2022 S. Ramalingam S/o S. Sellaperumal Member of Parliament, Lok Sabha (DMK Party), Mayiladuthurai Constituency 135, East Street, Srinavsanallur, Thirungehswaram Post, Kumbakonam Taluka, Thanjavur Dist. Tamil Nadu …Petitioner Vs 1. The Union of India, Rep. by its Secretary to Government

IN THE HIGH COURT OF JUDUCATURE AT MADRAS
(Special Original Jurisdiction)

W.P. No. of 2022

S. Ramalingam
S/o S. Sellaperumal
Member of Parliament, Lok Sabha (DMK Party),
Mayiladuthurai Constituency
135, East Street,
Srinavsanallur, Thirungehswaram Post,
Kumbakonam Taluka,
Thanjavur Dist. Tamil Nadu
…Petitioner
Vs
1. The Union of India,
Rep. by its Secretary to Government,
Ministry of Law and Justice,
Room No.422, A Wing,
Shastri Bhawan, New Delhi 110 001

2. The Secretary to Government,
Government of India,
Ministry of Jal Shakti,
Department of Water Resources,
River Development and Ganga Rejuvenation
6th Floor Cabin, Shram Shakti Bhawan,
Rafi Marg, New Delhi 110001
…Respondents

AFFIDAVIT OF S. RAMALINGAM
I, S. Ramalingam, S/o S. Sellaperumal, Hindu, aged 77 years, residing at 135, East Street, Srinivasallur, Thirunagehswaram, Thanjavur District, having temporarily come down to Chennai, do hereby solemnly affirm and sincerely state as follows:

1. I am the petitioner herein and I am filing the present Writ Petition in the public interest and as such I am well acquainted with the facts and circumstances of the case from personal knowledge and based on records.
2. I state that I am a member of “Dravida Munnetra Kazhagam” Political Party. Right from its founding, the party has fought to preserve the principles of co-operative federalism enshrined in the Constitution of India. Whenever there has been a threat to the distribution of powers between the Union and the States, as envisaged under the Constitution, the party has stood first to resist it. From the leadership of Perarignar Anna, to Dr. Kalaignar M. Karunanidhi to the present President and Hon’ble Chief Minister of State of Tamil Nadu Thiru. Muthuvel Karunanidhi Stalin, the party has fought tooth and nail to protect the rights of States and assert their autonomy as granted by the Constitution. I contested the 2019 Loksabha Elections from Mayiladuthurai Constituency as a candidate of the “Dravida Munnetra Kazhagam” and emerged victorious in the said Elections and was sworn in as a Member of Parliament.
3. I humbly submit that I am filing this writ petition praying for a Writ of Declaration declaring that The Dam Safety Act, 2021 (Act No. 41 of 2021) which was notified in the Gazette of India on 14.12.2021 hereinafter referred to as the “Impugned Act” is ultra vires the Constitution of India. The grounds of challenge are inter alia lack of the legislative competence of the Parliament to legislate the Impugned Act and hence the Act is void ab initio and non est in law, that the impugned Act is manifestly arbitrary and contrary to Article 14, that the Act is contrary to Articles 19 & 21 and that the Act is contrary to the Federal Structure, which is a basic feature of the Constitution.
4. I state that I am an agriculturist and I own 4.96 acres of agriculture lands in S.No. 40/2, Anakudi, Thirunageshwaram, Kumbakonam Taluk, Thanjavur District which is located in the Cauvery Delta Region. The source of water irrigating the agricultural lands in Thanjavur District is from the Cauvery river and also from the water released from the Dams which store rain water. I state that in Tamilnadu many agriculturists depend upon the rains and the rain water stored in the Dams. Major dams operate as a reservoir for storage of rain water received with in Tamilnadu through various catchment areas. The water stored in the dams is not only used for farming, irrigation, hydroelectric purposes but also for drinking purposes.
5. I humbly submit that the impugned Act usurps the power of the State and places the operation of the Specified Dams under the control of the Union through its representatives. Since the impugned Act is affecting the interest of all sections of People in the State of Tamilnadu and their fundamental right of carrying on agriculture activities and right to existence and survival, thereby impinging on Articles 14, 19 and 21 of the Constitution, the above Writ Petition is filed as Public Interest Litigation to safe guard the rights of the people in the State. It is well known fact that majority of the people in Tamilnadu who are dependent on the water released from the Dams covered under the impugned Act, are not in a position to approach this Hon’ble Court due to their economic conditions or due to lack of legal knowledge to safeguard their rights. In fact, more than 2 crore people and beneficiaries in 13 other Districts will be impacted by the Impugned Act. That apart about 34 lakh acres of agriculture lands which are dependent on the water released through Dams will be affected if the impugned Act is implemented. The dams also get filled up and overflow frequently due to rains, cyclones, floods etc. Therefore during such natural calamities immediate decision and action is necessary to protect the life and properties of the people living in and around the dams at the appropriate time. Only the State Governments which are close to the ground can take the necessary steps to prevent the overflow of dam, or the evacuation of people on a war footing, failing which the people will be put in to great danger and risk. In such critical situations, one cannot wait for orders from New Delhi when the situation warrants for immediate action/decision relating to safety of Dams located in Tamilnadu. Every minute and every second is crucial to deal with the Dams overflowing. That is why in their wisdom, the framers of the Constitution left the dams to the control and management of the States. Through the impugned Act, the domain of the State has been intruded into and tinkered with leading to disastrous results. Thus, the right to existence of the people and also their right to livelihood is directly affected by the impugned Act. Hence I am filing this present Public Interest Litigation in my capacity as member of a Public-Spirited Political Party and I have no vested or personal interest in the present lis. I am filing the present writ petition out of my own funds and from my own information and knowledge. I submit that my annual income is Rs. 20,00,000/- and my Permanent Assessment Number (PAN) is AJJPR9721M and my Aadhar Number is 2612 2062 7242. The costs of filing the present Petition including professional & Court fees and expenses are borne out of my personal funds. I undertake to pay such costs as may be imposed by this Hon’ble Court in the event of holding that the present petition is bereft of merits, vexatious or frivolous. I state that this is the only public interest litigation pertaining to the present subject matter and relief filed by me and no other petition of similar nature is pending before any other Court at my instance.

6. I further submit that as a legislator and an agriculturist involved in the farming of crops in the Cauvery Delta region of Tamil Nadu, I am well placed to understand the importance of dams, reservoirs and water storage bodies across rivers flowing in the State of Tamil Nadu and the manner in which the management of water and such water bodies affects and plays a crucial role in the agricultural activities and outcome of the crops.

