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  MULLAPERIYAR PROTECTION FORUM VS UNION OF INDIA

CASE NO.:
Writ Petition (civil)  386 of 2001

PETITIONER:
Mullaperiyar Environmental Protection Forum

RESPONDENT:
Union of India & Ors

DATE OF JUDGMENT: 27/02/2006

BENCH:
Y.K. Sabharwal, C.K.Thakker & P.K. Balasubramanyan

JUDGMENT:
J U D G M E N T
[With TC (C) Nos.56-59 and 96-99 of 2002]


Y.K. Sabharwal, CJI.


    Mullaperiyar reservoir is surrounded by high hills
on all sides with forest and is a sheltered reservoir.  The
orientation of the dam is such that the direction of wind
in the south west monsoon would be away from the dam.  
It is said that for past 100 years, Tamil Nadu Government
Officers have been approaching the reservoir during the
flood season only from Thekkady side in a boat and have
not noticed any significant wave action.  
The main question to be determined in these
matters is about the safety of the dam if the water level is
raised beyond its present level of 136 ft.  To determine
the question, we may first narrate factual background.  
    An agreement dated 29th October, 1886 was entered
into between the Maharaja of Travancore and the
Secretary of State for India in Council whereunder about
8000 acres of land was leased for execution and
preservation of irrigation works called 'Periyar Project'. In
pursuance of the said agreement, a water reservoir was
constructed across Periyar river during 1887-1895.  It is
known as Mullaperiyar Dam consisting of main dam,
baby dam and other ancillary works.
    The salient features of the dam as mentioned in the
agreement are as follows :
    "Type of Dam                Masonry Dam
    Length of the main dam        1200 ft. (365.76 mt.)
    Top of the dam                155 ft. (47.24 mt.)
    Top of solid parapet            158 ft. (48.16 mt.)
    Maximum height of dam
    (from deepest foundation)        176 ft. (53.64 mt.)
    FRL (Full Reservoir Level)    152 ft. (46.33 mt.)
    MWL (Design)                155 ft. (47.24 mt.)
    Crest level of spillway        136 ft. (41.45 mt.)
    Maximum water level reached    154.80 ft. (47.18mt)
    During floods (till date)               on 03.01.43
    Spillway capacity            10 vents of 36' x 16'
                            (10.97 m. x 4.88 m.)
    Storage Capacity (gross)        443.23 m.cu.m
                                (15.662 TMC.ft)
    Live capacity                299.13 m.cu.m.
                            (10.563 TMC)
    Irrigation benefit in Tamil Nadu    68558 ha.
                            (169408.68 acres)
    Length of Baby dam            240 ft.(73.15 mt.)"

