Suraksha Public Charitable Trust v. State of Kerala & Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020 / 13TH KARTHIKA, 1942** ## **WP(C).No.23628 OF 2020(S)** ## **PETITIONERS:** **SURAKSHA PUBLIC CHARITABLE TRUST F-5, FIRST FLOOR, EMPIRE BUILDING, MATHAI MANJOORAN ROAD, KOCHI-18, REPRESENTED BY ITS SECRETARY MR. SHAJI P JOSEPH, PERMANENTLY RESIDING AT PANNIAMMACKAL HOUSE, CHAPPATH P.O.IDUKKI DISTRICT, PIN-685 505.** **BY ADVS. SRI.JOHN VARGHESE SRI.P.M.JOSEPH SRI.A.L.GEORGE** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF WATER RESOURCES, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **3 UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF WATER RESOURCES, SHRAM SHAKTI BHAVAN, RAFI MARG, NEW DELHI-110 011.** - **4 CENTRAL WATER COMMISSION, REPRESENTED BY ITS CHAIRMAN, SEWA BHAVAN, R.K.PURAM, NEW DELHI-110 066.** - **5 CHAIRMAN,** - **SUPERVISORY COMMITTEE ON MULLAPERIYAR DAM AND CHIEF OF ENGINEER (DSO), CENTRAL WATER COMMISSION, 8TH FLOOR (N) SEWABHAVAN, R.K.PURAM, NEW DELHI-110 066.** WP(C).No.23628 OF 2020 2 **6 STATE OF TAMIL NADU, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF TAMIL NADU, NAMAKKAL KAVIGNAR MAALIGAI, FORT ST. GEORGE, CHENNAI-600 009.** **SRI. ARAVIND KUMAR BABU,SENIOR GOVERNMENT PLEADER FOR R1 AND R2, SRI.P.VIJAYAKUMAR, ASG FOR R3** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.23628 OF 2020 3 ## **CR** ## **JUDGMENT** ## **S.MANIKUMAR, CJ** Alleging violation of Exhibit P2 lease agreement dated 29.10.1886 entered into between the Maharaja of Travancore and State of Tamil Nadu, in not carrying out the obligation by State of Tamil Nadu, respondent No.6, to provide tunnels at low level to make possible evacuation of water, in the event of distress to the 125 years old Mullaperiyar dam, and placing reliance on the reply furnished by the Ministry of Jal Shakti, Department of Water Resources, Central Water Commission, Dam Safety Monitoring Directorate, Government of India, New Delhi, petitioner has filed the instant writ petition, for a direction to the State of Kerala, represented by the Chief Secretary to Government of Kerala, Thiruvanathapuram, 1[st] respondent, to issue a notice of termination of Exhibit P2 lease agreement dated 29.10.1886 to the 6[th] respondent, State of Tamil Nadu, represented by the Chief Secretary, Government of Tamil Nadu, Chennai. 2. Petitioner has also sought for a direction to respondents 1 and 2, to initiate necessary steps for construction of a protection wall, in accordance with Exhibit P11 proposal made by the Geological Survey of India. 3. Petitioner has also invited our attention to the decisions of the Hon'ble Supreme Court in **Mullaperiyar Environmental Protection Forum v. Union of India & Ors.** (AIR 2006 SC 1428) and **State of Tamil Nadu v. State of Kerala & Anr.** (AIR 2014 SC 2407) 4. Heard learned counsel for petitioner Mr. John Varghese and perused the pleadings and materials available on record. WP(C).No.23628 OF 2020 4 ## 5. Exhibit P6 reply dated 29.07.2020 relied on by the learned counsel for petitioner is re-produced hereunder: **==> picture [397 x 614] intentionally omitted <==** WP(C).No.23628 OF 2020 5 **==> picture [401 x 647] intentionally omitted <==** WP(C).No.23628 OF 2020 6 **==> picture [404 x 624] intentionally omitted <==** WP(C).No.23628 OF 2020 7 6. The issue relating to the distribution of water, between two States, Kerala and Tamil Nadu, is a matter, which falls under Article 131 of the Constitution of India and it reads thus: “ **131. Original jurisdiction of the Supreme Court.** -- Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute-- - (a) between the Government of India and one or more State; or - (b) between the Government of India and any State or States on one side and one or one other States on the other; or - (c) between two or more States, if and in so far as the dispute involves any question (whether of law of fact) on which the existence or extent of a legal right depends: [Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.] 