Hearing on suit filed by Tamil Nadu against State’s law on water level in Mullaperiyar dam

The Supreme Court on Wednesday asked why the Kerala enacted a law within 15 days of pronouncement of the 2006 judgment to prevent Tamil Nadu from raising the water level in the Mullaperiyar dam from 136 ft to 142 ft.

A five-judge constitution Bench comprising justices R.M. Lodha, H.L. Dattu, C.K. Prasad, Madan B. Lokur and M.Y. Eqbal is hearing a suit filed by Tamil Nadu challenging Kerala’s law.

Justice Lodha told senior counsel Harish Salve, appearing for Kerala, “what is troubling us is this court adjudicated on facts and rendered a finding that the dam is safe and Tamil Nadu can raise water level up to 142 ft. Within 15 days of this judgment what new facts did you {Kerala} have to say that the dam is degenerated, endangered and water level can’t be stored beyond 136 ft”.

Justice Prasad told Mr. Salve “the very foundation of your legislation is safety. When that safety has been adjudicated, your legislative finding becomes erroneous”.

Mr. Salve argued that the judgment by itself would not denude the legislature of its competence to enact a law if in its perception, the precautionary measure required steps to ensure the safety of the people. He said “what facts were gone into by the Members of the Assembly cannot be inquired into. The fact that the dam is endangered is not in dispute going by the directions given by the Central Water Commission to carry out certain repairs. It is only a question of degree. Legislature has the primary duty to protect the safety of the people”.

“Any finding on the safety of the dam on the ultimate analysis can only be based on probabilities. It can never be a prediction of what may happen in the future. Dams are affected by their age, by degeneration and other similar elements,” Mr. Salve citing the recent Uttarakhand floods said.

Justice Lodha told Mr. Salve “what you have done is by this law you {Kerala} have nullified the judgment. As of now the 2006 judgment stands; the law is also there. Is it not a conflict”.

No conflict: counsel

Mr. Salve replied “the basis of a judgment can be neutralised by a legislation. There is no conflict as long as I show legislative competence to enact the law”.

Justice Eqbal intervened and said “if your argument is accepted then every judgment can be nullified by a legislation”.

Mr. Salve gave instances when tax laws were amended after judgments and said “if the law is for good reasons then the legislature can do it”.

Mr. Salve said several factors were not considered by the court in the 2006 judgment and “the Doctrine of finality does not preclude this court from correcting the errors under its inherent powers”.

Mr. Salve said the hydrological safety of a dam was tested for the Probable Maximum Flood (PMF). While giving evidence, the expert from Kerala had estimated the PMF as 2.91 lakh cusecs and said “at this rate the Mullaperiyar dam is hydrologically unsafe, since the Maximum Water Level (MWL) would go up and reach 160. No evidence to the contrary is led by Tamil Nadu”.

“The expert committee in its report of 2001 had wrongly endorsed the PMF of 2.12 lakh cusecs estimated by the CWC in 1986. The EC wrongly held that Tamil Nadu would require higher storage to irrigate areas in future,” he said.

At this juncture, Justice Lodha intervened and said “going by your expert opinion, water level can’t be raised even up to 136 ft”. Arguments will continue on Thursday.