Holding

The Court held that the Kerala Irrigation and Water Conservation (Amendment) Act 2006 is unconstitutional and ultra vires, the 2006 Supreme Court judgment remains binding under res judicata, the 1886 lease and 1970 supplemental agreements are valid and enforceable, Kerala is estopped from challenging them, the Periyar River is an inter‑state river, and Kerala may not obstruct Tamil Nadu from raising the Mullaperiyar dam’s water level to 142 ft.

Summary

The case concerns the Mullaperiyar dam, a masonry dam built on the Periyar River in Kerala but owned and operated by Tamil Nadu. Tamil Nadu filed a suit under Article 131 of the Constitution seeking to enforce its rights under the 1886 lease agreement and to raise the dam’s full reservoir level (FRL) to 142 ft, as previously permitted by a 2006 Supreme Court judgment. Kerala subsequently enacted the Kerala Irrigation and Water Conservation (Amendment) Act 2006, fixing the FRL at 136 ft and asserting powers to restrict the dam’s operation. The Court examined the validity of the 1886 lease, the applicability of Article 363, the doctrine of res judicata, and whether the 2006 amendment infringed the separation of powers. It held that the lease remains valid, the amendment Act is unconstitutional and ultra vires, and the earlier Supreme Court judgment is binding, estopping Kerala from obstructing the water‑level increase. Consequently, a permanent injunction restraining Kerala from interfering with the FRL was granted and a supervisory committee was constituted.

Issues considered

Whether the suit is maintainable under Article 131 of the Constitution
Whether the Kerala Irrigation and Water Conservation (Amendment) Act 2006 is constitutionally valid in its application to the Mullaperiyar dam
Whether the 2006 amendment Act nullifies the rights crystallised in the 2006 Supreme Court judgment
Whether the doctrine of res judicata applies to the safety and water‑level issues decided in the 2006 judgment
Whether the 1886 lease agreement and the 1970 supplemental agreements are valid and binding on Kerala
Whether Kerala is estopped from contending that the lease has lapsed
Whether the Periyar River is an inter‑state river
Whether Kerala can lawfully obstruct Tamil Nadu from raising the FRL to 142 ft
Whether Kerala’s offer to construct a new dam can be imposed on Tamil Nadu

Legislation cited

Article 131 of the Constitution of India
Article 262 of the Constitution of India
Article 363 of the Constitution of India
Indian Independence Act, 1947s. Section 7(1)(b)
Inter‑State River Water Disputes Act, 1956s. Section 11
Kerala Irrigation and Water Conservation Act, 2003
Kerala Irrigation and Water Conservation (Amendment) Act, 2006s. Section 2, s. Section 57(1), s. Section 62, s. Section 62A, s. Section 68A
States Reorganisation Act, 1956s. Section 108

Subjects

inter‑state water disputeArticle 131res judicataseparation of powerslease agreementpublic trust doctrineprecautionary principledam safetyconstitutional validityinjunction

Judgment

[2014] 12 S.C.R. 875

STATE OF TAMIL NADU A
v.
STATE OF KERALA & ANR.
(Original Suit No. 3 of 2006)
MAY 07, 2014
B
[R.M. LOOHA, CJI, H.L. DATTU, CHANDRAMAULI KR.
P~SAD, MADAN .B. LOKUR AND M.Y. EQBAL, JJ.)

Constitution of India, 1950 - Art. 131- Inter-State water
dispute - Mullaperiyar dam, a masonry dam, constructed C
across Periyar river pursuant to lease agreement dated 29-
10-1886 executed between Government of the Maharaja of
Travancore and the Secretary of Sta"te for India - On coming
into force of the States Reorganisation Act, 1956, State of
Travancore-Cochin was formed and State of Kera/a is its' D
successor-in-interest - State of Tamil Nadu is successor-in-
interest of the Governor in Council, Secretary of State for India
- Dam situated at Thekkady District in Kera/a but owned and
operated by the Government of Tamil Nadu - In an earlier
round of litigation, vide judgment dated 27-2-2006, Supreme E
Court permitted water level in the Mullaperiyar dam to be
raised. up to 142 ft and also restrained the State of Kera/a and
its officers from causing any obstruction the(eto - However,
vide subsequent enactment of the 2006 Amendment Act by
the Kera/a State Legislature, Full Reservoir Level (FRL) of the F
dam fixed and limited to136 ft - Suit filed by State of Tamil
Nadu u/Art. 131 of the Constitution against the State of Kera/a
- Maintainability_ of suit u/.Art. 131 - Validity and binding
nature of 1886 L;ease Agreement and the effect of 1970
supplemental agreements - Held: Suit filed by State of Tamil
Nadu was maintainable u/Art. 131 of the Constitution - The suit G
was based on a legal right claimed under the lease deed
dated 29-10-1886- State of Kera/a (first defendant) estopped
from raising plea that lease deed dated 29-10-1886 had

875 H
876 SUPREME COURT REPORTS [2014] 12 S.C.R:

A lapsed, in view of supplemental agreements dated 28-05-
1970 between State of Kera/a and State of Tamil Nadu -
Lease deed dated 29-10-1886 valid and binding on the first
defendant (State of Kera/a) and· enforceable against it -
Kera/a Irrigation and Water Conservation Act, 2003 - Kera/a
B Irrigation and Water Conservation (Amendment) Act, 2006.

Constitution of India, 1950 - Art.131 - Inter-State water
dispute - Mullaperiyar dam, a masonry dam, constructed
across Periyar river - Dam situated at Thekkady District in
Kera/a but owned and operated by the Government of Tamil
C Nadu - In an earlier round of litigation, vide judgment dated
27-2-2006, .Supreme Court permitted water level in the
Mullaperiyar dam to be raised up to· 142 ft and also restrained
the State of Kera/a and its officers from causing any
obstruction thereto - However, vide subsequent enactment of
D the 2006 Amendment Act by the Kera/a State Legislature, Full
Reservoir Level (FRL) of the dam fixed and limited to136 ft -
Suit filed by State of Tamil Nadu u/Art. 131 of the Constitution
against the State .of Kera/<J - Whether 2006 Amendment Act
unconstitutional and ultra Vires, in its application to and effect
E on the Mullai Periyar Dam and whether judgment dated 27-
2-2006 operated as res judicata, in respect of all or any of the
\(.. defences set up by the first defendant (State of Kera/a) - Held:
2006 Amendment Act was unconstitutional and ultra vires in
its application to and effect on the Mullaperiyar dam - Rights
F of Tamil Nadu, crystallized in judgment dated 27-2-2006
could not be nullified by a legislation made by the Kera/a
State legislature - Earlier judgment given on 27-2-2006
operated as res judicata on issue of the safety of Mullaperiyar
dam for raising water level to 142 ft. - Kera/a estopped from
G raising or re-agitating issues in' the present suit - Kera/a
cannot obstruct Tamil Nadu from increasing the water level
of Mullaperiyar dam to 142 ft. and from carrying out repair
works as per judgment dated 27-2-2006 - Kera/a Irrigation
and Wafer Conservation Act, 2003 - Kera/a Irrigation and
H Water Conservation (Amendment) Act, 2006 - Do.ctrinesl
STATE OF TAMIL NADU v. STATE OF KERALA 877

Principles - Principle of res judicata and constructive res A
judicata - Applicability of.

· Constitution of India, 1950 - Art.131 - Inter-State water
dispute - Mullaperiyar dam, a masonry dam, constructed
across Periyar river - Dam situated at Thekkady District in 8
Kera/a but owned and operated by the Government of Tamil
Nadu - In an earlier round of litigation, vide judgment dated
27-2-2006, Supreme Court permitted water level in the
Mullaperiyar dam to be raised up to 142 ft and also restrained
the State of Kera/a and its officers from causing any: C
obstruction thereto - However, vide subsequent enactment of
the 2006 Amendment Act by the Kera/a State Legislature, Full
Reservoir Level (FRL) of the dam fixed and limited to136 ft-
Suit filed by State of Tamil Nadu u/Art. 131 o( the Constitution
against the State of Kera/a - Whether first defendant (State
of Kera/a) estopped from contending that Periyar River is not D
an inter-State river - Held: It is true that averrnent of Tamil
Nadu in the plaint that the two States - Kera/a and Tamil
Nadu - are riparian States is not right in its entirety because
Tamil Nadu is not a riparian State but the status of Periyar
river as inter-State river cannot be overlooked - It is not open E
to Kera/a to take a totally inconsistent plea and begin fresh
controversy about the status of Periyar river on the ground that
the earlier plea was founded on some erroneous premise -
Kera/a cannot be permitted to contend that river Periyar is an
intra-State river and not an inter-State river - Kera/a Irrigation F
and Water Conservation Act, 2003 - Kera/a Irrigation and
Water Coriservation (Amendment) Act, 2006 - Doctrines I
Principles - Rule of estoppal.

Constitution of India, 1950 - Art.131 - Inter-State water G
dispute - Mullaperiyar dam, a masonry dam, constructed
across Periyar river - Dam situated at Thekkady District in
Kera/a but owned and operated by the Government of Tamil
Nadu - In an earlier round of litigation, vide judgment dated
27-2-2006, Supreme Court permitted water level in the H
878 SUPREME COURT REPORTS . (2014] 12 S.C.R.

A Mullaperiyar dam to be raised up to 142 ft and also restrained
the State of Kera/a and its officers from causing any
obstruction thereto - However, vide subsequent enactment of
the 2006 Amendment Act by the Kera/a State Legislature, Futi
Reservoir Level (FRL) of the dam fixed and limited to136 ft -
B Suit filed by State of Tamil Nadu u/Art. 131 of the Constitution
against the State of Kera/a - Whether offer of the first
defendant (State of Kera/a), 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 - ·
c Held: For construction of new dam, there has to be agreement
of both the parties - Offer made by Kera/a cannot be thrusted
upon Tamil Nadu - However, parties granted liberty to apply
to the Court if they are able to arrive at some amicable
solution - Kera/a Irrigation and Water Conservation Act, 2003
- Kera/a Irrigation and Water Conservation (Amendment) Act,
0
2006.

Constitution of India, 1950 - Art.131 - Inter-State water·
dispute - Mul/aperiyar dam, a masonry dam, constructed
across Periyar river - Dam situated at Thekkady District in
E Kera/a but owned and operated by the Government of Tamil
Nadu - In an earlier round of litigation, vide judgment dated
27-2-2006, Supreme Court permitted water level in the
Mullaperiyar dam to be raised up to 142 ft and also restrained
the State of Kera/a and its officers from causing any
F obstruction thereto - However,. vide subsequent enactment of
the 2006 Amendment Act by the Kera/a State Legislature, Full
Reservoir Level (FRL) of the dam fixed and limited fo136 ft-
Suit filed by State of Tamil Nadu u/Art. 131 of the Constitution
against the State of Kera/a - Whether plaintiff entitled to a
G permanent injunction restraining the first defendant (State of
Kera/a) from applying -and enforcing the 2006 Amendment
Act with reference to Mullai Periyar Dam - Held: On facts,
Tamil Nadu able to establish that invasion on its rights was
substantial - Tamil Nadu able to make out a case for grant .
H of injunction -2006 Amendment Act passed by Kera/a
STATE OF TAMIL NADU v. STATE OF KERALA 879

legislature unconstitutional in its application to and effect on A
the Mu//aperiyar dam· - 1st defe·ndant (State of Kera/a)
restrained by decree of permanent injunction from applying
and enforcing the impugned legislation 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 B
repair works as per the judgment dated 27-2-2006 - To allay
the apprehensions of Kera/a about safety of Mullaperiyar dam
on restoration of FRL to 142 ft., a 3-Member Supervisory
Committee constituted - Committee to have one
representative from the Central Water Commission and one c
representative each from the two States of Tamil Nadu and
Kera/a - Kera/a Irrigation and Water Conservation Act, 2003
- Kera/a Irrigation and Water Conservation (Amendment)Act,
. 2006 - Suit - Suit for injunction.

Decreeing the suit, the Court D

HELD:1.1. The nature of 1886 Lease Agreement being
not political is already concluded by this Court in 2006
judgment (Mullaperiyar Environmental Protection Forum).
This Court has held therein - and there is no justifiable E
reason to take a different view - that 1886 Lease
Agreement is an ordinary agreement being a lease
agreement and it is wholly non-political in nature. There
is, thus, no merit in the contention advanced on behalf
of Kerala that 1886 Lease Agreement lapsed under the F
main provision of Section 7(1)(b) of Indian Independence
Act, 1947 which concerns only with political treaties and
agreements. The expression "denounced by the Ruler of
the Indian State" in the proviso appended to Section 7
refers to unambiguous, unequivocal and express G
denouncement. Kerala has not produced any material or
document to show that there was express
denouncement of that nature by the Ruler of Travancore
insofar as 1886 Lease Agreement is concerned. It cannot
be said that the bulletin issued on 18.07.1947 clearly or H
880 SUPREME COURT REPORTS (2014) 12 S.C.R.

A finally denounced the 1886 Lease Agreement. Moreover,
to be a valid and effective denouncement of the
agreement between the Ruler, and His Majesty such
denouncement must be made after 1947 Act came into
effect. Admittedly, there is no denouncement of 1886
B Lease Agreement by the Travancore Ruler after
15.08.1947. [Paras 47 to 51] [941-E-H;.915-A-F]

1.2. Accession of Indian States to the Dominion of
India did not extinguish those States as entities. They
only became part of Dominion of India ·as constituent
C States along with the provinces of erstwhile British India.
It cannot be held that the entities of those States who
acceded to the Dominion of India were totally wiped out.
The fact that on 24.05.1949 the States of Travancore and
Cochin merged together. also establishes that Indian
.0 States which acceded to the Dominion continued as
entities. In light of the above, it cannot be said that
Madras ceased to be a lessee on 15.08.1947. It is pertinent
to observe here that Kerala entered into the supplemental
agreements with Tamil Nadu in 1970. In these
E supplemental agreements, the continuance of 1886 lease
is stated in clear and unambiguous words. Had 1886
Lease Agreement ceased to be operational on and from
15.08.1947, there was no occasion for Kerala to enter into
supplemental agreements with Tamil Nadu in 1970. [Paras
F 62, 63] [926-A-E]

1.3. Since 1886 Lease Agreement is an ordinary
agreement and is not political in nature, the embargo of
Article 363 and the proviso to Article 131 have no
G application. Article 131 of the Constitution deals with the
original jurisdiction of this Court. Subject to· the
provisions of the Constitution, .this Court has original
jurisdiction in any dispute, inter alia,. between the
Government of India and any State or States on one side
H and one or more other States on the other if and insofar
STATE OF TAMIL NADU v. STATE OF KERALA 881

as the dispute involves any question (whether of law or A
fact) on which the existence of legal right depends. There
is similarity of provision in Article 363 and proviso to
Article 131. The original jurisdiction conferred on this
Court by the main provision contained in Article 131 is
excepted by virtue of proviso in the matters of political B
settlements. By making provisions such as Article 363
and proviso to Article 131, the political settlements have
been taken out of purview of judicial pronouncements.
The jurisdiction of this Court is not taken away in respect
of the dispute arising out of an ordinary agreement. The c
instruments referred to and described in proviso are only
those which are political in nature. Non-political
instruments are not covered by the proviso. [Paras 65.2,
68 and 69) [930-B; 931-F; 932-A, B, D-G]
1.4. The suit filed by the State of Tamil Nadu is D
maintainable under Article 131 of the Constitution. 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 in Council
on 29.10.1886 is not barred by the proviso to Article 131 E
of the Constitution. The State of Kerala (first defendant)
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 F
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. [Para
74) [935-H; 936-A-D]
G
2.1. It is abundantly clear that on the one hand there
is a finding of fact determined by this Court on hearing
the parties on the basis of the evidence/materials placed
on record in the judgment of this Court in Mullaperiyar
Environmental Protection Forum, [2006 (2) SCR 740] and
H
882 SUPREME COURT REPORTS (2014] 12 S.C.R.

A · on the other in 2006 (Amendment) Act, the Kerala
legislature has declared the dam being an endangered
one and fixed the water level in the dam at 136 ft. It is
obvious that the judgment of this Court and the law
enacted by Kerala State legislature cannot stand together
B and they are irreconcilable and inconsistent. The
impugned law is a classic case of nullification of a
judgment simpliciter, as in the judgment of this Court the
question of safety of dam was determined on the basis
of materials placed before it and not on the interpretation
c of any existing law and there _was no occasion for the
legislature to amend the law by altering the basis on
which the judgment was founded. When the impugned
law is not a validation law, there is no question of the
legislature removing the defect, as the Court has not
0 found any vice in the existing law and declared such law
to be bad. [Para 151] [998-E-H; 999-A-B]

2.2. There is yet another tac'et that in federal disputes,
the legislature (Parliament and State legislatures) cannot
be judge in their own cause in the case of any dispute
E with another State. The rule of law which is basic feature
of our Constitution forbids the Union and the States from
deciding, by law, a dispute between two States or
between the Union and one or more States. Where a
Clispute between two States has already been adjudicated
F upon by this Court, which it is· empowered to deal with,
any unilateral law enacted by one of the parties that
·results in overturning the final judgment is bad not
because it is affected by the principles of res judicata but
because it infringes the doctrine of separation of powers
G · and rule of law, as by such law, the legislature has clearly
usurped the judicial power. [Paras 152, 154] [999-C, D;
1000-F-G]
I
2.3. The rule of res judicata is not merely a technical ·
H rule but it is based on high public policy. The rule
\

STATE OF TAMIL NADU v. STATE OF KERALA 883

A
embodies a principle of public policy, which in turn, is an
essential part of the rule of law. The rule of res judicata
which is founded on public policy prevents not only a
new decision in the subsequent !>Uit ·but also prevents
new investigation. For the appliCability of rule of res.
. judicata, the important thing .that must be seen is that the B
matter was directly and substantially in issue in the
previous proceeding and a decision has been given by
the Court on that issue. The principles of res judicata are
clearly attracted in the present case. A decision on issue
of fact in the previous proceeding - such proceeding C
may not be in the nature of suit - constitutes res judicata
in the subsequent suit. The claim of Kerala in the earlier
proceeding that water level cannot.be raised from its
present level of 136 ft. was expressly not accepted and
the obstruction by Kerala to the water level in the D
Mullaperiyar dam being raised to 142 ft. on the ground of
safety was found untenable. The judgment dated
27.2.2006 of this Court, thus, operates as res judicata in
respect of the issue of safety of the dam by increasing
its water level from 136 ft. to 142 ft. The 2006 judgment· E
having become final and binding, the issues decided in·
the said proceedings definitely operate as res judicata in
the suit filed under Article 131 of the Constitution. [Paras
156, 162, 163, 164 and 170] [1001-C; 1003-A, E; 1004-B;
1007-C, D] · F··

2.5. Moreover, this Court appointed EC to assure. itself
about the safety of the Mullaperiyar dam. The findings of
EC with elaborate analysis of reports of investigations,
tests and studies lead to one and only one conclusion
that there is no change in the circumstances G
necessitating departure from the· earlier. finding on the
safety of Mullaperiyar dam given by this Court in 2006
judgment. As a matter of fact, there is no change .in
circumstances at all much less any drastic change in
circumstances or emergent situation justifying the H
884 SUPREME COURT REPORTS [2014] 12 S.C.R.

A· reopening of safety aspect of Mullaperiyar dam which
has been determined by this Court in the earlier judgment.
[Para 198] [1023-8-D]
2.6. Kerala Irrigation and Water Conservation
8 (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 the judgment
dated 27.2.2006 passed by this Court in W.P. (C) No.386/
2001 cannot be nullified bf a legislation made by the
C 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
D dated 29.10.1886 and structural safety of Mullaperiyar
dam have been finally decided by the judgment of this
Court dated 27.2.2006 'anci Kera la is estopped from
raising or re-agitating these issues in the present suit.
Kerala cannot obstruct Tamil Nadu from increasing the
E water level of Mullaperiyar dam to 142 ft. and from
· carrying out repair works as per judgment dated
27:2.2006. [Para 199] (1023-F-H; 1024-A-D]

3.1. The topographical map of Periyar river-basin
F shows that part of Periyar basin (about 114 sq. km.) is in
Tamil Nadu. This is established from Water Atlas of Kerala
published by Centre for Water Resources Development
and Management, Kazhikode, Kerala. Though the Periyar
basin area that falls in Tamil Nadu is very small but that
G does not make any difference insofar as the status of
Periyar river as inter-State river is concerned. The fact of
the matter is that 114 sq. km. of Periyar basin area falls
in Tamil Nadu. This is also fortified by the advance report
of Public Works Department, Government of Kerala. [Para
H 206] (1026-8-D]
STATE .OF TAMIL NADU v. STATE OF KERALA 885

3.2. · Kerala's witness M.K. Parameswaran Nair has A
admitted that in Chapter LXIJI under the. heading
"Interstate waters" from "Water Resources of Kerala"
published by Public Works Department, Government of
Kerala in 1958, Periyar has been mentioned as an inter-
state river. This witness also admits that Water Atlas of B
Kerala wherein details of Periyar basin are given shows
that part of the basin falls in the neighbouring State of
Tamil Nadu. [Para 207] (1026-E-F]

3.3. Since Kerala has raised the .plea that river Periyar
is an intra-State river; obviously, burden is on Kerala to C
prove this fact. Kerala, except asserting that Periyar river
rises in and traverses only in the territory of Kerala
before entering into Arabian sea and no part of the land
in Tamil Nadu abuts river Periyar, has not produced
substantial evidence to prove that river Periyar is an intra- D
State river. Kerala has not discharged its burden to the
satisfaction of the Court. [Para 208] (1026-G, H]
3.4. It is true that averment of Tamil Nadu in the plaint
that the two States - Kerala and Tamil Nadu - are riparian E
States is not right in its entirety because Tamil Nadu is
not a riparian State but the status of Periyar river as inter-
state river cannot be overlooked. It is not open to Kerala
to take a totally inconsistent plea and begin fresh
controversy about the status of Periyar river on the F
ground that the earlier plea was founded on some
erroneous premise. Kerala cannot be permitted to ·
contend that Periyar river is not an inter-State river. It is
held that Kerala cannot be permitted to contend that river
Periyar is an intra-State river. [Para 209, 210] (1027-A-C]
G
4. Any amicable resolution of the present dispute
between the two States would have been really good for
the people of these States but this has not been possible
as the two· States have sharp conflict over the subject
H.
886 SUPREME COURT REPORTS [2014) 12 S.C.R.

A matter and their stance is rigid, 1inflexible and hard. The
offer made by Kerala for construction of new dam has
been outrightly rejected by Tamil Nadu. For the
construction of new dam, there has to be agreement of
both the parties. The offer made by Kerala cannot be
B thrusted upon Tamil Nadu. However, the parties are
granted liberty to apply to the Court if they are able to
arrive at some amicable solution on either of the two
alternatives s.uggested by the EC. [Paras 212, 213 and
215] [1029-B,, C, E; 1032-C]
c 5.1. lnsofaras drawal of water in pre-1979 period and
post-1979 period is concerned, the sole witness of Tamil
Nadu has admitted that in the post-1979 period the water
drawn was 21,434 Mcft. and the average water drawn pre-
1979 period was 19,277 Mcft. Similarly, he has admitted
D increase of irrigation from 1,71,307 acres before 1979 to
2,31,412 acres in 1992-93, but, as observed by EC, this
has been due to construction of Vaigai dam in 1954 and
related canal distribution system post-1974. The five
districts Theni, Dindigul, Madurai, Sivagangai and
E Ramanathanpuram that are served by Periyar project are
drought prone. About 2 lakh acres of land fall in these five
districts which needs to be irrigated. The inadequate
timely water supply of water for irrigation and drinking
purposes to the population of these districts may affect
F their lives as well as livelihood. The increase of irrigation
and more drawal of water post 1979 still appears to be
. deficient for the population of more than 80 lakh people
in these districts. In these facts, therefore, it can safely
be said that Tamil Nadu has been able to establish that·
G invasion on its rights is substantial. Tamil Nadu has been
able to make out a case for grant of injunction. [Paras 219,
220] [1034-A-E] .

·5.2. It is declared that the Kerala Irrigation and'Water
H Conservation (Amendment) Act, 2006 passed by the
STATE OF TAMIL NADU v. STATE OF KERALA 887

Kerala legislature is unconstitutional in its application to A
and effect on the Mullaperiyar dam. The 1st defendant -
State of Kerala - is restrained by a decree of permanent
injunction from applying and enforcing the impugned
legislation or in any manner interfering with ·or
obstructing the State of Tamil Nadu from increasing the B
water level to 142 ft.. and from carrying out the repair
·works as per the judgment of this Court dated 27.2.2006
in W.P.(C) No. 386/2001 with connected matters. [Para
221] [1034-G, H; 1035-A]

5.3. However, to allay the apprehensions of Kerala- C
though none exists - about the safety of the Mullaperiyar
dam on restoration of the FRL to 142 ft., a 3-Member
Supervisory Committee is constituted. The Committee
shall have one representative from the Central Water
Commission and one representative each from the two D
States - Tamil Nadu and Kerala. The representative of the
Central Water Commission shall be the Chairman of the
Committee. [Para 222] [1035-8-D]

Dr. Babu Ram Saksena v. State AIR 1950 SC 155: 1950 E
SCR 573; State of Himachal Pradesh v. Union of India & Ors.
(2011) 13 SCC 344: 2011 (11) SCR 527; Thakur Jagannath
Baksh Singh v: The United Provinces [73 IA 123] and
Maharaj Umeg Singh and Ors. v. State of Bombay and Ors.
(1955) 2 SCR 164 - distinguished. F

Rupa Ashok Hurra v. Ashok Hurra and Anr. (2002) 4
SCC 388: 2002 (2) SCR 1006 - held inapplicable.

Mul/aperiyar Environmental Protection Forum v. Union
of India & Ors. (2006) 3 SCC 643: 2006 (2) SCR 740; State G
of Andhra Pradesh v. State of Maharashtra and Ors.(2013) 5
SCC 68; Virendra Singh and Ors. v. State of Uttar Pradesh
(1955) 1 SCR 415; Shri Prithvi Cotton Mills Ltd. ·and Anr. v.
Broach Borough Municipality and Ors. (1969) 2 SCC 283:
1970 (1) SCR 388; Indra Sawhney v. Union of India and H
888 SUPREME COURT REPORTS [2014] 12 S.C.R.

A Others (2000) 1 SCC 168:1999 (5) Suppl. SCR 229; Madan
Mohan Pathak & Anr. v. Union of India and Others (1978) 2
SCC 50: 1978 (3) SCR 334; People's Union for Civil
Liberties (PUCL) and Anr. v. Union of India and Anr.; (2003)
4 SCC 399: 2003 (2) SCR 1136; Municipal Corporation of
B the City of Ahmedabad & Anr. v. New Shrock Spg. And Wvg.
Co. Ltd. (1970) 2 SCC 280: 1971 (1) SCR 288; Janapada
Sabha Chhindwara v. Central Provinces Syndicate Ltd. and
Anr. (1970) 1 SCC 509: 1970 (3) SCR 745; Cauvery Water
Disputes Tribunal, Re; 1993 Supp (1) SCC 96: 1991 (2)
c Suppl. SCR 497; Union of India v. Elphinstone Spinning and
Weaving Co. Ltd. and Ors. (2001) 4 SCC 139: 2001 (1) SCR
221; Sanjeev Coke Manufacturing Co. v. Mis. Bharat Coking
Coal Ltd. and Anr. (1983) 1 SCC 147: 1983 (1) SCR 1000;
Mis. Doypack Systems Pvt. Ltd. v. Union of India and Ors.
D (1988) 2 SCC 299: 1988 (2) SCR 962; Mahal Chand Sethia
v. State of West Bengal 1969 (2) UJ 616 SC; Patel
Gordhandas Haigovindas v. Municipal Commissioner,
Ahmedabad (1964) 2 SCR' 608; State of M.P. v.
Amalgamated Coalfields Ltd. and Anr (1970) 1 SCC 509:
E 1970 (3) SCR 745; P. Sambamurthy ancf Ors. v. State of AP.
and Anr. (1987) 1 SCC 362: ·1987 (1) SCR 879; Union of
India v. Association for Democratic Reforms and Anr. (2002)
5 SCC 294: 2002 (3) SCR 696; His Holiness Kesavananda
Bharati Sripadagalvaru v. State of Kera/a and Anr. (1973) 4
F SCC 225: 1973 Suppl. SCR 1; Smt. Indira Nehru Gandhi
v. Shri Raj Narain and Anr. 1975 (Supp.) SCC 1: 1976 SCR
347; State of Bihar and Anr. v. Bal Mukund Sah and Others
(2000) 4 SCC 640: 2000 (2) SCR 299; /.R. Coelho (Dead)
by LRs. v. State of T.N. (2007) 2 sec 1: 2007 (1) SCR 706;
l.N. Saksena v. State of Madhya Pradesh (1976) 4 SCC 750:
G 1976 (3) SCR 237; Hari Singh and Ors. v. Military Estate
Officer and Anr. (1972) 2 SCC 239: 1973 (1) SCR 515;
Hindustan Gum and Chemicals Ltd. v. State of Haryana and
Others (1985) 4 SCC 124: 1985 (2) Suppl. SCR 630; Vijay
Mills Company Limited and Others v. State of Gujarat and
H
STATE OF TAMIL NADU v. STATE OF KERALA 889

Ors. (1993) 1 SCC 345: 1992 (3) Suppl. SCR 324; P. A
Kannadasan and Others v. State of T.N. and Others (1996) 5
SCC 670: 1996 (4) Suppl. SCR 92; Indian Aluminium
Company and Others v. ·state of Kera/a and Others; (1996) 7
SCC 637: 1996 (2) SCR 23; State of TN. v. Arooran Sugars
Ltd. (1997) 1 SCC 326: 1996 (8) Suppl. SCR 193; Dharam B
Dutt and Ors. v. Union of India and Ors. (2004) 1 SCC 712:
2003 (6) Suppl. SCR 151; Sri Sri Sri K. C. Gajapati Narayan
Deo v. State of Orissa AIR 1953 SC 375: 1954 SCR 1; Board
of Trustees, Ayurvedic and Unani Tibia College, Delhi v.
State of Delhi (now Delhi Administration) and Anr. AIR 1962 c
SC 458: 1962 Suppl. SCR 156; Virender Singh Hooda (If)
and Ors. v. State of Haryana and Another (2004) 12 SCC 588:
2004 (5) Suppl. SCR 720; Virender Singh Hooda (/) and Ors.
v. State of Haryana and Another (1999) 3 SCC 696; Sandeep
Singh v. State of Haryana and Anr. (2002) 10 SCC 549; Tirath D
Ram Rajinder Nath, Lucknow v. State of U.P. and Anr. (1973)
3 SCC 585; S.S. Bola and Ors. v. B.D. Sardana and Ors.
(1997) 8 SCC 522: 1997 (2) Suppl. SCR 507; Sheoparsan
·singh v. Ramnandan Prashad Narayan Singh AIR 1916 PC
78; Daryao and Ors. v. State of UP. and Ors. AIR 1961 SC
1457: 1962 SCR 574; Pandit M.S.M. Sharma v. Dr. Shree E
Krishna Sinha and Ors. AIR 1960 SC 1186; Guiab Chand
Chhotalaf Parikh v. State of Bombay (1965) 2 SCR 547;
Union of India v. Nanak Singh (1968) 2 SCR 887: AIR 1968
SC 1370; State of Punjab v. Bua Das Kaushal (1970) 3 SCC
656; N.D. Jaya/ and Anr. v. Union of India and Ors. (2004) 9 F
SCC 362: 2003 (3) Suppl. SCR 152; State of Orissa Vs. State
of A.P. (2006) 9 SCC 591; R.S. Nayak v. A.R. Antulay (1984)
2 SCC 183: 1984 (2) SCR 495 and Isabella Johnson (Smt.)
·v. M.A. Susai (Dead) by Lrs. (1.991) 1 SCC 494: 1990 (2)
Suppl. SCR 213 - referred to. G
Don John Francis Douglas Liyanage & Ors. v. The Queen
(1966) 1 All E.R. 650; Arthur M. Manigault v. Alfred A.
Springs et al (1905) 199 US 473; Brotherhood of Locomotive
Firemen & Enginemen et al. v. Chicago, Rock Island & Pacific H
890 SUPREME COURT REPORTS [2014) 12 S.C.R. ·

A Rail-Road Co. et al (1968) 393 US 129; Raymond Moto;
Transportation, Inc. et al. v. Zel 's. Rice et al (1978) 434 US
429; American Trucking Associations, Inc. v. Thomas D.
Larson (1982) 683 F,2d 787; Pfizer Animal Health SA v.
Council of the European Union (2002) ECR 11-03305; The
B State of Pennsylvania v. The Wheeling anr;J Belmont Bridge
Company, et al (1855) 59 U.S. 421; The Clinton Bridge case;
(1870) 77 US 454; Hodges et al. v. Snyder et al. (1923) 261
US 600; Charles B. Miller, Superintendent, Pendleton
Correctional Facility et al. v. Richard A. French et al. (2000)
c 530 U.S. 327; Nicholas v. the Queen (1998) 193 CLR 173;
Plaut et al. v. Spendthrift Farm, Inc., et al. (1995) 514 U.S.
211; Regina v. Deputy Industrial Injuries Commissioner, Ex
parte Jones (1962) 2 QB 677 and Duchess of Kingston 2
Smith Lead Cas 13 Ed. - referred to.
D Case Law Reference:
2006 (2) SCR 740 referred to Para 1
(2013) 5 sec 68 referred to Para 38

E 1950 SCR 573 distinguished Para 57
2011 (11) SCR 527 distinguished Para 57
(1955) 1 SCR 415 referred to Para 65
1970 (1) SCR 388 referred to Para 77
F
(1966) 1 AllE.R. 650 referred to Para 77
1999 (5) Suppl. SCR 229 referred to Para 82
1978 (3) SCR 334 referred to Para 83
G
2003 (2) SCR 1136 referred to Para 83
1971 (1) SCR 288 referred to Para 83
1970 (3) SCR 745 referred to Para 83 ·
H
STATE OF TAMIL NADU v. STATE OF KERALA 891

1991 (2) Suppl. SCR 497 referred to Para 84 A

73 IA 123 distinguished Para 86
(1955) 2 SCR 164 distinguished Para 86
(1905) 199 us 473 referred to Para 86 B
(1968) 393 us 129 referred to Para 87
(1978) 434 us 429 referred to Para 87
(1982) 683 F.2d 787 referred to Para 87
c
(2002) ECR 11-03305 referred to Para 87 ·
(1855) 59 U.S. 421 referred to Para 91
(1870) 77 us 454 referred to Para 91
D
(1923) 261 us 600 referred to Para 91
(2000) 530 U.S. 327 referred to Para 91
2001 (1) SCR 221 referred to Para 92
1983 (1) SCR 1000 referred to Para 92 E
1988 (2) SCR 962 referred to Para 92
1969 (2) UJ 616 SC referred to · Para 94
(1964) 2 SCR 608 referred to Para 95 F
1970 (3) SCR 745 referred to Para 97
1987 (1) SCR 879 referred to Para 99
2002 (3) SCR 696 referred to Para 101
G
1973 Suppl. SCR 1 referred to Para 102
1976 SCR 347 referred to Para 102
2000 (2) SCR 299 referred to Para 102
H
892 SUPREME COURT REPORTS [2014] 12 S.C.R.