7. I submit that the Hon’ble Supreme Court in Narmadha Bachao Andolan 2000 (10) SCC 664 para 248 held thus “Water is the basic need for the survival of human beings and is part of the right to life and human rights as enshrined in Article 21 of the Constitution of India and can be served only by providing source of water where there is none. The resolution of UNO in 1977 to which India is a signatory, during the United Nations Water Conference resolved unanimously inter alia as under:
“All people, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantum and of a quality equal to their basic needs.”
Therefore the impugned legislation is not a mere control over the dam, but under the guise of Dam safety the Union Government is going to tinker with the ultimate water supply through dams in State of Tamilnadu for various purposes.
8. I state that the Hon’ble Supreme Court in 1965(1)SCR Page 413 paragraph 39 has thus held:
“39. Our legislatures have undoubtedly plenary powers, but these powers are controlled by the basic concepts of the written Constitution itself and can be exercised within the legislative fields allotted to their jurisdiction by the three Lists under the Seventh Schedule; but beyond the Lists, the legislatures cannot travel. They can no doubt exercise their plenary legislative authority and discharge their legislative functions by virtue of the powers conferred on them by the relevant provisions of the Constitution; but the basis of the power is the Constitution itself. Besides, the legislative supremacy of our legislatures including the Parliament is normally controlled by the provisions contained in Part III of the Constitution. If the legislatures step beyond the legislative fields assigned to them, or acting within their respective fields, they trespass on the fundamental rights of the citizens in a manner not justified by the relevant articles dealing with the said fundamental rights, their legislative actions are liable to be struck down by courts in India. Therefore, it is necessary to remember that though our legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution.”
9. I state the principle of cooperative federalism is part of the basic feature of the Constitution and the powers of the Union and States have been clearly defined and demarcated under the Constitution. The Constitutional organs are expected to respect each other and act within their respective spheres. Encroachment in the field belonging to other constitutional entity is antithetic to law and Constitutional Courts have been quick to prevent such usurpation of powers and have struck down laws that are ultra vires of the legislative competence of a Legislature.
10. I humbly submit that the Union had earlier legislated “farm laws” viz. (1) Farmers Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 and (2) Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act 2020 which had the effect on intruding into the legislative domain of the States under List II Entry 14, 18 etc. These farm laws along with the Amendment to the Essential Commodities Act, 2020 were challenged before the Hon’ble Supreme Court by our DMK MP Thiru Tiruchi Siva in WP (C) No 1152/2020. The Hon’ble Supreme Court heard the afore said Writ Petition along with batch of other Writ Petitions and stayed the operation of the farm laws by its order dated 12.01.2021. It is only after interference by the Hon’ble Supreme Court through interim orders, that the Union acceded to the States’ contention that the farm laws violated the federal structure and trenched upon the States’ domain and therefore the Union introduced repeal laws on 19.12.2021 in Parliament repealing the 3 farms laws on Agriculture. Thus the concept of cooperative federalism cannot be discarded and such action of the Union in bulldozing and appropriating the powers of the States flowing from List II of 7th Schedule of the Constitution cannot be countenanced in law.
11. I state that the impugned Act is a legislation passed by the Union through brute majority to blatantly usurp the States’ power, in broad day light when the Legislators like myself were helpless to prevent the violence done to the Constitution. However, I have the utmost faith and belief that the Constitutional Courts will certainly annul unconstitutional laws exercising the power of judicial review.
12. The Hon’ble Supreme Court in the case of State of West Bengal vs. Union of India reported in 1964(1) SCR Page 371 paragraph 98 has thus held:
“98. To conclude: the Indian Constitution accepts the federal concept and distributes the sovereign powers between the coordinate constitutional entities, namely, the Union and the States. This concept implies that one cannot encroach upon the governmental functions or instrumentalities of the other, unless the Constitution expressly provides for such interference. The legislative fields allotted to the units cover subjects for legislation and they do not deal with the relationship between the two coordinate units functioning in their allotted fields: this is regulated by other provisions of the Constitution and there is no provision which enables one unit to take away the property of another except by agreement. The future stability of our vast country with its unity in diversity depends upon the strict adherence of the federal principle, which the fathers of our Constitution have so wisely and foresightedly incorporated therein. This Court has the constitutional power and the correlative duty — a difficult and delicate one — to prevent encroachment, either overtly or covertly, by the Union on State field or vice versa, and thus maintain the balance of federation. The present is a typical case where the court should stop the Union from overstepping its boundary and trespassing into the State field.”
13. I state that Entry 17 of the State List (List-II) under the 7th Schedule of the Constitution specifies that the State shall have the authority to make laws with respect to the matters pertaining to “Water, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of List I”.
And further, Entry 18 of List II reads as follows:
“Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization”
It is also pertinent to extract Entry 35 List II which is as follows: “Works, lands and buildings vested in or in possession of the State.”
Whereas Entry 56 of List I states that the Union shall have the authority to make laws with respect to “Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.” On a reading of these entries, it becomes unequivocally clear that the Union Government cannot promulgate laws 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, which is a power exclusively vested with the State Government under Entries 17, 18 and 35 of List II. The power of the Union under Entry 56 of List 1 is only with respect to inter-state rivers or river valleys and nothing more. Entry 56 cannot be stretched to include dams and embankments exclusively within the control of the State. The Parliament cannot make a declaration in relation to the subject matter of List II entries when such power is conspicuously absent in the List I subjects. However, the subject matter of the Impugned Legislation is the Dam, which can be related to Entry 18 & 35 of List II viz the Land, Works, building owned and possessed by the State. The Entry 17 List II doesn’t specify or exclude the Interstate water or river valleys. Dams cannot be read in isolation as it is a structure built on a land. Therefore the power to legislate in respect of Land and rights in or over the land falling under Entry 18 List II is also with in the domain of the State legislature. Interestingly what is stated in List I Entry 56 is the control over the regulation and development of the interstate river and river valley alone. There is nothing said in entry 56 about the control of the Dam or embankment on the river. 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. Hence the declaration of the Parliament under Section 2 of the Impugned Act is illegal and unlawful and without competence and amounts to transgressing into the exclusive domain of the State Legislature. Through the impugned legislation, the Union is controlling the water storage structure i.e. the Dam and not developing ‘the interstate water or river valley’. Hence, it is seen that the Impugned Act not only encroaches upon the powers of the State under Entry 17, List II but also Entry 18 List II and Entry 35 List II.

