Senior counsel Harish Salve, appearing for the State of Kerala in the Mullaperiyar Dam case, told the Supreme Court on Tuesday that the 1886 agreement on the dam was imposed on the Maharaja of Travancore by the British.
To this, Justice R M Lodha said, “We’ve to see whether the 1886 lease survives or not.”
The Supreme Court asked Salve, “If an adjudication is made by a court that water level can be stored up to 142 feet, can the legislature say that the dam is safe at 136 feet?”
To this, Salve told the five-judge Constitution Bench comprising Justice Lodha, Justice H L Dattu, Justice Chandramauli Kr Prasad, Justice Madan B Lokur and Justice M Y Eqbal, “It is always open to the State to say my law is okay. If the Supreme Court gets it wrong, what do you do? You re-enact. There is no question of res judicata.”
“I am saying there is a legislative declaration that the dam is unsafe. Your Lordships have the 2003 and the 2006 Acts. If the law of 2006 is valid, nobody is allowed to transgress and raise the water level beyond 136 feet. I take away their legal right to raise the water level in the Mullaperiyar dam up to 142 feet,” Salve added.
To this, Justice Lodha pointed out that senior counsel Vinod Bobde, who appeared for the state of Tamil Nadu, said that the legal right of Tamil Nadu was crystalised from the 2006 judgment.
“Can’t the legislature undo the crystalised right?” asked Salve. “The renewing of the agreement in the year 1970 was a mistake made by the Executive. Even if this was validated, the legislature has the power to nullify it,” Salve said.