Contending that the Mullaperiyar water dispute is an inter-State water dispute that cannot be resolved by the Supreme Court, Kerala on Thursday suggested that the Centre could be asked to constitute a tribunal to adjudicate the issue as it has wider ramifications.
Senior counsel Harish Salve, appearing for Kerala, made this submission before a five-judge Constitution Bench comprising Justices D.K. Jain, B. Sudershan Reddy, Mukundakam Sharma, R.M. Lodha and Deepak Verma, hearing the Tamil Nadu’s suit questioning the Kerala’s law preventing raising the water level in the Mullaperiyar dam beyond 136 ft.
Justice Lodha told counsel, “This court has already adjudicated that it is not a water dispute, which concerns only about the safety of the dam and has decided that the water level could go up to 142 ft. They [Tamil Nadu] want only the implementation of this order. How can you say it is a water dispute?”
Senior counsel K. Parasaran told the court that it was not an inter-State water dispute. Therefore, the question of referring it to a tribunal would not arise. All the issues had already been gone into by this court, he said, opposing the plea for referring the matter to a tribunal.
Mr. Salve said in the wake of the Supreme court judgment in 2006, there was a question mark over the legal right of Tamil Nadu arising from the terms of the contract.
“I [Kerala] brought a law to have control over water. The law has taken away their right. If Tamil Nadu says it is a simple contract, Kerala has overruled it by a law. The moment Tamil Nadu says the water level should be raised above 136 ft, it becomes a water dispute between the two States and the tribunal is the only solution.”
Justice Jain intervened and said, “May be beyond 142 ft, it could be a water dispute. But up to 142 ft, the dispute has already been decided by this court.” Mr. Salve quoted earlier judgment in the Narmada dam case and asserted that even raising the height of the dam had been construed as a water dispute for adjudication by a tribunal.
He said while the Supreme Court could only validate or invalidate the law, the tribunal would have wider powers even to evolve a mechanism taking a holistic view of the issue.
He said “the tribunal could even say our law is bad and it can’t be enforced.”
Mr. Salve asserted that for about 30 years now the water level in the dam had been maintained at 136 ft and over the years there had been increase in the area of irrigation in Tamil Nadu and generation of power.
When Justice Sharma wanted to know from Mr. Salve why the State was opposing raising the level up to 142 ft if the State was keen on de-commissioning the dam, Mr. Salve said, “As long as the dam remains the level will be kept only at 136 ft. If they [Tamil Nadu] insist on enforcement of contract as per the lease agreement, we [Kerala] are saying your right has been taken away by our law. Lease doesn’t give them water; it gives them only land and dam. I will divert the water from the dam to the Idukki reservoir, what will you do? I know it suffers from constitutional morality, but that is a reality if you take a narrow view.”
Arguments will continue on February 16.