14. I state that Section 4(e) of the Impugned Act which provides the definition of a dam is reproduced hereunder:
“dam” means any artificial barrier and its appurtenant structure constructed across rivers or tributaries thereof with a view to impound or divert water which also include barrage, weir and similar water impounding structures but does not include –
(a) canal, aquaduct, navigation channel and similar water conveyance structures;
(b) flood embankment, dike, guide bund and similar flow regulation structures.”
15. I state that the primary function of a dam is to obstruct the flow of water by constructing a barrier leading to the storage of such large amount of water at a fixed place for a fixed period of time. Furthermore, when the barrier is removed vide machinery, the energy produced by such flow of water is stored and converted into electricity. In this regard, it is important to reiterate that the State Government has the exclusive legislative competence in matters relating to water storage and water power. Heavy rainfall helps the water received in the catchment areas to drain into the large Dams through various canals constructed across the State. In our State there are 90 Dams situated across Chennai, Madurai, Coimbatore and Trichy Regions. There may be few reservoirs which store water flowing from rivers of other States like Poondi and Thervoykandigai from Andhra Pradesh, Kelavarapalli, Krishnagiri, Mettur from Karnataka, Periyar, Oarambikulam, Peruvaripallam, Thunacadavu from Kerala. For the rest of the dams, the main source of water is only rain fall and water flowing from catchment areas after rainfall. Therefore, when the definition of the dam specified under the Section 4(e) of the Impugned Act is read in the light of entries 17, 18 and 35 of List II and 56 of List I, it is clear that the Union has usurped the power and authority of the State with respect to regulation and administration of safety measures of the dam, and such regulation and administration intrinsically entails water storage and water power. The entry 56 of List I deals only with ‘inter-state rivers and river valleys’ and does not mention water storage bodies like dams. In fact, most of the dams situated in Tamil Nadu are not even built on inter-state rivers. Interestingly the Dams defined in Section 4 (e) of Impugned Act do not relate to Dams constructed across interstate rivers but uses the word “across the rivers or tributaries thereof”. Thus Section 4(e) is couched in widest term so as to encompass all Dams even though the regulation relates to “Specified Dams” defined under Section 4(x). Thus, the Parliament has encroached upon the State Legislature powers and has enacted the Impugned Act. Thus the impugned Act is hit by Art 246(3) for legislative incompetence and is therefore ultravires of the constitution and is void ab initio.
16. I further submit that the Section 2 of the Impugned Act specifies that the Impugned Act has been promulgated and notified in public interest for the Union to take under its control the regulation of uniform dam safety procedure for specified dams. However, neither Entry 56 of List I nor any other Entry in the Union or Concurrent List envisages any authority upon the Union to promulgate a law with respect to dam safety as it does not come under its ambit. The declaration of Parliament is permissible only when similar subjects in entries are overriding in List II. At this juncture I state that the power to legislate with respect to enumeration of State Subject in List II is set out in Article 249, 250 & 252. However, the Impugned Act does not fall under any of these categories. There is no resolution passed by the Council of States under Article 249 nor there is any emergency proclaimed Under Art 250 nor any consent is given by the States as contemplated under Article 252 to enable the Parliament to legislate law enumerated in the State List.
17. I state that for very same purpose originally a Bill was initially introduced in the Lok Sabha in 2010 and lapsed with the dissolution of the XVth Lok Sabha. Thereafter the Dam Safety Bill 2018 was prepared and introduced in Lok Sabha and lapsed with the dissolution of the Sixteenth Lok Sabha. Therefore primafacie it can be inferred that the Parliament had reservations time and again to legislate on a State subject. Thereafter, the Dam Safety Bill, 2019 was introduced in the Lok Sabha on 22.07.2019 and passed on 02.08.2019. The aforesaid Bill was then passed by the Rajya Sabha on 02.12.2021 with serious objections.
18. It is trite in law that while determining the legislative competence of an enactment, the doctrine of ‘Pith and Substance’ must be applied and the veil must be lifted and the real subject matter of the impugned legislation must be seen in order to determine the competence. In the present case, the Union under the guise of vague terms such as ‘dam safety’ is attempting to legislate upon the control, administration and functioning of all dams, which is a power vested only with the State under Entry 17 of List II. Since the structure viz Dam cannot be seen in isolation and it is the “works of state built on land which is owned possessed by the State”, the dominion and control over the Dam cannot be hijacked by the Union through the impugned legislation under the garb of exercising power under List I Entry 56. In fact as per the National Register of Large Dams submitted by the Central Water Commission, Central Dam Safety Organization, Government of India published on June 2019, there are 118 dams in the State of Tamil Nadu. However the Water Resources Department in the State of Tamil Nadu has stated in public domain that there are 90 dams in the State. The Dams in the State as stated above are benefitting more than 34.25 Lakh acres of Agricultural lands and benefitting more than 2 crore people in 13 Districts. The details of dams maintained by the State Government are filed in the typed set of papers. These dams are maintained by the State Government and water from these dams are utilized by the people for various purposes as stated above such as farming, irrigation, drinking, business etc. and only the State Government will have knowledge and expertise to deal with such aspects. Apart from the same, the water in certain dams is also utilized to generate hydro-electricity by TANGEDCO, which supplies electricity to consumers in the state of Tamil Nadu. Hence by taking complete control over such dams, the Union is usurping the State’s powers.
19. I state that the impugned legislation is hit by the doctrine of Colourable Legislation. The Hon’ble Supreme Court in K.C Gajapati Narayan Deo vs State of Orissa 1953 AIR SC 375 at Paragraph 9 while delving into the scope of the doctrine of colourable legislation had opined that, “it is the substance of the Act that is material and not merely the form or outward appearance, and if the subject-matter in substance is something which is beyond the powers of that legislature to legislate upon, the form in which the law is clothed would not save it from condemnation. The legislature cannot violate Constitutional prohibitions by employing an indirect method. In cases like these, the enquiry must always be as to the true nature and character of the challenged legislation and it is the result of such investigation and not the form alone that will determine as to whether or not it relates to a subject which is within the power of the legislative authority (Vide Attorney-General for Ontario v. Reciprocal Insurers and Others, [1924] A.C. 328at 337.). For the purpose of this investigation the court could certainly examine the effect of the legislation and take into consideration its object, purpose or design (Vide Attorney-General for Alberla v. Attorney-General for Canada, [1939] A.C. 117 at 130.). But these are only relevant for the purpose of ascertaining the true character and substance of the enactment and the class of subjects of legislation to which it really belongs and not for finding out the motives which induced the legislature to exercise its powers. It is said by Lefroy in his well-known work on Canadian Constitution that even if the legislature avow on the face of an Act that it intends thereby to legislate in reference to a subject over which it has no jurisdiction, yet if the enacting clauses of the Act bring the legislation within its powers, the Act cannot be considered ultra vires (See Lefroy on Canadian Constitution, page 75.).”

