Tamil Nadu scored a major victory over Kerala as it obtained permission from Supreme Court on Wednesday to raise the height of a 116-year-old Mullaperiyar Dam from 136 feet to 142 feet, a move that was opposed by Kerala citing safety concerns of the dam and nearby areas.
This was the second defeat in a row for Kerala as on February 27, 2006 the court permitted Tamil Nadu to raise the dam height and carry out necessary repairs trashing Kerala’s objections on safety.
Nearly a month after the decision, Kerala enacted a law — Kerala Irrigation and Water Conservation (Amendment) Act 2006 fixing the full reservoir level of dam at 136 feet. Tamil Nadu attacked the constitutional validity of this law that got struck down on Wednesday by a five-judge Bench.
The Bench of Chief Justice RM lodha, Justices Hl Dattu, CK Prasad, Madan B luokur and MY Eqbal held the Act to be unconstitutional as it interfered with the judicial process. It said, “The 2006 (Amendment) Act plainly seeks to nullify the judgement of this court (passed on February 27, 2006) which is constitutionally impermissible.”
As per the earlier order, the Bench ordered, “Kerala is restrained by a decree of permanent injunction from applying and enforcing the impugned legislation or in any manner interfering with or obstructing the State of Tamil Nadu from increasing the water level to 142 feet and from carrying out the repair works.”
The court noted that while passing the previous judgement, “this court has found — supported by the Expert Committee Reports — that the safety of the subject dam is not at all jeopardised if the water level is raised from the present level to 142 ft.”
It also held the action of the State to infringe on separation of powers between judiciary and legislature and held that the Kerala Assembly while passing the legislation in question “usurped” the judicial power, which decided the dispute between two States. Kerala’s request for constructing a new dam was also rejected as it did not meet Tamil Nadu’s approval.
On the safety concerns of the dam, the bench was fully satisfied that the dam was safe after an Expert Committee submitted its report assuring safety of dam from all aspects — hydrological, structural and seismic safety. Although Kerala’s representative was part of the committee, the State objected to it’s findings on the ground that its representative participated as a mere observer. Further, it observed no change in circumstances since its earlier order of 2006. However, the court’s decision would enable TN to divert more water for its agricultural fields.