The Tamil Nadu government suffered a setback on Monday with the Supreme Court dismissing its application seeking to recall the order appointing an Empowered Committee, headed by the former Chief Justice of India, Justice A.S. Anand, to go into the safety of the Mullaperiyar dam.
By this February 18 order, the committee was asked to submit its report in six months after considering all aspects including Kerala's demand for a new dam as well as the safety of the existing dam. While Tamil Nadu announced that it would not nominate its member to the panel, Kerala named the former Supreme Court judge, K.T. Thomas.
After hearing senior counsel K. Parasaran and Harish Salve for Tamil Nadu and Kerala respectively, a five-judge Constitution Bench, in a brief order said: “In our view, no ground has been made out for recall of our order. Accordingly the application is dismissed.” Justice D.K. Jain orally observed, “We don't pass orders to make somebody happy or unhappy. We pass orders on the basis of what feel is right.”
The Bench, which included Justices B. Sudershan Reddy, Mukundakam Sharma, R.M. Lodha and Deepak Verma, took strong exception to the Centre's application seeking a modification of the order to the effect that the committee's expenses be shared by both States, and not by the Centre.
Justice Jain told Additional-Solicitor General Haren Raval: “It is shocking to say that the Centre has no funds to bear the expenses. It is an order passed by the Supreme Court and the Centre filing such an application is never heard off.”
The Bench dismissed the application. It, however, extended till April 30 the time limit for the Centre to nominate two members to the committee. Earlier the Centre was given four weeks.
When Justice Jain asked Mr. Parasaran the reason for Tamil Nadu filing the application, he said the relief it asked for in the suit concerned only the question whether Kerala's law was ultra vires the Constitution. By the February 18 order, the committee had been delegated even judicial powers, which were an exclusive jurisdiction of the Supreme Court, counsel said.
Justice Jain pointed out that it was not a consent order. “We passed the order taking into consideration the safety and welfare of the people of both States. It is an unambiguous order. We are not bound by the committee's report. We may or may not accept the report or we may accept a part of it. We thought the report will aid our decision. Some amicable solution might emerge before the committee. That is why we have kept open all the issues. Let them give the report, we will see.”
Tamil Nadu's objection
When Mr. Parasaran said, “The committee has no right to decide on the question of law,” Justice Jain asked, “Will you accept if the committee goes only into the question of safety?” Counsel said, “The committee cannot record a finding even on safety.” Justice Jain retorted: “Then the earlier report of the committee appointed by this court that the dam was safe up to 142 feet, on the basis of which you got the  judgment, must go.”
Mr. Parasaran said the earlier committee was an expert panel and its report should be construed as an opinion, but the present one, headed by a retired judge, could not be treated on the same footing.
Opposing the application, Mr. Salve said it should be rejected on the ground that it had brought in unnecessary references to the Kerala Chief Minister's statement on the February 18 order. Irrespective of his statement, the order had taken into consideration the safety of the people both States. The order clearly stated legal and constitutional issues were to be decided only by this court, counsel said.