20. I further submit that Entry 17 of List II contains the subject “water storage and water power”. The entries are nothing but various fields of legislation and must be given a wide interpretation and the maintenance and operation of a dam falls squarely within this phrase. The Hon’ble Supreme Court in the case of Express Hotels (P) Ltd v. State of Gujarat (1989) 3 SCC 677 has held that:
“15. ………. The entries should not be read in a narrow or pedantic sense but must be given in their fullest meaning and the widest amplitude and must be held to extend to all ancillary and subsidiary matters which can be fairly and reasonable be said to comprehended on them.”
The phrases “Water Storage and Water Power” have to interpreted in the widest manner possible in order to empower the State to promulgate laws pertaining to these subject matters. As defined by Black’s Law Dictionary; a ‘Dam’ is a construction of wood, stone, reinforced concrete or other materials, made across a stream for the purpose of penning back the waters. Further, it has been defined under Section 4(e) of the Impugned Act as the work or structure, raised to obstruct the flow of water in a river; but, by a well-settled usage, it is often applied to designate the pond of water created by this obstruction. While interpreting the Entry 17 of List II, the subjects “Water Storage and Water Power” would include the scope of promulgating laws regulating and administering Dams and Dam safety. Even going by the definition under Section 4(e) of the Impugned Act,
“(e) “dam” means any artificial barrier and its appurtenant structure constructed across rivers or tributaries thereof with a view to impound or divert water which also include barrage, weir and similar water impounding structures but does not include—
(a) canal, aquaduct, navigation channel and similar water conveyance structures;
(b) flood embankment, dike, guide bund and similar flow regulation structures;”
And the definition under Section 4(x) of the Impugned Act:
“(x) “specified dam” means a dam constructed before or after the commencement of this Act, which is,—
(i) above fifteen metres in height, measured from the lowest portion of the general foundation area to the top of dam; or
(ii) between ten metres to fifteen metres in height and satisfies at least one of the following, namely:—
(A) the length of crest is not less than five hundred metres; or
(B) the capacity of the reservoir formed by the dam is not less than one million cubic metres; or
(C) the maximum flood discharge dealt with by the dam is not less than two thousand cubic metres per second; or
(D) the dam has specially difficult foundation problems; or
(E) the dam is of unusual design;”

21. I state that the Impugned Act will have an immense adverse impact on Agriculture in the State. Large tracts of Agricultural lands in Tamil Nadu depend upon seasonal rains and rain water stored in the Dams which are released for irrigational purposes based on the decision of the Cabinet. About 70% of population is dependent on the agricultural activities and the crops like paddy, sugarcane, maize, millets, groundnut, coconut, cotton, food grains are grown in the State, and which are consumed across the country. Tamil Nadu is a major supplier of vegetables to Kerala. Tapioca which is extracted from roots of the Cassava Plant that is grown in large scale in the State is exported in large quantities and realizes valuable foreign exchange. Tamilnadu leads in the production of cotton utilized for exports and textile and apparel industry which contributes about 2.3% of the GDP of the country and more than 50% of cotton yarn is produced in the State of Tamil Nadu. In agrarian States, irrigation, water storage and agriculture are closely knit and have a direct impact on each other. Therefore, in essence, the State activities on “Agriculture” would be totally crippled due to the impact of the Impugned Act and would be a death knell on all the Agricultural activities. Further, there will be a huge toll on the fisheries business as well. In many dams fishery activities take place and that also provides livelihood for the people. Fishery activities in the dams also are a major source of revenue for the Government. The Government deposits fish seeds in the dam and derives revenue through sale/ license of the fishing rights. Thus, the impugned Act would effectively circumscribe the power of the State to utilize the dams for growth of fishes and development of fisheries. Fisheries being a State subject under entry 21 of List II, the impugned Act is again ultra vires of the Constitution inasmuch as it infringes the State’s powers to utilize the dams for fishing activities.

22. I further submit that applying the doctrine of Pith and Substance, the 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. Through the impugned legislation, the Union is controlling the structure i.e. the Dam. Hence, it is seen that the Impugned Act also encroaches upon the powers of the State under Entry 18 List II and Entry 35 List II. Therefore, in light of the abovementioned entries, Entry 56 List I cannot be construed to have such unfettered and unbridled powers so as to encroach into the entries of the State List namely Entry 17, 18 & 35 of List II.
23. I further submit that specified dams defined under Section 4(x) are dams with height of more than 15 metres or height between 10 to 15 metres with certain design and structural conditions as mentioned in Section 4(x) of the Impugned Act. If this definition is followed, almost all dams in the country will come under the purview of the Impugned Act. Further, Section 4 (x) (ii) (D) uses the phrase “the dam has specially difficult foundation problems”. Section 4(x) (ii) (E) of the Act uses the phrase “the dam is of unusual design”. The said definition is purposefully vague and gives unabridged power to the Union to treat any dam as a “specified dam” due to the vagueness in the description of foundation or of the design of the Dam.
24. I state that the impugned Act tends to control “specified dams” as defined under Section 4. There is no basis or rational classification as to why 10 /15 meters height is fixed for categorizing “Specified dams” to take care of Safety and why dams less than 10 meters are left out from the purview of the Act. Does it mean that dams less than 10 meters or 15 meters are safe and no safety measures are required for those dams? The safety of the dam takes into consideration the safety of the people who live in and around the dam. Therefore classification of “specified dams” on the basis of height has no reasonable nexus to the object sought to be achieved when the safety of the dam and the people located around is the prime consideration. This illogical and unscientific classification and categorization destroys the very object of the Act leading to the arbitrariness in the Act. The Act discriminates between dam below and above 10 meters of height and therefore the safety of dams and the people living near by is ignored and not taken in to account. There is no reason for this differential treatment. Thus the classification is arbitrary, artificial and evasive. There is no real or substantial distinction bearing a reasonable and just relation to which classification is made. Thus the classification is not upon the basis of intelligible differentia or reasonable relation to the object sought to be achieved by the Act. Article 14 forbids arbitrary classification and impugned Act sufferers from vice of arbitrariness.
25. I state that as of June 2019, India has 5,745 large dams (including dams under construction). Out of these, 5,675 large dams are operated by States, 40 by central public sector undertakings, and 5 by private agencies. Majority of the dams which are sought to be regulated by the Impugned Act are under the control of the States. Further, no compensation scheme is mentioned for the damages occurred to individuals in case of dam failure, calamities, etc., though such a clause was present in the Bill introduced in 2010.
26. I further submit that the various provisions of the Impugned Act are arbitrary and discriminatory and reduces the State’s power with regard to the control of dam safety. Section 5 r/w Schedule I and Section 8 r/w Schedule II envisages constitution of a National Committee on Dam Safety and National Dam Safety Authority. It is submitted that reading Sections 5 and 6 of the Impugned Act reveals that there is no proportional representation of representatives of State Governments. The representatives of the State Governments are the better persons to judge and understand the needs and interests of the particular State in which the specified dam is situated. Only the representatives of that particular State will have local knowledge, insight as to the safety of the dam, keeping in mind the irrigation requirements of the surrounding lands, the impact of storage of water on the agriculture and agriculturists. The Union representatives, who will be sitting in some other corner of country will not have the expertise nor the practical awareness to take such decisions and hence this renders the entire process futile. In case of emergent situations like flood, cyclone the life and safety of the people surrounding the dam or likely to be affected will be at peril if no immediate decisions are taken related to Dam safety. Further in case of a disagreement between the representatives of Union and State Government, the interests of the State Governments would be overruled by representatives of the Union Government due to the State Representatives being in the minority. Such a scenario destroys the Federal structure of the Constitution and completely curtails the voice of the State Governments even in cases where the State Government itself is the owner of the dam. Hence these provisions make the impugned Act manifestly arbitrary, discriminatory and therefore liable to be struck down.
27. I state that under Section 5, The National Committee on Dam Safety is constituted as a 21-member committee. The Chairperson and 10 representatives have to be nominated by the Union Government, and curiously, the 7 members as representatives of the State Governments are also to be nominated by the Union Government Members, ex-officio and three experts are also to be nominated by the Union Government inadvertently leading to constitution of a National Committee which encompasses all State Dam Safety Organisations which are devoid of any representation of the State Governments. Furthermore, the rotational system of State Representatives would also deprive most of the States’ representation in the National Committee on Dam Safety as one a State is represented, the other States will have to wait for a few years which for their turn leading many States to go unrepresented.

