TN says its rights under 1886 agreement crystallised into SC decree

Kerala on Tuesday justified in the Supreme Court the law enacted by it to prevent Tamil Nadu from raising the water level of the Mullaperiyar dam from 136 ft. to 142 ft.

Senior counsel Harish Salve, appearing for Kerala made this assertion before a five-Judge Constitution Bench comprising Justices R.M. Lodha, H.L. Dattu, C.K. Prasad, Madan B. Lokur and M.Y. Eqbal hearing the suit filed by Tamil Nadu challenging the Kerala’s law.

Tamil Nadu’s stand is that its rights under the original 1886 agreement had crystallised into a decree of the Supreme Court in 2006 and Kerala was not entitled to take away the fruits of the decree by adopting the legislation, which was ultra vires the Constitution. It termed untenable Kerala’s contention that Tamil Nadu had no right to store the water and that Periyar was an intra-State river.

Mr. Salve maintained that the Agreement of 1886, entered into by the Secretary of State and the Maharaja of Travancore, lapsed on the appointed day of August 15, 1947. When the Bench pointed out that the agreement was renewed in 1970, Mr. Salve said it was not even worth a sheet of paper.

Justice Lodha told Mr. Salve, “If adjudication had been done by this court in 2006 on facts that the dam is safe up to 142 ft, can the Legislature take upon itself the adjudication and say the dam is not safe up to 142 ft”.

Mr. Salve said, “It is Kerala’s case that the impugned law that relates primarily to the modification of contractual rights under an agreement, created prior to the commencement of the Constitution restricts the rights to use territory within the State of Kerala and a dam constructed within the State of Kerala would clearly be within the province of Kerala’s legislature. This would be so even if it is held that the river is an inter-State river. The legislature of the State would always have the competence to enact laws dealing with the construction of a dam or the operation and maintenance of water storage, reservoirs and the like within its territory”.

Justice Lodha pointed out that when the 1886 agreement had crystallised into a legal decree of this court, “Can you continue to say that Tamil Nadu has no legal right?”

Mr. Salve said “By enacting the Amendment Act of 2006 and fixing the storage level of Mullaperiyar Dam at 136ft, Kerala Legislature has not overruled the judgment of this Court but removed the basis of the said judgment by curtailing the legal right to store water above 136 ft which flows from the 1886 agreement. Is that law bad or would mean usurpation of judicial power.” Counsel maintained that a contractual right could be taken away by a statute.

When Justice Lodha wanted to know whether the court could strike down a law “which nullifies” a judgment, Mr. Salve argued that the law would not become invalid merely because there was a declaration that the dam was not safe if the water level was raised beyond 136 ft.

He said, “There is no question of usurpation of judicial power by the State Legislature in enacting the law. At best, it can only be said as a regulatory legislation. Fixing the water level of a dam for the purpose of safety are not areas of adjudication by the legislature, which is only setting safety standards.”

When Justice Lodha drew counsel’s attention that the legislation should not affect the inter-State riparian rights of Tamil Nadu, Mr. Salve said, “Periyar River is not an inter-State river, it is an intra-State river.” Arguments will continue on Wednesday.