An astute and seasoned statesman he is, DMK President Kalaignar had so far, except giving vent to his disappointment that the actions taken by Jayalalitha led ADMK regime on Mullaiperiyar dam issue, not made any harsh criticism about the callous manner in which the sensitive issue is being handled by the State government, lest the chink in the armour of Tamil Nadu will be taken advantage by the political leaders of the neighbouring state. But as is her wont, Jayalalitha announced holding the meeting of the Assembly on December 15, the day on which the DMK had already announced holding of a mammoth human chain protest parade in the districts of Madurai, Dingidul, Theni, Sivagangai and Ramanathapuram, irrigation areas of the dam. Still, Kalaignar was magnanimous in preponing the action programme by a day on Dec.14, without politicizing the issue.
Speaking to newspersons immediately after the meeting of the Party’s Executive Committee on Dec.9, Kalaignar had said that the actions of Kerala government should be continuously monitored. If this is an alert and shrewd regime it would have taken a cue of Kalaignar’s statement at least, even if they had not been watchful of the steps taken in the neighbouring state. But alas! They didn’t!
On Dec.9, the Kerala Assembly met and adopted a resolution for constructing a new dam and also for reducing the water level of the dam from the existing 136 feet to 120 feet. But even before adopting the resolution, the Kerala government on December 8 filed an application in the Supreme Court urging the apex court to direct Tamil Nadu to bring down immediately the water level to 120 feet, and that, if the State declines to do so, the dam safety authority in Kerala should be given permission for the same.
Had the ADMK government and its battery of lawyers and the Advocate General were alert enough, they should have instantly filed an intervening application to counter Kerala’s prayer in the Supreme Court. But they did not till the eleventh hour on December 12, when the Supreme Court was to hear on Dec.13 the application filed by Kerala to reduce the level in the dam from 136 feet to 120 feet along with the applications filed by Tamil Nadu for deployment of Central Industrial Security Forces (CISF) for the protection of the dam and to restrain Kerala ministers and officials from making provocative statements. The failure of the Tamil Nadu side in not countering the plea of Kerala was wrought with the risk of Kerala’s plea being entertained uncontested, and ex-parte order passed in favour of Kerala.
However, the ever-alert and vigilant DMK in protecting the interests of Tamil Nadu and its people, could not and did not remain complacent to a potential threat to the dam due to laxity of the State government in not contesting Kerala’s application before the Supreme Court pleading for the reduction of water level in the dam. On December 12, DMK General Secretary Prof. K.Anbazhagan filed an intervening application in the court contesting Kerala’s application.
DMK’s application stated:
The applicant is the Intervener filing the application seeking indulgence of this Court for permitting to intervene in the Application filed by the State of Kerala for urgent direction to lower the storage level at Mullai Periyar Dam from 136 ft. to 120 ft.
The Intervener the DMK party is a recognized political party which was a ruling party in the State of Tamil Nadu from May 2006 to May 2011 which diligently pursued the original Suit. In this application the party is represented by its General Secretary. The Applicant is not only a proper party but also a necessary party for the effective adjudication of the issues involved in the Application filed by the State of Kerala. It is deeply interested in the welfare and wellbeing of nearly 80 million people of the state of Tamil Nadu.
This Court vide Judgment dated 27.02.2006 disposed of the Writ Petition by permitting the storage level of Mullai Periyar Dam to be raised to 142 feet and eventually to 152 feet. Therefore, as per the Judgment of this Court dated 27.02.2006, the height of the dam has become final and binding on the State of Kerala and Tamil Nadu.
In the meantime, the Government of Kerala, in order to circumvent the implementation of the judgment of this Court, passed the Kerala Amendment Act. Consequently an Original Suit was filed by the State of Tamil Nadu against the State of Kerala before this Court. The relief sought for in the suit was a declaration that the Amendment Act passed by the Kerala State Legislature be declared ultra vires in its application to the Mullai Periyar Dam covered by the Inter State Agreement of 1886 and for permitting the state of Tamil Nadu to raise the storage level of the Dam in accordance with the judgment of this Court dated 27.02.2006. It is submitted that the above Original Suit was filed under Article 131 of Constitution of India. The said suit is still pending.
In one of the interlocutory applications filed in the said Original Suit, this Court constituted an Empowered Committee under the chairmanship of the former Chief Justice of India, Justice Dr.A.S.Anand with Justice K.A.Thomas and Justice A.R.Lakshmanan, former Judges of the Supreme Court as representatives of the Government of Kerala and Tamil Nadu respectively, apart from two other members. The Empowered Committee constituted by this Court visited the Dam sites, discussed with various officials and report to this Court by February 2012.
That it is submitted that the Government of Kerala had systematically and deliberately created fear psychosis and unfounded fears in the minds of people of Kerala regarding the safety of the Mullaiperiyar Dam leading to law and order problem. The normal life in the border Districts of Tamil Nadu and Kerala had been seriously affected and greatly suffered by breach of public tranquility, wide spread agitation and disruption of transport.