28. I state that the functions of the National Committee on Dam Safety, the National Dam Safety Authority and the State Committee on Dam Safety are provided in the Schedule I, II and III of the Impugned Act. However, the Impugned Act also envisages a power to the Union Government under Section 49 wherein if the Union Government is satisfied that it is necessary or expedient so to do, it may, by notification, amend the Schedule I, II and III of the Impugned Act. The Serial number 11 to First schedule of section 6(1) and Serial number 32 to Second Schedule of Section 9(1) Read with Section 49 empowers enormous unguided unbridled, untrammeled powers on the Union Government to refer any matter on dam safety. Under Section 8(4) states that “The Authority shall comply with such directions as may from time to time, be given to it by the Central Government” Thus unbridled, untrammeled powers are delegated to the Union Government despite the so called expert bodies are at place and hence it is hit by doctrine of excessive delegation. It would reduce the National Committee and Dam Safety Authority in to a puppet in the hands of Union. It is pertinent to mention herein that the Schedules to the Act lays down the core functions of the abovementioned authorities constituted under the Impugned Act such as (i) resolving issues between State Dam Safety Organisations, or between a State Dam Safety Organisation and a dam owner (ii) assessing potential impact of dam failure and coordinating mitigation measures in affected States and (iii) supervising dam rehabilitation programs. If such Schedules could be amended at anytime upon the whims and fancies of the Union Government, then the core functions of these Authorities could either be confiscated or the National Authority of Dam Safety could be bestowed upon with unfettered powers leaving State Dam Safety Organisations and State Committee on Dam Safety powerless and toothless. Such unbridled powers to the Union Government would drastically affect the authority provided to the State Committee on Dam Safety. The impugned Act bestows enormous power on the Union and thus compromising the interest of the welfare of the people of States including Tamil Nadu. When the State expert bodies are in place it is unreasonable as to why the Union Government should usurp to itself such supervisory plenary powers to operate the National Committee and National Dam Safety Authority despite enumerating powers to them. Thus these provisions are hit by the doctrine of Excessive Delegation and are highly arbitrary and hence liable to be struck down on this score as well.
29. I further submit that the proviso to Section 7(1) of the impugned Act restricts the number of meetings of the National Committee on Dam Safety to two times in a year, and one meeting shall be held before the onset of monsoon. Such a provision is completely vague and manifestly arbitrary since it does not specify whether the onset of monsoon is in the State in which the dam is situated because monsoon sets in at different times in different States. Further, the onset of monsoon is irrelevant to the safety of the dam since it requires attention and maintenance during all months throughout the year. During monsoons and heavy rainfall, certain emergency relief measures are undertaken but the safety and security of the dam requires year round monitoring. It is further submitted that in matters relating to dam safety, there will be situations where urgent and imminent actions and decisions will have to be taken and therefore there is no rationale behind restricting the meeting of the National Committee to only two meetings in a year. Hence the said provision suffers from vagueness and manifest arbitrariness.

30. I further state that, the Impugned Act is vague, ambiguous with respect to the following aspects:

a. Under Section 6(3), the Impugned Act assures that the knowledge collected or generated by the National Committee shall be disseminated to all stakeholders by the Authority, however the Impugned Act does not define the term “stakeholders” at all.
b. Under Section 9(3), the Impugned Act categorically states that every decision taken by the National Authority of Dam Safety shall be final and binding upon all parties to the issue but does not specify any procedure to appeal against such orders.
c. Under Section 4 wherein the term “specified dam” has been defined, the sub-clause (x) of clause (ii) of Section 4 also includes a dam which has specially difficult foundation problems or the dams having an “unusual design”. However, the Impugned Act does not specify the meaning of unusual design, nor there is any description as to what are foundation problems or the authority to identify the same and therefore as under the pretext of “unusual design”, the Impugned Act provides for a wide ambit for its interpretation making it convenient for the Union Government to include any embankment, appurtenant structure under the scope of the Impugned Act.

31. The Hon’ble Supreme Court in the case of Kartar Singh vs The State of Punjab reported in 1994 (3) SCC 569 has held that “it is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.” And hence the vague provisions are liable to be struck down.
32. I state that the first proviso to the Section 24(1) of the Impugned Act states that for a situation wherein a specified dam extends to two or more States or where the specified dam situated in one State is owned by another State, then the National Dam Safety Authority shall be construed as the State Dam Safety Organization. The Section 24(1) simply seizes the power of the State Government to regulate and administer safety of a specified Dam situated in the other State as an owner. However, the Section 9(2) of the Impugned Act provides that the National Dam Safety Authority shall resolve disputes between State Dam Safety Authorities of states. If the present scheme of this Act is followed, in event of a dispute relating to a specified dam in one State is owned by another State, the National Dam Safety Authority will be a “judge in its own cause”. Furthermore, if the decision of the National Dam Safety Authority is averse to the State Dam Safety Authority, the State Dam Safety Authority would be remediless. Further as per Section 9(3), the Impugned Act categorically states that every decision taken by the National Authority of Dam Safety shall be final and binding upon all parties to the issue and further, the Impugned Act does not provide a mechanism to the State Dam Safety Authority to raise its grievance arising from such decision to some other forum. When the impugned Act aims for surveillance, inspection, operation and maintenance of the Specified dam for prevention of dam failure related disasters and to provide for institutional mechanism to ensure their safe functioning, there was no requirement for issuing such executive directions by the Union and tinker with the decision of the expert bodies.
33. I further submit that as per Section 8 of the Impugned Act, a National Dam Safety Authority is to be established and Section 9 sets out the functions of this Authority. A reading of Section 9(1), (2) & (3) of the Impugned Act shows that this Authority is a quasi-judicial body which has power to adjudicate disputes and to enforce attendance of any persons and call for any information. As per the provisions of Section 8, 9 & 10, the Authority is to be headed by an officer not below the rank of Additional Secretary to Government, but however, there are no judicial members in the Authority. The Hon’ble Supreme Court in a catena of decisions right from L. Chandra Kumar vs Union of India reported in 1997 (3) SCC 261 till the Madras Bar Association case reported in 2020 SCC Online SC 962 has repeatedly held that the all quasi-judicial bodies must have judicial persons at the helm to ensure that a judicial approach is taken while adjudicating disputes. The Hon’ble Supreme Court in the case of “Rojer Mathew Vs South Indian Bank Ltd” reported in 2020 (6) SCC Page 1 at paragraph 157 has held thus “The contentions of the learned counsel for petitioner(s) are, therefore duly accepted by this Court insofar as it is contended that the Rules have an effect of dilution of the judicial character in adjudicatory positions. It has been repeatedly ruled by this Court in a catena of decisions that judicial functions cannot be performed by Technical Members devoid of any adjudicatory experience.”

