Dam Safety Act Does Not Alter Existing Ownership & Water Rights Of States: Centre Tells Madras High Court

In the plea challenging vires of the Dam Safety Act, the Central Government has filed a counter-affidavit before the Madras High Court, claiming that the 2021 legislation does not seek to alter the existing ownership and water rights of the states. The law is merely intended to create a mechanism for proper surveillance, inspection, operation and maintenance of Dams.

"The Dam Safety Act, 2021 does not alter any existing arrangements with regard to dam ownership, operation and maintenance (O&M), project benefits and water rights of Tamil Nadu. Hence stated apprehensions are unfounded," the reply filed by the Deputy Commissioner in the Department of Water Resources states.

The writ petition was filed by DMK MP S. Ramalingam from Mayiladuthurai, stating that the Parliament lacks the legislative competence to enact the impugned legislation since 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".

Defending the Act, the Central government has claimed that most of the Dams in the country are across interstate rivers and states can't legislate beyond their territories. Thus, it is imperative for the Central government to exercise its prerogative in the national interest and legislate on the subject of dam. 

The affidavit mentions that the Bill was drafted by exercising the power conferred under Article 246 read with Entry 56 and Entry 97 of List I of the Constitution's Seventh Schedule. Since 'Dam Safety' has not been mentioned in Lists II and III, Entry 97 of List I grants the Parliament power to legislate on any other matter including 'Dam Safety' not enumerated in Lists II and III, asserted the Commissioner.

It was also submitted that Entry 17 of List II does not place an embargo on the Parliament to legislate on 'Dam Safety'. The Centre submitted that Entry 17 is subject to the provisions of Entry 56 in List I which states that parliament can legislate on issues of regulation and development of inter-state rivers and valleys in the public interest.

Accordingly, it is contended that the Union has not intruded into the domain of the state as alleged by the petitioner. Therefore,  the Central government submitted that Parliament has the power to legislate on the issue and Dam Safety Act is not hit by the vice of 'colourable legislation'.

It is further submitted that 227 dams out of the 5,334 large dams in India are more than a century old. The Act caters to the Pan-India interest of Dam Safety since unsafe dams, possible failure and sudden release of water are a threat to humans, flora and fauna, ecology as well as public and private assets.

The Joint Commissioner submitted that the erstwhile Central Dam Safety Organisation and National Committee on Dam Safety (NCDS) mere had an advisory role without any role of enforcement and that they merely provided technical assistance to improve dam safety. On the other hand, the National Dam Safety Authority under the Act will be a regulatory body to implement the guidelines evolved by the National Committee. NCDS will also act as the 'State Dam Safety Authority' for dams of one state falling in the territory of another.

State Dam Safety Organisations are responsible for surveillance, routine inspections, operation and maintenance of all specified dams falling under their jurisdiction and giving directions for comprehensive dam safety evaluation. 

With regards to the compensation for people affected by Dam failures, the Government also informed the High Court that these issues were usually covered by various Central and State Government Enactments. However, the new legislation intends to streamline the damage related compensation through Insurance Coverage that will be explored by the National Committee on Dam Safety [Clause 4 of First Schedule].

The Act also stipulates for representatives of seven states as members of NCDS by rotation. Even if some states are unrepresented in NCDS at a given time, NCDS has the discretion to call the representative of the owner of any specified dams, especially when it's common knowledge that most of the dams are owned by states.

It was also submitted that Central Government will give directions to NCDS under Section 8(4) of the Act only when it is necessary for the interest of comprehensive implementation of the Act and its provisions. Further, the Joint Commissioner submitted that there is no bar under the Act to convene more than two meetings of NCDS in a given year.

National Dam Safety Authority (NDSA) should act as the 'State Dam Safety Organisation' with regards to a specified dam that is extended over two or more states or when a dam is owned by one state and situated in another. The compliance of the safety protocol that must be followed in such a situation will be supervised by the neutral body of NDSA and will help to generate mutual trust between concerned states, submitted the Commissioner.

Offences and Penalties stipulated under the Act are necessary in case of derelictions by the owner/ persons responsible in maintaining the dam safety and the same has been endorsed by the Standing Committee in its observation about the Draft Dam Safety Bill, asserted the respondent.

The finality in decisions taken by the respective authorities under Section 9(3) is required for maintaining uniformity and many powers have been delegated to the state authorities under the Act, the Commissioner remarked in the Counter.

Therefore, the centre has taken the stand that the dam safety institutional setups in the national and the state levels help to standardise dam safety practises and place the onus of dam safety on the dam owner. The Dam Safety Act has been enacted in the public interest for ensuring uniform law and administrative structure for monitoring dams, submitted the Central Government.

The Central Government has also stated in the Counter that there are 118 large dams in Tamil Nadu out of which 80 Dams are under the Water Resources Department of TN and 38 Dams under TANGEDCO.

Background

The impugned Dam Safety Act was notified in the Gazette on 14th December., 2021.

According to the petition filed through Senior Counsel P. Wilson, 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. 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. 

On 11th January, 2022, Madras High Court had sought the response of Centre and granted three weeks time to file the counter affidavit on the matter.

The petitioner 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 is concerned.

The petitioner argues 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.

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.

Case Title: S.Ramalingam v. The Union Of India & Another

Case No: WP/166/2022 (PIL)