    In the past, reservoir was filled up to full level of 152
ft. as per the agreement.  The agreement was modified in
the year 1970. The State of Tamil Nadu was allowed to
generate electricity from the project and it surrendered
fishing rights in the leasehold land in favour of State of
Kerala. It also agreed to pay annually a sum specified in
the agreement to the State of Kerala. The Government of
Kerala was also granted right of fishing over and upon
the waters, tanks and ponds in the land and agreed that
the principal deed and all the conditions shall remain
intact without affecting in any way the irrigation and
power right of the Government of Tamil Nadu.
    According to the petitioner, there was leakage in the
gallery of the dam which affected its security and,
therefore, the water level was stopped at 136 feet.  In view
of such situation, the Central Water Commission (CWC)
inspected the dam, held meetings with representatives of
both the States of Kerala and Tamil Nadu for considering
ways and means to strengthen the Mullaperiyar Dam. At
the meeting, certain decisions were taken for the purpose
of ensuring security and safety of reservoir and by taking
several necessary measures. Three types of measures
were envisaged, namely, (i) emergency measures, (ii)
middle term measures, and (iii) long term measures. The
progress of implementation of measures was also
reviewed in the meetings held in 1980, 1983, 1996 and
1997.  In this light, it is claimed that water level cannot
be raised from its present level of 136 feet.
    In view of apprehension expressed in the light of
leakage, in the year 1979 the water level was allowed
upto 136 ft. instead of 152 ft. After thorough study and
considering all aspects, the CWC felt that certain steps
were required to be taken immediately and both the
States of Tamil Nadu and Kerala ought to cooperate. On
taking those steps, water would be allowed to be filled
upto 142 feet.  Some other steps were also suggested for
allowing the water to be filled in at the full level of 152
feet. The State of Kerala expressed reservations against
the report submitted by CWC and according to a dissent
note, appended by the representative of the State of
Kerala, the water level could not be allowed to be raised
beyond 136 feet.
    For the present, the only question is whether water
level can be allowed to be increased to 142 feet or not.
    The State of Kerala has filed an affidavit justifying
its stand of not allowing raising of water level from 136
feet. According to it, the life of the dam was said to be 50
years from the date of construction. Since it had
completed more than 100 years, it had served the useful
life. It was, therefore, dangerous to allow raising of water
level beyond 136 feet. It was also stated that if something
happens to the dam, serious consequences could ensue
and three adjoining districts could be completely wiped
out and destroyed. It was also the stand of the State that
the dam was constructed at a time when the design and
construction techniques were in infancy. There was no
testing laboratory to get accurate and detailed tests of
construction materials. The stress and other elements
were observed in the dam right from the initial filling and
remained there in spite of remedial measures taken out.
Moreover, there were frequent tremors occurring in that
area and in case of an earthquake, it could result in
serious calamities and total destruction of life and
property. It was also alleged that the technical officials of
CWC had submitted the report without effective
participation of the technicians from Kerala and view
points of Kerala had not been considered at all. According
to the State, CWC also could not be considered as the
highest technical body in the country for giving technical
advice and the decision taken by CWC without
consultation of State of Kerala, was not binding on the
State.
    On the other hand, the State of Tamil Nadu said
that the apprehension voiced by the State of Kerala was
totally ill-founded, baseless and incorrect and based on
mere figment of imagination.  CWC was the highest
technical authority with the required expertise on the
subject. It had inspected the dam in detail and found
various allegations as incorrect and baseless. It also
stated that an expert committee was constituted in
pursuance of an order passed by this Court and a report
was submitted in the year 2001.   As per the report,
water level deserves to be allowed to be raised upto 142
feet as an interim measure on taking certain steps and
after execution of the strengthening measure in respect of
Baby Dam, earthen bund and on completion of remaining
portion, the water level could be allowed to be restored at
FRL i.e. 152 feet. Unfortunately, however, the State of
Kerala did not cooperate and did not allow increase of
water level even upto 142 feet. It was stated that the
committee consisting of experts considered the question
and thereafter various recommendations were made and
actions were suggested. It was, therefore, not open to the
State of Kerala to refuse to cooperate and not to accept
the suggestions and the recommendations of CWC.  
According to the State of Tamil Nadu, its prayer for
raising water level upto 142 feet at the initial stage and
152 feet at the final stage deserves to be accepted.  A
Committee was constituted with terms of reference as
under :
"(a)    To study the safety of Mulla Periyar
Dam located on Periyar river in
Kerala with respect to the
strengthening of dam carried out by
the Govt. of Tamil Nadu in
accordance with the strengthening
measures suggested by CWC and to
report/advise the Hon'ble Minister of
Water Resources on the safety of the
dam.

(b).    To advise the Hon'ble Minister of
Water Resources regarding raising of
water level in Mulla Periyar reservoir
beyond 136 ft. (41.45 m) as a result
of strengthening of the dam and its
safety as at (a) above.

    The Committee will visit the
dam to have first hand information
and to assess the safety aspects of
the dam.  It will hold discussions
with Secretary, Irrigation of the
Kerala Govt. as well as Secretary,
PWD, Govt. of Tamil Nadu with
respect to safety of the dam and
other related issues."

    According to the State of Tamil Nadu, the Committee
after inspecting the dam and after holding discussions
with the officials of the two States, submitted its interim
report wherein recommendations were made as under:

"1.     The Tamil Nadu PWD Department
should immediately test the
masonry of the Baby dam to find out
the permissible tensile strength that
can be adopted for the lime surkhy
mortar used in the construction of
Baby dam. Central Soil and
Materials Research Station (CSMRS),
Government of India, New Delhi,
should carry out these tests.  
CSMRS are specialist in carrying out
geophysical and core tests and have
a good reputation.  These tests
should be carried out in the
presence of the representatives of
Tamil Nadu PWD, Irrigation
Department, Government of  Kerala
and CWC.  The results of these tests
should be made available to the
Committee by end of November,
2000.  The Government of Kerala
should permit Tamil Nadu PWD &
CSMRS to carry out these tests
without any hindrance.

