Kerala on Wednesday urged the Supreme Court to reject at least part of the findings of the Empowered Committee, holding that the Mullaperiyar dam was structurally, hydrologically and seismically safe to raise the water level up to 142 ft.
Senior counsel Harish Salve, appearing for the State, submitted before a five-judge Constitution Bench of 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 law enacted by Kerala to prevent raising the water level in the dam beyond 136 ft. Mr. Salve submitted that fair procedure and rules of natural justice demanded that the committee should have disclosed the investigation and test reports (ITS) relied upon by it and given an opportunity to Kerala on the acceptability of the ITS.
He argued that the committee could not have relied upon the ITS without giving an opportunity to Kerala to meet the adverse contents. Giving an example, Mr. Salve said the probable maximum flood (PMF) value relied on by the committee was 2.14 lakh cusecs, which was based on the 2001 Central Water Commission report.
He also said the committee totally erred in its flood routing studies viz. when it proceeded on the basis of underestimated 2.12 lakh cusecs. “Our contention is that this report is flawed as the PMF value ought to be 2.98 lakh cusecs and if this figure is taken as the basis the safety concerns of the Legislature that the water level of the dam could not be raised above 136 ft was not illusory.”
Mr. Salve said since the committee did not give an opportunity, Kerala did not have the right to cross examine the authors and experts who lead evidence and to challenge the adverse reports.
At one stage Mr. Salve said the court should reject the report of the committee; in the alternative it should allow Kerala to cross examine the experts who gave the reports to justify their findings.
When Justice Lodha wanted to know why the matter was not brought to the notice of the committee at the initial stage, Mr. Salve said Kerala filed an application for supply of these reports, but Tamil Nadu objected to it saying the parties could make their submissions on the same before the Supreme Court itself to obviate prolonging the matter and cause any delay in the submission of the report by the committee. The Bench was inclined to accede to Mr. Salve’s request and asked him to give a note specifying “which are test reports objected by Kerala.”
Mr. Salve said out of the 40 test reports, Kerala objected to six reports and it wanted to challenge the evidence at least on PMF and safety and structure of the dam.
Senior counsel Arvind Bobde, however, opposed any such move and told the Bench that the court had left it to the committee to decide its own procedure. Once the committee had given its expert report, it was up to the court to accept or reject its findings and there was no need for cross examination of experts at this stage, he said. Thereafter the Bench asked Mr. Salve to proceed on other legal submissions. Mr. Salve said the law could not become invalid merely because the law passed by the Legislature resulted in the executive not giving effect to the mandate issued by this court. When he said the Legislature had validated the law, Justice Lodha asked him to elaborate on this point on August 13 when arguments will continue.