WRIT PETITIONS BEFORE HIGH COURTS
During 1997-98, A.G. Sojan, Devassia Joseph, and Sajan Kolath & Anthr filed writ petitions before the High Court of Kerala to reject the request of Tamil Nadu Government to raise the water level in Mullaperiyar reservoir from 136 ft. R. Sundaram, a Contractor from Tamil Nadu also filed a writ petition in Kerala High Court to issue directions to facilitate to carry out his work in respect of Mullaperiyar Dam. Meanwhile, similar petitions were filed in Madras High Court by Dr. Subramoniam Swamy, R.K. Ramachandran, Periyar-Vaigai Single Crop Cultivating Agriculturist Society and A. Suresh filed writ petitions before High Court of Madras to raise the water level in Mullaperiyar reservoir up to 152 ft. Dr. Subramoniam Swamy filed a transfer petition before the Supreme Court of India on 5th August 1998 citing that there is a possibility of conflicting orders being passed by the High Courts and hence requested that the entire cases may be transferred to Supreme Court.
TRANSFER PETITIONS TO SUPREME COURT
The issue was come up for hearing before Supreme Court on 13/12/1999. Supreme Court directed both States to meet and hold talks for the settlement of the issue and reported back to Court. Accordingly a Chief Minister level meeting was held between Kerala and Tamil Nadu on 5/04/2000 at Thiruvananthapuram, but no consensus was reached. The issue came up for hearing before Supreme Court on 28/04/2000. The Court directed the Union Minister for Water Resources, Government of India to convene a meeting of both Chief Ministers in order to explore the possibilities of sorting out the differences between two States within two months. Accordingly, a meeting was convened by Central Government with both State Governments on 19/05/2000 at New Delhi. Mean while, in 2001, the Mullaperiyar Environmental Protection Forum filed a Writ Petition (Civil) No. 386 before the Hon'ble Supreme Court of India seeking the Lease Deed of 1886 and Supplemental Agreements of 1970 are null and void on various legal ground.
EXPERT COMMITTEE OF 2000
Consequent to this, Ministry of Water Resources constituted a seven member committee under the chairmanship of Member (D&R), CWC including one representative nominated by each State to study the issue related to Mullaperiyar on 14/06/2000. Kerala Government had a lot of apprehensions about the terms of reference of the Committee and the matter was taken up with the Union Government. At the insistence of the Supreme Court, Government of Kerala had nominated Sri. M.K. Parameswaran Nair, Retd. Member (Civil), KSEB as its representative. In 16/09/2000, the Supreme Court of India directed the Committee shall meet within four weeks and to submit their report within three weeks from the date of first meeting.
Accordingly the Committee headed by Dr. B.K. Mittal, Member (D&R), CWC inspected the Mullaperiyar dam on 10/10/2000 and had its first meeting on 10/11.10.2000. The Committee decided that subject to the review of PMF and after checking the designs of baby dam, if found within allowable limits, the reservoir water level can be raised to 145ft on a majority opinion. The nominee from Kerala signed the above minutes with his dissenting note strongly disagreeing with the above suggestion to increase of FRL from 136ft. The Committee finalised its report on March 2001 and submitted that to the Supreme Court. The Committee recommended on a majority opinion (except Kerala nominee) that the dam would be safe for raising the reservoir water level up to 142 feet. It also recommended that the strengthening measures for the baby dam and earthen bund as suggested by CWC should be carried out at the earliest.
SUPREME COURT JUDGEMENT OF 27TH FEBRUARY 2006
After prolonged arguments, Supreme Court of India (a three member bench headed by the Chief Justice of India) on 27/02/2006 permitted the water level in the reservoir to 142 feet relying on the findings of the Mittal Committee report (http://www.scribd.com/full/45113896?access_key=key-1nutop5ovigu8meccbp2). The Court also directed to Government of Kerala not to obstruct in carrying out strengthening measures for baby dam and earthen bund, as suggested by the CWC.
While delivering the above Judgement, Supreme Court had also observed that:
Ø Section 108 of State Re-organisation Act 1956 which upheld the continuation of the pre-constitutional agreements pertaining to water and electric power are constitutionally valid.
Ø The rising of FRL in Mullaperiyar is not an inter state water dispute and hence Supreme Court is competent hear the case. The barring of Supreme Court in the case of inter state water issues as per Article 262 read with Section 11 of the Inter-State Water Disputes Act, 1956 is not applicable in this case.
Ø It was also held that the Supreme Court is not barred to hear Mullaperiyar issue since it does not attract provisions of Article 363. Article 363 bars Supreme Court to hear any dispute arising out of any provision of an agreement entered into or executed before the commencement of the Constitution. Supreme Court held that the Article 363 was provided 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.