2.    Core samples of Baby dam shall also
be extracted and tested by CSMRS,
New Delhi, at the upstream and
downstream faces of the dam.  These
results may be used to develop co-
relation between the actual tests and
the results obtained by geophysical
testing.

3.     The strengthening measures
pertaining to the Baby dam and the
earthen bund as already suggested
by the CWC and formulated by the
Government of Tamil Nadu should
be carried out at the earliest.
Government of Kerala is requested
to allow the execution of
strengthening measures of the Baby
dam and earthen bund immediately.

4.     Raising of water level beyond 136 ft.
(41.45 m) will be decided after
obtaining the tensile and
compressive strength of the masonry
of the Baby dam."


    The final report of the committee shows that certain
more steps were required to be taken before raising of
reservoir level upto FLR i.e. 152 feet and those
recommendations are :
"1.     The strengthening measures
pertaining to Baby dam and the
earthen bund, as already suggested
by CWC and formulated by the
Government of Tamil Nadu, should
be carried out at the earliest.

2.    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
main Mulla Periyar Dam upto EL
160 ft. (48.77 m) immediately.

3.    CWC will finalise the
instrumentation for installation at
the main dam.  In addition,
instruments will be installed during
strengthening of Baby dam,
including the earthen bund, so that
monitoring of the health of Mulla
Periyar dam, Baby dam and earthen
bund can be done on a continuous
basis.

4.    The water level in the Mulla Periyar
reservoir be raised 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 clause
Nos. 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.
Mohanakrishnan, Member of Tamil
Nadu Government, opined in the
light of para 4 that the water level
should be raised upto 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 m).  
However, the Committee after
detailed deliberations, has opined
that the water level in the Mulla
Periyar 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 Annex. XIX.

6.    This raising of reservoir level upto a
level where the tensile stress does
not exceed 2.85 t/m2 during the
earthquake condition is an interim
measure and further raising of water
level to the FRL EL 152.00 ft. (46.33
m) [original design FRL of the Mulla
Periyar Reservoir] be studied after
the strengthening measures on Baby
dam are carried out and completed."

