The Supreme Court on Wednesday reserved verdict on the suit filed by Tamil Nadu questioning the law passed by Kerala in 2006, constituting the Dam Safety Authority to prevent the State from raising the water level in the Mullaperiyar dam from 136 ft to 142 ft.
A five-Judge Constitution Bench of Justices R.M. Lodha, H.L. Dattu, C.K. Prasad, Madan B. Lokur and M.Y. Eqbal, reserved verdict at the conclusion of arguments from senior counsel Vinod Bobde, appearing for Tamil Nadu, and senior counsel Harish Salve and senior counsel Rajeev Dhavan for Kerala.
Tamil Nadu filed the suit in 2006 soon after the law was enacted within a few days of the pronouncement of the judgment. The Bench in 2010 had appointed an empowered committee headed by former Chief Justice of India A.S. Anand to go into the safety aspects and a report was submitted in April 2012. The hearing began on July 23.
When Mr. Bobde commenced his arguments, the Bench asked him to explain how Tamil Nadu became a lessee when the original agreement of 1886 was entered into between the then Government of India and the princely State of Travancore.
Mr. Bobde traced the genesis of the establishment of the Madras Presidency in 1784 by the Pitt’s Act. Counsel said at that time the Madras Presidency consisted of the Governor and Councillors of whom the Commander-in-Chief of the Presidency was to be one.
He said the 1886 Agreement was entered into between the Secretary of State in Council and the Maharaja of Travancore.
The Secretary of State was empowered to enter into contracts under the Government of India Act, 1858 and the Governor in Council at Fort St George acted for and on behalf of the Secretary of State by reason of the authority vested in him.
Mr. Bobde said the Government of India Act 1919 did not alter the position prevailing under the 1858 and 1859 Acts with regard to the 1886 Agreement. Then under the Government of India Act of 1935 all contracts entered into by the Secretary of State in Council became a contract for the Madras Province.
He said in view of the Pitt’s Act of 1874, it was clear that there was a Government of Madras in 1886 and by Section 177 of the government of India Act of 1935 the Government of Madras became the lessee. The 1886 Agreement continued under the Standstill Agreement beyond August 15, 1947 and was in force when the Constitution came into force.
On Kerala’s contention that the State of Travancore got extinguished by accession to the Dominion of India, Mr. Bobde asserted that accession of States to the Dominion of India did not extinguish those States as entities. They only became part of the Dominion of India as constituent States, along with provinces of erstwhile British India. He said the purpose of the 1970 supplemental agreement was not to supersede the 1886 agreement by a new agreement, but to merely amend two clauses and to continue the principal agreement.
On the question posed by the Bench as to how Tamil Nadu would be affected by keeping the water level at 136 ft, Mr. Bobde said from 1979 when the level was reduced from 152 ft to 136 ft, people living in the drought- prone districts of Vaigai basin were put to sufferings which could be addressed by raising the level at least up to 142 ft. Further the reduction in storage had affected the generation of hydro-electric power from the water that could be diverted to Tamil Nadu for irrigation.
