Accepting Kerala’s plea, a three-Judge Bench of the Supreme Court on Tuesday referred to a five-Judge Constitution Bench a 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. as against 142 ft. allowed by the Supreme Court judgment of February 2006.

A Bench of Justice D.K. Jain, Justice Mukundakam Sharma and Justice R.M. Lodha, after hearing counsel for both the States, referred the matter to the Chief Justice of India K.G. Balakrishnan for posting it before a five-Judge Bench.

The Bench asked both the States to maintain status quo, (viz to maintain water level at 136 ft.) without prejudice to the rights of Tamil Nadu to carry out proper repairs and maintenance of the dam and gave liberty to the parties to approach the court.

As agreed by counsel for the parties, a draft was submitted to the court to enable the Bench to pass a formal order. As per the draft order, “the issues framed in the suit require the court to decide substantial questions of law as to the interpretation of the Constitution, in particular Articles 3 and 4 read with Article 246; Article 131 read with Article 32 and 226; proviso to Article 131 read with Articles 295 and 363 of the Constitution and also the effect of the 2006 judgment. As the case involves the resolution of such questions, the suit may be placed before the CJI for necessary directions for placing of the case before a Constitution bench.”

When arguments began on Tuesday senior counsel Rajeev Dhavan submitted that the Kerala Legislature had the competence to enact the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 Act. He said the 2006 judgment had the effect of taking over the executive and legislative power, which was subversive to the federal structure.

Last week Justice Lodha told counsel: “Even an erroneous finding operates as res judicata [a matter already settled in court]. You have to tell us how the findings rendered in a writ petition are not binding in a suit and why it is not res judicata.”

Mr. Dhavan, in his response on Tuesday, said that “under exceptional instances res judicata will not apply if basic jurisdiction is lacking.” He pointed out that in 2006 the court had no jurisdiction to give such a judgment under Article 32/226 writ petition. A dispute between two States could be adjudicated only by way of suit under Article 131.

When Justice Lodha wanted to know whether the 2006 judgment was not binding on Kerala as an order of the Supreme Court under Article 141 (order binding on all courts), Mr. Dhavan said, “a faulty order cannot be executed and [is] not binding.” He wanted the matter to be referred to a five-judge Constitution Bench for interpretation of various issues involved in the matter.

Senior counsel K. Parasaran, appearing for Tamil Nadu, initially suggested that the three-judge Bench itself adjudicate the issue saying, “we want an early decision.” However, when the Bench indicated that the matter be referred to a five-judge Bench, he agreed on condition that Tamil Nadu be allowed to carry out repair and maintenance works.