കേസിന്‍റെവഴികള്‍

Case Note: Case concerned with the safety of a dam if the level of the water was to be
raised. The court allowed the level to be raised in view of the fact that no danger was
posed to human beings and the environment in doing so.
This document is available at www.ielrc.org/content/e0609.pdf
AIR2006SC1428, 2006(2)SCALE680, (2006)3SCC643
IN THE SUPREME COURT OF INDIA
Decided On: 27.02.2006
Mullaperiyar Environmental Protection Forum
v.
Union of India (UOI) and Ors.
Hon'ble Judges:
Y.K. Sabharwal, C.J., C.K. Thakker and P.K. Balasubramanyan, JJ.
JUDGMENT
Y.K. Sabharwal, C.J.
1. 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.
2. 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.
3. 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.
4. 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.)
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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.)
5. 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.
6. 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.
7. 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.
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8. 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.
9. 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.
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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.
10. 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.
11. 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
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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.
12. 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.
13. 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.
14. 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
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forced to accept it. It was also submitted that under Section 108 of the States Reorganization
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.
15. 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.
16. 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.
17. 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
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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.
18. 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.
19. 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').
20. 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
8
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?
21. 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
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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.
22. 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?
23. 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 }
24. 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?
25. 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
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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?
26. 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.
27. 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.
28. 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
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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.
29. 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
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