34. I state that the State of Tamil Nadu owns 4 dams in Kerala consisting of Mullaperiyar, Parambikulam, Thunakadavu and Peruvaripallam. As per the Section 4(s) of the Impugned Act, the State of Tamil Nadu comes under the ambit of term “owner”. However, when the first proviso to the Section 24 (1) is applied to the present situation, then the role of the applicable State Dam Safety Organization i.e. the Kerala State Dam Safety Organization would be taken over by the National Dam Safety Authority i.e. the Union Government. Further, in the situation wherein a dispute arises between the owner i.e. State of Tamil Nadu and the State Dam Safety Organization i.e. the National Dam Safety Authority as per a combined reading of Section 8, 9 & 24, of the Impugned Act, in the present scenario, the National Dam Safety Authority shall be the sole authority and the decision passed by the Authority shall be final, binding on all the parties. This gives rise to a situation where the National Dam Safety Authority is a judge in its own cause. The said provisions of the Impugned Act are in violation of the principle of Nemo judex in causa sua (nobody can be a judge in their own cause) and hence unconstitutional and manifestly arbitrary. The Hon’ble Supreme Court has in the case of Ashok Kumar Yadav and ors vs State of Haryana reported in 1985 4 SCC 417 at para 16 held that:
“We agree with the petitioners that it is one of the fundamental principles of our jurisprudence that no man can be a Judge in his own cause and that if there is a reasonable likelihood of bias it is “in accordance with natural justice and common sense that the justice likely to be so biased should be incapacitated from sitting”. The question is not whether the judge is actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. The basic principle underlying this rule is that justice must not only be done but must also appear to be done and this rule has received wide recognition in several decisions of this Court. It is also important to note that this rule is not confined to cases where judicial power stricto sensu is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. Justice is not the function of the courts alone; it is also the duty of all those who are expected to decide fairly between contending parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies, for it is vital to the maintenance of the rule of law in a welfare state where the jurisdiction of administrative bodies in increasing at a rapid pace that the instrumentalities of the State should discharge their functions in a fair and just manner.”

35. I state that if the Impugned Act does not aim to resolve the disputes but is just a ploy to shift the administration and regulation of dam safety in the hands of the Union Government under the garb of the public interest.

36. I further submit that the Impugned Act has far reaching impact on several other subjects enumerated in the State List, such as Water Storage, Irrigation, Agriculture, Fisheries, works, Land and rights over the properties etc. and completely destroys the Federal Structure between the State and Union Government.

37. I state that the hardships caused to the State of Tamil Nadu and other States would be manifold apart from the following. Firstly, that the State Governments would not have any say with regards to the orders passed/guidelines laid down by the constituted Authorities and at the same time, the States being the owners of the specified dams have to provide expenditure for any evaluations undertaken by the State Dam Safety Organization even without presenting the State Governments i.e. the owner’s viewpoint.

38. I state that the Hon’ble Supreme Court of India in 2014 (1) SCC Page 769 has held that it is the duty of the State Government to operate, maintain and ensure safety of the dams and therefore the Impugned Act is contrary to the law laid down by the Hon’ble Supreme Court.
39. I state that if the Impugned Act which bestows powers to the National Dam Safety Authority and the National Committee on Dam Safety allowed to continues to be in force, it would lead to absurdity as the States being the owners of the dam would bear the burden of the expenditure however would have no right to voice their interests before the bodies constituted by the Impugned Act. It would lead to the absurd situation where the Union Government will have absolute dominion and control over the dam which is built out of the State Government Exchequer, owned by the State Government and the State Government will be nothing more than a mute spectator. In fact even as per Section 21 & 28 of the Act, the owner of the Dam, in most cases being the State, has to maintain the dam from their own funds.

40. I state that the directions issued under the Act if not obeyed will lead to a criminal prosecution and the State Authorities have to face the music under section 41 if the directions of the Union Authorities are not obeyed. Section 41 imposes a punishment on the person who refuses to comply with the directions of the Union Govt or the National committee or the other authorities. Section 42 deals with the offences by the Department of Government and section 43 deals with offences committed by the Companies. Thus every direction of an authority without providing an opportunity of keeping their viewpoints/interests before these organizations as a major stakeholder, if not obeyed, amounts to an offence leading to criminal prosecution. Such prosecutions even without an element of mens rea or even if it is against State interest if not obeyed, is treated as an offence and it leads to criminal prosecution. The Government Servants and high bureaucrats will now be kept under fear and threat which will lead to mechanical compliance of the dictates of the Union Government or the other authorities under the Act thereby surrendering and sacrificing the State’s interest and rights.

41. I state that Section 50 provides an unbridled, untrammeled power on the Union Government to give directions to the State Government who is owner of the Specified dam and failure will lead for prosecution under section 42 of the Act. Such unbridled power under Section 50 amounts to Excessive delegation particularly when act has named the authorities to exercise certain duties and functions.
42. I humbly submit that having no other alternate or efficacious remedy, I am constrained to invoke extraordinary jurisdiction of this Hon’ble Court under Article 226 of the Constitution of India on the following amongst other:

