Kerala on Tuesday informed that the Mullaperiyar river originates and flows within its limits and hence there was no question of any other State having riparian right over it.
Senior counsel Harish Salve, appearing for Kerala, told a five-judge Constitution Bench comprising Justices R M Lodha, H L Dattu, Chandramauli Kr Prasad, Madan B Lokur and M Y Eqbal, that a river may be intra-State, but river valley could be inter-State, he said referring to the Mullaiperiyar dam.
At this, Justice Lodha asked senior counsel Vinod Bobde, appearing for Tamil Nadu, “What is your stand?” Bobde said, “My legal right emanates from the 1886 agreement. This law (the legislation enacted by Kerala in 2006 after the apex court judgment) affects water outside the State. Therefore, it is extra territorial,” he said.
To this, Salve replied, “If someone in Delhi makes an arrangement for the supply of water from Uttar Pradesh, cannot the latter stop the supply if it finds it has shortage? My law operates on my river and in my State.”
On usurpation of judicial power, Salve said that the contention that the impugned Act of 2006 constituted usurpation of judicial power was constitutionally infirm. Its enactment amounted to legislative usurpation of judicial power was untenable.
The 2003 Act, which was in place when the judgment was delivered, provides that notwithstanding any contractual or customary right to receive any water, water in respect of “all waters courses and all water in such water courses” shall be the property of the government, Salve read out from a note prepared.
When the court decides a matter and the legislature finds that the judgment is per incuriam (through lack of care, a judgment of a court which had been decided without reference to a statutory provision), the only remedy would be by way of further appropriate legislation, Salve stated.
Chapter XII of the 2003 Act established a “Dam Safety Authority” (DSA) and Section 62 mentioned that its authority was to arrange for the safety evaluation of all dams in the State and to advise the government to suspend any dam, if public safety so demands. Sub Section (3) of Section 62 empowered the government to issue appropriate directions based on advice received from the DSA. The implications of this provision were also not considered in the judgment of the SC. The purport of the Amendment Act, 2006, is to substitute Section 62 whereby, notwithstanding any decree of any court, and notwithstanding anything contained “in any treaty, contract, instrument or other document…”, the function of evaluation of safety of a dam and the power to issue directions to the custodian of any dam are conferred upon the DSA.
It was indisputable that TN would be a custodian within the meaning of the expression as defined in Section 2(j)(a) of the Act, Salve added.