Senior counsel Vinod Bobde, appearing for Tamil Nadu on Thursday told the apex court that the suit over the Mullaiperiyar dam did not arise out of the agreement of 1886, but concerned the validity of the Kerala Amendment Act of 2006 fixing the storage level in the dam at 136 feet.
Appearing before a five-judge Constitution Bench comprising Justice R M Lodha, Justice H L Dattu, Justice Chandramauli Kr Prasad, Justice Madan B Lokur and Justice M Y Eqbal, Bobde said that the bar under Article 363 did not apply to the case in hand. Article 363 says that the SC or any other court does not have jurisdiction in any dispute arising out of any provision of a treaty, agreement, that was entered into before the commencement of the Constitution by any ruler of an Indian State and to which the Government of the Dominion of India was a party.
Bobde said that this Article excluded only political agreements and did not apply to contracts of common concern. “Kerala has no legislative competence to affect waters outside Kerala,” Bobde said.
To this, Justice Lodha said, “Your argument is that Mullaiperiyar is an inter-State river. But there is no decision whether it is inter-State or intra-State.”
Bobde replied,“Assuming for a moment it is an inter-State river, can one State make a law affecting waters flowing into another State? This court had said that law cannot affect water going into another State.”
Justice Lodha said, “You have to show that the law (Kerala Act) affects you. How does it affect you if water level is maintained at 136 feet or at 142 feet?”
“Documents of Kerala themselves show that it is an inter-State river. Both the States had agreed that it is an inter-State river. It is an admission of fact. There is no finding on this because both the parties agreed on this. It is the constitutionality of the law (that I am questioning). You cannot be a judge in your own case. Much more so, when there is a Crown agreement,” Bobde said.
“There need not be an agreement. Water sharing will not be affected by the re-organisation of the States. Otherwise, it will be a breakdown. If one State is free to do so, then all States will do the same. Then the constitutional scheme breaks down,” counsel added.
“We are talking of people becoming lawless. What about the States?” wondered Bobde.
At this, Justice Lodha said, “You comment about other States. Not about your State.”
“About my State (that he is representing) it is hypothetical. My dam is absolutely safe. A new dam only if my dam is unsafe. I will build a new dam. There is no question of Kerala building it,” Bobde said.