Protecting the “legal right” of Tamil Nadu, the Supreme Court Wednesday declared as “unconstitutional” a law enacted by Kerala to restrict water level in the Mullaperiyar dam to 136 ft.
A constitution bench led by Chief Justice R M Lodha further restrained Kerala from obstructing Tamil Nadu from raising the water level in the dam on the Periyar river to 142 ft and from carrying out necessary repair works.
A lease for 999 years entered into by the British government with the Maharaja of Travancore in 1886 was held to be valid by the bench. By virtue of this lease, the then Madras Province was made the beneficiary of water from Kerala.
While Kerala argued that this lease agreement lapsed on merger of the two states, Travancore and Cochin, into the United State of Travancore and Cochin, the bench held that the accession in fact confirmed that they continued to remain Indian entities. It also said that Kerala, which entered into supplement agreement with Tamil Nadu on the basis of the 1886 agreement, cannot be now allowed to challenge its validity.
On the question of law, the bench underlined that Kerala enacted the law soon after the February 2006 judgment by the SC, whereby the court had allowed raising of water level from 136 ft to 142 ft. The court had then also nixed Kerala’s arguments that raising the water level would endanger the safety of the dam and would put the lives of people into peril due to possible floods.
The constitution bench noted that Kerala’s 2006 amendment law “plainly seeks to nullify the judgment of this court which is constitutionally impermissible” and it has to be declared as ultra vires and unconstitutional.
It said that once the states had subjected themselves to the jurisdiction of the court and it decided upon the case after appreciating various facts and on opinion by an expert committee, it was not open for a state to seek indirect reversal of the judgment by enacting a law.
“In our opinion, by the 2006 Act, the Kerala legislature has overturned a final judgment in the interest of its own executive Government. The impugned law amounts to reversal of the judgment of this Court which determines directly the question of safety of Mullaperiyar dam for raising water level to 142 ft. and whereunder Tamil Nadu’s legal right has been determined.” it said.
While underlining that Tamil Nadu has been able to establish that invasion on its rights was substantial since its people suffered on account of shortage of water, the court held that Kerala’s act infringed the doctrine of separation of powers and rule of law.
In order to allay the apprehensions of Kerala, the bench also set up a Supervisory Committee, to be headed by a representative from the Central Water Commission and one member each from the two states. It said the committee will supervise the lifting of water level and would take all other steps for safety of the dam.
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