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Fresh hearing in dam case in October

J. Venkatesan

Tamil Nadu’s suit questioning law enacted by Kerala for safety of dams

New Delhi: The Supreme Court will hear afresh from October 20 the suit filed by the Tamil Nadu government questioning a law enacted by Kerala to prevent raising the water level of the Mullaperiyar dam beyond 136 ft.

In March this year, a three-judge Bench headed by Justice Arijit Pasayat was about to complete arguments in the case. But the matter was adjourned to July taking into consideration that the matter could not be concluded before Justice Pasayat’s retirement in May.

When the matter was taken up last week by a new three-judge Bench of Justices D.K. Jain, Mukundakam Sharma and R.M. Lodha, counsel for both the States submitted that at least three weeks would be required to complete arguments afresh and accordingly the hearing was fixed for October 20.

It is the argument of Tamil Nadu that its rights under the original agreement had crystallised into a decree of the Supreme Court and Kerala was not entitled to take away the fruits of the said decree by passing legislation, which was clearly ultra vires the Constitution. It described as untenable the contention of Kerala that Tamil Nadu had no right to store the water and the Periyar river was an intra-State river.

On Kerala’s contention on submergence, Tamil Nadu said: “Whatever land that will get submerged at the storage level of 155 ft above the deepest point of the bed does not extend beyond the lands leased to Tamil Nadu and is comprehended within the extent of the land permissible to be submerged.” It asserted that the safety of the dam would not be affected in any way by raising the water level up to 142 ft. The Kerala Irrigation and Water Conservation (Amendment) Act, 2006 was an attempt to subvert and reverse the judgment of the Supreme Court and was clearly unconstitutional, Tamil Nadu said, and prayed for an interim stay of its operation insofar as it affected the State’s rights.

During the last hearing, Kerala took a stand that even at the 136-ft level the dam would be in danger if there were floods. It said that the suit was not maintainable as raising the water level beyond 136 ft was not an enforceable right as enforcement of pre-constitutional agreements between princely States was expressly barred under Article 131 of the Constitution.

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