A 2007 (1) SCR 706 referred to Para 102
1976 (3) SCR 237 referred to Para 103
1973 (1) SCR 515 referred to Para 103

B 1985 (2) Suppl. SCR 630 referred to Para 104
1992 (3) Suppl. SCR 324 referred to Para 104
1996 (4) Suppi. SCR 92 referred to Para 104
1996 (2) SCR 23 referred to Para 105
c
1996 (8) Suppl. SCR 193 referred to Para 106
2003 (6) Suppl. SCR 151 referred to Para 107
1954 SCR 1 referred to Para 107
D 1962 Suppl. SCR 156 referred to Para 107
2004 (5) Suppl. SCR 720 referred to Para 109
(1999) 3 sec 696 referred to Para 109
E (2002) 1o sec 549 referred to Para 109
(1973) 3 sec 585 referred to Para 109.3
1997 (2) Suppl. SCR 507 referred to Para 109.4
(1998) 193 CLR 173 referred to Para 112
F
(1995) 514 U.S. 211 · referred to Para 120
AIR 1916 PC 78 referred to Para 158
1962 SCR 574 referred to Para 159
G
1960 SC 1186 referred to Para 159
(1965) 2 SCR 547 referred to Para 160
1968 SCR 887 . referred to Para 161
H
STATE OF TAMIL NADU v. STATE OF KERALA 893

(1970) 3 sec 656 referred to Para 162 A

2003 (3) Suppl. SCR 152 referred to Para 165

(2006) 9 sec 591 referred to Para 176

1984 (2) SCR 495 referred to Para 178 B
1990 (2) Suppl. SCR 213 referred to Para 178

2002 (2) SCR 1006 held Para 178
inapplicable
c
(1962) 2 QB 677 referred to Para 196

. CIVIL ORIGINAL JURISDICTION : Under Article 131 of the
Constitution of India.

Original Suit No. 3 of 2006. D

Subramonium Prasad, AG., Mohan Jain, ASG., Vinod
Arvind Bobde, Dr. Rajiv Dhawan, G. Umapathy, B. Balaji, R.
Nekhala, Kammna Sagar, Sanjay Parikh (for Anitha Shenoy),
Mohan V. Katarki, Ramesh Babu M.R., Mukti Chowdhary, Swati E
Selia, Deepak Malhotra, S.S. Rawat, Vishnu Shankar (for D.S.
Mahra) for the Appearing parties.

The Judgment & Order of the Court was delivered by

R.M. LODHA, CJI. 1. This Court remains seized of the F
problem with regard to the water level of Mullaperiyar dam after
it had solved on 27.02.2006 (Mullaperiyar Environmental
Protection Forum 1) because the Kerala State Legislature
enacted the law immediately thereafter fixing and limiting Full G
Reservoir Level (FRL) to 136 ft.

1. Mullaperiyar Environmental Protection Forum v. Union of India & Ors.;
1<2006) 3 sec 643] H ·
894 SUPREME COURT REPORTS [2014] 12 S.C.R.

.
A Mullaperiyar dam : 1886 Lease Agreement

2. Mullaperiyar dam - a masonry dam - was constructed
pursuant to the Periyar Lake Lease Agreement dated
29.10.1886 (" 1886 Lease Agreemenf') across Periyar river.
B The construction continued for about eight years and was
completed in 1895. The dam is situated at Thekkady District
in Kerala and is owned and operated by the Government of
Tamil Nadu. By the 1886 Lease Agreement between the
Maharaja of Travancore and the Secretary of State for India in
C Council, the leased area as set out therein was granted on
lease for 999 years from 01.01.1886. 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
D m.). The original spillway capacity of the dam was 10 vents of
36' x 16' (10.97 m. x 4.88 m.). The length of the Baby dam is
240 ft. (73.15 m.).

1979-1980 : Controversy about safety of the Dam
E
3. In 1979 with regard to th~ safety of the Mullaperiyar dam,
the Government of Kerala wrote to the Tamil Nadu Government
to take immediate steps to strengthen the dam.
Simultaneously, the Kerala Government also requested the
F Central Government to depute a team from Central Water
Commission (CWC) to inspect the dam and suggest
strengthening measures.

4. In pursuance of the request from the Kerala Government,
the then Chairman, CWC inspected the dam and held a
G meeting on 25.11.1979 in which the officers from Tamil Nadu
and Kerala participated. In that meeting, three level measures,
(i) emergency,
. (ii) medium
, and (iii) 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. (41.45 m.)
H
STATE OF TAMIL NADU v. STATE OF KERALA 895
[R.M. LODHA, CJI.] .

5. In the second meeting held on 29.04.1980, it was A
opfned 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.).

1998 : Litigation begins B
6. Tamil Nadu says that all measures - emergency,
medium and long term as suggested by the ewe have been
undertaken by it but despite that no consensus could be
reached between the two State Governments (of Tamil Nadu
and Kerala) to raise the water level in the Mullaperiyar reservoir C
beyond 136 ft. This led to the filing of 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 bf water
level in the Mullaperiyar reservoir and the safety of the dam. As
the controversy was pending before the two High Courts and D
there was likelihood of conflicting judgments, some transfer
petitions were filed before this Court.

7. On 28.04.2000, in the transfer petitions, this Court
desired Union Minister of Water Resources to convene a
E
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
F
raising of water level in the reservoir.

8. On 14.06.2000, the Expert Committee was constituted
having the following terms of reference.
G
"(a) To study the safety of Mullaperiyar dam located on
Periyar river in Kerala with respect to the strengthening of
dam carried out by the Government of Tamil Nadu in
accordance with the strengthening measures suggested
by CWC and to report/advise the Hon'ble Minister of Water H
896 SUPREME COURT REPORTS [2014] 12 S.C.R.

A· Resources on the safety of the dam.

(b) To advise the Hon'ble Minister of Water Resources
regarding raising of water level in Mullaperiyar reservoir
beyond 136 ft. (41.45 m) as a result of strengthening of
the dam and its safety as at (a) above."
B
9. After initial resistance, the Government of Kerala
nominated one Member to the Expert Committee.

10. The Expert Committee gave its final report on
c 16.03.2001. While the matter was under consideration by the
Expert Committee, it also gave certain interim directions. 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
o spillway, baby dam and earthen bund. ·

First litigation before this Court

11. Despite the above recommendation from the Expert
Committee, the Government of Kerala continued to resist
E raising of water level in the reservoir beyond 136 ft. It was !lien
that a writ petition was filed by Mullaperiyar Environmental
Protection Forum directly before this Court wherein diverse
prayers were made. This Court also transferred the writ
petitions which were pending before the Kerala High Court and
F Madras High Court to this Court.

12. After hearing the parties, including the two states, this
Court gave its decision on 27.02.2006 permitting 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
G obstruction to the above. 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.

H
STATE OF TAMIL NADU v. STATE OF KERALA 897
[R.M. LODHA, CJI.]

2003 Act A

13. Kerala Irrigation and Water Conservation Act, 2003 (for
short, "2003 Act") was enacted by Kerala legislature, which
came into force on 18.09.2003. 2003 Act was enacted to
consolidate and amend the laws relating to construction of
B
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. 2003 Act was neither referred to nor relied C
upon by Kerala at the time of hearing in Mul/aperiyar
Environmental Protection Forum 1 • ·

2006 (Amendment) Act
D
14. On 18.03.2006, in less than three weeks of the decision
of this Court in Mullaperiyar Environmental Protection
Forum 1 , the Kerala State legislature amended 2003 Act by the
Kerala Irrigation and Water Conservation (Amendment) Act,
2006 [for short, "2006 (Amendment) Act")]2.
E
2. The salient features of the 2006 (Amendment) Act are as follows:
i. In Section 2, clause Ga) defines 'custodian' to mean a State Government
which has established or is running or otherwise operating any dam in
Kerala. Further, clause (ala) defines 'Scheduled Dam' to mean any dam
included in th.e second schedule. The very first entry in the Second
Schedule is the Mullai Periyar Dam. F
ii. In Section 57 (1) the words "Surveillance, inspection" is replaced by
"ensuring the safety· and security"
iii. Introduction of 57(3) in main Chapter XII - 'Constitution of Dam Safety
Authority' to give effect to Chapter XII inspite ol any other laws.
iv. Replacement of existing section 62(1)(a) to (i) by new section 62 (1)(a) G
to G). The newly substituted Section 62(1), in so far as is material, reads
as u·nder:
62(1) Notwithstanding anything contained in any other law, judgment,
decree or order of any Court or in any treaty, agreement, contract, instrument
or other document, the authority shall exercise the following powers viz:-
(a)(b)(c) xxx xxx xxx H
898 SUPREME COURT REPORTS (2014] 12 S.C.R.

A 15. 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.

Second litigation before this Court : Suit by Tamil Nadu
8
16. The State of Tamil Nadu immediately thereafter
instituted the present suit under Article 131 of the Constitution
of India against the State of Kera la. It is necessary to elaborate
somewhat on facts as proceedings are in the nature of suit in
C original jurisdiction of this Court. The plaint avers that on coming
into force of the States Reorganisation Act, 1956, (for short,
"SR Act"), the State of Travancore .,.. Cochin (Part - B, State)
was formed. The State of Kera la (first defendant) is the
successor in interest of the State of Travancore - Cochin. The
D State of Tamil Nadu is the successor in interest of the Governor
in Council, Secretary of State for India. Tamil Nadu has, thus,
pleaded that plaintiff and the first defendant are successors in
interest of the original contracting parties of the 1886 Lease
Agreement.
E (d) to direct the custodians to carry out any alteration, improvement,
replacement or strengthening measures to any dam found to pose a treat
to human life or property;
(e) to direct the custodian to suspend the functioning of any dam, to
decommission any dam or restrict the functioning of any dam if public
safety or threat to human life or property, so requires;
F (f) to advise the Government, custodian, or other agencies about policies
and procedures to be followed in site investigation, design, construction,
operation and maintenance of dams;
(g) to conduct studies, ·inspect and advise the custodian or any other
agency on the advisability of raising or lowering of the Maximum Water
Level or Full Reservoir Level of any dam not being a scheduled dam, taking
G into account the safety of the dam concerned;
(h) to conduct studies, inspect and advise the custodian or any agency on
the sustainability or suitability of any dam not being a scheduled dam, to
hold water in its reservoir, to get expert opinion of international. repute, and
provide advice by dam-break analysis and independent study and to direct
strengthening measures or require the commissioning of a new dam within
H a timeframe to be prescribed to replace the existing dam;"
STATE OF TAMIL NADU v. STATE OF KERALA 899
[R.M. LODHA, CJI.]
17. It is averred by Tamil Nadu that on 29.05.1970, two A
supplemental agreements were executed between it and
Kerala. The two supplemental agreements did not change the
basic character of the 1886 Lease Agreement. By first
supplementa·1 agreement, Tamil Nadu surrendered the fishing
rights in the leased lands and also agreed to the upward B
revision of the rent of the leased land. The second supplemental
agreement conferred on Tamil Nadu, the right to generate
power and right to construct all facilities required for power
generation. An additional extent of 42.7 acres was leased to
Tamil Nadu for the said purp'oses and correspondingly Tamil c
Nadu was required to pay to Kerala a sum annually as
specified in the agreement. Tamil Nadu claims that the two
supplemental agreements have re-affirmed, re-asserted and
ratified 1886 Lease Agreement, which was statutorily Qrotected
and continued by Section 108 of the SR Act.
D
Grounds of challenge to 2006 (Amendment) Act

18. The challenge to 2006 (Amendment) Act to the extent
it affects Mullaperiyar dam is laid in the plaint on diverse
grounds, some of which are the following: E

(a) The impugned legislation amounts to usurpation of
judicial power inasmuch as Kerala State Legislature has
arrogated to itself the role of a judicial body and has itself
determined the questions regarding the dam safety and raising
the water level when such questions fall exclusively within the F
province of the judiciar}i and have already been determined by
this Court in its judgment dated 27.02.2006.

(b) 2006 Amendment Act is beyond the legislative
competence of the State of Kerala insofar as it affects the G
Mullaperiyar dam in view of Section 108 of the SR Act which
is a law made by Parliament under Articles 3 and 4 of the
Constitution, which confer plenary power to traverse all
legislative entries in all the three lists including Entry 17 List II.
H
900 SUPREME COURT REPORTS [2014] 12 S.C.R.

A (c) The impugned legislation, in its application to the
Mullaperiyar dam, violates the, rule of law and the federal
structure and the separation of power under the Constitution.
The Kerala State Legislature has taken the law in its own hands
· after the declaration of law by this Court. Kerala having
8 participated in the adjudicatory process before this Court
cannot become a Judge in its own cause and seek to reverse
the decision of this Court because it has gone against it.

(d) The impugned legislation not only fixes and limits the
C FRL to 136 ft. in direct contravention of the judgment of this
Court but also proceeds to authorise the Dam Safety Authority
of Kerala - to disobey and disregard the decision of this Court
by the following, among other provisions:

Section 62(1 )(e) empowers the authority to direct
D the suspension or restriction of the functioning of
any dam or decom~issioning.

Section 62A(1) read with Second Schedule is.a
legislative judgment that the Mullaperiyar dam is
E endangered on account of its age, degradation,
structural or other impediments and limits the water
level to 136 ft. ·

Sub-section (2) prohibits increase of water level
fixed in the Second Schedule notwithstanding any
F judgment, decree or order of any court or any other
laVI{ or any treaty, contract, agreement, instrument
or document except and in accordance with the
provisions of the Act.

G Sub-section (3) also contains a non-obstante
clause and requires prior consent in writing of the
authority for increasing storage capacity and for
doing any act or work for such purpose.
'
Sub-section (4) directs any act or work for
H
\~ .
STATE OF TAMIL NADU v. STATE OF KERALA 901
[R.M. LODHA, CJI.)
preparation by any executant to stop the work A
immediately and to apply for consent of the authority.

Section 68A protects the authority and any officer
or employee from any suit, prosecution or other
legal proceedings in respect of anything done under
8
the Act and also ousts the jurisdiction of civil courts.

2006 (Amendment) Act is not a validation act but
a mere device to defy, obstruct and nullify the
judgment of this Court and constitutionally interfere
with, restrict or extinguish the legal rights of Tamil C
Nadu as upheld by this Court. A Legislature cannot
by mere declaration and enactment overrule and
nullify a judicial decision. The direct object and
effect of the impugned legislation is to overturn the
judgment of this Court and to arrogate to Kerala the D
power to prevent Tamil Nadu from exercising. its
legal rights which have already been upheld by this
Court.

19. On the above grounds, Tamil Nadu has sought two-fold E
relief, (i) to declare the 2006 (Amendment) Act passed by the
Kerala legislature as unconstitutional in its application to and
effect on the Mullaperiyar dam and (ii) to pass a decree of
permanent injunction restraining the first defendant from
applying and enforcing the impugned legislation interfering with
or obstructing the plaintiff from increasing the water level to 142 F
ft. and from carrying out the repair works as per the judgment
of this Court dated 27.02.2006 in W. P. (Civil) No. 386 of 2001
with connected matters. The Union of India has been impleaded
as defendant no. 2 in the suit.
G
Defence by Kerala

20. Kerala has traversed the claim of Tamil Nadu on merits
and has also raised objections about .the maintainability of the
suit. Kerala's defence is that the 1886 Lease Agreement for H
902 SUPREME COURT REPORTS [2014] 12 S.C.R.

A 999 years lapsed under the provisions of Section 7(1)(b) of the
Indian Independence Act, 1947 ("Act of 1947"). From 1947 to
26.01.1950, the lease was continued as a temporary lease on
annual basis. After 26.01.1950, even the temporary continuation
of the lease came to an end. The possession of the land held
B and continued by the then Government of Madras and now Tamil
Nadu, after 26.01.1950 has no juridical basis.

21. Kerala states that 1886 Lease Agreement, on the
basis of which Tamil Nadu has laid its claim, is an
unconscionable contract because of its duration (999 years) as
C well as the fact that the lease conveys for a small rent a vital
resource of Kerala. The lease was obtained by the Secretary
of State for India in England obviously by holding threat of
·paramountcy over Maharaja of Travaricore, who was his vassal.

D 2,2. As regards the two supplemental agreements of 1970,
Kera.la states that these agreements have not been executed
in terms of mandatory provisions of Article 299 of the
Constitution and, therefore, they do not constitute contracts in
the eye of law. In any event, these agreements do not bind the
E . State legislature at all.

23. About 2Q06 (Amendment) Act, it is stated that Kerala
legislature enacted the Act regulating the storage levels of 22
dams listed in the Second Schedule read with Section 62A (1),'
as these dams fall entirely within the territory of Kerala and these
F dams are considered to be endangered on account of their
age, degeneration, degradation, structural or other
impediments. Kerala states that such law is perfectly valid.
Under Section 62A(3) of the 2006 (Amendment) Act, the FRL
can be increased beyond 136 ft. after obtaining prior consent
G of the Dam Safety Authority headed by a retired Judge of the
High Court. If Tamil Nadu approaches under Section 62A(;3),
Kerala reserves its right to oppose s.uch plea by demonstrating
how such increase would lead to sp'read of backwater beyond
the contour line of 155 ft. and how the flora and fauna including
H ecology would be destroyed. The impact of increased storages
STATE OF TAMIL NADU v. STATE OF KERALA 903
[R.M. LODHA, CJI.]
on the safety of the dam will also be demonstrated before the A
Dam Safety Authority. This was not the matter that was required
to be considered by this Court in the previo.us case, since in
that case, the focal issue was the implications of the increase
in height upon the safety and integrity of the dam. 2006
(Amendment) Act creates a working mechanism to deal with B
a problem like displacement of those whose lands are likely to
be affected by the backwater effect.

24. The competency of Kerala legislature to enact the 2006
(Amendment) Act is sought to be justified by relying upon C
Entries 17 and 18 of List II (State List) and Entries 17, 17-A
and 17-8 of the Concurrent List of the Seventh Schedule to the
Constitution. Kerala also states that it is competent for the
Kerala legislature to modify the terms of the lease in public
interest (if the lease has survived as contended by the Tamil
Nadu), as the lease inherited under Article 295 of the D
Constitution does not bind the legislature of the state and that
it is always open to the legislature to modify such conditions
bylaw.

25. As regards structure of the Mullaperiyar dam, Kera la's E
stand is that it is not constructed entirely with rubble masonry
in lime mortar. The front and rear faces are· constructed of
uncoursed rubble masonry in lime mortar. The hearting (center
core) is of lime surkhi concrete, therefore, dam cannot be
considered as homogeneous masonry dam under any F
circumstances. In view of Kerala, a dam could never have been
intended to remain for long years without decommissioning at
some point of time. For this background, people in Kerala living
in the downstream region of the Mullaperiyar dam have raised
serious apprehensions against the safety of the structure.
G
26. Kerala has denied that river Periyar is an inter-state
river. It has asserted that river Periyar is an intra-state river as
it rises in Quilon District in Kerala and traverses only through
the territory of Kerala before falling into the Arabian sea. The
total catchment of Periyar basin is 5398 sq. km. of which only H
904 SUPREME COURT RE~ORTS [2014] 12 S.C.R.

A about 113 or 114 sq. km. lie within the territory of Tamil Nadu.
Even this small catchment of 113 sq. km. lying in Tamil Nadu,
is in the downstream region of the Mullaperiyar dam. Therefore,
no water from this catchment is contributed to the kitty of
Mullaperiyar dam.
B
27. As regards the earlier judgment of this·Court, Kerala's
stand is that the judgment concluded the issue relating to safety
of the people and degradation of the environment, apart from
issue arising from Article 363 of the Constitution. The doctrine
C of res judicata or constructive res judicata has no relevance
to the question of powers on the Kerala legislature to regulate
the storage level of the Mullaperiyar dam in larger public interest
by legislation. Kerala states that the impugned legislation
removes the legal basis of the judgment, i.e., the right of Tamil
Nadu to- store water up· to 142 ft. in Mullaperiyar reservoir. The
D legislature is compete111t to remove the basis of any judgment
and, therefore, it is not permissible for Tamil Nadu to claim any
right to store water at Mullaperiyar dam beyond 136 ft. Kerala
has assailed the findings and conclusions in the earlier
judgment dated 27.02.2006 on all possible grounds.
E
28. Kerala has raised the objection about maintainability
of the present suit under Article 131 of the Constitution of India.
According to Kerala, because the basis of claim made by Tamil
Nadu lies in the 1886 Lease Agreement which is a contractual
F right leading to civil dispute, if any, but it is not in dispute in the
constitutional context as required under Article 131 ofthe
Constitution of India. Kerala's further case is that 1886 Lease
Agreement was executed between the Maharaja of Travancore
and Secretary of State for India in England and_as such the
G agreement is iri the nature of treaty and act of state, the
enforcement of which is barred by proviso to Article 131 of the
Constitution. Tamil Nadu, therefore, cannot seek enforcement
of 1886 lease deed before this Court.

29. Kera la has also· challenged the report of the Expert
H Committee for assessing the structural safety of the dam that
STATE OF TAMIL NADU v. STATE OF KERALA 905
[R.M. LODHA, CJI.]
was relied upon by this Court in its judgment on 27.02.2006. A
Kerala says that both the interim report and final report
submitted by the Expert Committee are riddled with
inconsistencies and the views of the Committee do not
constitute an authoritative opinion. Kerala has denied that
storages at Mullaperiyar dam beyond 136 ft. will not pose any B
danger.

.30.Kerala states that the. storage at Mullaperiyar dam
beyond 136 ft. would not be required to meet the irrigation
requirement of 2,08, 144 acres in 5 southern districts of Tamil C
Nadu, although the irrigation originally planned was not more
than 1.5 lakh acres. Kerala has denied the contention of Tamil
Nadu that due to non-restoration of FRL from 136 ft., Tamil
Nadu's irrigation is getting suffered. According to Kerala, Tamil
Nadu was able to irrigate more area with Mullaperiyar water,
even after lowering the water level to 136 ft. D

31. Kerala has, thus, prayed that suit filed by Tamil Nadu
be dismissed with costs.

Issues
E
32. On 13.12.2007, the Court framed the following issues
for consideration in the suit:

"1. Whether the suit is maintainable under Article 131 of
the Constitution of India. F

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?
G
(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? H
906 SUPREME COURT REPORTS [2014] 12 S.C.R.

A 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
B
Court in WP(C} No. 386/2001 operated as res
judicata, in respect of all or any of the defences set
up by the first defendant in its written stateme·nt?

(b} Whether the pleas relating to validity and binding
c nature of the deed dated 29.10.1886, the nature of
· Periyar River, structural safety 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
D 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
E
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? ·

F 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
G 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
H
•
STATE OF TAMIL NADU v. STATE OF KERALA 907
[R.M. LODHA, CJJ.]
defendant and enforceable by plaintiff against the first A
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 B
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 c
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.
D
11. To what relief is the plaintiff entitled to?"

Documentary and oral evidence by the parties

33. The admission/denial of documents tendered by the
parties was completed on 16.05.2008. Documents Ex. P·1 to E
Ex. P44 tendered by Tamil Nadu were admitted by Kerala and
documents Ex. D1 to D17 tendered by Kerala were admitted
by Tamil Nadu. Tamil Nadu's documents Ex. XP1 to XP4 and.
Kerala's documents Ex. XD1 to XD24 were denied by the other
side.
F
34. As regards oral evidence, Tamil Nadu produced R.
Subramanian (PW-1) as the sole witness. On the other hand,
Kerala produced five witnesses, V.K. Mahanudevan (DW-1),
K. Jayakumar (DW-2), Dr. A.K: Gosain (DW-3), Dr. Dhrubajyoti
Ghosh (DW-4) and M.K. Parameswaran Nair (DW-5). G

Reference to the 5-Judge Constitution Bench

. 35. Initially, the matter was heard by a three-Judge Bench.
On 10.11.2009, matter was referred to the Constitution Bench
H
•
908 SUPREME COURT REPORTS [2014) 12 S.C.R.

A as some of the issues framed in the suit involved decision on
certain substantial questions of law concerning interpretation
of the Constitution and in particular:

(i) Articles 3·and 4 read with Article 246 of the
Constitution;
B
(ii) Article 131 read with Article 32 of the Constitution
(in the context of res-judicata);

(iii) Proviso to Article 131 read with Articles 295 and
C 363 of the Constituticiri and the effect of the
Constitution (26th Ameridment) Act, 1971; and

(iv) The effect of decision of this Court in Mullaperiyar
Environmental Protection Forum1 in the context of
. afore-referred constitutional provisions.
D
Constitution of the Empowered Committee (EC)

36. A very important development occurred when the
matter was taken up initially by the Constitution Bench. it was
E felt by the Constitution Bench that examination of all aspects
of the matter including safety of Mullaperiyar dam by an
Empowered Committee (EC) may help the Court in deciding
the matter effectively. Accordingly, on 18.02.2010, the
Constitution Bench directed the Ceritral Government to
F constitute an EC under the Chairmanship of Dr. A.S. Anand,
former Chief Justice of India and comprising of two members
nominated by the States of Kerala and Tamil Nadu and two
renowned technical experts. The EC was requested to hear
parties to the suit on all issues that may be raised before it,
G without being limited to the issues that have been raised before
the Court in the matter and furnish a report as far as possible
within six months from its constitution. It was left open to the
EC to frame its own procedure and issue appropriate
directions as to the hearings as well as venue of its sittings and
it was also left to the EC to receive such further evidence as it
H
STATE OF TAMIL NADU v. STATE OF KERALA 909
[R.M. LODHA, CJI.]
considered appropriate. It was, however, clarified that the legal A
and constitutional issues including validity of the 2006
Amendment Act, are matters that would be considered by the
Court.

37. The EC submitted status reports from time to time. The
8
time for giving final report was extended also. The report was
submitted by the Empowered Committee finally on 23.04.2012.

General observation.

38. As a general observation, before we embark upon the c
discussion on diverse issues, it must be stated, that a suit of
this nature cannot and ought not to be decided with very
technical approach insofar as pleadings and procedure are
concerned. A suit filed in original jurisdiction of this Court is not
governed by the procedure prescribed in Civil Procedure Code
0
save and except the procedure which has been expressly made
applicable by the Supreme Court Rules. It is also important to
bear in mind that the contest between the states is to be settled
in the large and ample way that alone becomes the dignity of
litigants concerned (State of Andhra Pradesh 3}. Unfortunately, E
there is a sharp conflict over each and every aspect of the
subject matter between the contesting states. Even in respect
of the report submitted by the EC chaired by a former Chief
Justice of this Court, one nominee each of the two states who\
are former judges of this Court and two renowned technical
experts, the two states have different views although EC has F
submitted its report after a very tedious and· minute
consideration of facts on the safety of the Mullap.eriyar dam,
which embraced the reports of tests, investigation and technical
studies carried out through the three apex organizations,
besides through other specialist organizations of the G
Government of India and specialist expert agencies and also
after site appraisal. Moreover, the investigations, tests and

3. State of Andhra Pradesh v. State of Maharashtra and Ors.; [(2013) 5 SCC
~· H
. 910 SUPREME COURT REPORTS [2014] 12 S.C.R.

A technical studies were directed to be carried out by the EC in
association with the representatives of both the States.

Issue Nos. 1, 5, 6 and 7.

39. These four issues are interrelated inasmuch as two of
B these issues relate to validity and binding nature of 1886 Lease
Agreement and the effect of 1970 supplemental agreements
and the other two issues concern maintainability of suit under
. Article 131, if 1886 Lease Agreement is held valid, binding and
enforceable. Extensive arguments have been addressed to us
· C by the learned senior counsel for the two contesting states in
respect of these issues. However, it must be noted immediately
that Kerala did not dispute the position that under Section 177
of the Government of India Act, 1935 existing contracts made
by the Secretary of State prior to 1935 (made for the purposes
D of the Government of a Province) would have effect as if they
were made on behalf of that Province. In view of this admitted
position by Kerala, we shall first see whether 1886 Lease
Agreement was an existing contract made for the purposes of
the Government of Province of Madras on the commencement
E of 1935 Act.
'
1886 Lease Agreement - whether an existing contract
under 1935 Act

40. The Madras Presidency (Fort St. George) was
F established by the Pitts Ad, 1784. Thereafter, by the
Government of India Act, 1858, the territories under the
Government of East India Company were transferred for being
vested in Her Majesty. Under this enactment, the Secretary of
State in Councilwas empowered to enter into contracts. By the ·
G 1859 (Amendment) Act, the British Parliament authorised the
G.ovemor in Council of Fort St. George to enter into contracts
referred to as Secretary of State in Council. 1886 Lease
Agreement was entered into between the Secretary of State
in Council and Maharaja of Travancore under this provision.
H Government of India Act, 1919 did not aiter tlie position with
STATE OF TAMIL NADU v. STATE OF KERALA 911
[R.M. LODHA, CJI.]
regard to the 1886 Lease Agreement since Presidency of Fort A
St. George was treated as Province for the purposes of local
government. By virtue of Section 46 of the 1935 Act, the
Presidency of F:ort St. George which was deemed to be a
Province under 1919 Act became Governor's Province of
Madras. B

41. Section 177 of the 1935 Act, omitting the unnecessary
part reads, "..... any contract made· before the commencement
of Part Ill of this Act by, or on behalf of, the Secretary of State
in Council shall, as from that date - (a) if it was made for the
purposes which will after the commencement of Part Ill of this C
Act be purposes of the Government of a Province, have effect
as if it had been made on behalf of that Province ... " By virtue
of this provision, the existing contracts of the Secretary of State
in Council would have the effect as if they had been made on
behalf of the Province. When we see 1886 Lease Agreement D
in light of Section 177 of the 1935 Act, there remains no doubt
at all that lease that was executed by the Secretary of State in
Council for the Presidency of Madras (Madras Province) had
the effect as if it had been made on behalf of the Presidency
of Madras or for that matter Madras Province. To put it E
differently, by legal fiction created under Section 177(1 )(a), the
Presidency of Madras (Madras Province) became lessee under
the 1886 Lease Agreement. We have, therefore, no hesitation
in accepting the submission of Mr. Vinod Bobde, learned
senior counsel for Tamil Nadu that by virtue of Section 177 of F
the 1935 Act, as from the commencement of the. 1935 Act, the
Government of the Province of Madras is deemed to be
substituted as the lessee in the 1886 Lease Agreement.

Effect and impact of events between 18.07.1947 and G
26.01.1950

42. In light of the above holding; we have to see the effect
and impact of certain events that occurred between 18.07.1947
(when Act of 1947 was enacted by British Parliament) and
26.01.1950 (the date of commencement of Constitution). H
912 SUPREME COURT REPORTS (2014) 12 S.C.R.

A 42.1. On 18.07.1947, a bulletin was issued by the
Maharaja of Travancore State denouncing all agreements.

42.2. On 22.07.1947, the Dew~n of Travancore is said to
have stated in his notes submitted to the Maharaja that in his
B discussion with the Viceroy, he had unequivocally denounced
the 1886 Lease Agreement and that the Viceroy had accepted
the good sense underlying the denouncement.

42.3, On 10.08.1947, in his letter, Mr. C.C. Desai,
Additional Secretary gave an assurance that all agreemenfs
C would be renegotiated.

· 42.4. On 12.08.1947, Instrument of Accession was
executed by the Ruler of Travancore declaring that Travancore
has acceded to the Dominion of India.
D 42.5. Following Instrument of Accession, on 12.08.1947
itself, a standstill agreement was entered into between State
of Travancore and the Dominion of India.

42.6. On 14.08.1947, India (Provisional Constitution)
E Order, 1947 was promulgated whereby, inter alia, Section 177
of the 1935 Act was omitted.

42.7. Oh 15.08.1947, Act of 1947 came into effect.

· 42.8. On 24.05.1949, the two States - Travancore and
F Cochin - merged together.

Whether 1886 Lease Agreement lapsed?

43. Mr. Harish N. Salve, learned senior counsel for Kerala,
in view of the above events submits that 1886 Lease
G Agreement lapsed and did not sur\tive on and from 15.08.1947.

44. By Act of 1947, the provisions were made for setting
up in India of two Indian dominions to be known respectively
as India and Pakistan from 15.08.1947. Section 7 of Act of
H 1947 reads as follows :
STATE OF TAMIL NADU v. STATE OF KERALA 913
[R.M. LODHA, CJI.)
"7. Consequences of the setting up of the new A
Dominions.-(1) As from the appointed day-

(a) His Majesty's Government in the United Kingdom
have no responsibility as respects the government of any
of the territories which, immediately before that day, were
8
included in British India;

(b) the suzerainty of His Majesty over the Indian
States lapses, and. with it, all treaties and agreements in
force at the date of the passing of this Act between His
Majesty and the rulers of Indian States, all functions C
exercisable by His Majesty at that date with respect to
Indian States, all obligations of His Majesty existing at that
date towards Indian States or the rulers thereof, and all
powers, rights, authority or jurisdiction exercisable by His
Majesty at that date in or ir:i relation to Indian States by D
treaty, grant, usage, sufferance or otherwise; and

(c) there lapse also any treaties or agreements in
force at the date of the passing of this Act between His
Majesty and any persons having authority in the tribal E
areas, any obligations of His Majesty existing at that date
to any such persons or with respect to the tribal areas, and
all powers, rights, authority or jurisdiction exercisable at
that date of His Majesty in or in relation to the tribal areas
by treaty, grant, usage, sufferance or otherwise:
F
Provided that, notwithstanding anything in paragraph
(b) or paragraph (c) of this sub-section, effect shall, as
nearly as may be continued to be given to the provisions
of any such agreement as is therein referred to which
relate to customs, transit and communications, posts and G
telegraphs, or other like matters, until the provisions in
question are denounced by the ruler of the Indian State or
person having authority in the tribal areas on the one hand,
or by the Dominion or Province or other part thereof
H
914 SUPREME COURT REPORTS (2014] 12 S.C.R.

