03 Feb 2010
NEW DELHI: Senior advocate Harish Salve, appearing for the State of Kerala told the Supreme Court on Tuesday that for 27 years Tamil Nadu did not complain about the water level maintained in the Mullaiperiyar dam.
It was after Janata Party president Subramanian Swamy filed a petition stating that water level should go to 150-feet that the scramble, Salve told a Bench comprising Justices D K Jain, B Sudershan Reddy, Mukundakam Sharma, R M Lodha and Deepak Verma. Salve said Mullaiperiyar river rises and flows in Kerala alone before culminating in the sea and as such Tamil Nadu cannot claim any riparian rights over it.
“A government acts in the best interests of the people. These are classic federal issues. We must assume Tamil Nadu wants water control in the larger public interest,” Salve said.
This case was of seminal importance as it raised some important constitutional issues. One was on the constitutional validity of the 2006 Act passed by Kerala with regard to Mullaiperiyar. Res judicata may not have any role to play in this case, he felt.
The case hinged on two broad heads. a) On the legislative competence, b) Usurpation of judicial power. Earlier Tamil Nadu had the power. Now, I have taken it away by passing of the Act. Where is the usurpation of power? Salve questioned. There was no pleading by Tamil Nadu that it had a natural equitable right to water, Salve added. Just before rising for lunch, the Bench asked Salve as to what would be the effect on irrigation in Tamil Nadu if the existing dam were de-commissioned. “Zero,” he Salve.
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