The Supreme Court today held that 120-year-old Mullaperiyar dam is safe and allowed the Tamil Nadu government to raise the water level to 142 feet and ultimately to 152 feet after completion of strengthening measures on the dam.
In a major setback to the Kerala government which has been fighting a decade-old legal battle with its neighbouring state, a five-judge Constitution Bench headed by Chief Justice R M Lodha struck down a law promulgated by it declaring Mullaperiyar dam as endangered and fixing the water level at 136 feet.
The apex court pulled up the Kerala government for enacting a law which overruled its verdict of 2006 by which it had declared the dam safe and allowed the Tamil Nadu authorities to raise the water level.
"It is declared that the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 passed by the Kerala legislature is unconstitutional in its application to and effect on the Mullaperiyar dam.
"The State of 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," the bench said.
The bench, also comprising justices H L Dattu, C K Prasad, Madan B Lokur and M Y Eqbal, said the earlier judgement of this court given on February 27, 2006 operates as res judicata (a matter that has been adjudicated and not be pursued further) on the issue of the safety of the dam for raising water level to 142 feet and ultimately to 152 feet after completion of further strengthening measures.
Mullaperiyar dam is a masonry dam and was constructed pursuant to the Periyar Lake Lease Agreement of 29.10.1886 across Periyar river. The construction continued for about eight years and was completed in 1895.
The dam is situated in Thekkady District in Kerala and is owned and operated by the government of Tamil Nadu. The length of the main dam is 1200 feet and top of the dam is 155 feet .
The apex court said Kerala Irrigation and Water Conservation (Amendment) Act, 2006 "plainly seeks to nullify the judgement of this court which is constitutionally impermissible".
"In our view, a legislation violating the separation of powers principle cannot be saved by carving out an exception that the legislature has regulated a public right. We think that the act of legislature designed to achieve a legitimate regulatory measure does not grant constitutional immunity to such law enacted in violation of separation of powers principle or in other words, rule of law.
"Once a judicial decision on ascertainment of a particular fact achieves finality, we are afraid the legislature cannot reopen such final judgement directly or indirectly. In such cases, the courts, if brought before them, may reopen such cases in exercise of their own discretion," it said.
The bench said in federal disputes, the legislature (Parliament and state legislatures) cannot be judge in their own cause in the case of any dispute with another state.
"The rule of law which is basic feature of our Constitution forbids the Union and the States from deciding, by law, a dispute between two States or between the Union and one or more States.
"If this was permitted under the Constitution, the Union and the States which have any dispute between them inter se would enact law establishing its claim or right against the other and that would lead to contradictory and irreconcilable laws," it said.
The bench also said that findings of Empowered Committee with elaborate analysis of reports of investigations, tests and studies lead to one and only one conclusion that there is no change in the circumstances necessitating departure from the earlier finding on the safety of Mullaperiyar dam given by this court in the 2006 judgement.
"As a matter of fact, there is no change in circumstances at all much less any drastic change in circumstances or emergent situation justifying the reopening of safety aspect of Mullaperiyar dam which has been determined by this Court in the earlier judgement," the bench said.
As tension between the two states rose in December 2011, a two-member technical team of the apex court-appointed Empowered Committee had visited the site and concluded that recent tremors in that region did not have any impact on the dam and that it was safe.
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