7. Going through the law journals, we find that indisputably, the Hon'ble Supreme Court has passed periodical orders, dealing with the dispute, in the matter of distribution of water, between the two States, State of Kerala and State of Tamil Nadu, and also the safety of the dam. Said issue was considered by the Hon'ble Supreme Court in O.S. No.3/2006, which was decreed on 07.05.2014, with the following directions. “222. However, to allay the apprehensions of Kerala- 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 155 representative each from the two States - Tamil Nadu and Kerala. The representative of the Central Water Commission shall be the Chairman of the Committee. The Committee will select the place for its office, which shall be provided by Kerala. WP(C).No.23628 OF 2020 8 Tamil Nadu shall bear the entire expenditure of the Committee. 223. The powers and functions of the Supervisory Committee shall be as follows: (i) The Committee shall supervise the restoration of FRL in the Mullaperiyar dam to the elevation of 142 ft. (ii) The Committee shall inspect the dam periodically, more particularly, immediately before the monsoon and during the monsoon and keep close watch on its safety and recommend measures which are necessary. Such measures shall be carried out by Tamil Nadu. (iii) The Committee shall be free to take appropriate steps and issue necessary directions to the two States - Tamil Nadu and Kerala - or any of them if so required for the safety of the Mullaperiyar dam in an emergent situation. Such directions shall be obeyed by all concerned. (iv) The Committee shall permit Tamil Nadu to carry out further precautionary measures that may become necessary upon its periodic inspection of the dam in accordance with the guidelines of the Central Water Commission and Dam Safety Organisation.” 8. After passing of the above decree by the Honble Apex Court, State of Tamil Nadu, the petitioner therein, has filed an application for execution of the decree. 9. During the pendency of abovesaid execution petition, W.P.(C) No.878 of 2017 has been filed before the Hon'ble Apex Court, which was disposed of vide order dated 11.01.2018, with the following directions: “23. In view of the aforesaid, we think it appropriate to issue the following directions:- (i) The Central Government shall constitute a separate Sub Committee under Section 9 of the 2005 Act, to exclusively monitor the measures for ensuring a high level of preparedness to face any disaster, which is unpredictable in relation to Mullaperiyar Dam. (ii) The State of Kerala as well as the State of Tamil Nadu shall also constitute separate Sub-Committees under Section 21 of the 2005 Act, to exclusively monitor the measures for ensuring a high level of preparedness to face any disaster occurring from Mullaperiyar Dam. They must provide for a separate dispensation under the State plan as envisaged under Section 23(4) of the 2005 Act. (iii) The State of Tamil Nadu, which has been directed to cooperate as per the decision in State of Tamil Nadu (supra), shall also have a Sub-Committee for disaster management and with a specific plan. WP(C).No.23628 OF 2020 9 (iv) Constitution of all sub-committees shall be in addition to the existing Committees. All the States shall work in harmony with the Central Sub-Committee and ensure high level preparedness to face any disaster occurring due to Mullaperiyar Dam, so that life and property are not damaged.” 10. After the disposal of W.P.(C) No.878/2017, an miscellaneous application bearing Diary No.30469 of 2018 has been filed, wherein the Hon'ble Apex Court on 16.08.2018, issued the following directions: “Regard being had to the gravity of the situation, we think it proper to direct as follows : (a) The Sub-Committee constituted under Section 9 of The Disaster Management Act, 2005 along with National Crisis Management Committee (NCMC) should hold a meeting, sometime tomorrow in the morning, with the competent authorities of the States of Kerala and Tamil Nadu. If the meeting is not possible by physical presence, the authorities may take aid of video conferencing. (b) An effort has to be