The Supreme Court on Wednesday rejected an application filed by Kerala to place on record the report of the Department of Earthquake Engineering, Indian Institute of Technology, Roorkee, that “both the main Mullaperiyar dam and the baby dam are likely to undergo damage which may lead to failure under static plus earthquake condition and therefore needs serious attention.”
A three-judge Bench of Justice D.K. Jain, Justice Mukundakam Sharma and Justice R.M. Lodha refused to entertain the application saying that no fresh material could be taken on record during the course of proceedings.
Soon after Kerala’s counsel Mohan Katarki began his submissions, Justice Jain asked “tell us what was the material before the Legislature to pass a law within 15 days of this court passing the judgment {on February 27, 2006}.When counsel said fresh materials on safety came to light, Justice Jain said “these materials were considered by this court in the judgment. There was no fresh material before the Legislature. Tell us if you have a report on dam safety on which you acted after the judgment. Where is the report, who has given it? Is it part of the record?” When counsel said there was no fresh report during this period, Mr. Justice Jain said “we take it that there was no material on record for bringing the legislation.”
Senior counsel Rajeev Dhavan, who is also appearing for Kerala on legal issues, intervened and said “it is settled law that courts will not attribute any mala fides to the Legislature. If the State Legislature in its wisdom had passed a law court will not look into the fact whether there was relevant consideration or not.” Mr. Katarki referred to the Statement of Objects and Reasons in the legislation and said though fresh materials on safety were there, the judgment gave a sense of urgency in formulating a procedure to fix the storage level of all dams including Mullaperiyar dam. Pointing out the expert evidence, he said it would be hydrologically unsafe to raise the water level beyond 155 ft. If the probable maximum flood level was taken into consideration, increasing the level beyond 136 ft would endanger the safety of the dam as there was the possibility of the water level touching up to 161 ft which would remain for at least 10 hours and it would result in disastrous consequences. When counsel stressed on safety aspect, Justice Jain asked the counsel “is it your case that only the State of Kerala is concerned about the safety of the people and neither the Supreme Court nor Tamil Nadu is concerned about safety of the people? You have not been able to demonstrate anything on facts.” Arguments will continue on Thursday.