A concerned on the other hand, or are superseded by
subsequent agreements. ,·

(2) ................ "

45. As noted above, Act of 1947 came into effect from
B 15.08.1947. SeCtion 7 deals with the consequences of the
setting up of the new dominions. Clause (b) of sub-section (1)
of Section 7 declares that suzerainty of His Majesty over the
Indian States lapses. On lapsing of suzerainty, it provides for
lapsing of all treaties and agreements in force between His
C Majesty and the Rulers of Indian States from that date. Proviso
appended to sub-section (1 ), however, continues such
agreements unless the provisions in such agreement are
denounced by the Ruler of the Indian State or are superseded
by a subsequent agreement.
D
46. It is the contention of Mr. Harish N. Salve that firstly,
1886 Lease Agreement lapsed by virtue of main provision of
Section 7(1 )(b) of the Act of 1947 as it comprehends all
treaties and agreements and secondly, the Maharaja of
E Travancore denounced all agreements including 1886 Lease
Ag~eement.

47. It is true that Section 7(1)(b) of Act of 1947 Act uses
the expression "all treaties and agreements" but, in our opinion,
the word "all" is not intended to cover the agreements which
F are not political in nature. This is clear from the purpose of
Section 7 as it deals with lapsing of suzerainty of His Majesty
over the Indian States and the conseqUE;!nCe of lapsing of
suzerainty. Obviously, the provision was not intended to cover
the agreements and treaties other than political. We,
G i' accordingly, hold that. Section 7(1 )(b) ccmcerns only with
· political treaties and agreements. · · · ·'

48. The nature of 1886 Lease Agreement being not·
political is already concluded by this Court in 2006 judgment
H (Mullaperiyar Environmental Protection Forum'). This Court
STATE OF TAMIL NADU v. STATE OF KE.RALA 915
[R.M. LODHA, CJI.] ·
has held therein - and we have no justifiable reason to take a A
different view - that 1886 Lease Agreement is an ordinary
agreement being a lease agreement and it is wholly non-
political in nature.

49. There is, thus, no merit in the contention advanced on 8
behalf of Kerala that 1886 Lease Agreement lapsed under the
main provision of Section 7(1)(b) of 1947 Act.

50. Now, for consideration of the other limb of the argument
addressed to us by Mr. Harish N. Salve that even otherwise,
the Maharaja of Travancore denounced all agreements C
including 1886 Lease Agreement, it is necessary to refer to the
proviso appended to Section 7(1 )(b). The expression
"denounced by the Ruler of the Indian State" in the proviso
appended to Section 7, in our opinion, refers to unambiguous,
unequivocal and express denouncement. Kerala has not D
produced any material or document to show that there was
express denouncement of that nature by the Ruler of Travancore
insofar as 1886 Lease Agreement is concerned. We do not
think that the bulletin issued on 18.07.1947 clearly or finally
denounced the 1886 Lease Agreement. E

51. Moreover, to be a valid and effective denouncement
of the agreement between the Ruler and His Majesty such
denouncement must be made after 1947 Act came into effect.
Admittedly, there is no denouncement of 1886 Lease
F
Agreement by the Travancore Ruler after 15.08.1947.

52. The relevant portion of the standstill agreement dated
12.08.1947 reads as follows:

"Agreement between the State of Travancore and the G
Dominion of India

Whereas it is to the benefit and advantage of the
Dominion of India as well as of the Indian States that
existing agreements and administrative arrangements in
the matters of common concern, should continue for the H
916 SUPREME COURT REPORTS (2014] 12 S.C.R.

A time being, between the Dominion of India or any part
thereof and the Indian States :

Now therefore it is agreed between the Travancore
State and the Dominion of India that:-
B 1. (1) Until new agreements in this behalf are made,
all agreements and administrative arrangements as
to matters of comnion concern now existing
between the Crown and any Indian State shall, in
so far as may be appropriate, continue as between
the Dominion of India or as the case may be, the
part thereof and the State.
:;.. .,_•.
(2) In particular, and without derogation from the
generality of sub-clause (1) of this clause the ·
D matters referred to above shall include the matters
specified in the Schedule to this Agreement."

53. It is arguedby Mr. Harish N. Salve that the standstill
agreement, which is between parties different.from those who
had executed the 1886 Lease Agreement, is a fresh agreement
E which brought into force, for the time being, contractual
obligations between the Maharaja of Travancore and the
Dominion of India. As the parties were different and the Act of
1947 provided for the lapse of the British suzerainty over the
Princely States, the question of continuance of 1886 lease
F agreement does not arise. In any case, learned senior counsel
for Kerala ar9ues that standstill agreement could not survive
after the deletion of Section 177 of the 1935 Act. We find no
merit in these argumenis. The standstill agreement is not a fresh
agreement between Dominion of India and State of Travancore
G as suggested by Mr. Harish N. Salve. The standstill agreement
was intended for the benefit of the parties who were parties to
the agreements and arrangements, which were matters of
common concern existing between the Crown and the State of
Travancore. In the background of Instrument of Accession, it
H became necessary to have some arrangement so that the
STATE OF TAMIL NADU v. STATE OF KERALA 917
[R.M. LODHA, CJI.)
existing agreements and arrangements between the Crown and A
the Indian States continued. We do not think that standstill
agreement is political in nature as contended on behalf of
Kerala.

54. The argument that standstill agreement could not 8
survive after the deletion of Section 177 with effect from
15.08.1947 by virtue of India (Provisional Constitution) Order,.
1947 is also without substance. Section 177 was deleted
because it could no longer work and because Dominion of India
was to come intci being with provinces as part of the Dominion C
and there was to be no Secretary of State in Council. We are
in agreement with Mr. Vi nod Bobde, learned senior counsel for
Tamil Nadu that deletion of Section 177 was prospective and
it did not affect the deeming that had already taken place in
1935. The standstill agreement, in our view, cannot be said to
have been wiped out by the deletion of Section 177. D

55. Mr. Harish N. Salve is right in submitting that under
Section 177 existing contracts made by the Secretary of State
prior to 1935 would have effect as if they were made on behalf
of the concerned Province and by virtue of this provision, the E
Province of Madras was a beneficiary of standstill agreement
but he does not seem to be right when he says that this situation
. changed on 14.08.1947 when the India (Provisional
Constitution) Order, 1947 was issued and the standstill
agreement arrived at on 12.08.1947 ceased to be for the F
benefit of Province of Madras. As stated by us earlier, the
deletion of Section 177 is prospective and did not undo what
had already taken place. This also negates the argument of Mr.
Salve that the rights of the Crown, which were enjoyed by the
Province of Madras under Section 177, on deletion of the said G
Section had come to an end as there was no successor to the
Crown.

56. The argument that there is no successor of Crown is
irrelevant because by virtue of Section 177, the Govemment of
Province of Madras had already become lessee in the 1886 H
918 SUPREME COURT REPORTS (2014] 12 S.C.R.

A Lease· Agreement by deeming in 1935 itself. The standstill
agreement continued 1886 Lease Agreement between the
Province of Madras and the State of Travancore. 1886 Lease
Agreement did not lapse untfer the main provision of.Section
7(i)(b) of the Act of 1947. There was no unequivocal and
B unambiguous denouncement of 1886 Lease Agreement by the
Ruler of Travancore under proviso to Section 7(i)(b). The
Province of Madras was beneficiary of the standstill agreement.
Surely,.deletion of Section 177 has not affected the rights of
Province of Madras.
c 57. Relying upon Babu Ram Saksena4, it is vehemently
argued by Mr. Harish N. Salve, learned senior counsel for Kerala
that upon merger of two states - Travancore and Cochin - in
1949 all treaties entered into by the Rulers of erstwhile states
lapsed. His submission is that the standstill agreement, whether
D it was an independent agreement or in continuation of 1886
Lease Agreement, came to an end in light of the legal position
exposited in Babu Ram Saksena4. Learned senior counsel in
this regard also relied upon the decision of this Court in State
of Himachal Pradesh 5•
E
Babu Ram Saksena

58. Let us carefully consider Babu Ram Saksena4. The
facts in Babu Ram Saksena• were as follows: Babu Ram
Saksena was a member of Uttar Pradesh Civil Service and
F served Tonk State in various capacities. It was alleged that
during service, he helped the Nawab of Tonk in obtaining the
sanction of the Government of India to the payment of
Rs.14,00,000/- to the Nawab out of State treasury for t!ie
discharge of his debts, anq induced the Nawab by threats and
G deception to pay him, in return for such help, sums fotaling
Rs.3,00,000/- on various dates. Dr. Babu Ram Saksena was

4 .. Dr. Babu Ram Saksena v. State; [AIR 1950 SC 155].
H 5. State of Himachal Pradesh v. Union of India & Ors.; [(2011) 13 SCC 344].
STATE OF TAMIL NADU v. STATE OF KERALA 919
[R.M. LODHA, CJI.)
charged with the offences under Sections 383, 575 and 420 A
of the Indian Penal Code. These offences were extraditable
offences under the Indian Extradition Act, 1903 (for short, '1903
Act'). The warrant was issued under Section 7 of the 1903 Act
to the District Magistrate, Nainital, where the accused was
residing after reverting to the service of the Uttar Pradesh B
Government, to arrest and deliver him up to the District
Magistrate of Tonk. The accused raised defences on merits as
well as to the validity of the warrant and challenged the
jurisdiction of the Magistrate at Nainital to take cognizance of
the matter and arrest the appellant. The High Court overruled c
all the objections and dismissed the application for the release
of the appellant. The matter was carried to this Court. Inter a/ia,
the contention on behalf of the appellant before this Court was
that the treaty entered into between the British Government and
the Tonk state on 28.01.1869, although declared by Section 7 D
of the 1947 Act, to have lapsed as from 15.08.1947 was
continued in force by the standstill agreement entered into on
· 08.08.1947; that that treaty exclusively governed all matters
relating to extradition between the two states, and that,
inasmuch as it did not cover the offences now charged against E
the appellant, no extradition of the appellant could be
demanded or ordered. The Attorney General, on the other hand,
responded by contending that the standstill agreement entered
into with various Indian States were purely temporary
arrangements designed to maintain the status quo ante in
respect of certain administrative matters of common concern F
pending the accession of those States to the Dominion of India
and they were superseded by the instrument of Accession
executed by the Rulers of those states. Tonk having acceded
to the Dominion on 16.08.1947, the standstill agreement relied
on by the appellant must be taken to have lapsed as from that G
date. Secondly, the treaty was no longer subsisting and its
execution became impossible, as the Tonk State ceased to
accede politically and as such sovereignty as it possessed was
extinguished, when it covenanted with certain other states_, with
· the concurrence of the Indian Government "to unite and integrate H
920 SUPREME COURT REPORTS [2014) 12 S.C.R.

A their territories in one state, with the common executive,
legislature and judiciary, by the name of the United State of
Rajasthan", the last of such covenants which superseded the
earlier ones,. having been entered into on 13.03.1949. Lastly,
it was argued by the Attorney General that the treaty was still
B in operation as a binding executory contract and its provisions
were in no way derogated from by the application of Section 7
of the 1903 Act in the extradition warrant issued under that
Section and the arrest made in pursuance thereof were legal
and valid and could not be called in question under Section 491
c of the Code of Criminal Procedure.

59. It is important to note that in Babu Ram Saksena•, two
opinions have been given by this Court, one by Patanjali Sastri,.
· J. and the other by Mukherjea, J. Insofar as Patanjali Sastri, J.
is concerned, His Lordship did not give any opinion on the first
D two contentions raised by the Attorney General. This is clear
when Patanjali Sasfri, J. said, "As we are clearly of the opinion
that the appellant's contentions must fail on this last ground, we
consider it unnecessary to pronounce on the other points raised
by the Attorney General especiaily as the issues involved are
E not purely legal but also of a political character, and we have
not had the views of the accused concerned on those points".
Having said that, Patarijali Sastri, J. considered the question
whether extradition under Section 7. of the 1903 Act for an
offence which is not extraditable under the treaty is, in any
F sense, a derogation from the provisions of the treaty which
provides for the extradition ·of offenders for certain specified
offences committed in the respective territories of the high
contracting parties.

G 59.1. In the other opinion given by Mukherjea, J. as regards
the question-,-11ow far was the Extradition Treaty between the
Tonk State and the British Government affected by reason of
the merger of the Tonk State along with eight other States in
view of a covenant entered into by the Rulers of these nine
States, into the United State of Rajasthan, it has been held that
·H
STATE OF TAMIL NADU v. STATE OF KERALA 921
[R.M. LODHA, CJI.]
as a result of amalgamation or merger, a State loses its full A
and independent power of action over the subject matter of a
treaty previously concluded, the treaty must lapse. Mukherjea,
J. noted Article 6 of the merger and the general opinion of the
international j1 irists that when a State relinquishes its life as such
through incorporation into or absorption by another State either B
voluntarily or as a result of conquest or annexation, the treaties
of the former are automatically terminated. Mukherjea, J.
observed as follows:

" ...........The result is said to be produced by reason of C
complete loss of personality consequent on extinction of
State life. The cases discussed in this connection are
generally cases where i.ndependent States have ceased
to be such through constrained or voluntary absorption by
another with attendant extinction of the farmer's treaties
with other States. Thus the forceable incorporation of D
Hanover into the Prussian Kingdom destroyed the
previous treaties of Hanover. The admission of Texas into
the United States of America· by joint resolution
extinguished the Treaties of the Independent Republic of
Texas. The position is the same when Korea merged into E
Japan. According to Oppenheim, whose opinion has been
relied upon by Sir Alladi, no suCGession of rights and duties
ordinarily takes place in such cases, and as political and
personal treaties presuppose the existence of a
contracting State, they are altogether extinguished: It is a F
debatable point whether succession takes place in cases
of treaties relating to commerce or extradition but here
again the majority of writers are of opinion that they do not
survive merger or annexation"
G
59.2. The above observations of Mukherjea, J. were based
on the two renowned books, (one) Hyde on International Law,
Vol. Ill, Pg. 1529 and (two) Oppenheim on International Law,
Vol. I, Pg. 152.

H
922 SUPREME COURT REPORTS [2014] 12 S.C.R.

A 59.3. Dealing with the covenant under consideration,
Mukherjea, J. went on to state as follows:

"The remarks quoted above do not, however, seem quite
appropriate to a case of the present description. Here
there was no absorption of one State by another which
B
would put an end to the State life of the former and
extinguish its personality. What happened here was that
several States vpluntarily united together and .integrated
their territories-so as to form a larger and composite State
of which every one of the covenanting parties was a
c component part. There was to _be one common executive,
legislature and judiciary and the Council of Rulers would
consist of the Rulers of all the Covenanting States. It may
not be said, therefore, that the Covenanting States lost their
personality altogether and it is to be noted that for
D purposes of succession of Rulership and for counting votes
on the strength of population and other purposes the
Covenant of Merger recognises a quasi-separation
between the territories of the different States. But although
such separation exists for some purposes between one
State territory and another, it is clear that the inhabitants
of all the different States became, from the date of merger,
the subjects of the United State of Rajasthan and they
could not be described as subjects of any particular State.
There is no such thing as subject of the Tonk State existing
F at the present day and the Ruler of Tonk cannot
independently and in his own right exercise any form of
sovereignty or control over the Tonk territory. The
Government, which exercises sovereign powers, is only
one, even though the different Rulers may have a voice in
G it. It seems to us that in those altered circumstances the
Extradition Treaty of 1869 has become entirely incapable
of execution. It is not possible for !he Tonk State, which is
one of the contracting parties to a·ct in accordance with the
terms of the treaty, for it has no longer any independent
authority or sovereign rights over the Tonk territory and can
H
STATE OF TAMIL NADU v. STATE OF KERALA 923
.[R.M. LODHA, CJI.]
neither make nor demand extradition. When as a result of A
amalgamation or merger, a State loses its full and
independent power of action over the subject-matter of a
treaty previously concluded, the treaty must necessarily
lapse. It cannot be said that the sovereignty of the Tonk
State in this respect is now vested in the United State of B
Rajasthan. The authority, so far as extradition was
concerned, was already surrendered by the Tonk State in
favour of the Dominion Government by the Instrument of
Accession. But even assuming that these treaty rights could
devolve upon the United State of Rajasthan by reason of c
Article 6 of the Covenant of Merger, the latter, it seems to
me, could be totally incapable of giving effect to the terms
of the treaty. As has been said already, there could be no
such thing as a subject of the Tonk State at the present
moment and Article 2 of the Treaty which provides for D
extradition of Tonk subjects accused of having committed
heinous offences within Tonk territory and seeking asylum
elsewhere would be wholly infructuous. The United State
of Rajasthan could not possibly demand extradition on the
basis of this article, and if reciprocity, which is the essence E
of an Extradition Agreement, is gone, the Treaty must be
deemed to be void and inoperative."

59.4. The view of Mukherjea, J. was concurred with by
Mahajan, J. Das, J. substantially agreed with the reasoning of
Mukherjea, J. Fazl Ali, J. agreed with the line of reasoning in F
both the judgments delivered by Patanjali Sastri, J. and
Mukhe~ea, J.

59.5. A careful consideration of the judgment by
Mukherjea, J. in Babu Ram Saksena4 would show that His G
Lordship's opinion has no application to a non-political
agreement such as 1886 Lease Agreement. The observation
of Mukherjea, J., '.'When as a result of amalgamation or merger,
a State loses its full independent power of action over the
subject matter of a treaty previously ~oncluded, the treaty must H
•
924 SUPREME COURT REPORTS (2014] 12 S.C:R.

A necessarily lapse ... " is in the context of an extradition treaty
which is purely political in nature .. In our view, Babu Ram
Saksena4 is clearly distinguishable a~d does not help Kerala
in its argument that 1886 Lease Agreement lapsed on merger
of the two States, Travancore and Cochin, into the United State
B of Travancore and Cochin.

State of Himachal Pradesh

60. Mr. Harish N. Salve also placed heavy reliance upon
the decision of this Court in the case of State of Himachal
C Pradesh5. The dispute in that case was between the State of
Himachal Pradesh on the one hand and the Union of India;
State of Punjab, State of Haryana, State of Rajasthan and Union
Territory of Chandigarh on the other relating to the power
generated in the Bhakra-Nangal and Beas Projects. One of the
D issues under consideration was whether after the merger of the
State of Bilaspur with the Dominion of India, the State of
· Himachal Pradesh could still have any cause of action to file
the suit. While dealing with this issue, this Court referred to
Bilaspur Merger Agreement dated 15.08.1948, particularly,
E Article 1 thereof. After having noticed that provision, this Court
in paragraph 48 of the Report (Pgs. 359-360) held as under:

"48. It is thus clear that by the Bilaspur Merger Agreement
. dated 15-8-1948 the Raja of Bilaspur ceded to the
Dominion Government full and exclusive authority,
F jurisdiction and powers for and in relation to the
governance of the State and agreed to transfer the
administration of the State to the Dominion Government
on 12-10-1948. Thereafter, the Government of India,
Ministry of Law, issued a Notification dated 20-7-1949 (Ext.
G D-4/2-A) in exercise of its powers under Section 290-A of
the Government of India Act, 1935 making the States
Merger (Chief Commissioners' Provinces) Order, 1949,
. which came into force from 1-8-1949. Under this States
.Merger (Chief Commissioners' Provinces) Order, 1949,
H Bilaspur was to be administered in all respects as if it was
STATE OF TAMIL NADU v. STATE OF KERALA 925
[R.M. LODHA, CJI.]
a Chief Commissioner's Provin~e. Under the Constitution A
of India also initially Bilaspur continued to be administered
as the Chief Commissioner's Province and was included
in the First Schedule to the Constitution as a Part C State.
Under Article 294(b) all rights, liabilities and obligations of
the Government of the Dominion of India, whether arising B ·
out of any contract or otherwise, became the rights,
liabilities and obligations of the Government of India. These
provisions of the Bilaspur Merger Agreement dated 15-8-
1948 (Ext. D-4/1-A), the States Merger (Chief
Commissioners' Provinces) Order, 1949, the First c
Schedule to the Constitution and Article 294{b} of the
Constitution make it clear that Bilaspur became the part
of the Dominion of India and thereafter was administered
as a Chief Commissioner's Province by the Government
of India and all rights of the Raja of Bilaspur vested in the D
Government of India. We, therefore, hold that the plaintiff
will not have any cause of action to make any claim on the
basis of any right of the Raja of Bilaspur prior to the merger
of Bilaspur State with the Dominion of India."

61. The above observations in State of Himachal E
Pradesh5 must be read in the context of Bilaspur Merger
Agreement dated 15.08.1948 '{\'hereby the Raja of Bilaspur
ceded to the Domipion Government full and exclusive authority,
jurisdiction and powers for and in relation to the governance of
the State and all rights of Raja of Bilaspur had vested in the F
Government of India. We find it difficult to appreciate how these
observations have any application insofar as the continuance
of the 1886 Lease Agreement after. the merger of the
Travancore State and the Cochin State into a new state,
namely, United State of Travancore and Cochin are concerned. G
The judgment of this Court in State of Himachal Pradesh 5 , in·
our view, has no application to the submission advanced on
behalf of Kerala.

H
926 SUPREME COURT REPORTS (2014] 12 S.C.R.
I

A . Status of Indian States on accession

62. It is important to bear in mind that accession of Indian
States to the Dominion of India did not extinguish those States
as entities. They only became part of Dominion· of India as
B constituent States along with the provinces of erstwhile British
India. We are unable to hold that the entities of those States
who acceded to the Dominion of India were totally wiped out.
There is merit in the submission of Tamil Nadu that the fact that
on 24.05.1949 the States of Travancore and Cochin merged
together also establishes that Indian States which acceded to
C the Dominion continued as entities.

63. In light of the above, we are unable to accept the
argument of Kerala that Madras ceased to be a lessee on
15.08.1947. It is pertinent to observe here that Kerala entered
D into the supplemental agreements with Tamil Nadu in 1970. In
these supplemental agreements, the continuance of 1886 lease
is stated in clear and unambiguous words. Had 1886 Lease
Agreement ceased to be operational on and from 15.08.1947,
there was no occasion for Kerala to enter into supplemental
E agreements with Tamil Nadu in 1970. By first supplemental
agreement, Tamil Nadu surrendered the fishing rights in the
leased lands and also agreed to the upward revision of the rent
of the leased land. The second supplemental agreement
conferred on Tai:nil Nadu the right to generate power and right ·
F to construct all facilities required for power generation. An
additional extent of 42.7 acres was leased to Tamil Nadu for
the said purposes. Mr. Harish N. Salve, learned senior counsel
for Kerala argued thal1970 supplemental agreements and the
statement therein about continuance of 1886 Lease Agreement
were based on a mistake of law (wrongful assumption) of
G continuance of lease of 1886. The submission of the learned
senior counsel for Kerala can hardly be accepted firstly, in view
of our finding that 1886 Lease Agreement continued on and
from 15.08.1947 and secondly, in view of the decision of this
Court in. State of Andhra Pradesh 3 , wherein a three-Judge
H
.
STATE OF TAMIL NADU v. STATE OF KERALA 927
[R.M. LODHA, CJI.]
Bench of this Court speaking through one of us (R.M. Lodha, A
J., as he then was) observed, "when an agreement is entered
into between two or more states, they have assistance of
competent, legal and technical minds available with them. The
states do not have lack of drafting ability. Such agreement is
provided by trained minds ....... ". The 1970 supplemental B
agreements having been entered into by two high parties,
namely, State of Kerala and State of Tamil Nadu, it can hardly
·be accepted that the continuance of 1886 lease was wrongly
assumed though it had lapsed on 15.08.1947. Kerala obviously
must have had competent and legal minds available with them c
when supplemental agreements were entered into in 1970 with
Tamil Nadu. There is no merit in the argument of Kerala that
supplemental (\greements were based on mistake of law.

Is 1886 leate agreement an act of State?
D
64. Is 1886 Lease Agreement an act of State or
International Treaty? The answer has to be in the negative. It is
well settled that an act of State. is the taking over of sovereign
powers by a State in respect of territory which was not till then
part of it, by conquest, treaty, cession .or otherwise, and the E
municipal courts recognised by the new sovereign have the
power and jurisdiction to investigate and ascertain only such
rights as the new sovereign has chosen to recognise or
acknowledge by legislation, agreement or otherwise, and that
such a recognition may be express or may be implied from the F
circumstances. 1886 Lease Agreement is an ordinary contract
of lease. Merely, because the contract was arrived at between
the Crown through the Secretary of State and thei Travancore
State - a princely Indian State - the nature of contract is not
changed .and it does not become a political arrangement. As G
noted above, this Court in Mullaperiyar Environmental
Protection Forum 1 has already declared that 1886 Lease
Agreement is not political in nature. We are in agreement with·
this view. The same reasoning applies equally to standstill
agreement.
H
928 '
SUPREME COURT REPORTS (2014) 12 S.C.R.

A Virendra Singh
'
65. Mr. Harish N. Salve, learned senior counsel for Kerala
relied upon the decision of this Court in Virendra Singh6 . The
Constitution Bench in Virendra Singh6 was concerned with the
B question about the post-Constitutional rights to property situate
·in Indian States that were not part of ·British India before the
Constitution but which acceded to the dominion of India shortly
before the Constitution and became .an integral part of the
Indian Republic after it. Charkhari and Sarila were independent
States under the paramountcy of the British Crown. They
C acknowledgeP the British Crown as the suzerain power. India
obtained Independence and oecame a Dominion by reason of
Act of 1947. The two States - Charkhari and Sarila - executed
Instruments of Accession and acceded to dominion. In the
Instrument of Accession, the sovereignty of the acceding States
D was expressly recognised and safeguarded. The Ruler of Sarila
granted, on 28.01.1948, one village to the writ petitioners and
the ·Ruler of Charkhari also granted certain villages to the
petitioners. On .13.03.1948, thirty-five States in Bundelkhand
and Baghelkhand (including Charkhari and Sarila) agreed to.
E unite themselves in one State which was to be called United
State of Vindhya Pradesh. Few days later, pursuant to the
above agreement, a covenant was signed by all the thirty-five
Rulers which brought the new State into being. This
arrangement was domestic arrangement and not a treatywith
F the dominion of India. Soon after this, the Revenue Officers of
the newly formed Vindhya Pradesh Union tried to interfere with
the grants made by the above Rulers. The integration did not
work satisfactorily. So, on 26.12.1949, the same thirty-five
Rulers entered into another agreement abrogating their
G covenant and dissolving the newly created State as from
01.01.1950. By the same instrument each Ruler ceded to the
Government of the Indian Dominion as from the same date. The
instrument was called the Vindhya Pradesh Merger Agreement.
6. Virendra Singh & Ors. v. State of Uttar Pradesh; [(1955) 1 SCR 415: AIR
H 1954 SC 447].
STATE OF TAMIL NADU v. STATE OF KERALA 929
[R.M. LODHA, CJI.]
The Government of Indian Dominion was also party to the A
agreement. The Dominion Government took over the
administration of the Stat~s which formed Vindhya Pradesh on
01.01.1950 and decided to form them into a Chief
Commissioner's province. The Constitution came into force on
26.01.1950. The grants of Jagirs and Muafis made by the B
Rulers of Charkhari and Sarila were revoked somewhere in
August, 1952. It was this order of revocation which was
challenged before this Court by invoking Article 32 of the
Constitution.

65.1 .. While dealing with the issue noted above and in light C
of various decisions cited at the bar, this Court exposited as
follows:

"Now it is undoubted that the accessions and the
acceptance of them by the Dominion of India were acts of D
State into whose competency no municipal Court could
enquire; nor can any Court in India, after the Constitution,
accept jurisdiction to settle any dispute arising out of them .
because of article 363 and the proviso to article 131; all
they can do is to register the fact of accession; see section · E
6 of the Government of India Act, 1935 relating to the
Accession of States. But what then? Whether the Privy
Council view is correct or that put forward by Chief Justice
Marshall in its broadest outlines is more proper, all
authorities are agreed that it is within the competence of F
the new sovereign to accord recognition to existing rights
in the conquered or ceded territories and, by legislation
or otherwise, to apply its own laws to them; and these laws
can, and indeed when the occasion arises must, be
examined and interpreted by the municipal Courts of the G
absorbing State."

65.2. The exposition of above legal position by the
Constitution Bench lfardly admits of any doubt. Obviously, the
accession of an Indian State to the dominion of India and
H
930 SUPREME COURT REPORTS 12014) 12 S.C.R.
.•

A acceptance of it by the Dominion are acts of State and
jurisdiction of the courts to go into its competency or settle any
dispute arising out of them are cleai'ly barred under Article 363
and the proviso to Article 131. As we have already held - and
that is what has been held in the 2006 judgment as well - that
B 1886 Lease Agreement is an ordinary agreement and that it
is not political in n:iture, the embargo of Article 363 and the
proviso to Article 131 have no application.

Scope of Article 363 and Article 131

C 66. Article 3637 of the Constitution is an embargo for the
courts including Supreme Court to deal with any dispute arising
out of a treaty, agreement, covenant, engagement, sanad or
other similar instrument which was entered into or executed
before the commencement of the Constitution by any Ruler of
D an Indian state and to which the Government of the dominion
of India or any of its predecessors Government was a party and
it has or has been continued in operation after such
· commencement. The jurisdiction of the courts is also barred to

E 7. 363. Bar to interference by courts in disputes arising out of certain
treaties, agreements, etc. - (1) Notwithstanding anything in this Constitution
but subject to the provisions of Article 143, neither the Supreme Court nor
any other court shall have jurisdiction in any dispute arising out of any
provision of a treaty, agreement, covenant, engagement, sanad or other
similar instrument which was entered into or executed before the
commencement of this Constitution by any Ruler of an Indian State and to
F which the Government of the Dominion of India or any of its predecessor
Government was a party and which has or has been continued in operation
after such commencement, or in any dispute in respect of any right accruing
under or any liability or obligation arising out of any of the provisions of
this Constitution relating to any such treaty, agreement, covenant,
engagement, sanad or other similar instrument
(2) In this article -
G
(a) "Indian State" means any ·territory recognised before the
commencement of this Constitution by His Majesty or the Government of
the Dominion of India as being such a State; and
(b) "Rule~· includes the Prince, Chief or other person recognised before
such commencement by His Majesty or the Government of the Dominion
of India as the Ruler of any lndi~n State.
H
STATE OF TAMIL NADU v. STATE OF KERALA 931
[R.M. LODHA, CJI.]
interfere in any dispute in respect of any right accruing under A
any liability or obligation arising out of any of the provisions of
this Constitution relating to any such treaty, agreement,
covenant, engagement, sanad or other similar instrument.

67. A plain reading of Article 363 leaves no manner of B
doubt that if the dispute arises in respect of a document of that
description and if such document had been executed before
the commencement of Constitution, the interference by courts
' is barred. The documents referred to in Article 363 are those
which are political in nature. Any dispute regarding such
documents is non-justiciable. The object behind Article 363 is C
to bind the Indian Rulers with treaties, agreements, covenants,
engagements, sanads or other similar instruments entered into
or executed before the commencement of the Constitution and
to preventthe Indian Rulers from resiling from such agreements
as the integrity of India was to be maintained at all cost and D
could not be affected by raising certain disputes. It may be of
relevance to refer to the White Paper on Indian States prepared
by the Government of India in 1948 which brings out the
historical perspective which necessitated the adoption of the
provisions in Article 363. It says "Article 363 has therefore been E
embodied in the Constitution which excludes specifically the
Agreements of Merger and the Covenants from the jurisdiction
of courts except in cases which may be referred to the
Supreme Court by the President".
F
68. Article 131 8 of the Constitution deals with the original
8. Art. 131. Original jurisdiction of the Supreme Court.- Subject to the
provisions of this Constitution, the Supreme Court shall, to the exclusion
of any other court, have original jurisdiction in any dispute-
(a) between the Government of India and one or more States; or
G
(b) between the Government of India and any State or States on one side
and one or more other States on the other; or
(c) between two or more States,
if and in so far as the dispute involves any question (whether of law or
fact) on which the existence or extent of a legal right depends:
H
932 SUPREME COURT REPORTS [2014] 12 S.C.R.

A jurisdiction of this Court. Subject to the provisions of the
Constitution, this Court has original jurisdiction in any dispute,
inter alia, between the Government of India and any State or
States on one side and' one or more other States on the other
if and insofar as the dispute involves any question (whether of
s law or fact) on which the existence of legal right depends.
Howev_er, by proviso appended thereto, the jurisdiction of this
Court is barred if the dispute to which a State specified in Part
B of the First Schedule is a party if the dispute arises out of
any provision of a treaty, agreement; covenant, engagement, '
c sanad or other similar instrument was entered into or executed
before the commencement of the Constitution and has or has
been continued in operation after such commencement.

69. There is similarity of provision in Article 363 and
proviso to Article 131. The original jurisdiction conferred on this
D Court by the main provision contained in Article 131 is
excepted by virtue of proviso in the matters of political
settlements. By making provisions such as Article 363 and
proviso to Article 131, the political settlements have been taken
out of purview of judicial pronouncements. Proviso appended
E to Article 131 renders a dispute arising out of any treaty,
agreement, covenant, engagement, sanad orsimilar instrument
which is political in nature executed before the commencement
of the Constitution and which has or has been continued in
operation, non-justiciable and jurisdiction of this Court is barred.
F The jurisdiction of this Court is not taken away in· respect of the
dispute arising out of an ordinary agreement. The instruments
referred to and described in proviso are only those which are
political in nature. Non-political instruments are not covered by
the proviso.
G
Provided that the said jurisdiction shall not extend to a dispute arising out
of any treaty, agreement, covenant, engagement, sanad or other similar
instrument which, having been entered into or executed before the
commencement of this Constitution, continues in operation after such
commencement, or which provides that the said jurisdiction shall not
H ·extend to such a dispute."
STATE OF TAMIL NADU v. STATE OF KERALA 933
[R.M. LODHA, CJI.]
70. 1886 Lease Agreement does provide for resolution of A
disputes between the parties to the agreement by way of
arbitration; it contains an arbitration clause. The submission of
Kerala that enforcement of any award under the arbitration
clause would be political in nature is misplaced. The assumption
of Kerala that 1886 Lease Agreement was not justiciable and B
enforceable in court of law prior to the Constitution as no court
in Travancore would obviously entertain a claim against
Maharaja and no court outside the State of Travancore have
jurisdiction over the Maharaja of Travancore is not relevant at
all and devoid of any merit. c
71. We are in complete agreement with the view taken by
this Court in Mullaperiyar Environmental Protection Forum'
that 1886 Lease Agreement would not come within the purview
of Article 363 and jurisdiction of this Court is not barred. As a
necessary corollary, the dispute arising out of 1886 Lease D
Agreement is not barred under Article 131 proviso as well.
Moreover, the principal challenge laid in the suit pertains to
constitutional validity of 2006 (Amendment) Act for which Article
363 or for that matter under Article 131 proviso does not come
into operation at all. E

Article 294 and Article 295

72. By virtue of Article 294 9 , all properties immediately
before the commencement of the Constitution which vested in
F
9. 294. Succession to· property, assets, rights, liabilities and obligations in
certain cases.-As from the commencement of this Constitution-
(a) .............. .
(b) all rights, liabilities and obligations of the Government of the Dominion
of India and of the Government of each Governor's Province, whether arising
out of any contract or otherwise, shall be the rights, liabilities and obligations G
respectively of the Government of India and the Government of each
corresponding State, .
subject to any adjustment made or to be made by reason of the creation
before the commencement of this Constitution of the Dominion of Pakistan
or of the Provinces of West Bengal, East Bengal, West Punjab and East
Punjab. H
934 SUPREME COURT REPORTS (2014] 12 S.C.R.