The State of Kerala continued to resist raising of
water level.  The objections raised by the representative
of State of Kerala were considered by the Expert
Committee and taking into account the matter in its
entirety and keeping in view the safety of dam, certain
suggestions were made. It required the State of Tamil
Nadu to take those steps.  The Expert Committee stated
that it was equally obligatory on the part of State of
Kerala to act in accordance with the suggestions and
recommendations made by the CWC and that the State of
Kerala cannot refuse to cooperate on the ground that
raising of water level would cause serious problem in
spite of the report of the Expert Committee and
recommendations and decision by CWC.
In the writ petition filed by Mullaperiyar
Environmental Protection Forum, various prayers have
been made.  They have, inter alia, prayed that
agreements of 1886 and 1970 be declared as null and
void and consequential relief be granted and also that
Section 108 of the States Re-organisation Act, 1956, be
declared ultra vires and unconstitutional as it
encroaches upon legislative domain of the State
Legislature under Entry 17 of List II of the Seventh
Schedule of the Constitution of India.
The petitioner has also raised objection about the
legality of the agreement between the Maharaja of
Travancore and the Governor General.  It is claimed that
the agreement was entered into in 'unholy' haste and
virtually it was thrust upon and the Maharaja was forced
to accept it. It was also submitted that under Section 108
of the States Re-organization Act, any agreement or
arrangement entered into by Central Government and
one or more existing States relating to the right to receive
and utilize water can continue to remain in force subject
to certain adaptations and modifications as may be
agreed upon between the successor States. Since there
was no such agreement after November 1, 1957, the
agreement would not continue to remain in force. It also
pleaded that the agreements are not covered by Entry 56
of List I of Seventh Schedule of the Constitution of India
and hence Parliament has no power to make any law in
respect thereof.
On the other hand, the State of Taml Nadu seeks
directions for raising of water level to 142 ft. and later,
after strengthening, to its full level of 152 ft.  On Section
108 of the States Reorganisation Act, the stand taken by
the State of Tamil Nadu is that this Section, in pith and
substance, deals with "continuance of agreements and
arrangements relating to certain irrigation, power or
multipurpose projects" and it figures in the Act under
which the present State of Kerala was formed.
    According to the State of Tamil Nadu, the Act was
not an enactment made in exercise of Parliament's
legislative power under Entry 56 of List I, but was an
enactment covered by Articles 3 & 4 of the Constitution
of India which provides for formation of new States and
making of supplemental, incidental and consequential
provisions. The pre-existing contractual obligation was
reasserted and reaffirmed by the State of Kerala after its
formation by signing fresh agreements in 1970. It is also
urged that the Lists in Schedule Seven have no
applicability as the point in issue is governed by Articles
3 & 4 of the Constitution of India.
Another contention urged for the petitioner is that
in the light of later development of law, the agreement of
1886 stands frustrated. It was submitted that the lease
land was declared as reserve forest in the year 1899 by
the erstwhile State of Travancore under the Travancore
Forest Act. The notification remained in force under sub-
section (3) of Section 85 of the Kerala Forest Act, 1961.
In 1934, Periyar Wildlife Sanctuary had been declared as
a 'sanctuary' covering the grassy area, marshy areas,
swamps of Mullaperiyar Dam which was expanded to 777
sq. kms. under the Wild Life Protection Act, 1972. Taking
into account its importance as a well known habitat of
tigers which is a highly endangered species, the
sanctuary has been declared as "Periyar Tiger Reserve" in
1978 under the special management programme known
as 'Project Tiger'.  It was said to be the oldest sanctuary
in the State of Kerala which played a very important role
in bio-diversity conservation in Western Ghats.  
International Union for Conservation of Nature and
Natural Resources (IUCN) has declared it as a bio-
diversity hot spot.  According to the petitioner, the forest
land immediately above the present maximum water level
at 136 feet has special significance from bio-diversity
point of view as it comprises different types of habitats
like grassy areas, marshy areas, swamps and areas
covered with trees. These are the prime habitats used by
most of the wild animals especially larger herbivores,
carnivores and amphibians. The birds like darter and
cormorants nest on the tree stumps which stand out
distributed in the reservoir. Raising of water level would
submerge these stumps and upset the nesting and
reproduction of birds. The submergence of the forest
above 136 ft. would adversely affect the bio-diversity
therein and in the neighbouring forests both in terms of
flora and fauna. Further, it is urged that raising of water
level would also seriously affect the ecology and economy
of the State of Kerala.  Having regard to these
developments, the State of Tamil Nadu is not entitled to
increase the water level.
According to the State of Tamil Nadu, Periyar
Project was completed in the year 1895. The Declaration
of area as Reserved Forest was made in 1899. Moreover,
the declaration has not adversely affected the interest of
the petitioner or the State of Kerala. According to the
State of Tamil Nadu, the provisions of Kerala Forest Act,
1961 and the Wild Life Protection Act, 1972 have no
applicability to the case in hand. It is also urged that
raising of water level in any case would not adversely
affect the natural environment. Further, according to the
State of Tamil Nadu, the submergence of land due to
raising of water level from 136 feet to the designated FRL
152 feet would cover only 11.2 sq. kms. The percentage
of area that gets submerged is only 1.44% of the total
area which is very meager. It was also asserted that the
raising of water level will not affect Wildlife habitat, on
the contrary it would improve the Wildlife habitat. The
restoration of water level will in no way affect the flora
and fauna as alleged nor affect the nesting and
reproduction of birds. Higher water level will facilitate
better environment for flora and fauna to flourish better.
It will lead to development of new flora and fauna and
will also act as resting place for migratory birds and
number of rare species of birds. The increase of water
level in the reservoir will also increase tourist attraction
and generate more funds for the State of Kerala and also
result in increase of aquatic life and since the fishery
rights are with the State of Kerala, it will enable the said
State to generate more funds.
In the aforesaid background, the questions that
arise for determination are these:
1.    Whether Section 108 of the States Reorganisation
Act, 1956 is unconstitutional?
2.    Whether the jurisdiction of this Court is barred in
view 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?
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
environment?

