'Union Can't Usurp the Powers Of State Governments': Plea Before Madras High Court Challenging The Vires Of Dam Safety Act

On Senior Advocate P. Wilson's request to list the matter urgently, Madras High Court has posted the plea challenging the vires of the recently enacted Dam Safety Act, 2021 on January 10.

The public interest litigation preferred by DMK MP from Mayiladuthurai, S. Ramalingam, was mentioned before the bench on Tuesday. Thereafter, the first bench of Acting Chief Justice Munishwar Nath Bhandari and Justice P.D Audikesavalu has decided to hear the matter after the senior counsel submitted that the Union Government was encroaching into state's domain by enacting the legislation.

The impugned Dam Safety Act was notified in the Gazette on 14th December. The primary contention of the petitioner is that the Parliament lacks the legislative competence for enacting the legislation. Terming the impugned Act as 'non-est in law' and 'void ab initio' for blatant violations of Articles 14, 19 and 21 of the Indian Constitution, the petition also mentions the other grounds under which the challenge will be sustained.

The impugned Act that allows the Union Government to control the 'specified dams'  usurps the powers of the state government and disturbs the federal structure, submits the petitioner. Noting that dams across the state are instrumental in agriculture, drinking water, electricity, cotton production, fisheries business etc., the petition notes that the Act violates the right to existence and right to livelihood of the people of Tamil Nadu. Stripping the state's powers to monitor and take action in matters pertaining to dams, the Central Government is also endangering the lives of the people, contends the petitioner.

The petition primarily alleges that the impugned Act is incongruent with Entry 17 of the State List (List-II) under the 7th Schedule of the Constitution. Under Entry 17, States have the authority to make laws on "Water, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of List I".

Entry 56 of List I, the only exception mentioned in Entry 17 of List II, pertains to 'Regulation and development of inter-State rivers and river valleys...'. The petitioner also submits that Entry 18 and Entry 35 from List II are also in favour of the state government as far as the operation of dams are concerned. The petitioner argued that a conjoint reading of the four entries would reveal that State has the exclusive power with respect to dams, embankments and other kinds of water storage units or with respect to works, land and buildings vested in or in the possession of the State including the rights over the land. The Parliament cannot stretch Entry 56 to include dams and embankments exclusively within the control of the State. Most of the dams situated in Tamil Nadu are not even built on inter-state rivers, the petitioner adds.

"Power over the subject "interstate river and river valley" cannot be confused with the control over the Storage Units viz Dams, when a more specific entry is available in entry 17 of List II", the petition states.

Through the Act, the Union Government attempts to control the water storage structure, i.e, dams and Section 2 of the impugned Act reveals that the Union was not exercising its powers under Entry 56 of List 1, the petition further contends.

Interestingly, another contention of the petitioner is that Section 4(e) is couched in the widest term so as to encompass all Dams even though the regulation relates to "Specified Dams" defined under Section 4(x). According to the petitioner, the provisions of the Act suffers from the vice of legislative incompetence when read with Article 246(3) of the Constitution.

Evoking the doctrines of 'Pith and Substance' as well as 'Lifting the Veil', the petitioner argues that the Union usurps Stat's powers under the guise of 'Dam Safety'.

"...Impugned Act does not deal with inter-state rivers or river valleys, rather the entire pith and substance of the Impugned Legislation is the control and administration of the Dam i.e. the building along with the land upon which it is built and operation of the Dam", adds the petitioner.

Referring to K.C Gajapati Narayan Deo vs State of Orissa, 1953 AIR SC 375, the petitioner also adds that the legislation is hit by the doctrine of colourable legislation.

The petitioner also expresses reservations about the terminologies used in Section 4(x) of the Act which allegedly allows the Union to treat any Dam in India as 'specified dams'. It also adds that the classification of 'specified dams' on the basis of height is arbitrary, and does not meet the requirements of intelligible differentia or reasonable relation to the object sought to be achieved.

National Committee on Dam Safety and National Dam Safety Authority constituted according to Section 5 r/w Schedule I and Section 8 r/w Schedule II does not provide for proportional representation of representatives of State Governments, contends the petitioner. Moreover, while resolving disputes between State Dam Safety Authorities in relation to a 'specified dam' owned by another state, the National Dam Safety Authority' automatically becomes 'a judge in its own cause'. There are no remedies prescribed in the Act to enable the State Dam Safety Authorities to file appeals against the decision rendered by National Dam Safety Authority, adds the petitioner. It is also contended that the number of meetings that are held per year by the National Committee on Dam Safety is restricted for no reason.

According to the petitioner, despite being a quasi-judicial body as evident from Section 9 of the Act, the National Dam Safety Authority does not have any judicial members. The petitioner takes the stand that this is contrary to the apex court decision in L. Chandra Kumar v. Union of India, 1997 (3) SCC 261 and Madras Bar Association case, 2020 SCC Online SC 962.

On the above grounds, the petitioner prays for an order of ad-interim stay of the operation of the impugned Dam Safety Act, 2021 and an ad-interim injunction restraining the Respondents from constituting the National Committee on Dam Safety and the National Dam Safety Authority. The petitioner, upon the disposal of the petition, seeks a writ of declaration, declaring the impugned Act as unconstitutional, non-est and void ab initio.