A His Majesty for the purposes of the Government of the Dominion
of India vest in the Union and all properties which vested in His
Majesty for the purposes of the Government of each Governor's
Province vest in the corresponding State and all rights, liabilities
and obligations of the Government of Dominion of India and the
B Government of each Governor's Province are recognised to be
rights, liabilities and obligations respectively of the Government
.of India and the Government of each corresponding State. In
other words, this article declares which property would vest in
the Union and which would vest in the State Government. There
c remains no doubt that by virtue of Article 294(b) read with First
Schedule appended to the Constitution, leasehold rights
devolved upon the State of Madras under the 1886 Lease
Agreement.
73. Article 29510 relates to succession to property, assets,
D
10. Article 295 - Succession to property, assets, rights, liabilities and
obligations in other cases. -
(1) As from the commencement of this Constitution-
(a) all property and assets which immediately before such commencement
E were vested in any Indian State .corresponding to a State specified in Part
B of the First Schedule shall vest in the Union, if the purposes for which
such property and assets were held immediately before such
commencement will thereafter be purposes· of the Union relating to any of
the matters enumerated in the Union List, and
(b) all rights, liabilities and obligations of the Government of any Indian·
F State corresponding to a State specified in Part B of the First Schedule,
whether artsing out of any contract or otherwise~ shall be the rtghts, liabilities
and obligations of the Government of India, if the purposes for which such
rights were acquired or liabilities or obligations were incurred before such
commencement will thereafter be purposes of the Government of India
relating to any of the matters enumerated in the Union List,
subject to any agreement entered into in that behalf by the Government of
G India with the Government of that State.
(2) Subject as aforesaid, the Government of each State specified in· Part B
of the First Schedule shall, as from the commencement of this Constitution,
be the successor of the Government of the corresponding Indian State as
regards all property and assets and all rights, liabilities and obligations,
whether artsing out of any contract or otherwise, oiher than those referred
H to in clause (1).
STATE OF TAMIL NADU v. STATE OF KERALA 935
[R.M. LODHA, CJI.]
rights, liabilities and· obligations. Clause 1(a) states that from A
the commencement .of the Constitution all property and assets
which immediately before such commencement were vested
in an Indian State corresponding to a State specified in Part B
of the First Schedule shall vest in the Union, if the purposes for
which such property and assets were held, be purposes of the B
Union. Clause 1(b) provides that all rights and liabilities and
obligations of the Government of any Indian State
corresponding to a State specified in Part B of the First
Schedule, whether arising out of any contract or otherwise shall
be the rights, liabilities and obligations of the Government of c
India if the purposes for which such rights were acquired or
liabilities and obligations were incurred, be purposes of the
Government of India. Clause (2) of this Article provides that
Government of each State specified in Part B of the First
Schedule shall be the successor of the corresponding State as 0
regards all property and assets and all rights, liabilities and
obligations, whether arising out of any contract or otherwise,
other than those referred to in clause (1 ). This is subject to any
agreement entered into that behalf by the Government of India
with the Government of the State concerned. The expression E
'Government of the corresponding Indian State" in Article
295(2), in our opinion, with reference to Government of Part B
State of Travancore-Cochin meant not.only the merged
erstwhile State of Travancore and Cochin but also its
components.· Seen thus, by virtue of Article 295(2), the
Government of Part B State of Travancore - Cochin became F
successor of the corresponding State of Travancore as regards
all rights, liabilities and obligations arising out of 1886 Lease
Agreement.

Findings on issue Nos. 1, 5, 6 and 7 G
74. In light of the above, our finding on issue Nos. 1, 5, 6
and 7 are:

(i) The suit filed by the State of Tamil Nadu is maintainable
under Article 131 of the Constitution. H
936 SUPREME COURT REPORTS (2014] 12 S.C.R.

A (ii) 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 in Council on
29.10.1886 is not barred by the proviso to Article 131 of the
Constitution.
B.
(iii) The State of Kerala (first defendant) 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.
c (iv) 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.
D
Issue Nos. 2(a), 3, 4(a), 4(b) and 10

75. These issues are inter-related and, therefore, they are
being discussed together.

E Contentions on behalf of Tamil Nadu

76. Mr. .Vined Bobde, learned senior counsel for. Tamil
Nadu submits that 2006 judgment had rendered a finding of
fact on the safety of Mullaperiyar dam for raisirig water level to
F · 142 ft. 2006 (Amendment) Act could not have taken away the
legal right of Tamil Nadu flowing from the judgment. Section
62(A) of the 2006 (Amendment) Act directly seeks to nullify the
judgment of this Court by declaring the dam to be endangered
and by fixing the height of the water level at 136 ft.. It also
authorises the Dam Safety Authority to discard the judgment
G and to adjudge for itself whether to allow raising of water level.
The Section also goes on to freeze all work on the dam allowed
by this Court in 2006 judgment. Section 62(1)(e) of the 2006
(Amendment) Act in its application to the subject dam, seeks
to overcome the finding of safety by authorizing the Dam Safety
H Authority to order, inter a/ia, decommissioning of the dam. The
STATE OF TAMIL NADU v. STATE OF KERALA 937
[R.M. LODHA, CJl.J.
nullification of judgment is, thus,. plain and obvious. A final A
judgment, once rendered, operates and remains in force until
altered by the court in an appropriate proceeding. He submits
that unilateral legislation nullifying a judgment is constitutionally
impermissible.
B
77. Relying upon the judgment of this Court in Prithvi
Cotton", learned senior counsel for Tamil Nadu submits that
nullification of a judgment without removal of its legal basis is
one of the categories of usurpation. A judgment on a question
of fact cannot be nullified so also the effect of judgment, which
enforces a legal right. By relying upon the Privy Council
c
judgment in Liyanage 12, he submitted that tnterference with the
judicial process in a pending matter also amounts to usurpation
of judicial power. In both categories of usurpation, the answer
would depend on facts of each case after considering the legal
effect of the law on a judgment or a judicial proceeding. Mr. D
Vinod Bobde submits that the true purpose of the legislation,
the haste with which it was enacted, and the surrounding
circumstances, are relevant circumstances. _

78. It is argued by learned senior counsel for Tamil Nadu E
that the test for determining whether a judgment is nullified is
to see whether the law and the judgment are inconsistent and
irreconcilable so that both cannot stand together. The finding
of fact by this Court in 2006 judgment that the dam is safe can
never be deemed to be imaginary by legal fiction which then F
proceeds to deem the opposite to be real, namely, that the dam
is endangered. The provision limiting the height of water level
to 136 ft, enacted within 15 days after the judgment of this Court
finding the dam to be safe and allowing the water level to be
raised to 142 ft., shows the true purpose of the legislation, the G
situation to which it was directed and the clear intention to defy

11. Shri Prithvi Cotton Mills Ltd. and Anr. v. Broach Borough Municipality
and Ors.; [(1969) 2 sec 2B3J. ·
12. Don John Francis Douglas Liyanage & Ors. v. The Queen; [(1966) 1 All
E.R. 650]. H
938 SUPREME COURT REPORTS (2014] 12 S.C.R.

A and ad as a judicial authority sitting in appeal over the judgment
of this Court.

79. Mr. Vinod Bobde submits that between 27.02.2006
when the judgment was rendered by this Court and 15.03.2006
B when 2006 (Amendment)
. Act was enacted by Kerala State
legislature, no new facts emerged nor there was any change
in circumstances. Kerala Government and Kerala State
Legislature did not have a single piece of information of fact
before it concerning seismic coefficient values, Probable
Maximum Flood (PMF) levels or any other matter or material
C contradicting or even doubting the finding of this Court in 2006
judgment which was based on the findings of the Expert
Committee.

80. It is strenuously urged by learned senior counsel for
D Tamil Nadu that once a dispute is before a court and parties
· are at issue on any question of fact, the decision on that
question can be rendered only by the court and not by the
legislature or the executive. The legislature cannot decide that
the water level shall not exceed 136 ft. when the very issue had
E been adjudicated upon by the court.

81. Learned senior counsel for Tamil Nadu argues that the
finding of fact about safety of the dam for water level upto 142
ft. is res judicata and binds the two States. It is not within the
province of the Kerala Legislature to sit in judgment on the
F finding of this Court and purport to reverse the same by directing
that water level shall remain at 136 ft. According to Tamil Nadu,
this is not a legislation; it is the exercise of "despotic discretion"
and offends the rule of law and the principle of separation of
powers.
·G
82. Relying upon a decision of this Court in Indra
Sawhney13 , it is argued by learned senior counsel for Tamil
Nadu that the legislative declaration of fact in Section 62A that

H 13. Indra Sawhney v. Union of India and Others; [(2000) 1 SCC 168].
STATE OF TAMIL NADU v. STATE OF KERALA 939
[R.M. LODHA, CJI.]

the dams in Second Schedule are endangered on account of A
their age, degeneration, degradation, structure or other
impediments is not beyond judicial scrutiny and it is open to
the court to examine the true facts.

83. Mr. Vined Bobde argues that 2006 (Amendment) Act B
is not a validating enactment because (i) the judgment of this
Court did not reach the finding about the safety of the dam
founded on any law which was considered to suffer from any
constitutional vice or defect; (ii) there was no occasion at all to
remove any vice or cure any defect in any law and perform a C
validating exercise; and (iii) in fact, the 2006 (Amendment) Act
does not purport to cure any defect found by this Court in any
law. In this regard, reliance is placed upon decisions of this
Court in Prithvi Cotton11 , Madan Mohan Pathak14, People's
Union for Civil Liberties (PUCL) 15 , Municipal Corporation of
the City of Ahmedabad and Anr16• and Janapada Sabha17• D

84. It is argued by Mr. Vined Bobde that validating laws
are passed by the legislature after curing the defects in the law
which have been struck down but where a fact is adjudicated
upon, there is no power in the legislature or executive to sit in E
judgment upon a decision on a disputed question of fact and
substitute its own "legislative judgment" for that Court. Learned
senior counsel places reliance upon the judgment of this Court
in Cauvery reference 18 •
F
85. It is, thus, argued by the learned senior counsel for Tamil
Nadu that 2006 (Amendment) Act is unconstitutional.
14. Madan Mohan Pathak & Anr. v. Union of India and Others; [(1978) 2
sec 50J. ·
15. People's Union for Civil Liberties (PUCL) and Anr. v. Union of India and G
Anr.; [(2003) 4 sec 399].
16. Municipal Corporation of the City of Ahmadabad & Anr. v. New Shrock Spg.
And Wvg. Co. Ltd. [(1970) 2 SCC 280].
17. Janapada Sabha Chhindwara v. Central Provinces Syndicate Ltd. and Anr.;
[(1970) 1 sec so9J.
18. Cauvery Water Disputes Tribunal, Re; [1993 Supp (1) SCC 96 (2)]. H
940 SUPREME COURT REPORTS [2014) 12 S.C.R.

A Contentions on behalf of Kerala

86. Mr. Harish N, Salve, learned senior counsel for Kerala
on the other hand argues that Kerala legislature is competent
to override the contracts and regulate the safety of Mullaperiyar
dam situated within its territory across river Periyar. Even
B
agreements entered into between foreign sovereigns can be
overridden in exercise of legislative powers. He relies upon the
decisions of this Court in Thakur Jagannath Baksh 19, Maharaj
Umeg Singh 20 , Manigault21 and an article by Roderick E.
Walston titled "The Public Trust Doctrine in the Water Rights
C Contexts" 22 •

87. Learned senior counsel for Kerala contends that on the
basis of "age", etc;, as safety standards, the Kerala legislature
as a precautionary measure has declared that 22 dams are
D "endangered" and restricted storages thereunder by virtue of
Section 62(A)(1) and (2) read with Second Schedule. Learned
senior counsel relies upon Brotherhood of Locomotive
Firemen 23 , Ra·ymond Motor Transportation 24 , Raymond
Kasse/2 5, American Trucking Association 26 and Pfizer Animal
E Health 27 • Learned senior counsel also relies upon, "Science
and Risk Regulation and International Law" by Jacqueline
19. Thakur Jagannath· Baksh Singh v. The United Provinces; (73 IA 123).
20. Maharaj Umeg Singh and Ors. v. State of Bombay and Ors.; ((1955) 2 SCR
164). .
F 21. Arthur M. Manigault v. Alfred A. Springs et al; ((1905) 199 US 473).
22. ''The Public Trust Doctrine in the Water Rights Contexts" by Roderick E.
Walston; 29 Natural Resources Journal 585.
23. Brotherhood of Locomotive Firemen & Enginemen et al. v. Chicago, Rock
Island & Pacific Rail-Road Co. et al.; ((1968) 393 US 129).
24. Raymond Motor Transportation, Inc. et al. v. Zel S. Rice et al.; ((1978) 434
G us 429).
25. Raymond Kassel et al. v. Consolidated Freightways -Corporation of
Delaware; ((1981) 450 US 662].
26. American Trucking Associations, Inc. v. Thomas D. Larson; ((1982) 683
F.2d 787]. '
27. Pfizer Animal Health SA v. Council of the European Union; [(2002) ECR 11-
H 03305].
STATE OF TAMIL NADU v. STATE OF KERALA 941
[R.M. LODHA, CJI.]
Peel 28 wherein Pfizer Animal Health 27 has been referred. A

88. Mr. Harish Salve, learned senior counsel for Kerala
argues that legislature is competent to remove the basis of
judgment and neutralize its effect. In response to the contention
of Tamil Nadu that 2006 (Amendment) Act constitutes 8
usurpation of judicial power, learned senior counsel argues that
2003 Act was in place when the judgment was delivered by this
Court on 27 .02.2006 but the Court has not taken into
consideration Sections 3 and 4 and so also Section 30 of the
2003 Act. It was assumed that Section 108 of the 1956 Act C .
would save the contractual rights arising from the 1886 Lease
Agreement and purportedly continued by the supplementary
agreements of 1970. The 2003 Act was not under challenge
either in the previous litigation nor in the present suit. Learned
senior counsel for Kerala, thus, submits that where. a judgment
is per incuriam, one remedy is by way of further appropriate D
legislation.

89. Learned senior counsel for Kerala in the course of
arguments extensively referred to the provisions of 2003 Act
and the substitution of Section 62 by providing with non E
obstante clause that the function of evaluation of safety of a
dam and the power to issue directions to the custodian are
conferred upon Dam Safety Authority notwithstanding any
decree of any court, and notwithstanding anything contained in
any treaty, contract, instrument or other documents and F
submitted that 2003 Act and 2006 (Amendment) Act have
created a statutory framework for regulating water level in
respect of dams within the State of Kerala, both scheduled and
non-scheduled. 2006 (Amendment) Act establishes a statutory
authority, which confers upon it the power to take certain G
measures in the interest of public safety. The judgment of this
Court in 2006, Kerala contends, even does not suggest
remotely that Kerala legislature lacks power to make measures

28- "Science and Risk Regulation and International Law" by Jacqueline Peel;
Published by Cambridge University Press, 2010. H
942 SUPREME COURT REPORTS [2014) 12 S.C.R.

A for public safety in relation to the reservoir situated within the
State.

90. Mr. Harish Salve argues that in declaring a dam to be
unsafe, the Legislature does not render a finding of fact. It
deems the dam to be unsa'fe and sets up an authority to regulate
8
the dam in a particular manner. The legislative competence of
the legislature to put in place statutory machinery to regulate
water levels in a dam situated within the State in the interest of
public safety cannot be denied. He argues that as to what
.C constitutes an endangered dam is a rnatter of legislative policy
and safety is accepted to be a matter primarily of policy. A court
through the process of adjudication renders findings and
adjudication is always as per law in force. Once the law is
altered, the adjudication cannot stand on its own. According to
Mr. Salve, the argument of Tamil Nadu that impugned legislation
D is usurpation of judicial power is misconceived.

91. Learned senior counsel for K..erala relies upon
Wheeling Bridge2• in support of the principle that private rights
pass into judgments but not the public rights and also submits
E that Wheeling Bridge 2 • principle has been applied in the
subsequent cases viz., The Clinton· Bridge30, Hodges3 1 ·and
Charles B. Miller32 •

92. Shri Harish N. Salve, argues that 2006 (Amendment)
Act is not a Validation Act in a stricto sensu. While adjudicating
F upon constitutional validity, he argues that the court must
proceed on the premise that the legislature understands and
correctly appreciates the needs of its own people and its laws
are directed to the problems made manifest by its experience
and are based on adequate grounds. Learned senior counsel
G 29. The State of Pennsylvania v. The Wheeling and Belmont Bridge Company,
et al.;[ (1855) 59 U.S. 421]. ·
30. The Clinton Bridge case; [(1870) 77 US 454]
31. Hodges et al. v. Snyder et al.; [(1923) 261 US 600]
32. Chartes B. Miller, Superintendent, Pendleton Correctional Facility et al. ·v.
H Richard A. French et al.; [(2000). 530 U.S. 327]
STATE OF TAMIL NADU v. STATE OF KERALA 943
[R.M. LODHA, CJI.]
for Kerala relies upon the decision of this Court in Elphinstone A
Spinning33 which approved the earlier decisions in Sanjeev
Coke34 and Doypack Systems35 •

Indian Constitution : Separation of powers

93. Indian Constitution, unlike Constitution of United States 8
of America and Australia, does not have express provision of
separation of powers. However, the structure provided in our
Constitution leaves no manner of. doubt that the doctrine of
separation of powers runs through the Indian Constitution. It is
for this reason that this Court has recognized separation of C
power as a basic feature of the Constitution and an essential
constituent of the rule of law. The doctrine of separation of
powers is, though, not expressly engrafted in the Constitution,
its sweep, operation and visibility are apparent from the
Constitution. Indian Constitution has made demarcation without D
drawing formal lines between the three organs - legislature,
executive and judiciary.
Mahal Chand Sethia

94. In Mahal Chand Sethia 36, while dealing with the E
argument that although it was open to the State legislature by
an Act and the Governor by an Ordinance to amend the West
Bengal Criminal Law Amendment (Special Courts) Act, 1949,
it was incompetent for either of them to validate an order of
transfer which had been quashed by the issue of a writ of F
certiorari by the High Court and the order of transfer being
virtually dead, could not be resuscitated by the Governor or

33. Union of India v. Elphinstone Spinning and Weaving Co. Ltd. and Ors.;
rc2001) 4 sec 139). G
34. Sanjeev Coke Manufacturing Co. v. M/s. Bharat Coking Coal Ltd. and Anr.;
[(1983) 1 sec 147].
35. M/s. Doypack Systems Pvt. Ltd. v. Union of India and Ors.; [(1988) 2 SCC
299).
36. Mahal Chand Sethia v. State of West Bengal; Crl. A. No. 75 of 1969,
decided on 10th September, 1969; [1969 (2) UJ 616 SC). H
944 SUPREME COURT REPORTS [2014] 12 S.C.R.

A legislature and the validating measures could not touch any
adjudication by the Court. Mitter J. speaking for the Court stated
the legal position :-

" ...... A legislature of a State is competent to pass any
measure which is within its legislative competence under
B
the Constitution of India. Of course, this is subject to the
provisions of Part Ill of the Constitution. Laws can be
enacted either by the Ordinance making power of a
Governor or the Legislature of a State in respect of the
topics covered by the entries in the appropriate List in the
c Seventh Schedule to the Constitution. Subject to the above
limitations laws can be prospective as also retrospective
in operation. A court of law can pronounce upon the validity
of any law and declare the same to be null and void if it
was beyond the legislative competence of the Legislature
D or if it infringed the rights enshrined in Part Ill of the
Constitution. Needless to add it can strike down or declare
invalid any Act or direction of a State Government which
is not authorised by law. The position of a Legislature is
however different. It cannot declare any decision of a Court
E of law to be void or of no effect."

(emphasis supplied)

Prithvi Cotton

F 95. One of the leading cases of this Court on the legislative
competence vis-a-vis decision of the Court is Prithvi Cotton11 .
In that case, the validity of the Gujarat Imposition of Taxes by
Municipalities (Validation) Act, 1963 was assailed on behalf of
the petitioners. The Validation Act had to be enacted in view
G of the decision of this Court in Patel Gordhandas
Hargovindas37 • Section 3 of the Validation Act provided that
notwithstanding anything contained in any judgment, decree or
order of a court or tribunal or any other authority, no tax
37. Patel Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad
H ; [(1964) 2 SCR 608] .
STATE OF TAMIL NADU v. STATE OF KERALA 945
[RM. LODHA, CJI.]
assessed or purported to have been assessed by a municipality A
on the basis of capital value of a building or land and imposed,
collected or recovered by the municipality at any time before
the commencement of the Validation Act shall be deemed to
have been invalidly assessed, imposed, collected or recovered
and the imposition, collection or recovery of the tax so assessed B
shall be valid and shall be deemed to have been always valid
and shall not be called in question merely on the ground that
the assessment of the tax on the basis of capital value of the
building or land was not authorized by law and accordingly any
tax so assessed before the commencement of the Validation c
Act and leviable for a period prior to such commencement but
not collected or recovered before such commencement may be
collected or recovered in accordance with the relevant
municipal law. The Constitution Bench exposited that the
validity of a validating law depended upon whether the
0
legislature possesses the competence which it claims over the
subject matter and whether in making the validation it removed
the defect which the courts had found in the existing law and
made adequate provisions in the validating law for a valid
imposition of the taxes. In the words of the Constitution Bench:
E
".... When a Legislature sets out to validate a tax declared
by a court to be illegally collected under an ineffective or
an invalid law, the cause for ineffectiveness or invalidity
must be removed before validation can be said to take
place effectively. The most important condition, of course, F
is that the Legislature must possess the power to impose
the tax, for, if it does not, the action must ever remain
ineffective and illegal. Granted legislative competence, it
is not sufficient to declare merely that the decision of the
Court shall not bind for that is tantamount to reversing the G
decision in exercise of judicial power which the Legislature
· does not possess or exercise. A court's decision must
always bind unless the conditions on which it is based are
so fundamentally altered that the decision could not have
been given in the altered circumstances. Ordinarily, a court H
946 SUPREME COURT REPORTS (2014] 12 S.C.R.

A holds a tax to be invalidly imposed because the power to
tax is wanting or the statute or the rules or both are invalid
or do not sufficiently create the jurisdiction. Validation of
a tax so declared illegal may be done only if the grounds
of illegality or invalidity are capable of being removed and
B are in fact removed and the tax thus rnade legal.
Sometimes this is done by providing for jurisdiction where
jurisdiction had not been properly invested before.
Sometimes this is done by re-enacting retrospectively a
valid and legal taxing provision and then by fiction making
c the tax already collected to stand under the re-enacted law.
Sometimes the Legislature gives its own meaning and
interpretation of the law under which tax was collected and
by legislative fiat makes the new meaning binding upon
courts. The Legislature may follow any one method or all
of them and while it does so it may neutralise the effect of
D
the earlier decisiOA of the court which becomes ir-.ffective
after the change of the law. Whichever method is adopted
it must be within the competence of the legislature and
legal and adequate ta attain the object of validation. If the
Legislature has the power over the subject-matter and
E competence to make a valid law, it can at any time make
such a valid law and make it retrospectively so as to bind
even past transactions. The validity of a Validating Law,
therefore, depends upon whether the Legislature
possesses the competence which it claims over the
F subject-matter and whether in making the validation it
removes the defect which the courts had found in the
existing law and makes adequate provisions in the
Validating Law for a valid imposition of11ie tax.·

G {emphasis supplied)
Janapada Sabha

96. The Constitution Bench in Janapada Sabha 17,
considered the position with regard to legislative power and a
H
STATE OF TAMIL NADU v. STATE OF KERALA 947
[R.M. LODHA, CJI.]
decision of the Supreme Court and made the following weighty A
observations:

" .. On the words used in the Act, it is plain that the
Legislature attempted to overrule or set aside the decision
of this Court. That, in our judgment, is not open to the
Legislature to do under our constitutional scheme. It is B
open to the Legislature within certain limits to amend the
provisions of an Act retrospectively and to declare what
the law shall be deemed to have been, but it is not open
to the Legislature to say that a judgment of a Court properly
constituted and rendered in exercise of its powers in a C
matter brought before it shall be deemed to be ineffective
and the interpretation of the law shall be otherwise than as
declared by the Court."

(emphasis supplied by us) D

Municipal Corporation of the City of Ahmedabad

97. The above three decisions and one more decision of
this Court in Amalgamated Coal Fields3 6 were noted by the
two-Judge Bench of this Court in the Municipal Corporation of E
the City of Ahmedabad1 6 . While accepting that the legislature
under our Constitution have within the prescribed limits, powers
to make laws prospectively as well as retrospectively and that
by exercise of those powers, the legislature can remove the
basis· of a decision rendered by a competent court thereby F
rendering that decision ineffective but no legislature has power
to ask the instrumentalities of the State to disobey or disregard
the decisions given by courts.

Madan Mohan Pathak
G
98. Yet another important decision by the 7-Judge
Constitution Bench of this Court on the subject is Madan
Mohan Pathak14 • P.N. Bhagwati, J. speaking for himself,

38. State of M.P. v. Amalgamated Coalfields Ltd. and Anr; [(1970) 1 SCC 509).. H
948 SUPREME COURT REPORTS [2014] 12 S.C.R.

A Krishna Iyer and Desai, JJ. while dealing with the constitutional
validity of the Life Insurance Corporation (Modification of
Settlement) Act, 1976, which was enacted by the Parliament
in light of the decision of the Calcutta High Court holding an
impost or tax to be invalid, observed that irrespective of whether
8 the impugned Act was constitutionally valid or not, Life
Insurance Corporation was bound to obey the writ of mandamus
issued by the Calcutta High Court. M.H. Beg, C.J., agreeing
with the view of P.N. Bhagwati, J. that the benefits of rights
recognized by the judgment of the Calcutta High Court could
C not be indirectly taken away under Section 3 of the impugned
Act selectively, said that if the right conferred by the judgment
independently is sought to be set aside, then Section 3 would
be invalid for trenching upon the judicial power. M.H. Beg, C.J.
further said:

D " I may, however, observe that even though the real object
of the Act may be to set aside the result of the mandamus
issued by the Calcutta High Court, yet, the section does
not mention this object at all. Probably this was so because
the jurisdiction of a High Court and the effectiveness of its
E orders derived their force from Article 226 of the
Constitution itself. These could not be touched by an
ordinary act of Parliament. Even if Section 3 of the Act
seeks to take away the basis of the judgment of the
Calcutta High Court, without mentioning it, by enacting what
F may appear to be a law, yet, I think that, where the rights
of the citizen against the State are concerned, we should
adopt an interpretation which upholds those rights.
Therefore, according to the interpretation I prefer to adopt
the rights which had passed into those embodied in a
judgment and became the basis of a. mandamus from the
G
High Court could not be taken away in this indirect
fashion."

(emphasis supplied by us)

H
STATE OF TAMIL NADU v. STATE OF KERALA 949
[R.M. LODHA, CJI.]
P. Sambamurthy A

99. The importance of power of judicial review in rule of
law has been significantly highlighted in P. Sambamurthy3 9• In
that case, this Court while holding that proviso to clause (5) of
Article 371-D was violative of the basic structure doctrine, 8
observed that if the exercise of the power of judicial review
could be set at naught by the State Government by overriding
the decision against it, it would sound the death knell of the rule
of law. Sounding a word of caution, this Court said that the rule
of law would cease to have any meaning if the State C
Government were to defy the law and yet to get away with it.

Cauvery Reference

100. In Cauvery reference 16 , this Court was concerned
with the validity of Karnataka Cauvery Basin Irrigation o
Protection Ordinance, 1991. Relying upon its previous
decisions in Madan Mohan Pathak14 and P. Sambamurthy39 ,
this Court declared the Ordinance unconstitutional as it sought
to nullify the order of the Tribunal impinging on the judicial power
of the State. E
PUCL
101. In People's Union for Civil Liberties (PUCL) 15 , the
question under consideration before the three-Judge Bench of
this Court was the validity of the Representation of the People F
(Amendment) Ordinance, 2002. The amendment followed the
decision of this Court in Association for Democratic Reforms. 40
M.B. Shah, J. speaking for the majority noticed the earlier
decisions of this Court in P. Sambamurthy39, Cauvery
reference 18 , Municipal Corporation of the City of G
Ahmedabad16 , Prithvi Cotton11 and Mahal Chand Sethia 36 and
stated :
39. P. Sambamurthy and Ors. v. State of A.P. and Anr.;[ (1987) 1 SCC 362).
40. Union of India v. Association for Democratic Reforms and Anr.; ((2002) 5
sec 294). H
' . 950 SUPREME COURT REPORTS · ·[2014] 12 S.C.R.

A "The Legislature can change the basis on which a decision
is rendered by this Court and change the law in general.
However, this power can be· exercised subject to
constitutional provision, particularly, legislative competence
and if it is violative of fundamental rights enshrined in Part ·
B Ill of the Constitution, such law would be void as provided
under.Article 13 of the.Constitution. The Legislature also
cannot declare any decision of a court of law to be void
or of no effect".

C . Kesavananda Bharti, Indira Nehru Gandhi, Bal Mukund
Sah and l.R. Coelho

102. That separation of powers between the legislature,
the executive and the judiciary is the basic structure of the
Constitution is expressly stated by Sikri, C.J. in Kesavananda
D Bharti4 1• Shela! and Grover, JJ. reiterating the views of Sikri,
J. said that demarcation of power between the legislature, the
executive· and the judiciary could be regarded as basic
elements of the Constitutional structure. The same view is
expressed in subsequent decisions of this Court in Indira
E Nehru Gandhi42, Bal M!.ikund Sah' 3 and l.R. Coelho. The nine-
Judge Constitution Bench in /.R. Coelho44 has described that
equality, rule of law, judicial review and separation of powers
form parts of the basic structure of the Constitution. The Court
in l.R. Coelho« said:
F · •. : ..... Each of these concepts are intimately connected.
There can be no rule of law, if there is no equality before
the law. These would be meaningless if the violation was

G 41. His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and -.
Anr.;((1973) 4sec 225).
42. Sml Indira Nehru Gandhi v. Shri Raj Narain and Anr; (1975 (Supp.) SCC
n . . .
43. State of Bihar and Anr. v. Bal Mukund Sah and Others; ((2000) 4 sec 640).
H 44. l.R. Coelho (Dead) by LRs. ·v. State of T.N.; ((2007) 2 SCC 1). ..
STATE OF TAMIL NADU v. STATE OF KERALA 951
[R.M. LODHA, CJI.]
not subject to the judicial review. All these would be A
redundant if the legislative, executive and judicial powers
are vested in one organ. Therefore, the duty to decide
whether the limits have been transgressed has been
placed on the judiciary." ·
B
l.N. Saksena

103. Drawing distinction between legislative and judicial
acts and functions, this Court in /.N. Saksena45 held (para 21
and 22 of the Report):
c
"21. The distinction between a "legislative" act and a
"judicial" act is well known, though in some specific
instances the line which separates one category from the
other may not be easily discernible. Adjudication of the
rights of the parties according to law enacted by the o
legislature is a judicial function. In the performance of this
function, the court interprets and gives effect to the intent
• and mandate of the legislature as embodied in the statute.
On the other hand, it is for the legislature to lay down the
law, prescribing norms of conduct which will govern parties E
and transactions and to require the court to give effect to
that law.

22. While, in view of this distinction between legislative and
judicial functions, the legislature cannot by a bare
declaration, without more, directly overrule, reverse or F
override a judicial decision, it may, at any time in exercise
of the plenary powers conferred on it by Articles 245 and
246 of the Constitution render a judicial decision ineffective
by enacting a valid law on a topic within its legislative field
fundamentally altering or changing with retrospective, G
curative or neutralising effect the conditions on which such
decision is based. As pointed out by Ray, C.J. in Indira
Nehru Gandhi v. Raj Narain, the rendering ineffective of
judgments or orders of competent courts and Tribunals by
changing their basis by legislative enactment is a well- H
952 SUPREME COURT REPORTS [2014] 12 S.C.R.

A known pattern of all validating Acts. Such validating
legislation which removes the causes for ineffectiveness
or invalidity of actions or proceedings is not an
encroachment on judicial power."

B 103.1. In l.N. Saksena45, this Court referred to an earlier
· decision in Hari Singh46 wherein a Bench of seven Judges of
this Court noted the two tests for judging the validity of a
validating law: (i) whether the legislature possesses
competence over the subject-matter, and, (ii) whether by
C validation, the legislature has removed the defect which the
courts have found in the previous law. While following these two
tests, the four-Judge Bench in l.N. Saksena45 added a third test:
whether it is consistent with the provisions of Part 111 of the
Constitution.