1.    RE : Validity of Section 108 of the States
Reorganisation Act, 1956 ( For short 'the Act').


    The contention urged is that the subject matter of
water is covered by Entry 17 of the State List under the
Seventh Schedule of the Constitution and, therefore,
Section 108 which, inter alia, provides that any
agreement or arrangement entered into between the
Central Government and one or more existing States or
between two or more existing States relating to
distribution of benefits, such as the right to receive and
utilise water or electric power, to be derived as a result of
the execution of such project, which was subsisting
immediately before the appointed day shall continue in
force, would be outside the legislative competence of the
Parliament for the same does not fall in List I of Seventh
Schedule, it falls in List-II.  The Act was enacted to
provide for the reorganisation of the States of India and
for matters connected therewith as stipulated by Article 3
of the Constitution.  The said Article, inter alia, provides
that the Parliament may by law form a new State by
separation of territory from any State or by uniting two or
more States or parts of States or by uniting any territory
to a part of any State.  Article 4, inter alia, provides that
any law referred to in Article 2 or 3 shall contain such
provisions for the amendment of the First Schedule and
the Fourth Schedule of the Constitution as may be
necessary to give effect to the provisions of the law and
may also contain such supplemental, incidental and
consequential provisions as Parliament may deem
necessary. The creation of new States by altering
territories and boundaries of existing States is within the
exclusive domain of Parliament.  The law making power
under Articles 3 and 4 is paramount and is not subjected
to nor fettered by Article 246 and Lists II and III of the
Seventh Schedule.  The Constitution confers supreme
and exclusive power on Parliament under Articles 3 and
4 so that while creating new States by reorganisation, the
Parliament may enact provisions for dividing land, water
and other resources; distribute the assets and liabilities
of predecessor States amongst the new States; make
provisions for contracts and other legal rights and
obligations.  The constitutional validity of law made
under Articles 3 and 4 cannot be questioned on ground
of lack of legislative competence with reference to the
lists of Seventh Schedule.  The new State owes its very
existence to the law made by the Parliament.  It would be
incongruous to say that the provision in an Act which
gives birth to a State is ultra vires a legislative entry
which the State may operate after it has come into
existence.  The power of the State to enact laws in List II
of Seventh Schedule are subject to Parliamentary
legislation under Articles 3 and 4.  The State cannot
claim to have legislative powers over such waters which
are the subject of Inter-State agreement which is
continued by a Parliamentary enactment, namely, the
States Organisation Act, enacted under Articles 3 and 4
of the Constitution of India.  The effect of Section 108 is
that the agreement between the predecessor States
relating to irrigation and power generation etc. would
continue.  There is a statutory recognition of the
contractual rights and liabilities of the new States which
cannot be affected unilaterally by any of the party States
either by legislation or executive action.  The power of
Parliament to make law under Articles 3 and 4 is plenary
and traverse over all legislative subjects as are necessary
for effectuating a proper reorganisation of the States.  We
are unable to accept the contention as to invalidity of
Section 108 of the Act.
2.    RE :    Whether the jurisdiction of this Court is
barred in view of Article 262 read with
Section 11 of the Inter-State Water
Disputes Act, 1956?

    Article 262 provides that Parliament may by law
provide for the adjudication of any dispute or complaint
with respect to the use, distribution or control of the
waters of, or in, any inter-State river or river valley.   The
jurisdiction of the Courts in respect of any dispute or
complaint referred to in Article 262(1), can be barred by
Parliament by making law.  The Inter-State Water
Disputes Act, 1956 was enacted by Parliament in
exercise of power under Article 262 of the Constitution.  
Section 11 of the said Act excludes the jurisdiction of
Supreme Court in respect of a water dispute referred to
the Tribunal.  Section 2(c) of this Act defines 'water
dispute'.  It, inter alia, means a dispute as to the use,
distribution or control of the waters of, or as to the
interpretation or implementation of agreement of such
waters.
    In the present case, however, the dispute is not the
one contemplated by Section 2(c) of the Act.  Dispute
between Tamil Nadu and Kerala is not a 'water dispute'.
The right of Tamil Nadu to divert water from Peryar
reservoir to Tamil Nadu for integrated purpose of
irrigation or to use the water to generate power or for
other uses is not in dispute.  The dispute is also not
about the lease granted to Tamil Nadu in the year 1886
or about supplementary agreements of 1970.  It is also
not in dispute that the dam always had and still stands
at the height of 155 ft. and its design of full water level is
152 ft.  There was also no dispute as to the water level till
the year 1979.  In 1979, the water level was brought
down to 136 ft. to facilitate State of Tamil Nadu to
carryout certain strengthening measures suggested by
Central Water Commission (CWC).  The main issue now
is about the safety of the dam on increase of the water
level to 142 ft.  For determining this issue, neither Article
262 of the Constitution of India nor the provisions of the
Inter-State Water Dispute Act, 1956 have any
applicability.  There is no substance in the contention
that Article 262 read with Section 11 of the Inter-State
Water Disputes Act bars the jurisdiction of the court in
regard to nature of disputes between the two States.  
3.    RE :    Whether Article 363 of the Constitution
bars the jurisdiction of this Court?


