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Mainstream, VOL L, No 34, August 11, 2012

Mullaperiyar: Dispute on the Amendment made in a Lapsed Agreement

Friday 17 August 2012, by K G Somasekharan Nair

Mullaperiyar, a conflicting subject between Kerala and Tamil Nadu, is of much national importance. Because settlement of such disputes between two linguistic States, amicably and not forcibly, is essential for national integration.
The dispute has a prolonged historical background. In 1886 the Maharaja of Travancore agreed to lease out 8000 acres of hill track in the Western Ghats surrounding the valley of the river Periyar to the British Government for constructing a dam and reservoir. This was for making an artificial deviation of the Periyar water to a British colony at the opposite side of the natural flow of the river. The rent fixed for the land was Rupees five per acre and the period of lease was 999 years. It was also agreed that Travancore was to realise the rent by deducting the amount from the tribute payable to Britain. The present dam was constructed accordingly.

During the course of the uninterrupted flow of the Periyar water to the British territories, India got independence. In order to transfer the Sovereignty to India and Pakistan, the British Parliament passed the Indian Independence Act in 1947 and Section 7 of it laid down that from the day of independence

(a) His Majesty’s Government in the United Kingdom have no responsibility as respect the government of any of the territories which, immediately before that day, were included in British India.

(b) The Suzerainty of his Majesty over the Indian state lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between his Majesty and the rulers of Indian states, all functions exercisable by his Majesty at the date with respect to Indian states, all obligations of his Majesty existing at that date towards Indian states or the rulers thereof as all powers, right, authority or jurisdiction exercisable by his Majesty at that date in or in relation to Indian states by treaty, grant, usage, sufferance or otherwise.

Thus the Mullaperiyar agreement made by Britain and Travancore lapsed with the indepen-dence and partition of India and it lapsed forever. If an agreement is invalidated by a law, it can be revalidated by another law made by an appropriate legislative body. In this case such a remedy is impossible and any law made by the Indian Parliament cannot revalidate it because Britain, one party in the lapsed agreement, is out of reach of the Indian law and law courts.

After independence, the Madras Province in the British colony was divided and the land of the Tamil speaking people was renamed as the Madras State, subsequently as Tamil Nadu. The land of the Malayalam speaking people in the Madras Province, Malabar, was merged with Travancore-Cochin and the Kerala State was organised. Together with unconditional with-drawal of Britain from India, they left the possession and ownership of all structures made by them. Except those taken up by the Central Government, all other constructions became the assets of the concerned States where those were situated. Thus all structures made by Britain in Tamil Nadu were taken up by that State Government and those made in Malabar became the assets of Kerala. But still nobody has explained the law and logic under which Tamil Nadu is possessing the Mullaperiyar dam in the Kerala State constructed by Britain using the latter’s money in the 19th century.

Even after the demise of the 1886 agreement, water from the Periyar reservoir was sluicing to Tamil Nadu incessantly. Who and under what authority its consideration was paid or not paid, is unknown. It was known to everybody that under no means, except making a new agreement between Kerala and Tamil Nadu, draining of water from the Periyar reservoir to Tamil Nadu could not be legalised. In course of time, the Kerala Land Reforms Act 1963, which became a part of the Indian Constitution, was enforced with effect from April 1, 1964. Section 74 of it banned all future tenancies where 2(57) of the Act says “tenant means any person who has paid or has agreed to pay rent or other consideration for his being allowed to possess and to enjoy any land by a person entitled to lease that land“. So after that date Kerala and Tamil Nadu were constitutionally banned to enter into a lease agreement like the one made by Britain and Travancore in 1886. But there was no ban to make a water sale agreement between the two States. Instead of adopting this straightforward method, both States amended the Mullaperiyar agreement of 1886 on May 29, 1970. While carrying out this amendment the bureaucrats who signed it were fully aware that the former agreement, which they were going to amend, had lapsed legally on August 15, 1947 and any amendment made on the lapsed agreement would be void ab initio.

However, the present dispute is on the point whether Kerala has enough authority to demolish and rebuild the Mullaperiyar dam irrespective of its strength and stability. If the Government of Kerala has the authority to demolish the Kannur Central Jail, built by Britain using their money in the erstwhile Madras Province without obtaining the permission of the Tamil Nadu Government, Kerala has the authority to demolish the Mullaperiyar dam also as there is no valid agreement between the two States enabling Tamil Nadu to obstruct that action. Whatever it may be, water flowing from the Periyar reservoir is imperative for the survival of millions of people living in five districts of Tamil Nadu. In this context, both States may together hold a dialogue to fix the price of water required by Tamil Nadu and make a water sale agreement in presence of some distinguished person(s), if necessary.

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