Kerala v. Tamil Nadu: Supreme Court Stays NGT Proceedings Against Kerala's Check Dam Construction In Border Village

The Supreme Court yesterday stayed proceedings in a case before the National Green Tribunal, Chennai pertaining to construction of a 'check dam' by the Kerala government, which is alleged to have a potential impact on irrigation in Tamil Nadu.

A bench of CJI Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi passed the order, after hearing Senior Advocate Jaideep Gupta (for Kerala government). Notice has been issued to the State of Tamil Nadu.

The petition is filed by the Kerala government, stating that on 24.05.2024, NGT Chennai took suo motu cognizance of a news report, which alleged that Kerala government is constructing a check dam across the Silandhiyar stream, a tributary of the Amaravathi River, which could potentially affect irrigation in Tamil Nadu.

In this case, Kerala government filed a response stating that the construction of the check-dam was part of Jal Jeevan Mission, a project intended to provide drinking water to households in Vattavada Panchayat, which borders Tamil Nadu. The dam construction in this village in Idukki District is stated to be done to address the acute water shortage.

However, the NGT asked the parties to resolve the issues amicably, in terms of an order of the Cavery Water Dispute Tribunal. The parties met and held discussions, which were placed before the NGT. But the NGT observed that there was non-compliance with its directions and called for further documents from the parties.

One of these orders specifically directed the Kerala government to ensure that all required approvals for the construction of the check dam were in place. If not, the project was to be put on hold till the time all requisite approvals were obtained.

Aggrieved by the developments during these proceedings, the Kerala government approached the Supreme Court.

The primary contention of Kerala government is that in view of Article 262 of the Constitution and Section 6A read with Section 11 of Inter-State River Water Disputes Act, 1956, the NGT could not have entertained an inter-state water dispute before it.

It highlights that pursuant to the 2018 Supreme Court judgment in State of Karnataka v. State of Tamil Nadu, the Cauvery Water Dispute Tribunal was constituted by the Central government, which has given an award covering the present dispute.

Further, it is claimed that the JJM project is only a small weir for water extraction, not a dam, and it falls within the water allocation granted to Kerala in the Pambar sub-basin - a tributary of the Cauvery River.

The Kerala government also argues that the NGT failed to note that the subject issue does not amount to a "substantial question relating to environment" in terms of Section 2(1)(m) of the NGT Act. Such substantial question must arise out of the implementation of any of the enactment/enactments specified in Schedule I, and to raise the substantial question, the application should specifically allege the violation of particular enactment in Schedule I of the NGT Act, the government contends.

"the present dispute had already been adjudicated upon by the Cauvery Water Disputes Tribunal constituted under the Inter-State River Water Disputes Act and the award of the same had attained finality after modification and affirmation by this Hon'ble Court vide judgement dated 16.02.2018 in the case of State of Karnataka through the Chief Secretary vs State of Tamil Nadu by its Chief Secretary & Ors (2018) 4 SCC 1, which governs the allocation of Cauvery waters among the basin States including the allocation pertaining to the Pambar sub-basin and the share of the State of Kerala", the plea states.

Senior Advocate Jaideep Gupta and Standing Counsel Nishe Rajen Shonker appered for the State of Kerala.

Case Title: THE CHIEF SECRETARY TO GOVERNMENT OF KERALA AND ORS. Versus TAMIL NADU WATER RESOURCES ORGANIZATION AND ORS., Diary No. 18144-2026