    The jurisdiction of the courts in respect of dispute
arising out of any provision of a treaty, agreement,
covenant, engagement, sanad or other similar instrument
entered into or executed before the commencement of the
Constitution is barred in respect of matters and in the
manner provided in Article 363 of the Constitution of
India.  The main reason for ouster of jurisdiction of
courts as provided in Article 363 was to make certain
class of agreements non-justiciable and to prevent the
Indian Rulers from resiling from such agreements
because that would have affected the integrity of India.  
The agreement of the present nature would not come
within the purview of Article 363.  This Article has no
applicability to ordinary agreements such as lease
agreements, agreements for use of land and water,
construction works.  These are wholly non-political in
nature.  The present dispute is not in respect of a right
accruing or a liability or obligation arising under any
provision of the Constitution  {see Madhav Rao Scindia
v. Union of India [(1971) 3 SCR 9]}
    The contention also runs counter to Section 108 of
the States Reorganisation Act, which expressly continues
the agreement.  There is, thus, no merit in this objection
as well.
4.    RE :    Whether disputes are liable to be referred to
Arbitration?

    It is contended that the lease deed dated 29th
October, 1886 provides that whenever any dispute or
question arises between the Lessor and the Lessee
touching upon the rights, duties or liabilities of either
party, it shall be referred to two arbitrators and then to
an umpire if they differ.  This clause was amended in
supplementary agreement dated 29th May, 1970.  Relying
on the arbitration agreement, the contention urged on
behalf of State of Kerala is that the parties should be
directed to resort to alternate remedy of arbitration and
discretionary relief in these petitions may not be granted
to State of Tamil Nadu.  There is no substance in this
contention as well.  The present dispute is not about the
rights, duties and obligations or interpretation of any
part of the agreement.  As already noted, the controversy
herein is whether the water level in the reservoir can
presently be increased to 142 ft. having regard to the
safety of the dam.  The full water level was 152 ft.  It was
reduced to 136 ft. in 1979.  The aspect of increase of
water level is dependant upon the safety of the dam after
strengthening steps have been taken.  This aspect has
been examined by experts.  
5.    Re : 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 environment?

Opposing the increase of water level, the contention
urged is that it would result in a larger area coming in
submergence which is not permissible without complying
with the mandatory provisions of the Forest
(Conservation) Act, 1980 and the Wild Life (Protection)
Act, 1972.
Reliance has been placed on Section 26A of the Wild
Life (Protection) Act which stipulates that the boundaries
of a sanctuary shall not be altered except on a
recommendation of the National Board constituted under
Section 5-A of the Act.  The total area of the sanctuary is
about 777 square kilometers.   The leased area of about
8,000 acres is a part of the total area.  By raising the
water level, the boundaries of the sanctuary do not get
altered.  The total area of the sanctuary remains 777
square kilometers.  Further, Section 2(17) of the Act,
which defines land includes canals, creeks and other
water channels, reservoirs, rivers, streams and lakes,
whether artificial or natural, marshes and wetlands and
also includes boulders and rocks.  It cannot be said that
forest or wildlife would be affected by carrying out
strengthening works and increase of the water level.  On
the facts and circumstances of the case, the
strengthening work of existing dam in the forest cannot
be described as a non-forestry activity so as to attract
Section 2 of the Forest (Conservation) Act, 1980,
requiring prior approval of Union of India.  
As already noticed, it was only in 1979 that the
water level was brought down to 136 ft from 152 ft.   The
increase of water level will not affect the flora and fauna.  
In fact, the reports placed on record show that there will
be improvement in the environment.  It is on record that
the fauna, particularly, elephant herds and the tigers will
be happier when the water level slowly rises to touch the
forest line.  In nature, all birds and animals love water
spread and exhibit their exuberant pleasure with heavy
rains filling the reservoir resulting in lot of greenery and
ecological environment around.  The Expert Committee
has reported that it will be beneficial for the Wildlife in
the surrounding area as it will increase the carrying
capacity for wildlife like elephants, ungulates and in turn
tigers.  The apprehension regarding adverse impact on
environment and ecology have been found by the experts
to be unfounded.  We are also unable to accept the
contention that the impact on environments has not been
examined.  Report dated 28th January, 2003 states that
there is no adverse impact on the environment.  
Similarly, the report dated 21st April, 2003 is also to the
similar effect.  It, inter alia, states that :
"The most productive habitats in
terms of forage availability to
ungulates and elephants are these
vayals.  This habitat is of even greater
significance to wildlife since the green
flush of protein rich grasses appears at
a time when nutritive quality of forest
forage is lowest.  This is so since water
is likely to be released from the Dam
during the dry months for irrigation.  
Thus, this nutrient rich biomass is
critical for maintaining condition of
herbivores and their populations during
the pinch period.
    If the lowest water level even
after increasing the water capacity of
the dam is maintained at the current
level, then the increased high water
table will make more area available as
Vayals, effectively adding some more
area to the existing Vayals, thereby
increasing the carrying capacity of the
reserve for ungulates, elephants and in
turn of tigers.

