mullaperiyar Environmental Protection Forum1 decided based on expert opinon – State of Kerala heard as contesting party – Judgment binding on it – Judgment attaining finality – Enacting legislation in conflict with the judgment – Not permissible – ‘Public trust doctrine’ or ‘precautionary measure’ of not help – Breached constitutional limitation such as separation of powers – Held unconstitutional. (Para 140, 141)

       (2006) 3 SCC 643 – Referred

       (2002)ECR II-03305 – Distinguished

       (l) Constitutional Law – Validating law – Kerala Irrigation and Water Conservation (Amendment) Act, 2006 not a validating enactment – Seeking to nullify judicial decision rendered by recording a finding of fact – Breach of Constitutional principle of separation of powers – Impermissible. (Para 143, 144)

       (1855) 59 U.S. 421 – Distinguished

       (m) Contitutionmal Law – Separation of powers – Supreme Court declaring the dam, on basis of expert opinion, to be safe – Contesting State, by legislation, declaring otherwise and making provisions – If factual situtaions have changed requiring reopening of a judgment, it is always open to the parties to approach the Court – Rescinding and abrogating the judgment by legislation – Not permissible even for very best of reasons and genuine concern for public safety – Fact found by judicial determination cannot be declared otherwise by applying legal fiction – Section 62A r/w item No. 1 of the Second Schedule of Act 2003 as amended by Kerala Irrigation and Water Conservation (Amendment) Act, 2006 intended to reach the question decided by the Court – Not permissible. (Para 149, 150)

       (n) Interpretation of statute – Constitutional validity – Except for validation of law legislature cannot nullify a judgment – Court in (2006) 3 SCC 643 not invalidating any law but deciding a fact – State legislature having no occasion to amend the law – The judgment and the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 irreconcilable and inconsistent – Cannot stand together. (Para 151)

       (o) Constitutional Law – Federal disputes – Disputes between States – Enacting law establishing its claim or right against the other – Amounts to being judge in their own cause – Not permissible – Constitution providing for resolution of such dosutes – Articles 131 and 262. (Para 152)

       (p) Code of Civil Procedure, 1908 – Section 11 – Res judicata – Principle applies to litigation and binds parties to the lis – Not applicable to legislation – Does not bind legislature – Erroneous to say that a judgment rendered under Article 32/ 226 does not operate as res judicata – A finding recorded under Article 32/ 226 is as effective and final as in any other proceedings – (2006) 3 SCC 643 having become final and binding, the issues decided therein definitely operate as res judicata in the suit filed under Article 131 of the Constitution. (Para 153, 155, 156, 163, 164)

       2 Smith Lead Cas 13; AIR 1916 PC 78; AIR 1961 SC 1457; AIR 1960 SC 1186; (1965) 2 SCR 547; (1968) 2 SCR 887 : AIR 1968 SC 1370; (1970) 3 SCC 656 – Relied upon

       (2004) 9 SCC 362 – Distinguished

       (2006) 3 SCC 643 – Referred

       (q) Constitutional Law – Section 108(1) of States Reorganisation Act, 1950 already held constitutional – Right flowing from a contract – Enforced by a judghment – Said right gets incorporated as right under the judgment – Overriding by legislation – Amounts to overriding the judgment – Not permissible. (Para 175, 177)

       (2006) 3 SCC 643 – Relied upon

       73 IA 123; (1955) 2 SCR 164; (2006) 9 SCC 591 – Distinguished

       (r) Constitution of India – Aticle 137 – Curative jurisdiction – Curative petition for correction of judgment may be tertained if parameters under (2002) 4 SCC 88 are fulfilled – Instant case not fulfilling parameters of (2002) 4 SCC 88 – Moreover, no justification to reopen dam safety aspect in view of (2006) 3 SCC 643. (Para 179)

       (2002) 4 SCC 88 – Relied upon

       (1984) 2 SCC 183; (1991) 1 SCC 494 – Distinguished

       (s) Natural Justice – State of Kerala assailing conclusions of Empowered Committee for non-supply of data contained in CDs and DVDs – Supplied subsequently by Court – States of Kerala and Tamil Nadu both nominating representatives on the EC and the Coordination Committee – No change since (2006) 3 SCC 643 – Challnge not tenable. (Para 197, 198)

       (1962) 2 QB 677 – Referred

       (t) Constitution of India – Article 262 – State of Kerala in (2006) 3 SCC 643 disputing jurisdiction of Supreme Court on the ground that the dispute is an inter-state river water dispute – Now pleading that river Periyar is not inter-state but intra-state river – Cliam without any substantial proof or evidence – On the other hand 114 sq. km. of Periyar river basin falling in Tamil Nadu – Held, Kerala cannot be permitted to contend that river Periyar is an intra-State river. (Para 206, 210)

       (u) Code of Civil Procedure, 1908 – Order XXXIX, rule 1 – Restoration of original FRL of Mullaperiyar dam – Tamil Nadu establishing that invasion on its rights under 1886 lease agreement by refusal of Kerala to restore original FRL had been substantial – Kerala Irrigation and Water Conservation (Amendment) Act, 2006 held unconstitutional – Kerala restrained from applying and enforcing Act 2006 or in any manner interfering with or obstructing the State of Tamil Nadu from increasing the water level to 142 ft. and from carrying out the repair works as per (2006) 3 SCC 643 – A 3-Member Supervisory Committee constituted. (Para 217 to 222)

       (2013) 5 SCC 68 – Relied upon

       Facts of the case:

       This is dispute between the states of Tamil Nadu and Kerala over the height of the dam on river Mullaperiyar.

       Immediately after the decision in Mullaperiyar Environmental Protection Forum v. Union of India, (2006) 3 SCC 643 the Kerala State Legislature enacted the law fixing and limiting Full Reservoir Level (FRL) to 136 ft.

       Finding of the Court:

       Kerala Irrigation and Water Conservation (Amendment) Act, 2006 is unconstitutional and ultra vires in its application to and effect on the Mullaperiyar dam.

       The rights of Tamil Nadu, crystallized in (2006) 3 SCC 643 cannot be nullified by a legislation made by the Kerala State legislature.

       (2006) 3 SCC 643 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.

       Question relating to the lease deed dated 29.10.1886 and structural safety of Mullaperiyar dam have been finally decided by and Kerala is estopped from raising or re-agitating these issues in the present suit.

       Kerala cannot obstruct Tamil Nadu from increasing the water level of Mullaperiyar dam to 142 ft. and from carrying out repair works.

       Issue of construction of new dam cannot be thrusted upon Tamil Nadu. It has to be constructed only after agreement between the two states.