The failure of the Government of Kerala in not allaying the apprehension of the people of Kerala further aggravated the problem. On the other hand the Kerala State Legislature has passed a resolution on 09.12.2011 seeking appropriate action to reduce height of the water level in the Mullaiperiyar Dam from existing 136 feet to 120 feet after filing the present application. In the light of the Judgment of this Court permitting the raising of storage level of the Mullaiperiyar Dam from the existing 136 to 142 feet, the resolution of the Kerala State Legislature is inappropriate apart from offending the Rule of Law and Doctrine of Separation of Powers. The application filed the State of Kerala seeking direction from this Court for the reduction of storage level from 136 feet to 120 feet is without any justification whatsoever. It is pertinent to point that the Kerala Legislative Assembly earlier passed a legislation, being Kerala Amendment Act 2006 to maintain the storage level of the Dam at 136 feet. Now the Kerala Legislative Assembly wants reduction of storage level to 120 ft. This Court may be pleased to take note of this dichotomy and the ambivalent stand taken by the State of Kerala.
It is submitted that the storage level of Mullaiperiyar Dam needs to be raised from the existing 136 feet to 142 feet and the order of this Court dated 27.02.2006 requires be implemented immediately pending the disposal of the Original Suit, so as to restore the rule of law and normalcy in both of States. In this connection, it is submitted that the Judgment dated 27.02.2006 was delivered by this Court after appropriate consideration the relevant report of the committee of experts. The present Empowered Committee constituted by this Court is likely to submit its report by February 2012. While so, there is absolutely no rhyme or reason nor any legal justification for the State of Kerala to seek a direction to reduce the height of the storage level of the Mullaiperiyar Dam from 136 feet to 120 feet. The apprehension regarding the safety of the Dam is unsupported by any expert report or other acceptable materials.
That it is submitted that Applicant/Intervener is a major political party which was ruling party of state of Tamil Nadu for five terms headed by a senior statesman and an octogenarian who had been pursuing the issues concerning the people of Tamil Nadu for several decades. The applicant is not only a proper party and also a necessary party for the effective adjudication of the issues involved in the Application filed by the State of Kerala. Further, the Intervener is filing the present application with a view to bring the facts to the knowledge of this Court so that appropriate orders could be passed by this Court to render justice. It is in the interest of justice that the Intervener is allowed to intervene in the Application filed by the State of Kerala.
It is therefore, most respectfully prayed that this court may be pleased to :
v permit the Applicant/Intervenor to intervene in the Application filed by the State of Kerala ; and
v dismiss the said Application filed by State of Kerala ;and
v Pass any further order or orders as this Court may deem just and proper in the facts and circumstances of the present case.”
When the Supreme Court Bench on Dec.13 took up the two applications of Tamil Nadu and one of Kerala, it was the intervening application of the DMK that prevailed over the demand of Kerala’s plea for reduction of water-level to 120 ft in the dam.
“There is nothing serious, grave or emergent about the safety of the Mullaperiyar dam warranting our interference at this stage”, the Supreme Court observed.
“The Empowered Committee, headed by the former Chief Justice of India, A.S. Anand, was looking into all aspects regarding the safety of the dam and no order was required at this stage”, observed a five-judge Constitution Bench comprising Justices D.K. Jain, R.M. Lodha, C.K. Prasad, Deepak Verma and Anil R. Dave.
The Bench was hearing applications filed by Kerala, to reduce the water level in the dam from 136 ft to 120 ft, and Tamil Nadu for deployment of CISF for protection of the dam and to pass an order to restrain Kerala Ministers and officials from making statements creating fear psychosis among the people about the safety of the dam and the DMK’s intervention application praying for the dismissal of Kerala’s application.
While dismissing as not pressed Kerala's application, Justice Jain told senior counsel P.P. Rao, appearing for Kerala: “The whole gamut of the controversy is before the empowered committee. The fact that the committee has decided to inspect the dam shows it is seized of the matter.”
Justice Lodha supplemented Justice Jain saying “if the situation is so grave and serious, the committee would have sought our intervention and sought an order from us. It shows that the situation at the ground level is not that grave as projected by you [Kerala].There is nothing serious or grave which requires modification in the order. Let the committee go into all aspects and submit its report to the court. We will not pass any order or give any direction now.”
While the ADMK regime failed to file an application to counter Kerala’s plea, it needlessly filed the other one to restrain Kerala ministers and officials from making statements creating fear psychosis among the people and had to save face by offering to withdraw it along with Kerala withdrawing its application, to avoid dismissals.
All newspapers, both English and Tamil, have systematically covered up the fact that it was on the strength of the application of the DMK that the Supreme Court forced Kerala to withdraw its application for lowering the water level of the dam. Although they are not prepared to acknowledge, truth is truth that the DMK had once again established that it is the only political movement in Tamil Nadu that is “deeply interested in the welfare and wellbeing of nearly 80 million people of the state of Tamil Nadu”, “headed by a senior statesman and an octogenarian who had been pursuing the issues concerning the people of Tamil Nadu for several decades!” Mæu« iffŸ kiw¤J ã‹whY« Mjt‹ kiwtšiy’, which means ‘if one thousand hands are raised to cover up, the Sun does not eclipse’!
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