Giving a huge victory to Tamil Nadu and heartache to Kerala, the Supreme Court struck down a Kerala law and permitted the Jayalalithaa government to raise water level in the 120-year-old Mullaperiyar dam to 142 feet and also carry out repair work.
The court had on February 27, 2006, allowed Tamil Nadu to raise water level in the masonry dam to 142 feet after it was termed safe by experts who conducted scientific tests. But the Kerala assembly enacted the Kerala Irrigation and Water Conservation (Amendment) Act, 2006, limiting the full reservoir level to 136 feet while commissioning studies to ascertain the dam’s safety. The court struck down this legislation, saying it breached established constitutional limitation — separation of powers.
A constitution bench, comprising Chief Justice R M Lodha and Justice H L Dattu, Justice C K Prasad, Justice Madan B Lokur and Justice M Y Eqbal, said this law was an attempt by the Kerala assembly to overreach the 2006 judgment, which allowed increasing the water level to 142 feet.
The court said it was not open for Kerala to take the legislation route citing ‘public trust doctrine’ and ‘precautionary measure’ to “do an act in conflict with the judgment of the highest court which has attained finality. It is too much for Kerala to say that the 2006 judgment is without jurisdiction and not binding.”
“Consequently, it is declared that Kerala Irrigation and Water Conservation (Amendment) Act, 2006, is unconstitutional in its application to and effect on Mullaperiyar dam. 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 Tamil Nadu from increasing water level to 142 feet and from carrying out repair works as per the court’s 2006 judgment,” it ruled.
To allay Kerala’s apprehensions, the court constituted a three-member supervisory committee, comprising representatives from the Central Water Commission, Tamil Nadu and Kerala, and asked it to supervise increase in water level to 142 feet.
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