# STATE OF TAMIL NADU v. STATE OF KERALA & ANR

- **Citation:** [2014] 12 S.C.R. 875
- **Court:** Supreme Court of India
- **Decided:** 2014-05-07
- **Bench:** R.M. Looha, H.L. Dattu, Chandramauli Kr. P~Sad, Madan . B. Lokur, M.Y. Eqbal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-tamil-nadu-v-state-of-kerala-anr-29607
- **Pages:** 162

## Headnote

A
B
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 2910-1886 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-ininterest 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 28-051970 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 272-2006 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

## Text

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[2014] 12 S.C.R. 875
STATE OF TAMIL NADU
v.
STATE OF KERALA & ANR.
(Original Suit No. 3 of 2006)
MAY 07, 2014
[R.M. LOOHA, CJI, H.L. DATTU, CHANDRAMAULI KR.
P~SAD, MADAN . B. LOKUR AND M.Y. EQBAL, JJ.)
A
B
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 2910-1886 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-ininterest 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 28-051970 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 272-2006 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 ftSuit 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
0 - Kera/a Irrigation and Water Conservation (Amendment) Act,
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 ftSuit 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]
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
G
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
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
B
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 interstate 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 intraD
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
States is not right in its entirety because Tamil Nadu is
not a riparian State but the status of Periyar river as interstate 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
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]
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
E
F
G
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 pre1979 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 KeralaC
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
F
1970 (1) SCR 388
referred to
Para 77
(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
(1923) 261 us 600
referred to
Para 91
D
(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 7 45
referred to
Para 97
1987 (1) SCR 879
referred to
Para 99
2002 (3) SCR 696
referred to
Para 101
1973 Suppl. SCR 1
referred to
G
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) 1 o 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
F
(1998) 193 CLR 173
referred to
Para 112
(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
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
1990 (2) Suppl. SCR 213
referred to
Para 178
2002 (2) SCR 1006
held
Para 178
inapplicable
(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.
A
B
c
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 Forum1) 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.).
E
1979-1980 : Controversy about safety of the Dam
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
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
raising of water level in the reservoir.
8. On 14.06.2000, the Expert Committee was constituted
having the following terms of reference.
"(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
E
F
G
by CWC and to report/advise the Hon'ble Minister of Water
H
A·
B
896
SUPREME COURT REPORTS
[2014] 12 S.C.R.
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."
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.