Ø It also held that the above dispute is not liable to arbitration since Mullaperiyar dispute because the arbitration clause in the Lease Deed permits arbitration only about the rights, duties and obligations or interpretation of any part of the agreement. The Court observed that the present issue is not such an issue.
Ø It was held that the raising of water level of the reservoir from 136 ft to 142 ft could result not result in degradation of environment and will not attract provisions of Forest (Conservation) Act, 1980 and Wild Life (Protection) Act, 1972. Instead it was held that the raising of water level will increase the carrying capacity of the wild life and will improve the environment.
AMENDMENT ACT OF 2006
Meanwhile, Kerala Legislature amended the Kerala Irrigation and Water (Conservation) Act during March 2006. In the amended act, along with other 22 dams, Mullaperiyar dam was designated as a Scheduled dam and its FRL was restricted to 136ft. Also, the powers of the Dam Safety Authority has been enhanced. Amended Act was published in the official gazette on 18/03/2006.
ORIGINAL SUIT 3 OF 2006
Subsequent to this, Tamil Nadu filed an Original Suit in the Hon’ble Supreme Court (OS No. 3 of 2006) on 31st March 2006 against the provisions of the amended act in its application to the Mullaperiyar. Their main contention was that as per Section 108 of State Reorganization Act, 1956 Kerala State Legislature is not at all competent to impose restrictions over Mullaperiyar dam and also prayed to declare the said act unconstitutional.
DISCUSSIONS BETWEEN THE STATES
When the case came for hearing on 25th September 2006, the Hon. Supreme Court directed that “the two state governments, independently or with the intervention of Union of India may try to sort out, if possible, the dispute.”
Accordingly, the two Chief Ministers held talks on 29th November 2006 at New Delhi in the presence of Union Minister of Water Resources. In continuation of the above meeting, one more meeting was convened by the Union Minister for Water Resources between the Water Resources Ministers of both States on 18th December 2006 at New Delhi. In the above meetings, Government of Kerala offered a new dam, which would ensure safety to the people of Kerala as well as continued supply of water to Tamil Nadu as permanent solution to this dispute. But Government of Tamil Nadu was not ready to accept the above solution and hence the discussions ended in a deadlock.
FRAMING OF ISSUES
After hearing both parties, the Hon’ble Supreme Court framed issues on the Original Suit on 13th December 2007. The eleven issues framed by the Court are as following:
1. Whether the suit is maintainable under Article 131 of the Constitution of India?
2. (a) Whether the Kerala Irrigation and Water Conservation (Amendment) Act 2006 is unconstitutional and ultra vires, in its application to and effect on the Mullai Periyar Dam?
(b) Whether plaintiff is entitled to a permanent injunction restraining the first defendant from applying and enforcing the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 with reference to Mullai Periyar Dam?
3. Whether the rights of the plaintiff, crystalised in the Judgment dated 27.02.2006 passed by this Court in WP(C) NO.386/2001 can be nullified by a legislation made by the Kerala State Legislature?
4. (a) Whether the judgment dated 27.2.2006 of this Court in WP(C) No.286/2001 operates as res judicata, in respect of all or any of the defences set up by the first defendant in its written statement?
(b) Whether the pleas relating to validity and binding nature of the deed dated 29.10.1886, the nature of Periyar River, structural safely of Mullai Periyar Dam etc. raised by the first defendant in its defence, are finally decided by the judgment of this Court dated 27.2.2006 in WP(C) No.386/2001, and consequently first defendant is barred from raising or reagitating those issues and pleas in this suit, by the principle of res judicata and constructive res judicata?
5. Whether the suit based on a legal right claimed under the lease deed executed between the Government of the Maharaja of Travancore and the Secretary of State for India on 29.10.1886, is barred by the proviso to Article 131 of the Constitution of India?
6. Whether the first defendant is estopped from raising the plea that the deed dated 29.10.1886 has lapsed, in view of subsequent conduct of the first defendant and execution of the supplemental agreements dated 29.05.1970 ratifying the various provisions of the original Deed dated 29.10.1886?
7. Whether the lease deed executed between the Government of the Maharaja of Travancore and Secretary of State for India on 29.10.1886 is valid, binding on first defendant and enforceable by plaintiff against the first defendant?
8. Whether the first defendant is estopped from contending that Periyar River is not an inter-State river?
9. Whether the offer of the first defendant, to construct a new dam across River Periyar in the downstream region of Mullai Periyar Dam would meet the ends of justice and requirements of plaintiff?
10. Whether the first defendant can obstruct the plaintiff from increasing the water level of Mullai Periyar Dam to 142 ft. and from carrying out repair works as per the judgment dated 27.2.2006 of this Court in WP(C) No.386/2001?
11. To what relief is the plaintiff entitled to?”
EVIDENCE BEFORE JUSTICE ANIL DEV COMMISSION
Subsequent to this both parties filed the documents by May 2008. State of Tamil Nadu filed one affidavit of Sri. R. Subramanian, Vice-Chairman of Cauvery Technical Cell. While State of Kerala filed five affidavits of the following witnesses.