D P. Kannadasan

104. Prithvi Cotton 11 has been followed in Hindustan Gum
and Chemicals 47 , Vijay Mills Company46 and P.
Kannadasan 49 • It is not necessary to burden this judgment with
E all the three judgments as, in our view, reference to one of them,
i.e., P. Kannadasan4 9 will suffice. In P. Kannadasan 49 this Court
noted that the Constitution of India recognised the doctrine of
separation of powers between the three organs of the State,
namely, the legislature, the executive and the judiciary. The
F Court said :

"15 ........ It must be remembered that our Constitution
recognises and incorporates the doctrine of separation of

45. l.N. Saksena v. State of Madhya Pradesh; ((1976) 4 SCC 750).
G 46 .. Hari Singh and Ors. v. Military Estate Officer and Anr.; ((1972) 2 SCC 239).
47. Hindustan Gum and Chemicals Ltd. v. State of Haryana and Others; ((1985)
4 sec 124]. ·
48. Vijay Mills Company Limited and Others v. State of Gujarat and Ors.; ((1993)
1 sec 345].
49. P. Kannadasan and Others v. State ofT.N. and Others; ((1996) 5 SCC 670].
H
STATE OF TAMIL NADU v. STATE OF KERALA 953
[R.M. LODHA, CJI.]
powers between the three organs of the State, viz., the A
Legislature, the Executive and the Judiciary. Even though
the Constitution has adopted the parliamentary form of
government where the dividing line between the legislature
and the c~ecutive becomes thin, the theory of separation
of powers is still valid. Ours is also a federal form of B
government. The subjects in respect of which the Union and
the States can make laws are separately set out in List I
and List II of the Seventh Schedule to the Constitution
respectively. (List Ill is, of course, a concurrent list.) The
Constitution has invested the Supreme Court and High c
Courts with the power to invalidate laws made by
Parliament and the State Legislatures transgressing the
constitutional limitations. Where an Act made by a State
Legislature is invalidated by the courts on the ground that
the State Legislature was not competent to enact it, the
0
State Legislature cannot enact a law declaring that the
judgment of the court shall not operate; it cannot overrule
or annul the decision of the court. But this does not mean
that the other legislature which is competent to enact that
law cannot enact that law. It can. Similarly, it is open to a
legislature to alter the basis of the judgment as pointed out E
by this Court in Shri Prithvi Cotton Mills Ltd. v. Broach
Borough Municipality- all the while adhering to the
constitutional limitations; in such a case, the decision of
the court becomes ineffective in the sense that the basis
upon which it is rendered, is changed. The new law or the F
amended law so made can be challenged on other
grounds but not on the ground that it seeks to ineffectuate
or circumvent the decision of the court. This is what is
meant by "checks and balances" inherent in a system of
government incorporating the concept of separation of G
powers. This aspect has been repeatedly emphasised by
this Court in numerous decisions commencing from Shri
Prithvi Cotton Mills. Under our Constitution, neither wing
is superior to the other. Each wing derives its power and
H
954 SUPREME COURT REPORTS [2014] 12 S.C.R.

A jurisdiction from the Constitution. Each must operate within
the sphere allotted to it. Trying to make one wing superior
to the other would be to introduce an imbalance in the
system and a negation of the basic concept of separation
of powers inherent in our system of government. ....... "
8
Indian Aluminium Company

105. In Indian Aluminium Company50 , one of the
contentions addressed to this Court was that the Kerala
legislature had no power to enact Section 11 of the impugned
C Act validating the levy with retrospective effect as it amounted
to encroachment upon judicial power of the cou~s. While
dealing with this contention, the Court referred to earlier
decisions of this Court and culled out the following principles
(para 56; Pgs. 662-663 of the Report):
D
"(1) The adjudication of the rights of the parties is the
essential judicial function. Legislature has to lay down the
norms of conduct or rules which will govern the parties and
the transactions and require the court to give effect to them;
E (2) The Constitution delineated delicate balance in the
exercise of the sovereign power by the legislature,
executive and judiciary;

(3) In a democracy governed by rule of law, the legislature
F exercises the power under Articles 245 and 246 and other
companion articles read with the entries in the respective
lists in the Seventh Schedule to make the law which
includes power to amend the. law.

(4) Courts in their concern and endeavour to preserve
G judicial power equally must be guarded to maintain the
delicate balance devised by the Constitution between the
three sovereign functionaries. In order that rule of law

50. Indian Aluminium Company and Others v. State of Kerala and Others;
H [(1996) 7sec 637).
STATE OF TAMIL NADU v. STATE OF KERALA 955
[R.M. LODHA, CJI.]

permeates to fulfil constitutional objectives of establishing A
an egalitarian social order, the respective sovereign
functionaries need free play in their joints so that the march
of social progress and order remains unimpeded. The
smooth balance built with delicacy must always be
maintained; B

(5) In its anxiety to safeguard judicial power, it is
unnecessary to be overzealous and conjure up incursion
into the judicial preserve invalidating the valid law
competently made;
c
(6) The court, therefore, needs to carefully scan the law to
find out: (a) whether the vice pointed out by the court and
invalidity suffered by previous law is cured complying with
the legal and constitutional requirements; (b) whether the
legislature has competence to validate the law; (c) whether D
such validation is consistent with the rights guaranteed in
Part Ill of the Constitution.

(7) The court does not have the power to validate an invalid
law or to legalise impost of tax illegally made and collected E
or to remove the norm of invalidation or provide a remedy.
These are not judicial functions but the exclusive province
of the legislature. Therefore, they are not encroachment on
judicial power.

(8) In exercising legislative power, the legislature by mere F
declaration, withoutanything more, cannot directly overrule,
revise or override a judicial decision. It can render judicial
decision ineffective by enacting valid law on the topic within
its legislative field fundamentally altering or changing its
character retrospectiyely. The changed or altered G
conditions are such that the previous decision would not
have been rendered by the court, if those conditions had
existed at the time of declaring the law as invalid. It is also
empowered to give effect to retrospective legislation with
H
956 SUPREME COURT REPORTS [2014] 12 S.C.R.

A a deeming date or with effect from a particular date. lhe
legislature can change the character of the tax or duty from
impermissible to permissible tax but the tax or levy should
answer such character and the legislature is competent to
recover the invalid tax validating such a tax on removing
B the invalid base for recovery from the subject or render the
recovery from the State ineffectual. It is competent for the
legislature to enact the law with retrospective effect and .
authorise its agencies to levy and collect the tax on that
basis, make the imposition of levy collected and recovery
c of the tax made valid, notwithstanding the declaration by
the court or the direction given for recovery thereof.

(9) The consistent thread that runs through all the decisions
of this Court is that the legislature cannot directly overrule
the decision or make a direction as not binding on it but
D
has power to make the decision ineffective by removing
the base on which the decision was rendered, consistent
with the law of the Constitution and the legislature must ·
have competence to do the same."

E Arooran Sugars

106. In Arooran Sugars51, the matter reached this Court
from the judgment of the Madras High Court. Before the Madras
High Court, the challenge was laid to the constitutional validity
F of T.N. Land Reforms (Fixation of Ceiling on Land) Amendment
Act, 1978 on diverse grounds. The Division Bench of the
Madras High Court allowed the writ petitions. The State of Tamil
Nadu being not satisfied with that judgment approached this
Court. While dealing with the power of the legislature, the
Constitution Bench of this Court observed: "The power of the
G legislature to amend, delete or obliterate a statute or to enact
a statute prospectively or retrospectively cannot be questioned
and challenged unless the court is of the view that such exercise

H 51. State of T.N. v. Arooran Sugars Ltd.; [(1997) 1 sec 326].
STATE OF TAMIL NADU v. STATE OF KERALA 957
[R.M. LODHA, CJI.]
is in violation of Article 14 of the Constitution. It need not be A
impressed that whenever any Act or amendment is brought in
force retrospectively or any provision of the Act is deleted
retrospectively, in this process rights of some are bound to be
affected one way or the other. In every case, it cannot be urged
that the exercise by the legislature while introducing a new B
provision or deleting an existing provision with retrospective
effect per se shall be violative of Article 14 of the Constitution.
If that stand is accepted, then the necessary corollary shall be
that legislature has no power to legislate retrospectively;
because in that event a vested right is effected; of course, in a c
special situation this Court has held that such exercise was
violative of Article 14 of the Constitution ........". The Constitution
Bench held that the provisions of the impugned Act do not
purport to affect any vested or acquired right, it only restores
the position which existed when the principal Act was in force.
0
It further h.eld that the Amending Act did not ask the
instrumentalities of the State to disobey or disregard the
decision given by the High Court but what it has done is that it
has removed the basis of its decision.

Elphinstone Spinning and Weaving Company E
107. The Constitution Bench of this Court in Elphinstone
Spinning and Weaving Company3 3 laid down: (a) there is
always a presumption that the legislature does not exceed its
jurisdiction, (b) the burden of establishing that the legislature F
has transgressed constitutional mandates is always on the
person who challenges its vires, and (c) unless it becomes clear
beyond reasonable doubt that the legislation in question has
transgressed the constitutional limits, it must be allowed to
stand.
G
Dharam Dutt

108. The principle that the doctrine of colorable legislation
does not involve bona fides or mala fides on the part of the
H
958 SUPREME COURT REPORTS [2014] 12 S.C.R.

A legislature is highlighted by this Court in Dharam Dutt52 • Relying
upon earlier decisions in K. C. Gajapati Narayan Oeo53 and
Ayurvedic and Unani Tibia Col/ege 54 , the Court in Dharam
Dutt52 further observed :

"16 ...... The whole doctrine resolves itself into the question
B
of the competency of a particular legislature to enact a
particular law. If the legislature is competent to pass a
particular law, the motives which impelled it to act are really
irrelevant. On the other hand, if the legislature lacks
competency, the question of motive does not arise at all.
c We will, therefore, concentrate on the legislative
competence of Parliament to enact the impugned
legislation. If Parliament has the requisite competence to
enact the impugned Act, the enquiry into the motive which
persuaded Parliament into passing the Act would be of no
D use at all."

108.1. On the question of the effect of the previous
judgment of the High Court on the impugned legislation, this
Court in Dharam Dutt5 2 referred to Madan Mohan Pathak14 ,
E Prithvi Cotton 11 , Indian Aluminium Company5°, Indira Nehru
Gandhi42 and other decisions of this Court and held in
paragraph 69 (pg. 753) of the Report as follows:

"69. That decision of the learned Single Judge was not left
unchallenged. In fact, the correctness of the judgment of
F the learned Single Judge was put in issue by the Union of
India by filing an intra-court appeal. Filing of an appeal
destroys the finality of the judgment under appeal. The
issues determined by the learned Single Judge were open
for consideration before the Division Bench. However, the
G Division Bench was denied the opportunity of hearing and

52. Dharam Dutt and Ors. v. Union of India and Ors.; [(2004) 1 SCC 712].
53. Sri Sri Sri K.C. Gajapati Narayan Deo v. State of Orissa; [AIR 1953 SC 375).
54. Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. State of
H Delhi (now Delhi Administration) and Anr.; [AIR 1962 SC 458).
STATE OF TAMIL NADU v. STATE OF KERALA 959
[R.M. LODHA, CJI.]
the aggrieved party could also not press for decision of A
the appeal on merits, as before the appeal could be heard
it was rendered infructuous on account of the Ordinance
itself having ceased to operate. The Union of India,
howsoever it may have felt aggrieved by the
pronouncement of the learned Single Judge, had no B
remedy left available to it to pursue. The judgment of the
Division Bench refusing to dwell upon the correctness of
the judgment of the Single Judge had the effect of leaving
the matter at large. Upon the lapsing of the earlier
Ordinance pending an appeal before a Division Bench, c
the judgment of the Single Judge about the illegality of the
earlier Ordinance, cannot any longer bar this Court from
deciding about the validity of a fresh law on its own merits,
even if the fresh law contains similar provisions."

108.2. The Court, however, did not invalidate the impUgned D
Act. This is what the court said in para 70 (pg.753) of the
Report:

" ... The doctrine of separation of powers and the
constitutional convention of the three organs of the State, E
having regard and respect for each other, is enough
answer to the plea raised on behalf of the petitioners
founded on the doctrine of separation of powers. We
cannot strike down a legislation which we have on an
independent scrutiny held to be within the l.egislative F
competence of the enacting legislature merely because the
legislature has re-enacted the same legal provisions into
an Act which, ten years before, were incorporated in an·
Ordinance and were found to be unconstitutional in an
erroneous judgment of the High Court and before the error G
could be corrected in appeal the Ordinance itself lapsed.
It has to be remembered that by the impugned Act
Parliament has not overruled the judgment of the High Court
nor has it declared the same law to be valid which has
been pronounced to be void by the Court. It would have H
960 SUPREME COURT REPORTS [2014) 12 S.C.R.

A been better if before passing the Bill into an Act the
attention of Parliament was specifically invited to the
factum of an earlier pari materia Ordinance having been
· annulled by the High Court. If an Ordinance invalidated by
the High Court is still re-enacted into an Act after the
B pronouncement by the High Court, the subsequent Act
would be liable to be annulled once again on finding that
the High Court was right in taking the view of the illegality
of the Ordinance, which it did. However, as we have
already stated, this is not the position obtaining in the
c present case. The impugned Act is not liable to be
annulled on the ground of violation of the doctrine of
separation of powers.•

Virender Singh Hooda (II)
D 109. In Virender Singh Hooda (//) 55 , this Court was
concerned with the validity of Haryana Civil Services (Executive)
Branch and Allied Services and other Services, Common/
Combined Examination Act, 2002 (for short, 'the Act'). The
contention of the petitione~s in that case was that the Act
E amounted to usurpation of judicial power by the State legislature
with a view to overrule the decisions of this Court in Virender
Singh Hooda (1) 56 and Sandeep Singh 57 • Having regard to the
contentions of the petitioners, one of the questions framed by
the Court for determination was, whether the Act, to the extent
F of its retrospectivity, is ultra vires as it amounts to usurpation
of judicial power by the State legislature or it removes the basis
of decisions in Virender Singh Hooda (/) 56 and Sandeep
Singh 57 cases. The Court noted that one of the facets of the
question under consideration was whether a writ of Mandamus
G can be made ineffective by an enactment of the legislature.
55. Vi render Singh Hooda (II) and Ors. v. State of Haryana and Another;
[(2004) 12 sec 588].
56. Virender Singh Hooda (I) and Ors. v. State of Haryana and Another; [(1999)
3 sec 696J.
H 57. Sandeep Singh v. State of Haryana and Anr.; [(2002) 10 SCC 549].
STATE OF TAMIL NADU v. STATE OF KERALA 961
[R.M. LODHA, CJI.]
Dealing with the legislative power, the Court observed, "The A
legislative power to make law with retrospective effect is well
recognised. It is also well-settled that though the legi~lature has
no power to sit over Court's judgment or usurp judicial power,
but, it has subject to the competence to make law, power to
remove the basis which led to the Court's decision. The B
legislature has power to enact laws with retrospective effect but
has no power to change a judgment of court of law either
retrospectively or prospectively. The Constitution clearly defines
the limits of legislative power and judicial power. None can
encroach upon the field covered by the other. The laws made c
by the legislature have to conform to the constitutional
provisions .... ".

109.1 The Court further said: "It is well settled that if the
legislature has the power over the subject-matter and
competence to make a valid law, it can at any time make such D
a valid law and make it retrospectively so as to bind even past'
transactions. The validity of a validating law, therefore, depends
upon whether the legislature possesses the competence which
it claims over the subject matter and whether in making the
validation it removes the defect which the courts had found in E
the existing law".

109.2. The Court also said : "It is equally well-settled that
the legislature cannot by a bare declaration, without anything
more, clirlilctly overrule, reverse or override a judicial deCision; F
it may, at any time in exercise of the plenary power conferred
on it by the Constitution render a judicial decision ineffective .
by enacting a valid law on a topic within its legislative field,
fundamentally altering or changing with retrospective, curative
or neutralizing effect the conditions on which such decision is G
based ...... "

109.3. While drawing distinction between encroachment
on the judicial power and the nullification of the effect of a
judicial decision by changing the law retrospectively, the Court
H
962 SUPREME COURT REPORTS [2014] 12 S.C.R.

A referred to Tirath Ram Rajinder Nath 58 and stated, "the former
is outside the competence of the legislature but the latter is
within its permissible limits. The reason for this lies in the
concept of separation of powers adopted by our constitutional
scheme. The adjudication of the rights of the parties according .
B to law is a judicial function. The legislature has to lay down the
law prescribing norms of conduct which will govern parties and
transactions and to require the court to give effect to that law".

109.4. Relying upon a decision of this Court in S.S. 8o/a59,
the Court in Virender Singh Hooda (//) 55 said :
c
"49. When a particular rule or the Act is interpreted by a
court of law in a specified manner and the law-making
authority forms the opinion that such an interpretation
would adversely affect the rights of the parties and would
D be grossly iniquitous and accordingly a new set of rules
or laws is enacted, it is very often challenged on the
ground that the legislature has usurped the judicial power.
In such a case the court has a delicate function to examine
the new set of laws enacted by the legislature and to find
E out whether in fact the legislature has exercised the
legislative power by merely declaring an earlier judicial
decision to be invalid and ineffective or the legislature has
altered and changed the character of the legislation which
ultimately may render the judicial decision ineffective."

F Liyanage
110. Having surveyed good number of decisions of this
Court on the separation of powers doctrine, it is time that we
consider some leading foreign judgments on this aspect. The
G first judgment in this· category that deserves consideration,
which was also referred to by Mr. Vinod Bobde, learned senior
counsel for Tamil Nadu is Liyanage12 • The facts in Liyanage12
58. Tirath Ram Rajinder Nath, Lucknow v. State of U.P. and Anr.; ((1973) 3
sec 585].
H 59. S.S. Bola and Ors. v. B.D. Sardana and Ors.; ((1997) 8 SCC 522].
STATE OF TAMIL NADU v. STATE OF KERALA 963
[R.M. LODHA. CJI.]
provide a classic example of usurpation of judicial function by A
the legislature in a pending· case. In that case, the Judicial
Committee of the Privy Council held that the Criminal Law
(Special Provisions) Act No. 1 of 1962 usurped and infringed
judicial power and was, therefore, invalid. This Act modified the
Criminal Procedure Code applicable in Ceylon by purporting B
to legalise ex-post facto the detention of persons imprisoned
in respect of an attempted coup, to widen the class of offences
for which trial by three Judges, nominated by the Minister of
Justice sitting without a jury, could be ordered to validate
retrospective arrests for certain offences made without warrant c
and to prescribe new minimum penalties for the offence of
waging war against the Queen. The legislation was held to
involve "a grave and deliberate incursion into the judicial
sphere" which was inconsistent with the separation of judicial
power from legislative power required by the Constitution of
0
Ceylon. Liyanage 12 effectively lays down that judicial power is
usurped (i) when there is legislative interference in a specific
proceeding, (ii) the interference affects the pending litigation
and (iii) the interference affects the judicial process itself, i.e.,
the discretion or judgment of the judiciary or the rights, authority E
or jurisdiction of the Court. Liyanage 12 inter alia holds that
powers in case of countries with written Constitutions must be
exercised in accordance with the terms of Constitution from
which they are derived. Making observations on the true nature
and purpose of the impugned enactment, Liyanage 12 says that
alterations made by Parliament in the function of the judiciary F
constituted a grave and deliberate incursion in the judicial
sphere. It is worth noticing the following passage from
Liyanage 12 :

"If such Acts as these were valid the judicial power G
could be wholly absorbed by the Legislature and taken out
of the hands of the Judges. It is appreciated that the
Legislature has no such general intention. It was beset by
a grave situation and it took grave measures to deal with
it, thinking, one must presume, that it had power to do so H
964 SUPREME COURT REPORTS [2014) 12 S.C.R.

A and was acting rightly. But that consideration is irrelevant,
and gives no validity to acts which infringe the Constitution.
What is done once, if it be allowed, may be done again
and in a lesser crisis and less serious circumstances. And
thus judicial power may be eroded. Such an erosion is
B contrary to the clear intention of the Constitution."

110.1. Liyanage12 is based on the principle of implied
limitations on the legislative power. This position is accepted
by our own Court in Kesavananda Bharati41 (per Shelat and
Grover, JJ.).
c
Nicholas
111. As regards the constitutional position in Australia, it
needs to be mentioned that Australia has a Constitution with
0 the rigid demarcation of powers between the legislative and
judicial organs of the Government. The Australian Constitution
has imperatively separated the three branches of the
Government, and has assigned to each, by its own authority the
appropriate organ.
E 112. In Nichola!/5°, the High Court of Australia, dealing with
the infringement and usurpation of judicial power, held the
legislation to be invalid on the ground that it revised the final
judgment of a federal court in breach of separation of powers.
Jt lays down that usurpation occurs when the legislature has
F exercised judicial power on its own behalf.
Wheeling Bridge

113. The decision of the US Supreme Court in Wheeling
Bridge29 deserves a little elaborate consideration since a great
G deal of reliance has been placed by Mr. Harish Salve on this
judgment. The dispute in that case concerned navigation on the
Ohio River. In the earlier decision involving the same parties,
the U.S. Supreme Court had held the defendant's bridge to be
H 60. Nicholas v. the Queen; [(1998) 193 CLR 173) .
STATE OF TAMIL NADU v. STATE OF KERALA 965
[R.M. LODHA, CJI.]
an unlawful structure to the extent that it obstructed navigation A
on the Ohio River in breach of the federal statutes and thereby
obstructing public right of free navigation. The State of
Pennsylvania which filed the suit was granted an injunctive relief.
The defendant (Wheeling and Belmont Bridge Company) was
ordered to remove the bridge, or elevate it to the levels B
prescribed by statute. Subsequently, Congress enacted
legislation by which the bridge was rendered a lawful structure
and ships were mandated to be modified so as not to interfere
with the bridge. As the luck would have been, the bridge was
destroyed by high winds. The State of Pennsylvania applied for c
injunction from reconstructing the bridge except in a manner
consistent with the order of the court in the previous
proceedings which was granted. The company despite the
injunction order proceeded to construct the bridge lower than
that required by the original court order. The State of
0
Pennsylvania brought the matter again before the court. The
defendant relied upon the federal statute which declared the
original bridge lawful, and argued that the requirements for a
lawful structure were set out therein, rendering the requirements
on which the original judgment was based redundant. The
questiQn that arose for consideration was whether the statute E
that overturned the final judgment of the US Supreme Court in
the form of injunction in the earlier suit was constitutional?
Nelson, J., who delivered the majority opinion of the court,
accepted the general proposition that an act of Congress
cannot have the effect and operation to annul the judgment of F
the court already rendered, or the rights thereby determined. It
was further observed that adjudications upon the private rights
of the parties which have passed into judgment, become
absolute and it is the duty of the court to enforce it. Nelson, J.
held: "But that part of the decree directing the abatement of the G
obstruction, is executory, a continuing decree, which requires
not only the removal of the bridge but enjoins the defendants
against any reconstruction or continuance. Now, whether it is
a future existing or continuing obstruction depends upon the
question whether or not it interferes with the right of navigation. H
966 SUPREME COURT REPORTS [2014] 12 S.C.R.

A If, in the mean time, since the decree, this right has been
modified by the competent authority, so that the bridge is no
longer an unlawful obstruction, it is quite plain the decree of the
court cannot be enforced. There is no longer any interference
with the enjoyment of the public right inconsistent with law, no
s more than there would be where the plaintiff himself .had
consented to it, after the rendition of the decree ....... " Nelson,
J., opined that although bridge could still be an obstruction in
fact but it was not so in contemplation of the law. Consequently,
the court vacated its injunction. Nelson, J. distinguished
c adjudication upon private rights from adjudication upon public
rights and held:

"In respect to these purely internal streams of a State, the
public right of navigation is exclusively under the control
and regulation of the state legislature; and in cases where
D these erections or obstructions to the navigation are
constructed under a law of the State, or sanctioned by
legislative authority, they are neither a public nuisance
subject to abatement, nor is the individual who may have
sustained special damage from their interference with the
E public use entitled to any remedy for his loss. So fflr as
the public use of the stream is concerned, the legislature
having the power to control and regulate it, the statute
authorizing the structure, though it may be a real
impediment to the navigation, makes it lawful."
F
113.1. The opinion of Nelson, J., which is majority opinion
in The Wheeling Bridge 29 though maintains the general
principle of the inviolability of final judgments pursuant to the
separation of powers doctrine but it is made subjert to
G qualification that unlike private rights, public rights do not pass
into judgments. In the opinion of Nelson, J., the nature of judicial
remedy is relevant; an equitable relief such as injunction is not
beyond the reach of the power of the congress but a decree of
damages or costs is unaffected by the subsequent law.

H
STATE OF TAMIL NADU v. STATE OF KERALA 967
[R.M. LODHA, CJI.]
113.2. Mclean, J., who dissented from the majority A
opinion, on the other hand, emphasized in Wheeling Bridge29
that the earlier decree was the result of a judicial investigation,
founded upon facts ascertained in the course of the hearing and
it was strictly a judicial question. The complaint was an
obstruction of commerce, by the bridge, to the injury of the B
complainant, and the court found the fact to be as alleged in
the bill. Following the statement of Chief Justice Marshall that
congress could do many things but that it cannot alter a fact,
Mclean, J. in his opinion stated :

"The judicial power is exercised in the decision of cases;
c
the legislative, in making general regulations by the
enactment of laws. The latter acts from considerations of
public policy; the former by the pleadings and evidence in
a case. From this view it is at once seen, that congress
could not undertake to hear the complaint of Pennsylvania D
in this case, take testimony or cause it to be taken,
examine the surveys and reports of engineers, decide the
questions of law which arise on the admission of the
testimony, and give the proper and legal effect to the
evidence in the final decree. To do this is the appropriate E
duty of the judicial power. And this is what was done by
this court, before the above act of congress was passed.
The court held, that the bridge obstructed the navigation
of the Ohio River, and that, consequently, it was a
nuisance. The act declared the bridge to be a legal F
structure, and, consequently, that it was not a nuisance.
Now, is this a legislative or a judicial act? Whether it be a
nuisance or not, depends upon the fact of obstruction; and
this would seem to be strictly a judicial question, to be
decided on evidence produced by the parties in a case." G

113.3. In the minority opinion, Mclean. J. declared the act
of the Congress inoperative and void and reiterated that
decree already passed be carried into effect according to its
true intent.
H
968 SUPREME COURT REPORTS [2014) 12 S.C.R.

A 113.4. In another minority opinion in Wheeling Bridge29 ,
Wayne, J., while dissenting with the majority and concurring with
Mclean J. stated that Congress had no power to interfere with
the judgment of the U.S. Supreme Court under the pretence of
a power to legalize the structure of bridges over the public
B navigable rivers of the United States, either within the States,
or dividing States from each other, or under the commercial
powers of Congress to regulate commerce among the States.

Clinton Bridge

C 114. Nelson,J., who delivered majority opinion in Wheeling
Bridge29, also delivered opinion of the U.S. Supreme Court
in the Clinton Bridge30. Although in Wheeling Bridge29 a
decree had been rendered by the court against the bridge,
while in the Clinton Bridge30 the cause was pending
D undecided, but he followed the majority opinion in Wheeling
Bridge29.
Manigault

115. Mr. Harish Salve, learned counsel for the State of
E Kerala, placed reliance upon Arthur M. Manigault2 1 • In that
case, the U.S. Supreme Court followed the principle that
interdiction of the statutes impairing the obligation of contracts
does not prevent the State from exercising such powers as are
vested in it for ~he promotion of the common weal, or are
F necessary for the general good of the public, though contracts
previously entered into between individuals may thereby be
affected. While explaining that this power is known as the
'police power', it is an exercise of the sovereign right of the
Government to protect the lives, health, morals, comfort, and
G · general welfare of the people, and is paramount to any right
under the contracts between the individuals. It is stated that
subject to limitations in certain cases, there is wide discretion
on the part of the legislature in determining what is and what is
not necessary. In such discretion, the courts ordinarily will not
H interfere with. Dealing with the exposition of law, flowing from
STATE OF TAMIL NADU v. STATE OF KERALA 969
[R.M. LODHA, CJI.]
some of its previous decisions, the U.S. Supreme Court, A
observed:

" ....... We see no reason why the same principle should not
apply to cases where the state legislature, exercising its
police power, directs a certain dam to be built, and thereby
8
incidentally impairs access to lands above the dam. In
both cases the sovereign is exercising its constitutional
right, in one case in improving the navigation of the river,
and in the other, in draining its lowlands, and thereby
enhancing their value for agricultural purposes."
c
Hodges

116. In Hodges 31 , the U.S. Supreme Court, following
Wheeling Bridge29 held as follows :-

"In the Wheeling Bridge Case, as in the Clinton Bridge D
Case, the public right involved was that of abating an
obstruction to the navigation of a river. The right involved
in the present suit, of enjoining the maintenance of an
illegal school district and the issuance of its bonds, is
likewise a public right shared by the plaintiffs with all other E
resident taxpayers. And while in the Wheeling Bridge Case
the bill was filed by the State, although partly in its
proprietary capacity as the owner of certain canals and
railways, the doctrine that a judgment declaring a public
right may be annulled by subsequent legislation, applies F
with like force in the present suit, although brought by
individuals primarily for their own benefit; the right involved
and adjudged, in the one case as in the other, being public,
and not private."
G
116.1. Hodges 31 was a case where the U.S. Supreme
Court dissolved an injunction against the formation of a
consolidated school district following legislation which
authorised such a consolidation, and yet upheld the judgment
in the previous decision making to an award of damages.
H
970 SUPREME COURT REPORTS [2014] 12 S.C.R. .

A Brotherhood of Locomotive Firemen

117. In Brotherhood of Locomotive Firemen 23 , the U.S.
Supreme Court was confronted with the question whether the
Arkansas "full-crew" laws specifying a minimum number of
employees who must serve as part of a train crew under certain
8 circumstances, violate the commerce clause or the Fourteenth
Amendment of the U.S. Constitution. The constitutionality of
these Arkansas Laws had been specifically upheld against
challenges under the same constitutional provisions in three
decisions earlier. However, from the case that reached the U.S.
C Supreme Court, the District Court found that as a result of
economic and technical developments since the last decision
on the subject, the statutes were no longer justified as safety
measures - the ground on which they had formerly been
sustained. The Supreme Court of United States struck down
D the impugned laws as contrary to the commerce clause of the
Constitution and the due process clause of the Fourteenth
Amendment. Black, J., who delivered the opinion on behalf of
the majority, held that the District Court indulged in a legislative
judgment wholly beyond its limited authority to review state
E legislation under the commerce clause. The Court said that it
was not open for the District Court to place a value on the
additional safety in terms of dollars and cents in order to see
whether this value as calculated by the Court exce~ded the
financial cost to the rail roads. The majority view, thus,
F concluded:

"Under all the circumstances we see no reason to depart
from this Court's previous decisions holding that the
Arkansas full-crew laws do not unduly burden interstate
commerce or otherwise violate the Constitution.
G Undoubtedly heated disputes will continue as to the extent
to which these iaws contribute to safety and other public
interests, and the extent to which such contributions are
justified by the cost of the additional manpower. These
disputes will continue to be worked out in the legislatures
H
STATE OF TAMIL NADU v. STATE OF KERALA 971
[R.M. LODHA, CJI.]
and in various forms of collective bargaining between A
management and the unions. As we have said many
times, Congress unquestionably has power under the
Commerce Clause to regulate the number of employees
who shall be used to man trains used in interstate
commerce. In the absence of congressional action, B
however, we cannot invoke the judicial power to invalidate
this judgment of the people of Arkansas and their elected
representatives as to the price society should pay to
promote safety in the railroad industry ...... "

Raymond Motor Transportation
c
118. Two more decisions of the U.S. Supreme Court, one,
Raymond Motor Transportation 24 and the other, Raymond
Kasse/2 5 may now be considered. Raymond Motor
Transportation 24 was concerned with the question whether D
administrative regulations of the State of Wisconsin governing
the length and configuration of contracts that may be operated
within the state violated the commerce clause. The three-Judge
District Court held that the regulations were not unconstitutional
on either ground. Upsetting the view of the District Court, E
Powell, J., who delivered the opinion of the Court first noted the
general rule, "...... Where the statute regulates evenhandedly
to effectuate a legitimate local public interest, and its effects
on interstate commerce are only incidental, it will be upheld
unless the burden imposed on such commerce is clearly F
excessive in relation to the putative local benefits". Powell, J.,
then concluded that the challenged regulations violated the
commerce clause because they placed a substantial burden
on interstate commerce and they cannot be said to make more
than most speculative contribution to highway safety. G

118.1. Blackmun, J., with whom Brennan, CJ. and
Rehnquist, J. concurred, held that if safety justifications were
not illusory, the Court will not second-guess legislative judgment
about their importance in comparison with related burdens on
H
972 SUPREME COURT REPORTS [2014] 12 S.C.R.

A interstate commerce. Blackmun J, also held:

"Here, the Court does not engage in a balance of policies
it does not make a legislative choice. Instead, after
searching the factual record developed by the parties, it
concludes that the safety interests have not been shown
B
to exist as a matter of law."

Raymond Kassel

119. In Raymond Kasse/25 , after
c recording evidence and conclusion of trial, the District Court
applied the standard which was accepted in Raymond Motor
Transportation24 and concluded that the state law impermissibly
created burden on inter-state commerce. The Court of appeals
accepted the District Court's findings and the view. This is how
0 the matter reached the U.S. Supreme Court. Powell, J., who
delivered the opinion of the Court in which White, Blackmun and
Stevens JJ. joined, observed: "while Supreme Court has been
most reluctant to invalidate state regulations that touch upon
safety, especially highway safety, constitutionality of such
E regulations nevertheless depends upon sensitive consideration
of weight and nature of state regulatory concern in light of extent
of burden imposed on course of interstate commerce".

119.1. Brennan, J., with whom Marshall, J. joined,
concurring with the judgment observed : "This Court's
F heightened deference to the judgments of state law makers in
the field of safety is largely attributable to a judicial disinclination
to weigh the interest of safety against other societal interests,
such as the economic interest in the free flow of
commerce ........... "
G
Plaut

120. The judgment of the US Supreme Court in Plaut.6 1 on
the doctrine of separation of powers is significant and deserves
H 61. Plaut et al. v. Spendthrift Farm, Inc., et al.; [(1995) 514 U.S. 211).
STATE OF TAMIL NADU v. STATE OF KERALA 973
[R.M. LODHA, CJI.]
appropriate consideration. In that case, the US Supreme Court A
was presented with the question whether Section 27A(b) of the
Securities Exchange Act, 1934 was violative of the
Constitution's separation of powers or the due process clause
of the Fifth Amendment to the extent it required Federal Courts
to reopen final judgments in private civil actions under Section B
1O(b) of the Act. Scalia, J., who delivered the majority opinion,
referred to the following First Inaugural Address by President
Lincoln in which the President explained why the political .
branches could not, and need not interfere with the judgment :

"I do not forget the position assumed by some, that C
constitutional questions are to be decided by the Supreme
Court; nor do I deny that such decisions must be binding
in any case, upon the parties to a suit, as to the object of
that suit .... And while it is obviously possible that such
decision may be erroneous in any given case, still th~ evil D
effect following it, being limited to that particular case, with
the chance that it may be over-ruled, and never become a
precedent for other cases, can better be borne than could
the evils of a different practice."
E
120.1. Scalia, J. also referred to the views of Thomas
Cooley (a constitutional Scholar) who had said :

"If the legislature cannot thus indirectly control the action
of the courts, by requiring of them a construction of the law
according to its own views, it is very plain it cannot do so F
directly, by setting aside their judgments, compelling them
to grant new trials, ordering the discharge of offenders, or
directing what particular steps shall be taken in the
progress of a judicial inquiry."
G
120.2. Scalia J, observed that the power to analyze a final
judgment was "an assumption of judicial power" and, therefore,
forbidden. Finality rule was given pre-eminence. This becomes
evident from his following observations: "...... Having achieved
finality, however, a judicial decision becomes the last word of H
974 SUPREME COURT REPORTS [2014) 12 S.C.R.