made by the Committees to see if there can be a possibility of bringing down the water level, at least to 139 ft., so that the people staying in the downstream of the dam do not remain in the constant fear. (c) The States of Kerala and Tamil Nadu shall coordinate with the NCMC so that the people who have been displaced by flood are given adequate relief immediately. (d) The Sub-Committee may suggest, before water is released from the dam to the downstream areas, as to what kind of measures can be taken to handle the disaster so that the people ultimately do not suffer from the catastrophe caused by the flood. (e) The Committee that has been directed to meet tomorrow in the morning must come out with a Disaster Management Plan which shall be made public so that the people can remain prepared for the same. (f) The decision of the Sub-Committee, needless to say, shall be implemented by both the States immediately although we are taking up the matter tomorrow at 02:00 p.m.. We say so as action speaks much faster than words can convey.” 11. If there is any alleged failure on the part of respondent No.6, to carry out its obligation to provide tunnels, as the matter is in seisin of the Hon'ble Apex Court, and having regard to the periodical orders passed by the Hon'ble Apex Court, we WP(C).No.23628 OF 2020 10 are of the view that this Court cannot entertain a writ petition under Article 226 of the Constitution of India, and direct the 1[st] respondent, to issue a notice of termination of Exhibit P2 lease agreement dated 29.10.1886, and consequently, direct the respondents 1 & 2, to initiate steps for construction of protection walls, in accordance with Exhibit-P11 report made by the Geological Survey of India. 12. As stated supra, it is a matter of inter State dispute in distribution of river water, as well as safety of dam. We would be exceeding in our jurisdiction to entertain a writ petition to advert to the reliefs sought for by the petitioner. In that view of the matter, we are not inclined to entertain the writ petition. Writ petition is accordingly, dismissed. **Sd/-** **S.MANIKUMAR CHIEF JUSTICE** smv **Sd/SHAJI P.CHALY JUDGE** WP(C).No.23628 OF 2020 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE DEED OF REGISTRATION OF THE PETITIONER TRUST BEARING REGISTRATION NO 141/IV/2020 DATED 14.5.2020 EXHIBIT P2 A TRUE COPY OF THE LEASE AGREEMENT BETWEEN THE STATES OF KERALA AND TAMIL NADU DATED 29.10.1886 ALONG WITH THE AMENDMENT DATED 29.5.1970 RECEIVED BY THE PETITIONER ALONG WITH LETTER DATED 14.10.2020, UNDER RTI ACT EXHIBIT P3 TRUE COPY OF THE JUDGMENT REPORTED IN AIR 2006 SC 1428 (MULLAPERIYAR ENVIRONMENTAL PROTECTION FORUM VS UNION OF INDIA AND OTHERS) EXHIBIT P4 TRUE COPY OF THE JUDGMENT REPORTED IN AIR 2014 SC 2407 (STATE OF TAMIL NADU V STATE OF KERALA & ANOTHER EXHIBIT P5 TRUE COPY OF THE LETTER DATED 1.7.2020 SENT BY THE PETITIONER TO THE 5TH RESPONDENT EXHIBIT P6 TRUE COPY OF THE REPLY DATED 29.7.2020 RECEIVED BY THE PETITIONER FROM THE 5TH RESPONDENT EXHIBIT P7 TRUE COPY OF THE RELEVANT PAGES OF GUIDELINES FOR PREPARING OPERATION AND MAINTENANCE MANUAL FOR DAMS ISSUED IN JANUARY 2018 EXHIBIT P8 TRUE COPY OF THE REPORT ISSUED BY THE KERALA STATE ELECTRICITY BOARD ALONG WITH LETTER DATED 30.6.2020 EXHIBIT P9 TRUE COPY OF THE DAM BREAK ANALYSIS REPORT PREPARED BY PROF.T.SHIVAJI RAO OF GANDHI INSTITUTE OF TECHNOLOGY AND MANAGEMENT EXHIBIT P10 TRUE COPY OF THE COMBINED SKETCH OF MULLAPERIYAR AND IDUKKI DAMS PREPARED BY THE VILLAGE OFFICER OF PEERUMEDU EXHIBIT P11 TRUE COPY OF THE REPORT MADE BY THE GEOLOGICAL SURVEY OF INDIA AND SUBMITTED TO GOVERNMENT OF KERALA IN AUGUST 2010** WP(C).No.23628 OF 2020 12 **EXHIBIT P12 TRUE COPY OF THE LETTER DATED 26.8.2020 SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE CHIEF MINISTER OF KERALA EXHIBIT P13 TRUE COPY OF THE CONFIRMATION MESSAGE DATED 9.9.2020 RECEIVED BY THE PETITIONER FROM THE OFFICE OF THE CHIEF MINISTER OF KERALA EXHIBIT P14 TRUE COPY OF THE CONFIRMATION MESSAGE RECEIVED BY THE PETITIONER DATED 21.9.2020 FROM THE OFFICE OF THE CHIEF MINISTER OF KERALA**