1. Sri. V. K. Mahanudevan, Superintending Engineer, Siruvani Project Circle, Palakkad.
2. Dr. A. K. Gosain, Professor, Civil Engineering Department, IIT, Delhi
3. Sri. K. Jayakumar, Additional Chief Secretary, Water Resources Department, Government of Kerala.
4. Sri. M. K. Parameswaran Nair, Chairman, Mullaperiyar Special Cell
5. Dr. Dhrubajyothi Gosh, Chairman, National Expert Committee for Assessment of the Ecological Impact of Water Level increase in Mullaperiyar Dam.
On 21st July 2008, the court appointed Hon’ble Justice Anil Dev Singh, Retired Chief Justice of Rajasthan High Court as the Commission for taking evidence in the case. The cross examination of the witnesses was started on 13th August 2008 and was completed on 2nd September 2008.
HEARING BEFORE DIVISION BENCH OF SUPREME COURT
The case was listed for hearing before the three bench panel headed Hon’ble Justice Arijit Pasayath on 10th February 2008 to 12th February 2008. Senior Counsel Harish Salve, who appeared for the State of Kerala, apprised the Court about the Probable Maximum Flood studies conducted by the IIT, Delhi and the possible threat to the Mullaperiyar Dam. In the above context, the Hon’ble Court wanted to know the opinion of the two States for referring the IIT report for assessment by an independent agency. Even though State of Tamil Nadu agreed for the above suggestion during the hearing, the very next day, they informed the Court that “they were not agreeable to the suggestion. They would take a ruling from this court instead of the matter going before another Committee.” The Court listed the matter for further hearing on 31st March 2008. It was informed by the Counsels for the parties that the hearing of the case would at least take 7 to 8 days to finish. As the Hon’ble Justice Arijit Pasayath was retiring on May 2008, the case was adjourned till a new bench is constituted.
The new Bench headed by Hon’ble Justice D.K. Jain (with Hon’ble Justice Mukundakam Sharma and Hon’ble Justice R.M. Lodha) heard the case on 21st, 22nd and 28th October 2009 and 4th and 5th November 2009.
After hearing both parties Counsels at length, the Hon’ble Court ordered that:
“…We are of the view that for deciding some of the issues framed in the suit, it would be necessary to decide certain substantial questions of law involving interpretation of the Constitution, in particular :
(i) Articles 3 and 4 read with Article 246 of the Constitution;
(ii) Article 131 read with Article 32 of the Constitution;
(iii) Proviso to Article 131 read with Articles 295 and 363 of the Constitution and the effect of the Constitution (26th Amendment) Act, 1971; and
(iv) The effect of decision of this Court in Mullaperiyar Environmental Protection Forum vs. Union of India & Ors., (2006) 3 SCC 643 in the context of aforereferred constitutional provisions..
As the case involves the resolution of the said questions, the suit may be placed before the Hon'ble Chief Justice of India for necessary directions for placing it before a Constitution Bench.”
HEARING BEFORE CONSTITUTION BENCH OF SUPREME COURT
The case was listed before the Constitution Bench headed by Hon’ble Justice D.K. Jain (with with Hon’ble Justice Mukundakam Sharma, Hon’ble Justice R.M. Lodha, Hon’ble Justice B. Sudarsan Reddy and Hon’ble Justice Deepak Varma) on 20th January 2010. The case was heard on 20th, 21st, 27th and 28th January 2010 and 2nd, 4th, 16th, 17th and 18th February 2010.