A the judicial department with regard to a particular case or
controversy, and Congress may not declare by retroactive
legislation that the law applicable to that very case was
something other than what the courts said it was .... ."

120.3. In P/aut6 1 , the majority opinion also holds that
8
considerations such as that legislation was motivated by a
genuine concern to implement public policy was irrelevant. The
majority opinion exposited that prohibition (separation of power)
was violated when an individual final judgment is legislatively
rescinded for even the best of reasons, such as legislature's
C genuine conviction (supported by all the professionals in the
land) that the judgment was wrong, ....... "

120.4. The US Supreme Court, thus, by majority declared
that Section 27A(b) of the Act was violative of the separation
D of the powers doctrine.

Summary of Separation of powers doctrine under the
Indian Constitution

121. On deep reflection of the above discussion, in our
E opinion, the constitutional principles in the context of Indian
Constitution relating to separation of powers between
legislature, executive and judiciary may, in brief, be
summarized thus :

F (i) Even without express provision of the separation of
powers, the doctrine of separation of powers is an entrenched
principle in the Constitution of India. The doctrine of separation
of powers informs the Indian constitutional structure and it is an
essential constituent of rule of law. In other words, the doctrine
G of separation of power though not expressly engrafted in the
Constitution, its sweep, operation and visibility are apparent
from the scheme of Indian Constitution. Constitution has made'
demarcation, without drawing formal lines between the three
organs - legislature, executive and judiciary. In that sense, even
H in the absence of express provision for separation of power,
STATE OF TAMIL NADU v. STATE OF KERALA 975
[R.M. LODHA, CJI.]

the separation of power between legislature, executive and A
judiciary is not different from the constitutions of the countries
which contain express provision for separation of powers.

(ii) Independence of courts from the executive and
legislature is fundamental to the rule of law and one of the basic
8
tenets of Indian Constitution. Separation of judicial power is a
significant constitutional principle under the Constitution of
India. ·

(iii) Separation of powers between three organs -
legislature, executive and judiciary - is also nothing but a C
consequence of principles of equality enshrined in Article 14
of the Constitution of India. Accordingly, breach of separation
of judicial power may amount to negation of equality under
Article 14. Stated thus, a legislation can be invalidated on the
basis of breach of the separation of powers since such breach D
is negation of equality under Article 14 of the Constitution.

(iv) The superior judiciary (High Courts and Supreme
Court) is empowered by the Constitution to declare a law made
by the legislature (Parliament and State legislatures) void if it E
is found to have transgressed the constitutional limitations or if
it infringed the rights enshrined in Part Ill of the Constitution.

(v) The doctrine of separation of powers applies to the final
judgments of the courts. Legislature cannot declare any
decision of a court of law to be void or of no effect. It can, F
however, pass an amending Act to remedy the defects pointed
out by a court of law or on coming to know of it aliunde. In other
words, a court's decision must always bind unless the
conditions on which it is based are so fundamentally altered
that the decision could not have been given in the altered G
circumstances.

(vi) If the legislature has the power over the subject-matter
and competence to make a validating law, it can at any time
make such a validating law and make it retrospective. The H
976 SUPREME COURT REPORTS [2014) 12 S.C.R.

A validity of a validating law, therefore, depends upon whether the
legislature possesses the competence which it claims over the
subject-matter and whether in making the validation law it
removes the defect which the courts had found in the existing
law.
B
(vii) The law enacted by the legislature may apparently
seem to be within its competence but yet in substance if it is
shown as an attempt to interfere with the judicial process, such
law may be invalidated being in breach of doctrine of separation
of powers. In such situation, the legal effect of the law on a
C judgment or a judicial proceeding must be examined closely,
having regard to legislative prescription or direction. The
questions to be asked are, (i) Does the legislative prescription
or legislative direction interfere with the judicial functions? (ii)
Is the legislation targeted at the decided case or whether
D impugned law requires its application to a case already finally
decided? (iii) What are the terms of law; the issues with which
it deals and the nature of the judgment that has attained finality?
If the answer to (i) to (ii) is in the affirmative and the
consideration of aspects noted in question (iii) ·sufficiently
E establishes that the impugned law interferes with the judicial
functions, the Court may declare the law unconstitutional.

Analysis of the Mullaperiyar Environmental Protection
Forum Judgment (2006 Judgment)
F 122. In light of the above constitutional principles relating
to separation of powers between legislature, executive and
judiciary, we shall now examine the constitutional validity of the
2006 (Amendment) Act in its application to and effect on the
Mullaperiyar dam. For deciding this question, it is appropriate
G to first refer to the decision of this Court in Mullaperiyar
Environmental Protection Forum 1 at some length. That
decision was rendered by this Court in a writ petition filed by
Mullaperiyar Environment Protection Forum under Article 32 of
the Constitution of India and few transferred cases. In that case,
H the petitioner's claim was that water level in the reservoir cannot
STATE OF TAMIL NADU v. STATE OF KERALA 977
[R.M. LODHA, CJI.]
be raised from its present level of 136. ft. That was the stand of A
Kerala as well. According to Kerala, the life of Mullaperiyar dam
was fifty years from the date of construction but it had already
completed more than hundred years and it had served its useful
life. In Kerala's view, it was dangerous to allow raising of water
levels beyond 136 ft. and serious consequences could ensue B
resulting in wiping out of three adjoining districts completely.
On the other hand, Tamil Nadu set up the case that as per the
report of the Expert Committee constituted by this Court, the
water level could be raised upto 142 ft. aq an interim measure
and on taking certain steps and after execution of the c
strengthening measure in respect of baby dam, earthen bund
and on completion of remaining portion, water level could be
allowed to be restored at FRL of 152 ft, Tamil Nadu sought
specific direction for raising water level to 142 ft. and after
strengthening, to its full level of 152 ft.
D
122.1. The Court noted the following terms of reference
and the task given to the Expert Committee:

"(a) To study the safety of Mullaperiyar dam located on
Periyar river in Kerala with respect to the strengthening of E
dam carried out by the Government of Tamil Nadu in
accordance with the strengthening measures suggested
by CWC and to reporUadvise the Hon'ble Minister of Water
Resources on the safety of the dam.

(b) i:o advise the Hon'ble Minister of Water Resources
F
regarding raising of water level in Mullaperiyar reservoir
beyond 136 ft (41.45 m) a1> a result of strengthening of the
dam and its safety as at (a) above.

The Committee will visit the dam to have first-hand G
information and to assess the safety aspects of the dam.
It will hold discussions with the Secretary, Irrigation of the
Kerala Government as well as Secretary, PWD,
Government of Tamil Nadu with respect to safety of the
dam and other related issues." H
978 SUPREME COURT REPORTS [2014) 12 S.C.R.

A 122.2. Then the Court adverted to the recommendations
of the Expert Committee as follows:
"1. The strengthening measures pertaining to baby dam
and the earthen bund, as already suggested by ewe and
formulated by the Government of Tamil Nadu, should be
B
carried out at the earliest.

2. The Government of Kerala should allow the execution
of strengthening measures of baby dam, earthen bund and
the remaining portion of about 20 m of parapet wall on the
c main Mullaperiyar dam up to EL 160 ft. (48. 77 m)
immediately.

3. ewe will finalise the instrumentation for installation at
the main dam. In addition, instruments will be installed
D during strengthening of baby dam, including the earthen
bund, so that monitoring of the health of Mullaperiyar dam,
baby dam and earthen bund can be done on a continuous
basis.
4. The water level in the Mullaperiyar reservoir be raised
E to a level where the tensile stress in the baby dam does
not exceed 2.85 t/m2 (as suggested by Shri
Parameswaran Nair, Kerala representative) especially in
condition E (full reservoir level with earthquake) as per BIS
Code IS 6512-1984 with ah= 0.12 g and analysis as per
F clauses 3.4.2.3 and 7.3.1 of BIS Code 1893-1984.
5. The committee members discussed the issue of raising
of water level above EL 136.00 ft (41.45 m) after studying
the analysis of safety of baby dam. Prof. A.
G Mohanakrishnan, Member of Tamil Nadu Government,
opined in the light of para 4 that the water level should be
raised up to at least EL 143.00 ft (43.59 m) as the tensile
stresses are within the permissible limits. Shri M.K.
Parameswaran Nair, Member of Kerala Government did
not agree to raise the water level above EL 136.00 ft (41.45
H
STATE OF TAMIL NADU v. STATE OF KERALA 979
[R.M. LODHA, CJI.]
m). However, the Committee after detailed deliberations, A
has opined that the water level in the Mullaperiyar reservoir
be raised to EL 142.00 ft (43.28 m) which will not
endanger the safety of the main dam, including spillway,
baby dam and earthen bund. The abstracts of the
calculations for stress analysis are enclosed as Annexure B
XIX.
6. This raising of reservoir level up to a level where the
tensile stress does not exceed 2.85 Um2 during the
earthquake condition is an interim measure. and further C
raising of water level to the. FRL EL 152.00 ft (46.33 m)
(original design FRL of the Mullaperiyar reservoir) be
studied after the strengthening measures on baby dam are
carried out and completed."

122.3 The Court framed the following five questions for D
consideration:

"1. Whether Section 108 of the States Reorganisation Act,
1956 is unconstitutional?

2. Whether the jurisdiction of this Court is barred in view E
of Article 262 read with Section 11 of the Inter-State Water
Disputes Act, 1956?

3. Whether Article 363 of the Constitution bars the
jurisdiction of this Court? F

4. Whether disputes are liable to be referred to arbitration?

5. Whether the raising of water level of the reservoir from
136 ft to 142 ft would result in jeopardising the safety of
the people and also degradation of the environment?" G

122.4 While dealing with question No. 1, the Court, inter
a/ia, held that law making power under Articles 3 and 4 of the
Constitution was paramount and it was neither subjected to nor
fettered by Article 246 and Lists II and Ill of the Seventh H
980 SUPREME COURT REPORTS [2014] 12 S.C.R.

A Schedule. The Court also held that power of Parliament to make
law under Articles 3 and 4 was plenary and traverses over all
legislative subjects as are necessary for effectuating a proper
reorganization of the states. Accordingly, the Court found no
merit in challenge to the validity of Section 108 of the States
B Reorganisation Act, 1956.

122.5 Dealing with question No. 2, the Court noted that the
dispute relating to raising the water level in the Mullaperiyar
dam was not a water dispute since the right of Tamil Nadu to
divert water from Periyar reservoir to Tamil Nadu for integrated
C purpose of irrigation or to use the water to generate power or
for other uses was not in dispute. It was observed that there
was no dispute about the lease granted to Tamil Nadu in 1886
or about supplementary agreements of 1970 and that till 1979
there was no dispute with regard to water level at all. In 1979,
D the water level was brought down to 136 ft. to facilitate Tamil
Nadu to carry out certain strengthening measures suggested
by the CWC. The Court, thus, held that safety of the dam on
increase of water level to 142 ft. was not the issue hit by Article
262 of the Constitution or the Inter-State River Water Disputes
E Act, 1956.

122.6 With regard to question No. 3, the Court held that
there was no question of the jurisdiction of this Court being
barred as Article 363 has no application to an agreement such
F as 1886 Lease Agreement which is an ordinary agreement of
lease and is not a _political arrangement.
122.7 On question No. 4, the Court observed that present
dispute was not about the rights, powers and obligations or
interpretation of any part of the agreement but the controversy
G was confined to whether water level in the reservoir could be
increased to 142 ft. for which there was already a report by an
Expert Committee.
122.8 For consideration of question No. 5, the Court
H carefully referred to the report of the Expert Committee with
STATE OF TAMIL NADU v. STATE OF KERALA 981
[R.M. LODHA, CJI.]
regard to safety of the dam on water level being raised to 142 A
ft. In para 30 of the judgment, this Court held as under:
"30. Regarding the issue as to the safety of the dam on
water level being raised to 142 ft from the present level of
136 ft. the various reports have examined the safetv angle 8
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 the State of Kerala. The Expert Committee was
comprised of independent officers. Seismic forces as per C
the provisions were taken into account and structural
designs made accordingly while carrying out strengthening
measures. The final report of the Committee set up by the
Ministry of Water Resources, Government of India to study
the water safety aspect of the dam and raising the water
level has examined the matter in detail. The Chairman of D
the Committee was a Member (D&R) of the Central Water
Commission, two Chief Engineers of the Central Water
Commission, Director, Dam Safety, Government of
Madhya Pradesh and retired Engineer-in-Chief, U.P.
besides two representatives of the Governments of Tamil E
Nadu and Kerala, were members of the Committee. All
appended their signatures except the representative of the
Kerala Government. The summary of the results of stability
analysis of Mullaperiyar baby dam contains a note which
shows that the permissible tensile strength was masonry F
as per the specifications mentioned therein based on test
conducted by CSMRS, Delhi on the time and agreed by
all committee members including the Kerala representative
in the meeting of the Committee held on 9/10-2-2001. It
also shows the various strengthening measures suggested G
by CWC having been completed by the Tamil Nadu PWD
on the dam including providing of RCC backing to the
dam. The report also suggests that the parapet Wall of baby
dam and main dam have been raised to 160 ft (48.77 m)
except for a 20 m stretch on the main dam due to denial H
982 SUPREME COURT REPORTS [2014) 12 S.C.R.

A of permission by the Government of Kerala. Some other
works as stated therein were not allowed to be carried on
by the State of Kerala. The report of CWC after inspection
of the main dam. the galleries. baby dam. earthen bund
and spillway. concludes that the dam is safe and no
B excessive seepage is seen and that Mullaperiyar dam has
been recently strengthened. There are no visible cracks
that have occurred in the body of the dam and seepage
measurements indicate no cracks in the upstream side of
the dam. Our attention has also been drawn to various
c documents and drawings including cross-sections of the
Periyar dam to demonstrate the strengthening measures.
Further, it is pertinent to note that the dam immediately in
line after Mullaperiyar dam is ldukki dam. It is the case of .
the State of Kera la that despite the "copious rain", the
ldukki reservoir is not filled to its capacity, while the
D
capacity of the reservoir is 70.500 TMC, it was filled only
to the extent of 57.365 TMC. This also shows that
assuming the worst happens. more than 11 TMC water
would be taken by ldukki dam. The Deputy Director, Dam
Safety, Monitoring Directorate, Central Water
E Commission, Ministry of Water Resources in the affidavit
of April 2004 has, inter alia, stated that during the recent
earthquake mentioned by the Kerala Government in its
affidavit. no damage to the dam was reported by ewe
officers who inspected the dam. The experts having
F 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 jeopardised
G if the water level is raised for the present to 142 ft. The
report is to the contrarv."

(emphasis supplied by us)

122.9 In view of the above consideration, this Court
H
STATE OF TAMIL NADU v. STATE OF KERALA 983
[R.M. LODHA, CJI.]
restrained Kerala and its officers from causing any obstruction A
from carrying out further strengthening measures by Tamil Nadu
as suggested by CWC and Tamil Nadu was permitted to
increase water level of Mullaperiyar dam to 142 ft.

122.10. The judgment in Mullaperiyar Environmental B
Protection Forum1 was pronounced on 27.02.2006.

123. On 14/15.03.2006, a special session of the Kerala
Legislative Assembly was convened and a Bill was introduced
to amend the 2003 Act, which was passed on 15.03.2006. On
18.03.2006, the Bill received the assent of the Governor and C
became an enactment with effect from that day.

124. It is, thus, seen that one of the issues that directly fell
for consideration before this Court in Mul/aperiyar
Environmental Protection Forum 1 was whether the raising of o
water level of the reservoir from 136 ft. to 142 ft. would result
in jeopardising the safety of the people? From the various
reports including the report of the Expert Committee, the Court
held that apprehensions (wiping out of three districts) of Kerala
were found to be baseless in these reports and there was E
nothing to suggest that the safety of dam would be jeopardised
if the water level was raised to 142 ft. The judgment records
the finding regarding the safety of the dam on water level being
raised to 142 ft. from the present level of 136 ft., in these words:
"the various reports have examined the safety angle in-depth F
including the viewpoint of earthquake resistance. The
apprehensions have been found to be baseless." and, "The
report of ewe after inspection of main dam, the galleries, baby
dam, earthen bund and spillway, concludes that the dam is safe
•
G
125. For these reasons, and others contained in the
judgment, this Court reached to the firm conclusion that raising
the water level from 136 ft. to 142 ft. would not jeopardise the
safety of the dam in any manner. Consequently, this Court
restrained Kerala and its officers from causing any obstruction H
984 SUPREME COURT REPORTS [2014] 12 S.C.R.

A from carrying out further strengthening measures by Tamil Nadu
as suggested by CWC and Tamil Nadu was permitted to
increase water level of Mullaperiyar dam to 142 ft.

126. The decision of this Court on 27.02.2006 in the
Mu/laperiyar Environmental Protection Forum 1 case was the
8
result of judicial investigation, founded upon facts ascertained
in the course of hearing. It was strictly a judicial question. The
claim of the State of Kerala was that water level cannot be
raised from its present level of 136 ft. On the other hand, Tamil
Nadu sought direction for raising the water level to 142 ft. and,
C after strengthening, to its full level of 152 ft. The obstruction by
Kerala to the water level in the Mullaperiyar dam being raised
to 142 ft. on the ground of safety was found untenable, and, in
its judgment, this Court so pronounced.

D Whether 2006 (Amendment) Act in its application to
Mullaperiyar dam amounts to usurpation of judicial power

127. The question now is: Does the impugned legislation
amount to usurpation of judicial power and whether it is violative
E of the rule of law?

128. As noted in the earlier part of the judgment, the 2003
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 in the State of Kera la and
F other incidental matters. Section 2(b) defines "Authority" which
means the Kerala Dam Safety Authority constituted under
Section 57. Section 2(k) defines "distributory system" which
means and includes, inter alia, all works, structures and
appliances connected with the distribution of water for irrigation.
G Section 2(w) defines "irrigation work" which, inter alia, includes
all reservoirs which may be used for the supply, collection.
storage or retention of water for agricultural purposes and ·
reservoirs installed to supply water. Section 2(aq) defines
"water course" which means a river, stream, springs, channel,
H lake or any natural collection of water other than in a private
STATE OF TAMIL NADU v. STATE OF KERALA 985
[R.M. LODHA, CJI.]

land and includes any tributary or branch of any river, stream, A
springs or channel. Section 3 starts with non obstante clause
and provides that all water courses and.all water in such water
courses in the State shall be the property of the Government
(Government of Kerala), and the Government shall be entitled
to conserve and regulate the use of such water courses and B
the water in all those water courses for the purposes of irrigation
and the generation of electricity and for matters connected
therewith or for both. Section 4 makes provision for regulation
on abstraction of water from water course. Section 5 provides
· for regulation on construction of reservoirs, anicut, etc. Section c
30 deals· with distribution of water to another State or Union
Territory. It is provided in Section 30 that no water from a water
course in the State shall be distributed to any other State or
Union Territory, except in accordance with an agreement
between the State Government and the Government of such 0
other State or the Union Territory in terms of a resolution to that
effect passed by the Legislative Assembly of the State. Section
57 provides for constitution of Dam Safety Authority for the
purpose of surveillance, inspection and advice on maintenance
of dams situated within the territory of the State. For the
purposes of this section "dam" means any artificial barrier E
including appurtenant work constructed across a river or
tributaries thereof with a view to impound or divert water for
irrigation, drinking water supply or for any other purpose.
Section 62 spells out the functions of the Authority. This section
says that notwithstanding anything contained in any treaty, F
agreement or instrument, the Dam Safety Authority, inter a/ia,
has the functions (1) to arrange for the safety evaluation of all
dams in the State; (2) to advice Government to suspend the
functioning of any dam if the public safety so demands; (3) to
examine the precariousness of any dam in public interest and · G
to submit its recommendations including decommissioning of
dam to the Government; (4) to inspect and advice the
Government on advisability of raising or lowering of the
reservoir level of any dam taking into account the safety of the
dam concerned and the environmental aspects involved; and H
986 SUPREME COURT REPORTS [2014) 12 S.C.R.

· A (5) to inspect and advice the Government on the sustainability
of any dam to hold the water in the reservoir thereof. Sub-
section (3) of Section 62 provides that where the advice or
recommendations of the Authority relate to a dam owned or
controlled by person other than the Government, it shall be lawful
s for the Government to issue orders or directions as it deems
fit, requiring any person having possession or control of such
dam to take such measures or to do such things within such
time as may be specified therein to give effect to the advice .
or recommendations, and such person shall be bound to comply
c with the orders and directions issued by the Government.
129. Mr. Harish N. Salve, learned senior counsel for
Kerala argued that these provisions were not taken into
consideration by this Court in its judgment in Mu//aperiyar
Environmental Protection Forum1 and, therefore, judgment of
D this Court is per incuriam.

130. We are not persuaded by this argument at all. 2003
Act was neither referred to nor relied upon by Kerala at the time
of hearing in Mul/aperiyar Environmental Protection Forum 1 •
E It was rightly so because 2003 Act had no direct bearing on
the issues which were under consideration. Section 3 refers to
water courses and the definition of "water course" in Section 2
(aq) does not include a dam such as Mullaperiyar dam. Kerala
Dam Safety Authority was not in place when the arguments in
F Mullaperiyar Environmental Protection Forum 1 were
concluded. We are informed that Dam Safety Authority came
to be constituted on 18.2.2006, i.e., few days before the
judgment was pronounced by this Court in that case. We have
carefully considered the provisions of amended 2003 Act and,
G in our view, in whatever way 2003 Act'is seen, there was no
impediment for this Court to consider and decide the question
whether raising the water level from 136 ft to 142 ft. would
jeopardize the safety of the dam. This Court answered the
question based on the materials on record, in the negative. The
H judgment of this Court in Mullaperiyar Environmental
STATE OF TAMIL NADU v. STATE OF KERALA 987
[R.M. LODHA, CJI.]
Protection Forum 1 by no stretch of imagination can be termed A
as per incuriam. The judgment wholly and squarely binds the
parties including Kerala.

131. The Kerala legislature amended the 2003 Act by
2006 (Amendment) Act. By the 2006 (Amendment) Act, in
8
Section 2, clauses Oa) and Ob) defining "custodian" and "dam"
were inserted after clause 0). Clause (ala) defining "scheduled
dam" was also inserted after clause (al). In sub-section (1) of
Section 57 of the principal Act, the words "surveillance,
inspection" were substituted by "ensuring the safety and
security". The explanation in sub-section (2) of Section 57 was C
deleted. Section 62 of the principal Act was substituted by new
Section 62. The new Section 62, inter alia, empowers the Dam
Safety Authority with following functions:

"(1) xxx xxx xxx D

(a) to evaluate the safety and security of all dams in the
State considering among other factors, the age of the
structures, geological and seismic factors, degeneration
or degradation caused over time or otherwise; ·
E
(b) to (d) xxx xxx xxx
(e) to direct the custodian to suspend the functioning of any
dam, to decommission any dam or restrict the functioning
of any dam if public safety or threat to human life or F
property so requires;

(f) to advise the Government, custodian, or other agencies
about policies and procedures to be followed in site
investigation, design, construction, operation and G
maintenance of dams;

(g) to conduct studies, inspect and advise the custodian
or any other agency on the advisability of raising or
lowering of the maximum water level or full reservoir level
H
988 SUPREME COURT REPORTS [2014) 12 S.C.R.

A of any dam, not being a scheduled dam, taking into
account the safety of the dam concerned;

(h) to 0) )()(){ )()(){ xxX'
132. The functions conferred on the Dam Safety Authority
B under new Section 62 override the judgment, decree or order
of any Court or any treaty, agreement, contract, instrument or
any other document. Su.b-section (3) of new Section 62 provides
that where a direction is issued by the Dam Safety Authority
under sub-Section (1 ), the custodian or any other agency to
C whom it is directed shall take immediate measures within the
time frame stipulated by the Authority or do or refrain from doing
such things within such time frame as may be stipulated and
to comply with the directions of the Authority. After Section 62,
new Sections 62A and 628 have been added. The details of
D the dams which are endangered on account of their age,
degeneration, degradation, structural or other impediments are
specified in the Second Schedule. Sub-sections (2) and (3) to
new Section 62A are overriding provisions, which read as
under:
E
"(1) )()(){ )()(){ )()(){

(2) Notwithstanding anything contained in any other law or
in any judgment, decree, order or direction of any court,
or any treaty. contract, agreement, instrument or document,
F no Government, custodian or any other agency shall
increase, augment, add to or expand the Full Reservoir
Level Fixed or in any other way do or omit to do any act
with a view to increase the water level fixed and set out in
THE SECOND SCHEDULE. Such level shall not be
G altered except in accordance with the provisions of this Act
in respect .of any Scheduled dam.
(3) Notwithstanding anything contained in any other law, or
in any judgment, decree, order, direction of any court or
any treaty, contract, agreement, instrument or document,
H
STATE OF TAMIL NADU v. STATE OF KERALA 989
[R.M. LODHA, CJI.]
any Government, custodian or any other agency intending A
to, or having secured any right under any treaty, contract,
agreement, instrument or document or by any other means
to increase, augment, add to or expand, the storage
capacity or increase the Full Reservoir Level Fixed of any
Scheduled dam, shall not do any act or work for such B
purpose without seeking prior consent in writing of the
Authority and without. obtaining an order permitting such
work by the Authority.

(4) and (5) xxx xxx xxX'
c
133. Section 628 gives powers of a Civil Court to the Dam
Safety Authority in respect of the matters specified therein while
dea~ng with applications for consent in writing for increasing,
augmenting, adding to or expanding the storage capacity or the
water spread area or for increasing of Maximum Water Level D
or Full Reservoir Level fixed for Scheduled dams. Section 68A
bars the jurisdiction of Civil Court from settling, deciding or
dealing with any question of fact or to determine any matter
which under the 2003 Act, as amended by 2006 (Amendment)
- Act, is required to be settled, decided or dealt with or to be E
determined by the Authority under the Act. In Second Schedule,
at item No.1 is the subject "Mullaperiyar Dam" for which FRL
is fixed at 41.45 meter (136 ft.) from the deepest point of the
level of Periyar river at the site of the main dam.

134. Tamil Nadu says that 2006 (Amendment) Act to the · F
extent it applies to Mullaperiyar dam seeks to nullify the
judgment of this Court in Mullaperiyar Environmental
Protection Forum 1 by declaring the dam to be endangered and
by fixing the height of the water level at 136 ft.; that It authorizes G
the Dam Safety Authority to disregaFd the judgment and to
adjudge for itself whether to allow raising of water level and
Section 62(1)(e) authorizes the Dam Safety Authority to order
inter a/ia decommissioning of the dam despite the finding of
safety recorded by this Court in the 2006 judgment and, thus,
the 2006 (Amendment) Act is unconstitutional being violative H
990 SUPREME COURT REPORTS [2014] 12 S.C.R.

A of separation of powers doctrine and consequently rule of law.

135. On the other hand, the argument of Mr. Harish N.
Salve, learned senior counsel for Kerala, is that the legislature
of every State has not just the power but.the obligation to take
appropriate legislative measures to ensure the safety and
8
security of its residents. Where the legislature of a State is
satisfied that there is a need to curtail the use or storage of a
water reservoir to protect its citizenry and elects to enact
legislation as a precautionary measure, the legislation cannot
be said to be in excess of the legislative competence of the
C State if it relates to reservoir and dam within the legislating
State. Kerala legislature has imposed precautionary measures
by placing pro tern restrictions on the storage level of the dams
mentioned in the Second Schedule read with Section 62A(2)
of the 2006 (Amendment) Act and the said restrictions are
D based on the legislative wisdom of the Kerala legislature that
these dams are endangered on account of their age,
degeneration, degradation, structural or other impediments.
While adjudicating upon the constitutional validity, Mr. Harish
Salve argues that the Court must proceed on the premise that
E the legislature understands and correctly appreciates the needs
of its own people and its laws are directed to the problems
made manifest by its experience and are based on adequate
grounds.

F 136. Mr. Harish N. Salve, learned senior counsel for Kerala
heavily relies upon 'precautionary principle' and 'public trust
doctrine' and argues that Kerala legislature was competent to
override the contracts and regulate safety of the Mullaperiyar
dam situated within its territory across river Periyar. His
G submission is that the State as sovereign retains continuing
supervisory control over navigable waters and underlying beds.
It is his submission that the State has a duty of 'continuing
supervision' even after such rights have been granted. In this
regard strong reliance is placed by him on Pfizer Animal
Health 27 •
H
STATE OF TAMIL NADU v. STATE OF KERALA 991
[R.M. LODHA, CJI.]
137. In Pfizer Animal Health 27 , the Court of First Instance A
of European Communities (Third Chamber) was concerned with
the legality and validity of the regulations which, inter alia,
banned particular use of the substance in question. Pfizer
argued that it was directly concerned by the contested
regulation as it withdraws authorization of Virginiamycin. The B
counsei for the European Union argued that the regulations
were enacted to general application which was applicable to
objectively determined situations and that they ban the
particular use of the substance in question, whether they are
marketed by Pfizer or by any one else under a different name. c
The Court observed that for the purpose of taking preventive
action, to wait for the adverse effects of the use of the products
was not required.

138. Dealing with precautionary principle, the Court made
these observations: D

"First, it must be borne in mind that, when the precautionary
principle is applied, the fact that there is scientific
uncertainty and that it is impossible to carry out a full risk
assessment in the time available does not prevent the E
competent public authority from taking preventive
protective measures if such measures appear essential,
regard being had to the level of risk to human health which
the public authority has decided is the critical threshold
above which it is necessary to take preventive measures. F

The precautionary principle allows the competent public
authority to take, on a provisional basis, preventive
protective measures on what is as yet an incomplete G
scientific basis, pending the availability of additional
scientific evidence.

H
992 SUPREME COURT REPORTS [2014] 12 S.C.R.

A It is not for the Court to assess the merits of either of the
scientific points of view argued before it and to substitute
its assessment for that of the Community institutions, on
which the Treaty confers sole responsibility in that regard.

B
139. Kerala has also relied upon the article, "The Public
Trust Doctrine in the Water Rights Context" by Roderick E.
Wa/ston 22 • The author has culled out following four principles
of the Public Trust doctrine:
c
"(1) The state as sovereign "retains continuing supervisory
control" over navigable waters and underlying beds;

(2) The legislature, either directly or through the water
rights agency, has the right to grant usufructuary water
D rights even though such rights will "not promote, and may
unavoidably harm, the trust uses at the sources stream;"

(3) The state has the "affirmative duty" to take the public
trust into account in planning and allocating water
E resources; and

(4) The state has a "duty of continuing supervision" over
water rights even after such rights have been granted."

F 139.1 Public trust doctrine, Roderick E. Walston says, is
regarded by some as an exercise of sovereign state regulatory,
analogous to the police power.

140. In our opinion, the principle of 'public trust doctrine'
G in the context of water rights culled out by Roderick E. Walston
or the 'precautionary principle' explained in Pfizer Animal
Health27 can hardly be doubted but these principles have no
application in the context of safety of Mullaper~yar dam on
raising the water level from the present level to 142 ft., which
H was directly in issue and has been expressly, categorically and
STATE OF TAMIL NADU v. STATE OF KERALA 993
[R.M. LODHA, CJI.]
unambiguously determined by the Court. This Court has found A
- supported by the Expert Committee Reports - that the safety
of the subject dam is not at all jeopardized if the water level is
raised from the present level to 142 ft. Kerala, which is
contesting party, by applying 'public trust doctrine' or
'precautionary measure', cannot through legislation do an act B
in conflict with the judgment of the highest Court which has
attained finality. If a legislation is found to have breached the
established constitutional limitation such as separation of
powers, it has to go and cannot be allowed to remain.

141. It is true that the State's sovereign interests provide C
the fouHdation of the public trust doctrine but the judicial function
is also a very important sovereign function of the State and the
. foundation of the rule of law. The legislature cannot by invoking
'public trust doctrine' or 'precautionary principle' indirectly
control the action of the Courts and directly or indirectly set D
aside the authoritative and binding finding of fact by the Court,
particularly, in situations where the executive branch
{Government of the State) was a party in the Htigation and the
final judgment was delivered after hearing them.
E
142. 2006 (Amendment) Act in its application to and effect
on the Mullaperiyar dam seeks to attain the following:

{a) It substitutes Section 62 with a new provision whereby,
notwithstanding the judgment of this Court and notwithstanding
F
anything contained in any treaty, contract, 1886 Lease
Agreement and 1970 supplemental agreements, the function
of evaluation of safety of the Mullaperiyar dam and the power
to issue directions to Tamil Nadu as custodian are conferred
upon Dam Safety Authority~
G
(b) the Dam Safety Authority is empowered, inter alia, to
restrict the functioning of Mullaperiyar dam and/or to conduct
studies on the advisability of raising or lowering of the m'aximum
water level or the full reservoir level;
H
994 SUPREME COURT REPORTS [2014) 12 S.C.R.

A (c) Mullaperiyar dam is considered by Kerala legislature
to be endangered and by virtue of Section 62(A), it takes away
. the right of Tamil Nadu to increase, expand the FRL or in any
manner increase the water level as set out in the Second
Schedule except in accordance with the provisions of the Act;
B
(d) under Section 62A(4), Tamil Nadu as custodian has to
submit an application to the Dam Safety Authority for its prior
consent for the increase in the water level;
(e) it takes away all rights of Tamil Nadu including the right
C which has passed into judgment of this Court to increase the
water level;

(f) the Dams Safety Authority has power to order de-
commissioning of the Mullaperiyar dam.
D 143. This Court in Mullaperiyar Environmental Protection
Forum 1 , after hearing the State of Kerala, was not persuaded
by Kerala's argument that Mullaperiyar dam was unsafe or
storage of water in that dam cannot be increased. Rather, it
permitted Tamil Nadu to increase the present water level from
E 136 ft. to 142 ft. and restrained Kerala from interfering in Tamil
Nadu's right in increasing the water level in Mullaperiyar dam
to 142 ft. Thus, a judgment has been given by this court in
contest between the two States in respect of safety of
Mullaperiyar dam for raising water level to 142 ft. The essential
F element of the judicial function is the decision of a dispute
actually arising between the parties and brought before the
court. Necessarily, such decision must be binding upon the
parties and enforceable according to the decision. A plain and
simple judicial decision on fact cannot be altered by a
G legislative decision by employing doctrines or principles such
as 'public trust doctrine', 'precautionary principle' 'larger safety
principle' and, 'competence of the State legislature to override
agreements between the two States'. The Constitutional
principle that the legislature can render judicial decision
H ineffective by enacting validating law within its legislative field
STATE OF TAMIL NADU v. STATE OF KERALA 995
[R.M. LODHA, CJI.]

fundamentally altering or changing its character retrospectively A
has no application where a judicial decision has been rendered
by recording a finding of fact. Under the pretence of power, the
legislature, ·cannot neutralize the effect of the judgment given
after ascertainment of fact by means of evidence/materials
placed by the parties to the dispute. A decision which disposes B
of the matter by giving findings upon the facts is not open to
change by legislature. A final judgment, once rendered,
operates and remains in force until altered by the court in
appropriate proceedings.

