Madras High Court Seeks Centre's Response On Plea Challenging Vires Of Dam Safety Act

The bench of Acting Chief Justice Munishwar Nath Bhandari and Justice P.D Audikesavalu has granted three weeks' time to the Union of India, represented by ASG R. Shankaranarayanan, to file its counter affidavit in the matter.

The petition has been filed by DMK MP from Mayiladuthurai, S. Ramalingam, saying that the Centre, through the impugned legislation, usurps the powers of the state government and disturbs the federal structure. The matter was mentioned before the Court by Senior Advocate P. Wilson last week.

Today, the Senior counsel argued that the Parliament lacks the legislative competence for enacting the legislation. He highlighted that Entry 17 in List II under the 7^th Schedule of the Constitution refers to- Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of entry 56 of List I.

Wilson also requested that Centre must refrain from constituting the National Dam Safety Authority and National Committee on Dam Safety proposed under the impugned Act, till the writ petition is disposed of.

When the first bench enquired if such authorities have been already constituted, ASG R. Shankaranarayanan informed the court that it hasn't been done yet. The bench decided not to take a call on that aspect till the counter has been filed.

Background

The impugned Dam Safety Act was notified in the Gazette on 14th December. 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 by DMK MP also mentions the other grounds under which the challenge will be sustained.

The petitioner submits that 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.

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 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.

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

Case No: WP/166/2022 (PIL)

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