After hearing both the parties, the Hon’ble Court ordered that:
“…We have heard Mr. K. Parasaran, learned Senior Counsel for State of Tamil Nadu, and Mr. Harish N. Salve, learned Senior Counsel for State of Kerala, at some length. Regard being had to the nature of controversy, we are of the opinion that before we proceed further in this case, it would be appropriate to call for a report from an Empowered Committee on all the issues that arise in relation to the Mullai Periyar Dam and the concerns raised by both the States in relation thereto. It may be noticed that apart from the legal and constitutional issues, inter alia, the real grievance that concerns the State of Tamil Nadu is of not being able to increase reservoir level of Mullai Periyar Dam to 142 feet. The concern of the State of Kerala, on the other hand, appears to be relating to the safety of the Dam. While the State of Tamil Nadu had submitted that in the present suit they seek invalidation of the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 that seeks to override the judgment of this Court in the previous case, the State of Kerala had submitted, amongst other things, that there are genuine concerns as to the safety of Mullai Periyar Dam, and that they have also offered to build a New Dam at their cost which will ensure that there is no fall in the water drawals of the State of Tamil Nadu, and that their law is valid.Before we consider the matter further, we direct as under:(1)The Central Government shall, within four weeks from today, set up, by notification in the Official Gazette, an Empowered Committee comprising of Hon'ble Dr. A.S. Anand, former Chief Justice of India, as the Chairman; (2)The Empowered Committee shall consist of five members, including the Chairman. The other four members shall be -(a) One member to be nominated by the State of Tamil Nadu in consultation with the Chairman. (b) One member to be nominated by the State of Kerala in consultation with the Chairman. (c) Two renowned technical experts not connected with the dispute to be nominated by the Central Government in consultation with the Chairman.(3)The Central Government shall set up the Committee and also appoint a Member Secretary, in consultation with the Chairman, within two weeks from today.(4)The Central Government shall make available the necessary infrastructure to facilitate the working of the Committee, and shall bear all expenses thereof, including those relating to remuneration of the members of the Committee. (5)We would request the Committee to hear parties to the suit on all issues that will be raised before them, without being limited to the issues that have been raised before us, and furnish a report, as far as possible, within six months from their constitution. The Committee shall frame its own procedure and issue appropriate directions as to the hearings as well as venue of its sittings. The Registry shall make a set of the record of this case, and transmit it to the Committee for its assistance. The Committee is free to receive such further evidence as it considers appropriate.Needless to clarify that the legal and constitutional issues, including the validity of the amendment Act, 2006 are matters that would be considered by us.”Even though State of Tamil Nadu filed an IA to recall the above order, the Hon’ble Court dismissed the above application on 29th March 2010 and directed the Union of India to form the Empowered Committee before 30th April 2010.
EMPOWERED COMMITTEE
Central Government constituted an Empowered Committee, which was published in the official gazettet on 30th April 2010. The Empowered Committee consists of Hon’ble Justice Dr. A.S. Anand, Former Chief Justice of India, Hon’ble Justice K.T. Thomas, Former Supreme Court Justice (Kerala Nominee), Hon’ble Justice A.R. Lakshmanan, Former Supreme Court Justice (Tamil Nadu Nominee), Dr. C.D. Thattee, Former Union Water Resources Secretary and Chairman, CWC (Govt. of India Nominee) and D.K. Mehta, Former Chief Engineer, CWC (Govt. of India Nominee).
The Empowered Committee had their first meeting on 14th June 2010 at New Delhi. After deliberations, the Committee issued notices through dailies inviting Memorandum containing views/suggestions from parties of OS No. 3 of 2006.
The Empowered Committee in its next sitting on 23rd August 2010, permitted both States, to submit additional documents and list of witnesses they wanted to examine within 15 days. They also instructed both parties to submit a Brief Submission to their respective cases not more than 3 pages. Accordingly State of Kerala filed additional documents including the Structural Stability Analysis of Mullaperiyar Dam carried out by IIT, Roorkee and also the application for producing three witnesses viz. Dr. D.K. Paul, Professor, Earthquake Engg. Dept, IIT, Roorkee Dr. M.L. Sharma, Professor, Earthquake Engg. Dept, IIT, Roorkee and Dr. A. Komalavalli Amma, Former Chief Engineer, Irrigation Department, Kerala.
ISSUES SETTLED BY THE EMPOWERD COMMITTEE
The Empowered Committee again met on 15th October 2010. The Committee has settled the following issues for their consideration.
1. Which strengthening measures as suggested by CWC have already been carried out by the State of Tamil Nadu for the dam, each of the two: main and the baby dam components, to ensure its safety and stability based on the investigations so far carried out?
2. Which remaining measures from amongst those suggested by CWC are yet to be carried out by the State of Tamil Nadu for the safety and stability of the Dam and when they be undertaken and completed?
3. Has the State of Kerala complied with the suggestions and recommendations made by the CWC about strengthening the Dam and taken appropriate steps in that behalf?
4. Should the reservoir level be raised from 136 ft? If yes, what further measures for strengthening the existing dam, do the two parties envisage, to allow the raising of water level from 136 ft to 142 ft and beyond?
5. Since the State of Kerala for safety and stability concerns of the existing dam and downstream population in the event of the dam failure and stability, wants to build a new dam at its own expense, the Committee seeks answers from the two parties to the following questions about the fall out of such proposal.
a) How much time will the State of Kerala take to carry out survey, feasibility studies, preparation of DPR, tying of finances, obtain clearance and construction for the new dam?
b) Who would have control of the New Dam and be responsible for its operation and maintenance, ie, the State of Tamil Nadu or the State of Kerala?
c) Whether and how the existing dam would continue to supply water to the State of Tamil Nadu during the construction of the new dam and till it becomes functional.
d) Would the construction of the new dam in any way affect the supply of water for use by the State of Tamil Nadu, during or after its construction?
The Empowered Committee also decided to visit the Mullaperiyar Dam and Project areas during December 20-22, 2010.
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