144. 2006 (Amendment) Act plainly seeks to nullify the C
judgment of this court which is constitutionally impermissible.
Moreover, it is not disputed by Kerala that 2006 (Amendment)
Act is not a validation enactment. Since the impugned law is
not a validating law, it is not required to inquire whether in
making the validation the legislature has removed the defect D
which the Court has found in existing law. The 2006
{Amendment) Act in its application to and effect on Mullaperiyar
dam is a legislation other than substantially legislative as it is
aimed at nullifying the prior and authoritative decision of this
Court. The nub of the infringement consists in Kerala legislator's E
revising the final judgment of this Court in utter disregard of the
constitutional principle that the revision of such final judgment
must remain exclusively within the discretion of the court.

145. Section 62A declares the dam to be endangered. · F
The Second Schedule appended to the Act fixes the height of
the water level at 136 ft. though this Court in its judgment had
declared Mul!aperiyar dam safe and permitted the increase of
the water level to 142 ft. Moreover, the 2006 (Amendment) Act
authorises the Dam Safety Authority to adjudge its safety to G
allow raising of water level. The provision is in direct disregard
of the judgment of this Court. Section 62A also freezes all work
on the dam allowed by this Court in its judgment dated
27.2.2006. In our opinion, by 2006 (Amendment) Act, the
Kerala legislature has overturned a final judgment in the interest H
996 SUPREME COURT REPORTS [2014] 12 S.C.R.

A of its own executive Government. The impugned law amounts
to reversal of the judgment of this Court which determines
directly the question of safety of Mullaperiyar dam for raising
water level to 142 ft. and whereunder Tamil Nadu's legal right
has beeri determined.
8
146. On behalf of Kerala, it is strenuously argued by Mr.
Harish Salve that right to safety of the people being a public
right could not have passed into 2006 judgment of this court.
In this regard, heavy reliance is placed on the majority decision
C of the Wheeling Bridge29• Firstly, public right qualification in
Wheeling Bridge29 has no application in the present case as
there is a critical difference between the provisions impugned
before us and the provisions which were impugned before US
Supreme Court in Wheeling Bridge29 • The principle question
before the US Supreme Court in Wheeling Bridge 29 was
D whether or not the compact could operate as a restriction upon
the power of courts under the Constitution to regulate
commerce among several States. In response to the argument
urged before it that the Congress cannot have the effect to annul
the judgment of the court already rendered or the rights
E determined thereby was accepted as a general proposition but
this proposition was held not applicable in the matters of
adjudication upon the public rights. In our view, a legislation
violating the separation of powers principle cannot be saved
by carving out an exception that the legislature has regulated
F a public right, We think that the act of legislature designed to
achieve a legitimate regulatory measure does not grant
constitutional immunity to such law enacted in violation of
separation of powers principle or in other words, rule of law.
Once a judicial decision on ascertainment of a particular fact
G achieves finality, we are afraid the legislature cannot reopen
such final judgment directly or indirectly. In such cases, the
courts, if brought before them, may reopen such cases in
exercise of their own discretion.
147. In our view, Wheeling Bridge29 qualification by the
H
STATE OF TAMIL NADU v. STATE OF KERALA 997
[R.M. LODHA, CJI.]
majority decision of U.S. Supreme Court cannot be read to A
permit the actual revision of the final judgment by the legislature.
If Wheeling Bridge29 lays down the proposition that a judgment
declaring a public right may be annulled by subsequent
legislation as contended by Mr. Harish Salve, then we say, as
we must, that we are not persuaded to accept such proposition B
of majority judgment in Wheeling Bridge29 • The two separate
opinions in Wheeling Bridge29 one by Mclean J. and the other
by Wayne J. - though in minority- also did not accept such
proposition.

148. The above discussion must also answer the argument c
of Mr. Harish Salve that rules of inter partes litigation do not
determine the obligation of the State for safety of its people.
We do not think it is necessary to consider the opinion of
Weeramantry, J. in Gobcikovo-Nagymaros Project (ICJ) in
detail. The stress laid by Weeramantry, J. is that where issue D
of serious or catastrophic environmental danger arises, the
Court must look beyond inter partes adversarial procedures.

149. It is true that safety of dam is an aspect which can
change from time to time in different circumstances but then E
the circumstances have to be shown based on which it
becomes necessary to make departure from the earlier finding.
It is always open to any of the parties to approach the court and
apply for re-assessing the safety aspect but absent change in
· circumstances, factual determination in the earlier proceedings F
even on the questions such as safety of dam binds the parties.
If the circumstances have changed which necessitates a re-look
on the aspect of safety, the Court itself may exercise its
discretion to reopen such case but legislative abrogation of
judgment for even the very best of reasons and genuine G
concern for public safety does not clothe the legislature to
rescind the judgment of the court by a legislation.

150. The contention of Mr. Harish Salve that by declaring
dam unsafe, the legislature has not rendered any finding of fact;
it deems dam unsafe and sets up an Authority to regulate it, is H
998 SUPREME COURT REPORTS [2014) 12 S.C.R.

A noted t? b~ rejected. What has been found as a fact by judicial
det~rmmatron cannot be declared otherwise by applying legal
fiction. We are, however, persuaded to accept the submission
of Mr. Vinod Bobde, learned senior counsel for Tamil Nadu that
the fact that the Mullaperiyar dam is safe was found by this
B Court and that finding of fact can never be deemed to be
imaginary by a legal fiction which then proceeds to deem the
opposite to be real, viz., that the dam is endangered. This is
not a matter of legislative policy as it is being made out to be,
rather in our opinion, it is incursion in the judicial process and
c functions of judicial organ. The declaration in Section 62A read
with item No. 1 of the Second Schedule leaves no manner of
doubt that the enactment is intended to reach the question
decided by the Court.

151. The question whether or not the legislature has
D usurped the judicial power or enacted a law in breach of
separation of powers principle would depend on facts of each
case after considering the real effect of law on a judgment or
a judicial proceeding. One of the tests for determining whether
a judgment is nullified is to see whether the law and the judgment
E are inconsistent and irreconcilable so that both cannot stand
together. In what we have already discussed above, it is
abundantly clear that on the one hand there is a finding of fact
determined by this Court on hearing the parties on the basis
of the evidence/materials placed on record in the judgment·of
F this Court in Mul/aperiyar Environmental Protection Forum1
and on the other in 2006 (Amendment) Act, the Kerala
legislature has declared the dam being an endangered one and
fixed the water level in the dam at 136 ft. If the judgment of this
Court in Mul/aperiyar Environmental Protection Forum1 ar.d
G the 2006 (Amendment) Act are placed side by side insofar as
safety of the Mullaperiyar dam for raising the water level from
136 ft. to 142 ft. is concerned, it is obvious that the judgment
of this Court and the law enacted by Kerala State legislature
cannot stand together and they are irreconcilable and
H inconsistent. The impugned law is a classic case of nullification
STATE OF TAMIL NADU v. STATE OF KERALA 999
[R.M. LODHA, CJI.]
of a judgment simpliciter, as in the judgment of this Court the A
question of safety of dam was determined on the basis of
materials placed before it and not on the interpretation of any
existing law and there was no occasion for the legislature to
amend the law by altering the basis on which the judgment was
founded. When the impugned law is not a validation law, there B
is no question of the legislature removing the defect, as the
Court has not found any vice in the existing law and declared
such law to be bad.

152. There is yet another facet that in federal disputes, the
legislature (Parliament and State legislatures) cannot be judge C
in their own cause in the case of any dispute with another State.
The rule of law which is basic feature of our Constitution forbids
the Union and the States from deciding, by law, a dispute
between two States or between the Union and one or more
States. If this was permitted under the Constitution, the Union D
and the States which have any dispute between them inter se
would enact law establishing its claim or right against the other
and that would lead to contradictory and irreconcilable laws. The
Constitution makers in order to obviate any likelihood of
contradictory and irreconcilable laws being enacted has E
provided for independent adjudication of federal disputes.
Article 131 of the Constitution confers original jurisdiction upon
this Court in relation to the disputes between the Government
of India and one or more States or between the Government
.of India and any State or States on one side and one or more F
States on the other or between two or more States insofar as
dispute involves any question on which the existence or extent
of a legal right depends. The proviso appended to Article 131
carves out an exception to the jurisdiction of this Court to a
dispute arising out of treaty, agreement, covenant, G
engagement, sanad or other similar instrument which have
been entered into or executed before the commencement of
the Constitution and continues in operation after such
commencement, which are political in nature. In .relation to
dispute relating to waters of inter-State river or river valleys, H
1000 SUPREME COURT REPORTS [2014] 12 S.C.R.

A Article 262 provides for creation of tribunal or forum for their
adjudication. In federal disputes, Parliament or State
legislatures by law, if seek to decide a dispute between the two
States or between the Union and one or more States directly
or indirectly, the adjudicatory mechanism provided in Articles
B 131 and 262 of the Constitution would be rendered nugatory
and, therefore, such legislation cannot be constitutionally
countenanced being violative of separation of powers doctrine.

153. Mr. Harish Salve, learned senior couns~ is right in
C his submission that a legislation can never be challenged on
the principles of res judicata and that it binds a party and not
the legislature. The question here is not that the 2006
(Amendment) Act is unconstitutional on the ground of res
judicata but the question is, when a categorical finding has been
recorded by this Court in the earli~r judgment that the dam is
D safe for raising the water level to 142 ft. and permitted the water
lever of the dam being raised to 142 ft. and that judgment has
become final and binding between the parties, has the Kerala
legislature infringed the separation of powers doctrine in
enacting such law? In what has already been discussed above,
E the answer to the question has to be in the affirmative and we
hold so.

154. Where a dispute between two States has already
been adjudicated upon by this Court, which it is empowered
F _to deal with, any unilateral law enacted by one of the parties
that results in overturning the final judgment is bad not because
it is affected by the principles of res judicata but because it
infringes the doctrine of separation of powers and rule of law,
as by such_ law, the legislature has clearly usurped the judicial
G power.
Res-judicata

155. It is true that 2006 judgment was rendered in exercise
of the jurisdiction of this Court under Article 32 of the
H Constitution and the petitions which were transferred to this
STATE OF TAMIL NADU v. STATE OF KERALA 1001
[R.M. LODHA, CJ1.]
Court under Article 139A but to say that such judgment does A
not bind this Court while deciding the present suit, which confers
exclusive jurisdiction upon it, is not correct. The earlier decision
of this Court by no stretch of imagination can be regarded as
a judgment rendered without jurisdiction. A finding recorded by
this Court in the proceedings under Article 32 is as effective B
and final as in any other proceedings.

156. The ~ule of resjudicata is not merely a technical rule
but it is based on high public policy. The rule embodies a
principle of public policy, which in turn, is an essential part of C
the rule of law. In Duchess of Kingston 62 , the House of Lords
(1n the opinion of Sir William de Grey) has observed: "From the
variety of cases relative to judgments being given in evidence
in civil suits, these two deductions seem to follow as generally
true: first, that the judgment of a court of concurrent jurisdiction,
directly upon the point, is as a plea, a bar, or as evidence, D
conclusive, between the· same parties, upon the same matter,
directly in question in another court; secondly, that the judgment
of a court of exclusive jurisdiction, directly upon the point, is, in
like manner, conclusive upon the same matter, between the
same parties, coming incidentally in question in another court, E
for a different purpose."

157. Corpus Juris explains that res judicata is a rule of
universal law pervading every well-regulated system of
jurisprudence, and is put upon two grounds, embodied in F
various maxim_s of the common law; the one, public policy and
necessity, which makes it to the interest of the State that there
should be an end to litigation; and the other, the hardship on
the individual that he should be vexed twice for the same cause.

158. In Sheoparsan Singh 63 , Sir Lawrence Jenkins noted G
the statement of law declared by Lord Coke, 'interest reipublica

62. Duchess of Kingston; 2 Smith Lead Cas 13 Ed. Pp. 644, 645.
63. Sheoparsan Singh v. Rarnnandan Prashad Narayan Singh; [AIR 1916 PC
~- I H
1002 SUPREME COURT REPORTS [2014] 12 S.C.R.

A ut sit finis litium,' otherNise great oppression might be done
under colour and pretence of law. - (6 Coke, 9A.)

159. In Daryao64 , P.B. Gajendragadkar, J. while explaining
the rule of res judicata stated that on general considerations
of public policy there seems to be no reason why rule of res
8
judicata should be treated as inadmissible or irrelevant while
dealing with the petitions filed under Article 32 of the
Constitution. P.B. Gajendragadkar, J. referred to earlier
decision of this Court in M.S.M. Sharma 65 wherein the
C application of the rule of res judicata to a petition filed under
Article 32 was considered and it was observed that the
question determined by the previous decision of this Court
cannot be reopened and must govern the rights and obligations
of the parties which are subsequently the same.

D 160. In Guiab Chand Chhota/al Parikh66 , this Court stated
that a decision in a writ petition is res judicata in a subsequent
suit.
161. In Nanak Singh67 the question whether the decision
E in a writ petition operates as res judicata in a subsequent suit
filed on the same cause of action has been settled. In Nanak
Singh67 , this court observed that there is no good reason to
preclude decisions on matters in controversy in writ
proceedings under Article 226 or Article 32 of the Constitution
from operating as res judicata in subsequent regular suits on
F the same matters in controversy between the same parties and,
thus, to give limited effect to the principle of finality of decision
after full contest.
162. Nanak Singh67 has been followed by a three Judge
G
64. Daryao and Ors. v. State of U.P. and Ors.; [AIR 1961 SC 1457]
65. Pandit M.S.M. Sharma v. Dr. Shree Krishna Sinha and Ors.; [AIR 1960 SC
1186]
66. Guiab Chand Chhotalal Parikh v. State of Bombay; ((1965) 2 SCR 547]
H 67. Union of India v. Nanak Singh; ((1968) 2 SCR 887: AIR 1968 SC 1370]
STATE OF TAMIL NADU v. STATE OF KERALA 1003
[R.M. LODHA, CJI.]
Bench of this Court in Bua Das Kausha/6 6 • In our view, the rule A
of res judicata which is founded on public policy prevents not
only a new decision in the subsequent suit but also prevents
new investigation. It prevents the defendant from setting up a
plea in a subsequent suit which was decided between the
parties in the previous proceedings. The legal position with B
regard to rule of res judicata is fairly well-settled that the
decision on a matter in controversy in writ proceeding {Article
226 or Article 32 of the Constitution) operates as res judicata
in subsequent suit on the same matters in controversy between
the same parties. For the applicability of rule of res judicata it c
is not necessary that the decision in the previous suit must be
the decision in the suit so as to operate as res judicata in a
subsequent suit. A decision in previous proceeding, like under
Article 32 or Article 226 of the Constitution, which is not a suit,
will be binding on the parties in the subsequent suit on the
0
principle of res judicata.

163. For the applicability of rule of res judicata, the
important thing that must be seen is that the matter was directly
and substantially in issue in the previous proceeding and a
decision has been given by the Court on that issue. A decision E
on issue of fact in the previous proceeding - such proceeding
may not be in the nature of suit - constitutes res judicata in the
subsequent suit.

164. In light of the above legal position, if the 2006 F
judgment is seen, it becomes apparent that after considering
the contentions of the parties and examining the reports of
Expert Committee, this Court posed the issue for determination
about the safety of the dam to increase the water level to 142
ft. and came to a categorical finding that the dam was safe for G
raising the water level to 142 ft. and, accordingly, in the
concluding paragraph the Court disposed of the writ petition
and the connected matters by permitting the water level of
Mullaperiyar dam being raised to 142 ft. and also permitted

68. State of Punjab v. Bua Das Kaushal; [ (1970) 3 SCC 656]. H
1004 SUPREME COURT REPORTS [2014] 12 S.C.R.

A further strengthening of the dam as per the report of the Expert
Committee appointed by the CWC. The review petition filed
against the said decision was dismissed by this Court on
27. 7.2006. The 2006 judgment having become final and
binding, the issues decided in the said proceedings definitely
B operate as res judicata in the suit filed under Article 131 of the
Constitution.

165. Shri Harish Salve, learned senior counsel for Kerala,
placed reliance upon the decision of this Court in N.D. Jayar 9 •
C In N.D. Jayar 9 Dharmadhikari, J. made general observations
on the dam safety aspect that plea like res judicata on the
earlier decisions passed by the Supreme Court cannot be
allowed -to be raised. The observations made by
Dharmadhikari, J. in N.D. Jaya/6 9 have to be read as an
exception to the res judicata rule in the matters where, by their
D very nature, the factual situation has drastically changed in
course of time. If substantial changes in the circumstances occur
and such circumstances are shown to the .Court necessitating
departure from the earlier finding on the issue of safety, the
Court can be approached and in that event the Court itself may
E exercise its discretion to reopen the safety aspect having regard
to the drastic change in circumstances or in emergent situation
as to the safety of dam. In our view, a judicial decision, having
achieved finality, becomes the last word and can be reopened
in the changed circumstances by that Court alone and no one
F else.

166. On behalf of Kerala, it is contended that the
jurisdiction of this Court under Article 32 of the Constitution for
enforcement of the fundamental rights conferred by Part Ill of
G the Constitution is ousted or excluded in respect of disputes
between two or more States: since such disputes fall within the
ambit of the original jurisdiction of this Court under Article 131
of the Constitution or jurisdiction of a tribunal constituted under

H 69. N.O. Jayal and Anr. v. Union of India and Ors.; [(2004) 9 SCC 362] .
STATE OF TAMIL NADU v. STATE OF KERALA 1005
[R.M. LODHA, CJI.]
the provisions of Inter-State River Water Disputes Act, 1956 A
read with the provisions of Article 262 of the Constitution. Thus,
it was submitted that the 2006 judgment is not binding and that
the rule of res judicata can hardly be attracted in this situation.
167. We are unable to accept the submission of the B
learned senior counsel for Kerala. The label of jurisdiction
exercised by this Court is not material for applicability of
principles of res judicata if the matter in issue in the subsequent
suit has already been concluded by the earlier decision of this
Court between the same parties. The 2006 judgment was the
result of judicial investigation, founded upon facts ascertained C
in the course of hearing. The plea of lack of jurisdiction of this
Court was taken in the earlier proceedings on both the grounds,
viz., (1) whether the jurisdiction of this Court is barred in view
of Article 262 read with Section 11 of the Inter-State River
Water Disputes Act, 1956, and (2) whether Article 363 of the D
Constitution bars the jurisdiction of this Court. On both these
questions t.he findings were recorded against Kerala. It is too
much for Kerala to say that the 2006 judgment is without
jurisdiction. and not binding.
E
168. The rule of res judicata is articulated in Section 11 70
of the Code of Civil Procedure.
70. Section 11 - Res judicata
No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former F
suit between the same parties, or between parties under whom they or
any of them claim, litigating under the same title, in a Court competent to
try such subsequent suit or the suit in which such issue has been
subsequently raised, and has been heard and finally decided by such Court.
Explanation I. - The expression "former suit" shall der.iote a sui! which has
been decided prior to the suit in question whether or not it was instituted G
prior thereto.
Explanation II. - For the purposes of this section, the competence of a Court
shall be determined irrespective of any provisions as to a right of appeal
from the decision of such Court. ·
Explanation Ill. - The matter above referred to must in the former suit have
H
1006 SUPREME COURT REPORTS [2014] 12 S.C.R.

A 169. Explanations VII and VIII were inserted in the above
provision by Code of Civil Procedure (Amendment) Act, 1976
w.e.f. 1.2.1977. Explanation VIII in this regard is quite relevant.
The principles of res judicata, thus, have been made applicable
to cases which are tried by Courts of limited jurisdiction. The
B decisions of the Courts of limited jurisdiction, insofar as such
decisions are within the competence of the Courts of limited
jurisdiction, operate as res judicata in a subsequent suit,
although, the Court of limited jurisdiction that decided the
previous suit may not be competent to try such subsequent suit
c or the suit in which such question is subsequently raised. If a
decision of the Court of limited jurisdiction, which was within
its competence, operates as res judicata in a subsequent suit
even when the subsequent suit is not triable by it, a fortiori, the
decision of the highest Court of the land in whatever jurisdiction
given on an issue which was directly raised, considered and
0
decided must operate as res judicata in the subsequent suit

been alleged by one party and either denied or admitted, expressly or
impliedly, by the other.
Explanation IV. - Any matter which might and ought to have been made
E ground of defence or attack in such former suit shall be deemed to have
been a matter directly and substantially in issue in such suit.
Explanation V. - Any relief claimed in the plaint, which is not expressly
granted by the decree, shall, for the purposes of this section, be deemed
to have been refused.
Explanation VI. - Where persons litigate bona fide in respect of a public
F right or of a private right claimed in common for themselves and others,
all persons interested in such right shall, for the purposes of this section,
be deemed to claim under the persons so litigating.
Explanation VI I. - The provisions of this section shall apply to a proceeding
for the execution of a decree and references in this section to any suit,
issue or former suit shall be construed as references, respectively, to a
G proceeding for· the execution of the decree, question arising in such
proceeding and a former proceeding for the execution of that decree.
Explanation VIII. - An issue heard and finally decided by a Court of limited
jurisdiction, competent to decide such issue, shall operate as res judicata
in a subsequent suit, notwithstanding that such Court of limited jurisdiction
was not competent to try such subsequent suit or the suit in which such
issue has been subsequently raised.
H
STATE OF TAMIL NADU v. STATE OF KERALA 1007
[R.M. LODHA, CJI.]
triable exclusively by the highest Court under Article 131 of the A
Constitution. Any other view in this regard will be inconsistent
with the high public policy and rule of law. The judgment of this
Court directly upon the point, is as a plea, a bar, or as evidence,
conclusive between the same parties, upon the same matter,
directly in question before this Court, though, label of jurisdiction B
is different.

170. The principles of res judicata are clearly attracted in
the present case. The claim of Kerala in the earlier proceeding
that water level cannot be raised from its present level of 136 C
ft. was expressly not accepted and the obstruction by Kerala
to the water level in the Mullaperiyar dam being raised to 142
ft. on the ground of safety was found untenable. The judgment
dated 27.2.2006 of this Court, thus, operates as res judicata
in respect of the issue of safety of the dam by increasing its
water level from 136 ft. to 142 ft. D

171. It is argued by Mr. Harish Salve, learned senior
counsel for Kerala, that even agreements entered into between
foreign sovereigns can be overridden in exercise of legislative
powers. He argues that if the contention of Tamil Nadu that the E
1886 Lease Agreement. was an ordinary lease agreement is
correct and assuming that such an agreement was continued,
it clearly was open to the legislature of the State of Kerala to
override such a contract. According to him, even contracts by
way of sanads, treaties, etc., by the Crown could, after the F
Government of India Act and also after the Constitution of India,
be overridden by exercise of the legislative power.

172. Learned senior counsel for Kerala in support of this
contention relied upon the Privy Council decision in Thakur
Jagannath Baksh 19 and Maharaj Umeg Singh 20 • Learned G
senior counsel also submits that Section 108 of the SR Act
does not create any limitation upon Kerala exercising legislative
power, inter a/ia, to cancel 1886 Lease Agreement and if
Section 108 of SR Act is construed to impose a permanent
• H
1008 SUPREME COURT REPORTS [2014] 12 S.C.R.

A fetter on the State's legislative power, such provision is
unconstitutional.

173. It may be stated immediately that the constitutionality
of the SR Act has not been raised by Kerala in its written
8 statement. As a matter of fact, there is no issue framed by the
Court in this regard. Rather, in the earlier litigation the
constitutionality of Section 108 of the SR Act was challenged.
In the 2006 judgment, one of the questions framed for
consideration was, whether Section 108 of the SR Act is
unconstitutional. The Court held that law making power under
C Articles 3 and 4 of the Constitution was paramount and it was
neither subjected nor fettered by Article 246 and Lists II (State
List) and Ill (Concurrent List) of the Seventh Schedule. The Court
also held that power of Parliament to make law under Articles
3 and 4 is plenary and traverses over all legislative subjects
D as are necessary for effecting a proper reorganization of the
States. Consequently, the Court found no merit in the challenge
as to the validity of Section 108 of the SR Act.
174. We are, therefore, not persuaded to consider
E constitutional validity of Section 108(1) of the SR Act again.
Moreover, it is not necessary to consider this aspect in view of
our finding that 2006 (Amendment) Act enacted by Kerala
legislature is unconstitutional.
175. Thakur Jagannath Baksh 19 and Maharaj Umeg
F Singh 20 have no application to the situation obtaining in the·
present case. The effect of a judgment which enforces a legal
right flowing from a contract is that the right is incorporated as
a right under the judgment and such a right cannot be
overridden by legislature as it tantamounts to overriding a
G judgment.
176. Learned senior counsel for Kerala also relied upon
a decision of this Court in State of Orissa71 • In State of Orissa71 ,

H 71. State of Orissa Vs. State of A.P.; [(2006) 9 SCC 591).
STATE OF TAMIL NADU v. STATE OF KERALA 1009
[R.M. LODHA, CJI.].

while dealing with Article 131, this Court stated, "Article 131 A
has no doubt given the Supreme Court exclusive jurisdiction to
resolve any dispute between, inter alia, two or more States. This
exclusive jurisdiction is, however, subject to two limitations -
one contained in the opening words of the Article, namely,
"subject to the provisions of this Constitution" and the other 8
which is contained in the proviso to the Article."

177. There is no doubt that the jurisdiction to resolve any
dispute between two or more States is conferred upon the
Supreme Court by Article 131 of the Constitution. However, it C
does not follow logically from this that a judgment rendered by
the Supreme Court in a writ jurisdiction under Article 32
amongst others between two States is not conclusive and
binding on such States. As already noted above, the 2006
judgment rendered by this Court in exercise of its jurisdiction D
under Article 32 binds Kerala and Tamil Nadu. We have no
hesitation and we state with all emphasis that a finding recorded
by this Court in exercise of jurisdiction under Article 32 is
a
binding between the two parties, in subsequent suit between E
the two ·states under Article 131.

Safety of Mullaperiyar dam - Evidence and EC Report

178. Learned senior counsel for Kerala while assailing the
finding of fact on safety of Mullaperiyar dam recorded in 2006 F
judgment, and in support of his contention that it does not
constitute res judicata as the circumstances have changed, has
relied upon the evidence of its witness Dr. A.K. Gosain (DW-
3) on the impact of Probable Maximum Flood (PMF), evidence
of Dr. D.K. Paul on the impact of seismic forces and certain G
admissions of Tamil Nadu's witness PW-1. Mr. Harish Salve
argues that the doctrine of finality does not preclude this Court
from correcting the errors. Learned senior counsel in this regard
H
1010 SUPREME COURT REPORTS [2014] 12 S.C.R.

A places reliance upon three decisions of this Court in AR.
Antulay72, Isabella Johnson73 , and Rupa Ashok Hurra74 .

179. Being the highest court of the land, this court
possesses powers to correct a judgment in a curative petition
if the parameters laid down in Rupa Ashok Hurra 74 are
8
satisfied. The present case does not fall within the parameters
laid down in Rupa Ashok Hurra 74 . Though there is no
justification to reopen the dam safety aspect in view of the
judgment of this Court passed on 27.2.2006, yet for our
satisfaction as to whether there is any danger to the
C Mullaperiyar dam, despite strengthening of dam carried out by
Tamil Nadu in accordance with the strengthening measures
suggested by ewe, we briefly intend to look into this aspect.

180. Learned senior counsel for Kerala submits that
D danger posed to the safety of the Mullaperiyar dam arises from,
(i) the impact of Probable Maximum Flood (PMF), i.e., floods
which impact the dam; (ii) the impact of Maximum Considered
Earthquake (MCE), i.e., if earthquake happens, the impact of
such event on the dam; and (iii) the impact on structural
E degeneration, i.e., with the age, the dam structure has been
rendered unsafe. Kerala's emphasis is that in the 2006
judgment this Court wrongly endorsed the PMF of 2.12 lakh
cusecs estimated by the ewe in 1986. Kerala asserts that the
observed flood at Mullaperiyar dam in 1943 was 2.98 lakh
F cusecs and according to Tamil Nadu's own witness (PW-1), the
PMF ought to be more than observed flood. Hence, estimation
of PMF as 2.12 lakh cusecs by the CWC in 1986 is an
underestimation.

181. As regards impact of MCE, Kerala has heavily relied
G upon the study conducted by Dr. D.K. Paul and Dr. M.L.
Sharma, Professors of llT, Roorkee. Kerala says that these two
72. R.S. Nayak v. A.R. Antulay; [(1984) 2 SCC 183].
73. Isabella Johnson (Smt.) v. M.A. Susai (Dead) by Lrs.; [(1991) 1 SCC 494].
H 74. Rupa Ashok Hurra v. Ashok Hurra and Anr.; [(2002) 4 SCC 388].
STATE OF TAMIL NADU v. STATE OF KERALA 1011
[R.M. LODHA, CJI.]

experts have categorically concluded that, "........... both the A
Main Mullaperiyar dam and Baby Dam are likely to undergo
damage which may lead to failure under static plus earthquake
condition and therefore needs serious attention .... ".

182. Kerala submits that the dam suffered heavy lime loss B
between 1930 and 1960 forcing Tamil Nadu to grout admittedly
542 MT of cement in this period.

183. On the aspect of impact of structural degeneration,
Kerala's submission is that Mullaperiyar dam is a composite
gravity dam constructed of lime surkhi mortar and lime surkhi C
concrete; that inner core of the dam, which constitutes 62% of
the total volume, admittedly consists of lime surkhi concrete;
and that Mullaperiyar dam has suffered heavy leaching of lime
and has lost as much as 30.48 MT per year as found by the
Expert Committee of Tamil Nadu, which has been admitted by D
PW-1. Kerala has highlighted that the density of the materials
used in the dam has gradually gone down from 150 lbs/cft
considered in 1895 to 135 lbs/cft in 1986 and that such gradual
reduction testifies structural degradation of the Mullaperiyar
dam. E

184. As noted earlier, when the matter was initially taken
up by the Constitution Bench it was felt that all the aspects of
the matter including safety of Mullaperiyar dam need to be
examined by an Empowered Committee (EC), which may help
the Court in deciding the matter effectively. Accordingly, on F
18.2.201 O the Constitution Bench directed the Central
Government to constitute an EC under the Chairmanship of Dr.
A.S. Anand, former Chief Justice of India, and comprising of .
two members nominated by the States of Kerala and Tamil
Nadu and two renowned technical experts. Kerala nominated G
Justice K.T. Thomas, a former Judge of this Court, and Tamil
Nadu nominated Justice (Dr.) A.R. Lakshmanan, a former
Judge of this Court, to the EC. Two renowned technical experts,
Dr. C.D. Thatte and Shri D.K. Mehta were nominated in
H
1012 SUPREME COURT REPORTS [2014] 12 S.C.R.

A consultation with the Chairman of the EC. As per the terms of
reference, the EC was free to receive further evidence as it
considered appropriate. The two experts, Dr. C.D. Thatte and
Shri D.K. Mehta have long experience in all facets of water
sector. EC got investigations, tests and technical studies
B carried out through the three apex organizations, besides other
specialized organizations of the Government of India and,
especially, expert agencies with a view to appreciate the
diverse stand of the two States. In all, 12 investigations and
technical studies, besides some site studies, were directed to
c be carried out to assist the EC to appreciate the stand of the
two States and for submission of its report to this Court. The
EC also visited Mullaperiyar dam (main dam), Baby dam and
earthen bund from the Periyar lakeside as well as from the
downstream side. Before EC, the representative of both States
D explained theories of the existing dam. The two technical
members made a visit to drainage galleries and spillway for
better appraisal of the dam site. The two e~perts again visited
the dam site for site appraisal and submitted their report.

185. The reports and investigations, tests and studies (ITS
E reports) are contained in 50 CDs and 4 DVDs. The report of
EC consists of 8 Chapters. Chapter I has the title "Dams - An
Overview". Chapter II deals with three aspects, viz., (a) Use of
Periyar waters; (b) Evolution of Periyar Project; and (c)
Mullaperiyar dam Dispute in the Supreme Court. Chapter Ill
F refers to the issues settled by the EC. Chapter IV contains -
(i) Report of visit of the EC to Mullaperiyar dam site/areas
during 19-22.12.2010; (ii) Resolutions of the EC dated
21.12.2010, 7.1.2011 and 5.12.2011; and (iii) Report of visit
by two technical members (Dr. C.D. Thatte and Shri D.K.
G Mehta) during 22-26.12.2011. Chapter V records responses
in brief of the parties to the issues framed by EC. Chapter VI
is appraisal and analysis of the reports of technical
investigations, tests and studies. Chapter Vil records
conclusions. Chapter VIII deals with general observation with
H the title, "Way Forward-Towards An Amicable Resolution". Two
STATE OF TAMIL NADU v. STATE OF KERALA 1013
[R.M. LODHA, CJI.]

notes, one from Justice K.T. Thomas, member of the EC, and A
the other from Justice (Dr.) A.R. Lakshmanan, member of the
EC, on Chapter VIII of the report of the EC are also appended
to the report.

186. In Chapter Ill, the EC has recorded the issues for 8
consideration. One of the issues, viz., Issue No.4 for
consideration reads, "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 reservoir level from 136 ft. to 142 ft. and beyond?"
c
187. In Chapter V, the EC has noted responses by Tamil
Nadu and Kerala to the issues framed by it.

188. Chapter VI, in which appraisal and analysis of ITS
reports have been made, shows that following tests and studies 0
were formulated so as to effectively deal with the concerns and
grievances of the two States:

"A. HYDROLOGIC SAFETY

Title Purpose of ITS E

1. Verification of the To determine:
Probable Maximum Flood .
(PMF) computations with (i) Probable Maximum
flood routing for revisiting Flood (PMF)
F
spillway capacity.
(ii) Outflow PMF hydrograph
and its moderation from
Mulla Periyar Dam upto
tip of ldukki reservoir.
G
(iii) Outflow PMF hydrograph
of ldukki reservoir.

(iv) Maximum Water Level
(MWL) for various
scenarios of operative I H
1014 SUPREME COURT REPORTS [2014] 12 S.C.R.