GROUNDS
A. The impugned Act is ex-facie unconstitutional hit by Art 246(3) and ultra vires the Constitution as Parliament lacks legislative competence.
B. The various provisions of the Impugned Act are manifestly arbitrary, discriminatory, unreasonable and hit by Art 14,19 and 21 and therefore the Act as a whole is unconstitutional and liable to be struck down.
C. The impugned Act encroaches into the exclusive legislative domain of the State and such infringes the doctrine of cooperative federalism and violates the Federal Structure of the Constitution which is a part of the basic structure of the Constitution.
D. The Pith and Substance of the Impugned Act is that the legislation aims to interfere and regulate the entire functioning of dams including its safety. A dam is nothing but a water storage unit, and the power to promulgate laws on the same vests exclusively with the State Legislatures as per entry 17 of List II and the Union cannot transgress into such subjects and hence the impugned act is ab initio void, a nullity and non-est in the eyes of law.
E. The dams have been constructed, operated and maintained by State Government using the State Exchequer on the State’s properties and the Union cannot now claim dominion and control over the properties, including water of the State Government stored in the said Dam. Thus, the impugned Act also encroaches into List II Entry 18 and List II Entry 35. It is noteworthy that unlike Entry 56, List I, the expression “water” in Entry 17, List II is not qualified by the prefix “interstate”. Therefore, the State Legislatures have full powers to legislate on all matters mentioned in Entry 17, List II including their regulation and development even if the source of the water is an interstate river or river valley within the territory of a State, whereas the Union has competence only over interstate rivers and river valleys.
F. The Impugned Act not only shifts control over the dam to the Union but also usurps control over water supply through the dams within the State of Tamil Nadu for various purposes. The Hon’ble Supreme Court in Narmadha Bachao Andolan cited supra has clearly held that water is the basic need for survival and is a part of right to life under Article 21. Thus impugned Act has the effect of impinging upon the right to survival and existence and therefore liable to be struck down as it violates Art 21.
G. The Impugned Act will have an immense impact directly and indirectly and would impede with the multifaceted activities like agriculture, irrigation, hydroelectric projects, farming, fisheries and industries. About 70% of the State’s population is dependent on the agricultural activities. Thus the impugned Act is in violation of Art 19(1)(g) of the constitution.
H. The Schedules read with Section 49 of the Impugned Act gives unbridled, untrammeled powers to the Union Government and is squarely hit by the doctrine of excessive delegation and is highly arbitrary.
I. A plain reading of both Entries i.e. Entry 56 of List I and Entry 17 of List II clearly show that the State has the power to promulgate laws with respect to regulation and administration of safety measures of the specified dam, which is nothing but a water storage unit and also used for hydroelectric power. The primary function of a dam is to divert/block the flow of the water body and incidentally convert the energy generated by such flow of water into electricity and generate power. The subject “Water Storage and Water Power” are self-explanatory highlighting that the State shall have the power to promulgate laws on the even subjects.
J. The Definition of a Dam under Section 4(e) of the Impugned Act itself connotes with the act of impounding/diverting water. Therefore, the Union cannot promulgate any laws with respect to regulation and administration of safety measures of the specified dam under Entry 56 of List I as, the concerned entry does not mention the subject matter of water storage and water power. The phrases “Water Storage and Water Power” are specifically present under Entry 17 of List II thereby barring the Union’s legislative competence to promulgate laws on that subject matter. The Impugned Act does not deal with the interstate river water or river valley. Be that as it may, all the dams are not storing the interstate river water or the river valley water. Art 262 provides Adjudication of disputes relating to waters of interstate rivers or river valleys and powers is given to the Parliament to legislate law on the same including distribution or control of waters. Rain water has been the predominant source of supply for lot of dams in Tamilnadu and therefore in absence of subject “interstate river water or the river valley” in List II Entry 17, the declaration made by Parliament in Section 2 is without jurisdiction, lacks legislative competence, illegal, non-est and void.

K. Further, if the Entry 56 of List I is interpreted in such a way to arrive at a conclusion that the power to promulgate laws with respect to regulation and administration of dams is within the scope of the Union Government, then it would render the Entry 17 of List II otiose as such an interpretation would lead to a situation where the powers of the State with respect to water storage and water power will be completely usurped by the Union Government. The Hon’ble Supreme Court in Calcutta Gas Co. Ltd vs. State of Bengal AIR 1962 SC 1044 had categorically held that the conflicting entries are to be interpreted harmoniously and such interpretation should reject such construction which will rob one of the entries of its entire content and make it nugatory.

L. It is submitted that the impugned Act is hit by Art 246(3) and is a colourable legislation since as per the abovementioned entries of the Constitution, the Union Government does not have power to promulgate laws regarding the subject matters specified in the List II. In the present case, the Impugned Act, blatantly violates the prohibition casted by the Constitution under the garb of Public Interest and hence the Impugned Act is a colourable legislation. Thus the Union wants to do indirectly what it cannot do directly viz. administer the dams and control the water supply of States.

M. That even if the Impugned Act is read with the Entry 56 of the List I, it only allows for the regulation of inter-State rivers, whereas the Impugned Act does not make such a distinction between inter-State and intra-State rivers. In any case, a declaration by the Parliament of expediency in public interest will not condone such blatant trenching of powers nor will be applicable to specified Dams situated upon the rivers flowing within a particular State or the rain water stored received from the catchment areas as the Entry 56 of List I never envisages such a situation.

N. The Hon’ble Apex Court in Federation of Hotel & Restaurant vs. Union of India (1989) 3 SCC 634 held that where a situation arises wherein, the two legislative fields distributed between Union and the State overlap, it is the duty of the Court to ascertain so as to what degree and to what extent, the authority to deal with matters falling within these classes of subjects exists in each legislature and to define, in the particular case before them, the limits of the respective powers. In the present situation, there is no overlap, since Entry 17 List II makes it unequivocally clear that it is within the legislative competence of the State Government.

O. The various provisions of the Impugned Act is highly arbitrary and discriminatory. Sections 5 r/w Schedule I, 8 r/w Schedule II and the first proviso to the Section 24(1) for the reasons stated above are highly arbitrary, unreasonable and deserve to be struck down.

P. Further, the mere constitution of a National Committee on Dam Safety under Section 5 of the Impugned Act and National Authority on Dam Safety under Section 8 of the Impugned Act is illegal, highly arbitrary, unreasonable because it completely disregards the interests of other stakeholders such as the State Government and bestows an unbridled, unchecked and untrammeled power to the abovementioned Central Authorities leading to arbitrariness and also there is no adequate representation from the State Government since even the State Government representatives are nominated by the Union Government.

