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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)

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       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

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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."

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       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

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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

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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

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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.

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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

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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

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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

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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.

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       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

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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.