A To deter inoperative
gates for different FRLs.
(v) Free board

B 2. Integrated Dam Break. To assess Dam Break
Flood study from Mulla Flood that may be
Periyar Dam to ldduki caused by different
Dam and beyond to modes of failure/cascade
enable preparati'on of an effect in case of
c Emergency Action Plan. occurrence of MPD
Preparation of a sample break. To identify the
of likely inundation map plausible worst case of
Dam Break Flood going
down Periyar river from
MPD to ldukki reservoir
D
tip (in 1st phase) and
beyond (in other 2
phases). To determine
maximum inundation on
both banks for
E preparation of
Emergency Action Plan
under Disaster
Management Plan.

F 3. Back-water studies To determine afflux
upstream of tip of Mulla (swelling) above the
Periyar Reservoir into MWL in the upstream
main stem and tributaries. from tip of the reservoir
caused due to infiow
G 4. Contour map of reservoir congestion.
area from present water
level to 165 ft (50.29 m)
elevation.

H
STATE OF TAMIL NADU v. STATE OF KERALA 1015
[R.M. LODHA, CJI.]
5. Computerized Reservoir To determine loss of A
Sedimentation Survey for storage due to
assessment of present sedimentation and its
. elevation-area-capacity effect (if any) on
relations. Assessment in Proba.ble Maximum
higher elevations by Flood attenuation. B
Remote Sensing.

Note: Side items of ITS pertain to i) Dams built with spillway
design flood less than PMF, ii) Availability of water for Tamil
Nadu, and iii) Requirement for environmental flow.
c
B. STRUCTURAL SAFETY

6. Mapping of upstream To scan upstream
face of dam above water face of Dam for
level by means of discontinuities, cracks, o
photography hollows, voids &joints
etc. above water level
by grid based
photography.
E
7. Underwater scanning of To scan upstream
upstream face of the dam face of Dam for
by means of a Remotely discontinuities, cracks,
Operated Vehicle to hollows, voids &joints
assess its condition. etc. under water by F
means of a Remote
Operated Vehicle.

8. Studies of seepage and (i) To compile measured
its free lime content. values of seepage G
from dam body and
foundation.
(ii) To determine proportion
of seepage H.
1016 SUPREME COURT REPORTS [2014] 12 S.C.R.

A through dam body/
foundation by flow net
studies.
(iii) To determine leached
free lime content in
8
seepage.

9. Determination of in-situ/ To carry out core drilling
ex-situ strength & in Dam body/ foundation
integrity of the dam body to enable following
C materials and foundation physical and chemical,
for using in safety/ in-situ and ex-situ (in
stability status laboratories) tests.
assessment.
In-situ Tests:
D (i) Sonic test
(ii) Gamma - Gamma I
Neutron-Neutron
(iii) Dye Tracer
E (iv) Electrical Resistivity &
Geophysical
Tomographic Study
Ex-situ Tests:
(i) Compressive strength
F
(ii) Tensile Strength
(iii) Modulus of Elasticity
(Static as well as
dynamic)
G (iv) Poisson's ratio
(v) Density
(vi) Free Lime
(vii) Chemical analysis of
H materials
STATE OF TAMIL NADU v. STATE OF KERALA 1017
[R.M. LODHA, CJI.]
easurement o oss o To determine loss of A
stress in the sample pre- pre-stress and hence
sfressed cable residual pre-stress in the
cable anchors installed
in 1981, as part of
strengthening measures. B

Note: Side items of ITS pertain to i) Thermal properties of
backing concrete and effect on interface, ii) Instrumentation,
and iii) Stability of Main and Baby Dam.

C. SEISMIC SAFETY c
11. Finite Element Method To determine tensile
(FEM) analysis stress caused due to
employing (response Earthquake forces
spectra) I (time histories) based on: D
to asses stability of dam
under design basis/ (i) 20 FEM Studies
maximum credible based on Response
earthquake forces. Spectra method (in two
parts) submitted by
E
SoK.

(ii) 30 FEM studies (two
times) submitted by
SoTN.
F
(iii) 20 FEM studies (in two
parts) based on Time-
History analysis.

12. Identify 'evidence of To make a traverse and
geological fault in the identify evidence if any, G
surroundings of the of the · suspected
Baby Dam. geological fault in the
Baby dam foundation.

H
1018 SUPREME COURT REPORTS [2014] 12 S.C.R.

A Note: Side items of ITS pertain to i) Study of 3D FEM Analysis
by Prof. R.N. Iyengar of Indian Institute of Sciences, Bangalore,
ii) Seismic Design Parameters of Mulla Periyar Dam, and iii)
Impact of recent earthquake events."

189. The above reports have then been carefully analysed
8 and on the basis of the appraisal of the ITS reports, EC held
that Probable Maximum Precipitation (PMP) considered earlier
was correct and the determination of observed maximum flood
in 1943 was not.reliable. EC's assessment is that peak of PMF
reaching the Mullaperiyar dam reservoir I periphery I upstream
C tip remains at 2.12 lakh cusecs (6003 cumecs).

190. EC has been of the view that spillway designed
capacity of Mullaperiyar dam for flood lower than PMF is
acceptable. The EC carefully analysed the two studies, viz., (i)
· D study above water level by photography, and (ii) study below
water level by means of a Remote Operated Vehicle, upto a
safely reachable level, and on appraisal from both scans/
studies read together did not apprehend cause for concern
about manifestation of any distress for the dam.
E 191. EC has also carefully considered the concerns
expressed by Kerala with regard to (a) seepage measurement
and assessment of loss of free lime; (b) loss of strength of dam
body constituents due to lime loss; and (c) vulnerability due to
free lime loss. According to EC appraisal, the total lime
F leaching in ·116 years of dam's existence was about 3.66%,
which is less than the upper permissible limit of 15-20%. EC
held that as lime loss as assessed was far within permissible
limits, there is no cause for concern about loss of strength of
Mullaperiyar dam.
G
192. The physical properties of dam body material has also
been reviewed and assessed by applying in situ non
destructive tests, viz., (a) sonic test from dam's upstream face;
(b) neutron-logging and tracer study; (c) geophysical
H tomographic study; and (d) scanning of internal surface of bore
STATE OF TAMIL NADU v. STATE OF KERALA 1019
[R.M. LODHA, CJI.]
hole walls using digital video recording system. EC also A
requested Tamil Nadu to obtain and test core samples from
dam body I foundation rock, besides carrying out in situ tests
in 9 holes on Mullaperiyar dam, of 150 mm size and more,
which were got done by Tamil Nadu. These test reports were
also considered. The chemical tests on constructed material B
used in the dam body and reservoir water were also conducted.
The test results indicate innocuous nature of all these materials.

193. All time seepage data of Mullaperiyar dam has been
appraised and analysed by EC, which indicates that it is within C
permissible limits. Testing of one ungrouted cable anchor for
residual pre-stress was got done. Analysis has also been done .
of thermal properties of backing concrete and effect on
interface. The detailed appraisal and analysis of ITS reports for
seismic design parameters on Mullaperiyar dam show the
recent earthquake events to be transient and inconsequential. D

194. One of the apprehensions highlighted by Kerala is that
a dam break flood would cause large scale devastation. This
aspect has been considered by the EC under the head "Dam
Break Flood and possible cascading effect". EC in this regard E
has observed that Kerala has not supplied to it inundation maps
even for normal flood with return periods such as 50, 100 years
in downstream area for phase-I and between ldukki and lower
Periyar dam or further downstream for later phases. Such
inundation maps have to be prepared for Emergency Action F
Plan. Kerala also has not submitted any assessment as
prescribed in CWC 'Guidelines for Development and
Implementation of Emergency Action Plan for Dams, May,
2006'. EC, accordingly, depended on maps developed by using
Archived Satellite Imagery and Survey of India toposheets, G
through 'Mapsets', and accomplished illustrative contouring of
area between Mullaperiyar dam and ldukki complex. EC has
observed that all the projections I concerns by Kerala were not
based on computations I studies. Despite the request made
to Kerala to supply contour map, Kerala did not do so. EC has H
1020 SUPREME COURT REPORTS [2014) 12 $.C.R.

A further observed that Kerala's projection is conjectural since
there is deficiency in assessing the likely inundated area. EC,
therefore, did not accept the scare of dam break flood.

195. Having done elaborate and detailed appraisal and
B analysis of the voluminous tests and reports of experts and
having regard to the concerns expressed by Kerala about the
safety of the Mullaperiyar dam, EC has summarized its
conclusions on the three aspects, viz., (a) hydrologic safety; (b)
structural safety; and (c) seismic safety as follows:
c "A) Hydrologic Safety

23. The MPD is found hydrologically safe. The Probable
Maximum Flood (PMF), with a peak flow of 2.12 lakh
cusecs (6003 cumecs) is accepted by EC. It can be routed
D over the reservoir FRL 142 ft (43.28 m) to safely pass over
the MPD spillway with 13 gates operative, resulting into a
peak out flow of 1,43, 143 cusecs (4053 cumecs), raising
the Maximum Water Level (MWL) to elevation 153.47 ft
(46.78 m) transiently. Even for the Test Case of one gate
remaining inoperative, the MWL raises to elevation 154.10
E
ft (46.97 m) when PMF impinges the reservoir at FRL 142
ft (42.28 m).

B) Structural Safety

F 24. Both the main and Baby Dam (gravity and earth), are
structurally safe. FRL can be restored to the pre-1979
position. Following maintenance and repair measures,
should however be carried out in a time-bound manner: i)
treatment of upstream surface, ii) reaming of drainage
G holes, iii) instrumentation, iv) periodical monitoring,
analysis and leading away the seepage from toe of the
dam towards downstream, v) geodetic re-affirmation, etc.,
vi) the dam body should be grouted with a properly
designed grout mix of fine cement I suitable chemical I
H
STATE OF TAMIL NADU v. STATE OF KERALA 1021
[R.M. LODHA, CJI.]
epoxy I polymer according to expert advice so that its A
safety continues to remain present.

C) Seismic Safety

25. MPD is found .to be seismically safe for FRL 152 ft
· (46.33 m) I MWL 155 ft (47.24 m) fodhe identified seismic B
design parameters with acceleration time histories under
2-D FEM Analysis. The strength and other properties of
dam material presently available, indicate ample reserve
against the likely stresses I impacts assessed under this
analysis. In addition, reserve strength of cable anchors C
makes the dam further safe. The suspicion about existence
of a geological fault in the Baby Dam foundation is ruled
out. The recent earthquake activity in the dam area is
considered of no consequence to the seismic safety. Also,
it has caused no distress to MPD / ldukki dams." o
196. Kerala has vehemently challenged tt)e EG report and
its conclusions. Mr. Harish Salve, learned senior counsel for
Kerala, argues that the ITS reports contained in 50 CDs and 4
DVDs are not admissible and should not be considered as part
of material on record before this Court. He submits that EC suo E
motu decided to conduct investigations, tests and studies on
various aspects related to the case through the apex
organizations, the Coordination Committee was formed,
headed by Dr. C.D. Thatte, member of the EC, and consisting
of representatives of Kerala and Tamil Nadu and though the F
.representatives of States were made part of the Coordination
Committee. but their role was limited to more of being an
observer and unilateral decisions regarding the studies, etc.,
were taken by Dr. C.D. Thatte, which were prejudicial to the
interest of Kerala. Kerala's grievance is that the EC on G
5.12.2011 declined to disclose and supply the copies of results
and ITS reports without dealing with the question of prejudice.
Subsequently, EC submitted its report before this Court and the
Court directed the Registry on 4.5.2012 to supply copy of the
report of the EC to party States and, accordingly, the Registry H

..
1022 SUPREME COURT REPORTS [2014] 12 S.C.R.

A of this Court made available a photocopy of the report. The
report supplied by the Registry to Kerala did not include the
results and reports of the ITS listed in Annexure 6.1 of the report
but later on pursuant to the order of this Court dated 31.8.2012,
all 50 CDs and 4 DVDs were supplied to the counsel for Kerala.
8 It is submitted on behalf of Kerala thafthe fair procedure and
rules of natural justice demanded that the EC should have
disclosed the results and reports of ITS relied upon by it and
given an opportunity to Kerala on the acceptability of the ITS
reports. It is strenuously urged by learned senior counsel for
Kerala that the ITS reports are the opinions of experts and,
C therefore, the EC could not have relied upon such results and
reports without giving an opportunity to it to meet the adverse
contents and Kerala has the right to cross-examine the authors
and also to lead evidence of experts, if any, challenging the
adverse results and reports of the ITS. In this regard, Kerala
D referred to the application made before EC on 21.11.2011.
Kerala also reli13d upon the decision of Queens Bench in
Regina75 .

197. We are not persuaded by the submissions of Mr.
E Harish Salve. It is true that 50 CDs and 4 DVDs containing ITS
reports were supplied to Kerala pursuant to the order of this
Court dated 31.8.2012 after the report had been submitted by
the EC but the fact of the matter is that the EC decided to
conduct the investigations, tests and studies on various aspects
F relating to the safety of the Mullaperiyar dam through the apex
organizations pursuant to the task given to it by this Court. The
EC in its proceedings dated 17.2.2011 formed a Coordination
Committee which comprised the representatives of both the
States. It is very difficult to accept that the role. of the
G . representatives of the States in the Coordination Committee
was limited to that of being an observer. The ITS reports have
been given by the organizations and bodies which are expert
on the job. We have no hesitation in holding that the
75. Regina v. Deputy Industrial Injuries Commissioner, Ex parte Jones; ((1962)
H 2 QB 677].
STATE OF TAMIL NADU v. STATE OF KERALA 1023
[R.M. LODHA, CJI.)
investigations, tests and technical studies were directed to ·be A
carried out by the EC in association with representatives of
both the States.

198. Moreover, this Court appointed EC to assure itself
about the safety of the Mullaperiyar dam. The EC, we must say, 8
has completed its task admirably by thoroughly going into each
and every aspect of the safety of Mullaperiyar dam. We do not
find any merit in the objections of Kerala challenging the
findings and conclusions of the EC on hydrologi¥ safety,
structural safety and seismic safety of the dam. The findings of C
EC with elaborate analysis of reports of investigations, tests
and studies lead to.·one and only one conclusion that there is
no change in the circumstances necessitating departure from
the earlier finding on the safety of Mullaperiyar dam given by
this Court in 2006 judgment. As a matter of fact, there is no
change in circumstances at all much less any drastic change D
in circumstances or emergent situation justifying the reopening
of safety aspect of Mullaperiyar dam which· has been
determined by this Court. in the earlier judgment.

Findings on Issue Nos. 2(a), 3, 4(a), 4(b) and 10 E

199. In light of the above discussion,
our findings on Issue Nos. 2(a), 3, 4(a), 4(b) and 10 are as
follows:

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

(ii.) The rights of Tamil Nadu, crystallized in the judgment G
dated 27.2.2006 passed by this Court in W.P. (C)
No.386/2001 cannot be nullified by a legislation
made by the Kerala State legislature.

(iii.) The earlier judgment of this Court given on
H
1024 SUPREME COURT REPORTS [2014] 12 S.C.R.

A 27.2.2006 operates a~ 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.
B
(iv.) 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 this Court dated 27.2.2006 and Kerala
is estopped from raising or re-agitating these
c issues in the present suit.

(v.) Kerala cannot obstruct Tamil Nadu from increasing
the water level of Mullaperiyar dam to 142 ft. and
from carrying out repair works as per judgment
D dated 27.2.2006.

Issue No. 8.
200. This issue covers the controversy as to whether
Kerala is estopped from contending that Periyar river is not an
E inter-State river.

201. Tamil Nadu in the plaint has averred as follows:

"The plaintiff, defendant no.1, State of Kerala are the two
riparian States through which the Inter-State river Periyar
F
flows. The river is one of the west flowing rivers in the State
of Kerala, with a portion of its catchment lying with the
State of Tamil Nadu ............. "
202. Traversing the above pleading of the Tamil Nadu,
G Kerala has set up the case that river Periyar is not an inter-
state river but it is intra-State river; that it rises in Quilon District
in Kerala and traverses only through the territory of Kerala
before falling into the Arabian sea.
H 203. In its replication, Tamil Nadu has averred that, in any
STATE OF TAMIL NADU v. STATE OF KERALA 1025
[R.M. LODHA, CJI.]

event, in the earlier proceedings, Kerala had raised the plea A
of lack of jurisdiction of this Court to entertain the river water
disputes with reference to Article 262 of the Constitution read
with Section 11 of the Inter-State River Water Disputes Act,
1956. This plea was raised on the ground that river Periyar is
an inter-State river. Tamil Nadu, thus, has set up the plea that B
Kerala is estopped from raising a plea that river Periyar is not
an inter-State river.

204. Mr. Harish Salve, learned senior counsel for Kerala,
argues that river Periyar rises in Kerala and flows for a length C
of 244 km. in Kerala before entering in the sea at Kerala coast.
River Periyar does not touch any part of Tamil Nadu. He
submits that in the earlier proceedings, Kerala had not
admitted that river Periyar was an inter-State river. Learned
senior counsel contends that river Periyar is an intra-State river.
and Kerala's averments in the earlier proceedings does not D
estop it from raising the plea that river Periyar is not an inter-
state river.

205. In 2006 judgment, one of the points considered and
decided by this court is whether the jurisdiction of this court is E
barred in view of Article 262 of the Constitution read with
Section 11 of the Inter-State River Water Disputes Act, 1956.
This point would not have been raised by Kerala but for the fact
that river Periyar happened to be an inter-State river. While
deciding this point, obviously, the court proceeded on the footing F
that river Periyar is an inter-State river. This court decided this
point against Kerala. It appears that in the review petition, for
the first time, Kerala took the specific plea that Periyar is an
intra-State river but covered by an inter-State agreement. The
review petition has been rejected by this Court on 27.7.2006. G

206. It is true that in the earlier proceedings there is no
express and categorical admission of Kerala that river Periyar
is an inter-State river, but the very plea of lack of jurisdiction of
this court for considering the applicability of Article 262, as
noted above, would not have been raised by Kerala if river H
1026 SUPREME COURT Re'"'ORTS [2014) 12 S.C.R.

A Periyar was an intra-State river. Moreover, the entire area
drained by the river and its tributaries is called the river basin.
It is well-understood in the water laws that the basin of any river
includes the river valley. The topographical map of Periyar river-
basin shows that part of Periyar basin (about 114 sq. km.) is
B in Tamil Nadu. This is established from Water Atlas of Kerala
published by Centre for Water Resources Development and
Management, Kazhikode, Kerala. Though the Periyar basin
area that falls in Tamil Nadu is very small but, in our view, that
does not make any difference insofar as the status of Periyar
c river as inter-State river is concerned. The fact of the matter is
that 114 sq. km. of Periyar basin area falls in Tamil Nadu. This
is also fortified by the advance report of Public Works
Department, Government of Kerala, which, inter alia, states,
"the rivers which have their drainage area lying in more than
D one State have been brought under the category of Inter-State
rivers and a consolidated study has been admitted in this
chapter .............. ." "Of the west flowing rivers, those which
·have a portion of their catchment area lying in Madras State
are .............. (iv) Periyar."

E 207. Kerala's witness M.K. Parameswaran Nair has
admitted that in Chapter LXlll under the heading "Interstate
waters" from "Water Resources of Kerala" published by Public
Works Department, Government of Kerala in 1958, Periyar has
been mentioned as an inter-State river. This witness also
F admits that Water Atlas of Kerala wherein details of Periyar
basin are given shows that part of the basin falls in the
neighbouring State of Tamil Nadu.

208. Since Kerala has r;iised the plea that river Periyar is
G an intra-State river, obviously, burden is on Kerala to prove this
fact. Kerala, except asserting that Periyar river rises in and
traverses only in the territory of Kerala before entering into
Arabian sea and no part of the land in Tamil Nadu abuts river
Periyar, has not produced substantial evidence to prove that
H river Periyar is an intra-State river. Kerala has not discharged
its burden to the satisfaction of the Court.
STATE OF TAMIL NADU v. STATE OF KERALA 1027
[R.M. LODHA, CJIJ
209. It is true that averment of Tamil Nadu in the plaint that A
the two States - Kerala and Tamil Nadu .-. are riparian States
is not right in its entirety because Tamil Nadu is not a riparian
State but the status of Periyar river as inter-State river, on the
basis of what we have observed above, cannot be overlooked.
It is not open to Kerala to take a totally inconsistent plea and B
begin fresh controversy about the status of Periyar river on the
ground that the earlier plea was founded on some erroneous
premise. In our view, Kerala cannot be permitted to contend
that Periyar river is not an inter-State river.

Finding on Issue No.8
c
210. In light- of the above discussion, it is held that Kerala
cannot be permitted to contend that river Periyar is an intra-
state river. Issue No.8 is answered accordingly.
D
Issue No.9

211. This issue is founded on the offer made by Kerala to
Tamil Nadu to construct a new dam across river Periyar in the
downstream region of Mullaperiyar dam. EC in Chapter VIII
under the titie "Way Forward - Towards An Amicable E
Resolution" has dealt with this aspect as a first alternative and
suggested as follows:

"1. That the SoK may construct a new dam, at its own
expense to serve its own perceptions, if techno- F
economically cleared by the Planning Commission, and
cleared by MoEF in accordance of their regulations. The
construction of a new dam, giving due margin for inflation
etc, may cost the exchequer more than Rupees one
· thousand crores. The statutory clearances, fixing of a G
construction agency, preliminary works, the actual
construction and decommissioning with demolition of
existing dam is likely to take 8 to 10 years. The existing
dam shall not be dismantled, demolished or
decommissioned till the new dam construction is H
1028 SUPREME COURT REPORTS [2014) 12 S.C.R.

A completed and it becomes operational. Till such time, the
rights of the SoTN in the existing Dam to all waters of Mulla
Periyar Dam arising out of the Lease Deed of 1886 and
the Agreements of 1970, shall be fully honoured.

B 2. However, the operation of the New Dam would
commence only after:

2(a) A fresh MOU is executed between the SoK and the
SoTN.

c 2(b) That to control, manage, operate, maintain and
regulate the waters of the New Dam, an
Independent Committee I Board, to be chaired by
a representative of the Union of India, with
representatives of the SoK and the SoTN as its
D Members, is put in place;
2(c) That the terms of rent/levies etc payable by the
SoTN to the SoK are settled and the power
generation rights of the two States are settled
beforehand;
E
2(d) That before construction of the new dam and till its
commissioning, the existing dam will be.
strengthened by the measures suggested by the
CWC, including Dam Safety requirements as
F already voiced, which still remain to be carried out.
2(e) That the SoTN will be entitled to all its existing rights
including all waterlevels under the Lease Deed of
1886 and Agreement of 1970.
G 2(f) That decommissioning or demolition of the existing
dam would be subject to the conditions 2(a) to 2(e)
being met by the two Party States.
2(g) The Empowered Committee had made the
H suggestion to the two States during the hearing on
STATE OF TAMIL NADU v. STATE OF KERALA 1029
[R.M. LODHA, CJJ.]
2nd January, 2012. Learned counsel for the parties A
had sought time to consult the States and file their
responses. Counsel for the parties later on gave
their responses ingeneral terms, but there has
been no direct response or opposition to the
alternatives suggested." · B

212. Any amicable resolution of the present dispute
between the two States would have been really good for the
people of these States but this has not been possible as the
two States have sharp conflict over the subject matter and their
stance is rigid, inflexible and hard. The offer made by Kerala C
for construction of new dam has been outrightly rejected by
Tamil Nadu. It is important to bear in mind that Mullaperiyar dam
has been consistently found to be safe, first, by the Expert
Committee, and, then, by this Court in 2006 judgment. The
hydrological, structural and seismic safety of the Mullaperiyar D
dam has been confirmed by the EC as well.

Finding on Issue No.9

213. In this view of the matter for the construction of new E
dam, there has to be agreement of-both the parties. The offer
made by Kerala cannot be thrusted upon Tamil Nadu. Issue
No.9, therefore, has to be decided against Kerala and it is so
held.

214. EC has also suggested the following second F
alternative:

"2. The Dam Safety Organization Central Water
Commission, the Government of India (Ministry of Water
Resources), has laid down the Criteria and Guidelines for G
Evacuating Storage Reservoirs, Sizing Low Level Outlets
and Initial Filling of Reservoirs.

i) According to the criteria, generally speaking, Dams
should be provided with low level outlets of
adequate capacity to lower the reservoir water level H
1030 SUPREME COURT REPORTS [2014] 12 S.C.R.

A to a specified elevation for inspection, maintenance
and repair, and ii) to control the rate of reservoir
pool rise during initial filling.

ii) The Guidelines recommend that an outlet should be
provided at the lowest possible level and should be
B
of sufficient dimensions to cater to evacuation of
storage with requisite flow capacity. The decision
about level at which the outlet has to be provided
is left to the concerned dam owning entity. The level
will depend upon assessment of the dam's
c condition, a judgment on location at which distress
may be caused, its nature and the time of
evacuation needed for enabling completion of
restoration measures.

D 3. In the existing MPD project, as noted in Chapter-ll(b)
(supra), a tunnel had been designed with a 0-Section 12
feet wide and 7.5 ft high with provision of the sluice head
gate having sill at El 106.5 ft for diversion of water from
Periyar reservoir to Vaigai basin in the SoTN. This tunnel
E was modernized by widening and lining in the year 1958.
The tunnel can allow reservoir draw-down to 106.5 ft as
per criteria laid down in (i). Storage lower than El 106.5 ft
to an identified elevation based on assessment of likely
distress cannot be drawn-down through the present
F arrangement of drawl of water for the SoTN through the
existing tunnel.
4. Further, digging of a New Tunnel at say at EL 50 ft., of
course, after conducting surveys, designs, and techno-
economic feasibility studies, with requisite sluice gates for
G evacuation of reservoir water from EL 106.5 ft to say 50
ft. These studies will have to be undertaken within a
specified time frame. It goes without saying that the water
flow from the New Tunnel can be used for power
generation or for any other purpose by making changes
H in its existing infrastructure. Depending upon a decision
STATE OF TAMIL NADU v. STATE OF KERALA 1031
[RM. LODHA, CJI.]
about the elevation of the New Tunnel outlet, evacuation A
of the MPD reservoir will be possible in corresponding
time period.

a) The new tunnel, will need to be constructed by the
SoTN, since the ownership of the existing dam 8
vests in it. The total expenditure for construction of
the new tunnel should be borne by the SoTN. The
costs may be small as compared to the cost of the
replacement of the new dam. The SoTN should
accomplish surveys and feasibility studies for the
proposal of having a new tunnel within a year.
c
b) The New Tunnel say at El 50 ft will enable the SoTN
to use additional water available in storage
between EL 106 ft to 50 ft. At present, these waters
are remaining unused. D

c) More importantly, if this alternative is implemented
in an agreed period of time, the fear perception in
the minds of people of the SoK will be set at rest.
They can then appreciate that the New Tunnel is E
going to help evacuation of storage faster and
better, in case the dam develops any distress. As
a gravity dam seldom gives in suddenly, such
evacuation will reduce Dam Break flood (DBF)
magnitude significantly.
F
d) Though, the demand of the SoK for 1.1 TMC of
water for Environmental Flow is not substantiated,
yet, a legitimate need which is yet to be assessed,
can be met with after the FRL is raised to 142 ft. A
small pipe outlet of a suitable diameter through right G
bank hillock can be dug to release the
Environmental Flow as firmed up by the SoTN in
consultation with ewe & the SoK.

5. That a MoU would have to be executed by the SoTN
H
1032 SUPREME COURT REPORTS [2014] 12 S.C.R.

A and the SoK, in the presence of a representative of the Govt.
of India, Ministry of Water Resources, regarding the
construction of the new tunnel within a specified time."

215. EC has itself noted that the second alternative is
8 dependent on agreement between the two States but to us
there appears to be no possibility of mutual agreement on this
aspect as well. The alternatives suggested by EC are worth
exploring by the two States but having regard to the unbending
stance adopted by them, this does not seem to be possible.
We, however, grant liberty to the parties to apply to the Court if
C they are able to arrive at some amicable solution on either of
the two alternatives suggested by the EC.
Issue Nos. 2(b) and 11

0 216. With reference to these issues, it is strenuously urged
by Kerala that Tamil Nadu has not suffered any injury because
of the reduction of the storage at Mullaperiyar dam to 136 ft.
since 1979. According to Kerala, more water was drawn and
more area was irrigated after 1979. Kerala has in this regard
E relied upon the data supplied by Tamil Nadu Public Works
Department and the analysis thereof. It is submitted that
average water drawn during the pre-1979 period was 19,277
Mcft. while in the post-1979 period the water drawn was 21,434
Mcf. As regards extent of irrigation, Kerala submits that the
extent of irrigation in Tamil Nadu from Mullaperiyar, water has
F admittedly increased from about 1, 71,307 acres before 1979
to 2,31,412 acres. Kerala has also relied upon the answers of
PW-1 to question Nos. 585 to 601 and 58 to 59. Kerala has
also relied upon the decision of this Court in State of Andhra
Pradesh3 wherein this Court observed," ....... that in a suit for
G injunction filed by one State against the other State, the burden
on the complaining State is much greater than that generally
required to be borne by one seeking an injunction in a suit
between private parties. The complaining State has to establish
that threatened invasion of rights is substantial and of a serious
H
STATE OF TAMIL NADU v. STATE OF. KERALA 1033
[R.M. LODHA, CJI.]
magnitude. In the matter between States, injunction would not A
follow because there is infraction of some rights of the
complaining State but a case of high equity must be made out
that moves the conscience of the Court in granting
injunction ....... "
B
217. Tamil Nadu on the other hand asserts that raising the
water level in the dam to original FRL is absolutely necessary
to irrigate the lands in about 2 lakh acres in five drought-prone
districts of Theni, Dindigul, Madurai, Sivagangai and
Ramanathanpuram. About 6.8 lakh farmers and agricultural
labourers besides 80 lakh people of the above five districts C
continue to suffer due to inadequate timely supply of water for
irrigation and drinking purposes.

218. Pertinently, EC has also considered this aspect and
observed as follows: D

"EC has assessed that increase in irrigation in Vaigai
Basin is mainly due to i) construction of Vaigai Dam in
1954 and related canal distribution system post 1974,
which worked as a balancing reservoir for release from E
· power station in non-irrigation months from 1954 onwards,
and ii) World Bank assisted Modernization of Periyar
Vaigai Irrigation Project, phase-I & II, implemented in
1980's, which enabled improved Water Use Efficiency.

Although firming up of irrigation is achieved by.the SoTN, F
there is still large drought-prone area in Vaigai Basin and
adjoining area, which needs protective irrigation. Also
domestic I municipal I industrial needs of the area are
significant. These present requirements remain unmet, if
FRL is not restored even partially. G

EC is unable to accept the submission of the SoK that no
harm will be done under these circumstances to the SoTN
if FRL is not restored."
H
1034 SUPREME COURT REPORTS [2014] 12 S.C.R.

A 219. Insofar as drawal of water in pre-1979 period and
post-1979 period is concerned, the sole witness of Tamil Nadu
has admitted that in the post-1979 period the water drawn was
21,434 Mcft. and the average water drawn pre-1979 period
was 19,277 Mcft. Similarly, he has admitted increase of
B irrigation from 1,71,307 acres before 1979 to 2,31,412 acres
in 1992-93, but, as observed by EC, this has been due to
construction of Vaigai dam in 1954 and related canal
distribution system post-1974. The five districts Theni, Dindigul,
Madurai, Sivagangai and Ramanathanpuram that are served
c by Periyar project are drought prone. About 2 lakh acres of land
fall in these five districts which needs to be irrigated .. The
inadequate timely water supply of water for irrigation and
drinking purposes to the population of these districts may affect
their lives as well as livelihood. The increase of irrigation and
more drawal of water post 1979 still appears to be deficient
D for the population of more than 80 lakh people in these districts.

220. In these facts, therefore, it can safely be said that Tamil
Nadu has been able to establish that invasion on its rights is
substantial. Tamil Nadu has been able to make out a case for
E grant of injunction on the principles laid down by this Court in
State of Andhra Pradesh3. Moreover, present suit is not a suit
for injunction simpliciter as the main prayer is that Kerala
Irrigation and Water Conservation (Amendment) Act, 2006 be
declared unconstitutional and ultra vires in its application to and
F effect on the Mullaperiyar dam.

Findings on Issue Nos. 2(b) and 11
221. In view of the foregoing discussion, we hold that Tamil
Nadu is entitled to the reliefs as prayed in para 40 (i) and (ii)
G of the suit. Consequently, it is declared that the Kerala Irrigation
and Water Conservation (Amendment) Act, 2006 passed by
the Kerala legislature is unconstitutional in its application to and
effect on the Mullaperiyar dam. The 1st defendant - State of
Kerala - is restrained by a decree of permanent injunction from
H applying and enforcing the impugned legislation or in any
STATE OF TAMIL NADU v. STATE OF KERALA 1035
[R.M. LODHA, CJI.]
manner interfering with or obstructing the State of Tamil Nadu A
from increasing the water level to 142 ft. and from carrying out
the repair works as per the judgment of this Court dated
27.2.2006 in W.P.(C) No. 386/2001 with connected matters.

222. However, to allay the apprehensions of Kerala- though 8
none exists - about the safety of the Mullaperiyar dam on
restoration of the FRL to 142 ft., a 3-Member Supervisory
Committee is constituted. The Committee shall have one
representative from the Central Water Commission and one
representative each from the two States - Tamil Nadu and
Kerala. The representative of the Central Water Commission C
shall 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.

223. The powers and functions of the Supervisory D
Committee shall be as follows:

(i) The Committee shall supervise the restoration of
FRL in the Mullaperiyar dam to the elevation of 142
ft. E
(ii) The Committee 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 F
Tamil Nadu.

(iii) The Committee shall be free to take appropriate
steps and issue necessary directions to the two
States - Tamil Nadu and Kerala - or any of them if G
so required for the safety of the Mullaperiyar dam
in an emergent situation. Such directions shall be
obeyed by all concerned.

(iv) The Committee shall permit Tamil Nadu to carry out
H
1036 SUPREME COURT REPORTS (2014) 12 S.C.R.

A further precautionary measures that may become
necessary upon its periodic inspection of the dam
in accordance with the guidelines of the Central
Water Commission and Dam Safety Organisation.

8 224. The suit is decreed as above, with no order as to
costs.

The following Order of the Court was delivered

ORDER
c In view of our separate judgment pronounced today in
Original Suit No.3 of 2006 (State of Tamil Nadu v. State of
Kerala and another), nothing further remains to be decided in
this special leave petition and it is dismissed accordingly.

D Bibhuti Bhushan Bose Suit decreed.