    In this view, we find no substance in the contention
that there will be adverse effect on environment.
    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 safety
angle 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 State of Kerala.  The Expert
Committee was comprised of independent officers.  
Seismic forces as per 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 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 the Committee was a
Member (D&R) of Central Water Commission, two Chief
Engineers of Central Water Commission, Director, dam
safety, Government of Madhya Pradesh and retired
Engineer-in-Chief, UP besides two representatives of
Governments of Tamil Nadu and Kerala, were members of
the Committee.  All appended their signatures except the
representative of the Kerala Government.  The summary
of results of stability analysis of Mullaperiyar Baby Dam
contains note which shows that the permissible tensile
strength was masonry 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 9-10th February, 2001.  It also shows
the various strengthening measures suggested by CWC
having been completed by Tamil Nadu PWD on the dam
including providing of RCC backing to the dam.  The
report also suggests that the parapet wall of the baby
dam and main dam have been raised to 160 ft. (48.77
mt.) except for a 20 mt. stretch on the main dam due to
denial 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 main dam, the galleries, baby dam,
earthen bund and spillway, concludes that the dam is
safe and no 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 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 Idukki dam.  It is the case of State of
Kerala that despite the 'copious rain', the Idukki reservoir
is not filled to its capacity, while the capacity of 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 Idukki dam.  
The Deputy Director, Dam Safety, Monitoring Directorate,
Central Water Commission, Ministry of Water Resources
in affidavit of April 2004 has, inter alia, sated that during
the recent earthquake mentioned by Kerala Government
in its affidavit, no damage to the dam was reported by
CWC officers who inspected the dam.  The experts having
reported about the safety of the dam and the Kerala
Government having adopted an obstructionist approach,
cannot now be permitted to take shelter under the plea
that these are disputed questions of fact.  There is no
report to suggest that the safety of the dam would be
jeopardized if the water level is raised for the present to
142 ft.  The report is to the contrary.
    Regarding raising the water level to 152 ft., the
stage has still not reached.  At present, that is not the
prayer of the State of Tamil Nadu.  In this regard, at this
stage, the only prayer of the State of Tamil Nadu is that
State of Kerala be directed not to obstruct it in carrying
out strengthening measures, as suggested by CWC.  We
see no reason for the State of Kerala to cause any
obstruction.
Under the aforesaid circumstances, we permit State
of Tamil Nadu to carry out further strengthening
measures as suggested by CWC and hope that State of
Kerala would cooperate in the matter.  The State of
Kerala and its officers are restrained from causing any
obstruction.  After the strengthening work is complete to
the satisfaction of the CWC, independent experts would
examine the safety angle before the water level is
permitted to be raised to 152 ft.
    The writ petition and the connected matters are
disposed of by permitting the water level of the
Mullaperiyar dam being raised to 142 ft. and by
permitting the further strengthening of the dam as
aforesaid.


   



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