Kerala contended before the Supreme Court on Tuesday that the Mullaperiyar agreement was legally unsustainable following the passing of Kerala Irrigation and Water Conservation Act, 2003 by Kerala. The law enacted by the state to prevent Tamil Nadu from raising the water level from 136 ft. to 142 ft was also stated before the five-member Constitution Bench.
Senior counsel Harish Salve, appearing for Kerala argued that Section 30 of the 2003 Act had explicitly taken away Tamil Nadu's rights over Mullaperiyar dam. "The agreement was signed as a lease deed executed between the Government of the Maharaja of Travancore and Secretary of State for India on October 29, 1886," said the counsel.
“It is Kerala’s case that the impugned law that relates primarily to the modification of contractual rights under an agreement, created prior to the commencement of the Constitution restricts the rights to use territory within the State of Kerala and a dam constructed within the State of Kerala would clearly be within the province of Kerala’s legislature. This would be so even if it is held that the river is an inter-State river. The legislature of the State would always have the competence to enact laws dealing with the construction of a dam or the operation and maintenance of water storage, reservoirs and the like within its territory," said Salve.
“By enacting the Amendment Act of 2006 and fixing the storage level of Mullaperiyar Dam at 136ft, Kerala Legislature has not overruled the judgment of this Court but removed the basis of the said judgment by curtailing the legal right to store water above 136 ft which flows from the 1886 agreement. Is that law bad or would mean usurpation of judicial power,” he added.
The counsel maintained that contractual rights could be taken away by a statute.
Salve argued that the parent Act was not considered by the Supreme Court when it issued directives to sanction raising the dam's water level up to 142 feet in 2006. "The judgment is therefore "per incuriam", Salve argued.
The counsel, however, "conceded that there were failures on the part of Kerala in bringing to the SC's notice the full implications of the 2003 Act."
Salve also argued that all rights, "except Constitutional rights, can be regulated by the legislature. Safety of the dam is a matter of regulation. In my state, I will regulate heights of dams in my territory," the counsel argued.
He said there was "no usurpation of judicial power by amendment act 2006 as argued by Tamil Nadu, as the legal right to that state had already been taken away by 2003 Act."
Salve also contested claims of Periyar being an inter-state river. "Periyar is an intra- state river since no part of it flows through Tamil Nadu; it originates in Kerala, flows entirely through Kerala and joins the Arabian Sea in the state. This has been admitted by Tamil Nadu. Just because 2% of Periyar's catchment area falls under Tamil Nadu, that state cannot claim any interstate right on the river. Only a valley falls under Tamil Nadu, and the Constitution gives explicit differentiation between river and valley," the counsel argued.