Q. The Authority established under Section 8 of the Impugned Act is vested with quasi judicial powers. However, the Impugned Act does not allow any judicial members to be appointed in the Authority and hence the constitution of such an authority is squarely hit by the principles laid down by the Hon’ble Supreme Court of India in L. Chandra Kumar v. Union of India & Ors., Madras Bar Association v. Union of India & Anr; and Roger Mathew Vs South Indian Bank Limited and a line of judgments which state that all quasi judicial bodies must consist of a judicial member also.
R. The provisions of the Impugned Act as stated above are in violation of the maxim Nemo judex in causa sua (nobody can be a judge in their own cause) and hence unconstitutional and manifestly arbitrary.
S. That, for ascertaining whether the Impugned Act is ultra vires of the Constitution, it is imperative for the Impugned Act to go through the test of pith and substance. The Impugned Act as according to its Statement of Objects and Reasons is an “An Act to provide for surveillance, inspection, operation and maintenance of the specified dam for prevention of dam failure related disasters and to provide for institutional mechanism to ensure their safe functioning and for matters connected therewith or incidental thereto.” However, the said institutional mechanism provided by the Impugned Act snatches away powers vested with the State Government. In case wherein the State Representatives of a National Committee on Dam Safety and National Authority on Dam Safety have conflicting views than their Central Government counterparts, they would be remediless as per Section 9(3), the Impugned Act categorically stats that every decision taken by the National Authority of Dam Safety shall be final and binding upon all parties to the issue. The Impugned Act is further silent upon the contribution of the State Representatives appointed therein. For the situations where the specified Dam extends over to two or more states, the Impugned Act straightforwardly bestows the National Authority for Dam Safety with the powers of the State Dam Safety Organisation thereby snatching away the power from the State for regulation and administration of safety measures of the specified dam and states dominion and control over these dams located outside the state are virtually taken over. Thus by the operation of impugned Act, State of Tamilnadu may loose control over four major dams Mullaperiyar, Parambikulam, Thunakadavu and Peruvaripallam which is located in Kerala and which are major source of supply to Tamilnadu. This is highly detrimental to the interest of the State.
T. The impugned act divest the rights of the state over the large scale properties of the state in which dams are constructed at huge cost and shift the control to the Union and such actions amounts to tinkering with the States power to own properties and structures.
U. That the Hon’ble Supreme Court in State of Maharashtra v. Bharat (2009) 2 SCC 1, highlighted the importance of the application of the doctrine of pith and substance. The Court opined that in order to decide the legislative competence, the Courts must go into and examine the true character of the enactment, its object, its scope and effect to find out whether the enactment in question is genuinely referable to subject matter allotted to the legislature by the Constitution.
V. It is submitted that a manifestly arbitrary law, in whatever form made, violates Article 14 of the Constitution is well established. In Shayara Bano vs Union of India & others (2017) 9 SCC 1, the Hon’ble Supreme Court defined manifest arbitrariness as a law made capriciously, irrationally and/or without adequate determining principle. In the present case there is lack of determining principle in defining a ‘specified dam’. There is no underlying principles, object or basis for the categorization of “specified dam” when the intention is said to be dam safety. Any dam with less than 10 meters height cannot be said to be safe and kept outside the purview of the Act. Such categorization is without any rationale. Why dams less than 10 meters are construed as safe and left out from the purview of the Act. The classification is unreasonable and does not achieve the object and therefore the classification is highly arbitrary and violative of Art 14.
W. Section 4 (x) defines a specified dam which is at the core of the impugned legislation as the Section 2 of the act declares it to be expedient in public interest that the Union should take under its control the regulation of uniform dam safety procedure for specified dam. It is manifestly arbitrary that that the definition of a ‘specified dam’ also seeks to include any dam of unusual design and foundational problems . There is no explanation or definition as to what constitutes a dam of unusual design or why the dams less than 10 meters with foundational problems are left out from this classification .
X. The Sections 30 to 34 under Chapter VII; Sections 35 to 37 under Chapter VIII and Sections 38 to 40 under Chapter IX of the Impugned Act cast duty upon the Owner of the specified dam for Safety, Inspection and Data Collection, to have an Emergency Action Plan and Disaster Management and conduct Comprehensive Dam Safety Evaluation respectively. Through the Sections mentioned above, the Impugned Act imposes duties upon the Dam Owners to follow the orders and directions passed by the National Committee on Dam Safety, National Dam Safety Authority and State Committee on Dam Safety In pursuance to their functions specified in Schedules I, II & III without providing an opportunity of keeping their viewpoints/interests before these organizations as a major stakeholder. Principles of natural justice are floated in the functioning of these statutory bodies. Thus these provisions are highly arbitrary, discriminatory, illegal and is liable to be struck down.
Y. The Hon’ble Supreme Court in State of West Bengal vs Union of India reported in AIR 1963 SC 1241 at concluding para 98 clearly held that the Union cannot encroach into the powers of the State and it is the duty of the Courts to maintain the balance of Federation. Since the impugned act is against the principles of cooperative federalism the same is liable to be struck down.
Z. Section 50 provides an unbridled untrammeled powers on the Union Government to give directions to the State Government who is owner of the Specified dam and failure will lead for prosecution under section 42 of the Act. Besides power under Section 50 on the Union Government amounts to excessive delegation. When already various authorities are constituted under the Act there was no necessity for such authority imposed with such unlimited powers.
AA. The impugned Act also infringes on the State’s power to seed fishes in the dam and carry on fisheries activities in dams, thereby generating revenue for the State. Fisheries is an activity covered by entry 21 of List II.
BB. The Hon’ble Supreme Court has held in the case of Union of India Vs Rajendra N Shah 2021 SCC Online SC 474 that the subject matter in the State list “belongs wholly and exclusively to the State legislatures to legislate upon” and any change would require the ratification by at least one-half of the state legislatures as per Article 368(2) of the Constitution. Thus, the impugned Act is unconstitutional and void.
CC. In the case of Jindal Stainless v. State of Haryana (2017) 12 SCC 1 the Hon’ble Supreme Court has held that the nature of federalism that was purported to be followed as far as the Indian Constitution is concerned, is Co-operative Federalism. While the judgement at many places mentions that it is accepted that federalism forms a part of the basic structure doctrine, the judgement shifts its focus towards cooperative federalism in India. The Hon’ble Court has held that “Co-operative federalism envisaged under our Constitution is a result of pick and choose policy which our framers abstracted from the wisdom of working experience of other Constitutions.” Thus the impugned Act is contrary to the principles of co-operative Federalism which is part of the basic structure of the Constitution.

43. I state that Respondents by notifying the Impugned Act mentioned has put the State Governments and its people owning Dams across different States to extreme hardships as it would disturb the arrangements between different States with regards to regulation and administration of dam safety and in the said circumstances, ends of justice therefore requires that this Hon’ble Court may be pleased to grant an order for stay restraining the Respondents from proceeding further in constituting National Committee on Dam Safety; National Dam Safety Authority within the prescribed time as specified in the Impugned Dam Safety Act 2021, pending the disposal of the abovementioned Writ Petition.
44. I state that the Hon’ble Supreme Court while dealing with reservations for Maratha in the case of Dr Jaishree Laxmanrao Patil Vs The Chief Minister & Another (Civil Appeal No 3123 of 2020 Maratha Case) gave directions not to give reservation without reference to the reservation provided under the impugned act challenged before it. This order was also followed by Hon’ble Supreme Court when the three farm laws were challenged before it and Hon’ble Supreme Court restrained the Union from implementing the three farm laws. Since the Act is exfacie unconstitutional and trenches upon the States domain, the implementation of the Act has to be granted pending disposal of the Writ Petition.
45. It is therefore humbly prayed that this Hon’ble Court maybe pleased to grant an order of ad-interim stay of the operation of the impugned Dam Safety Act, 2021 (Act No. 41 of 2021) pending disposal of the above Writ Petition and pass such further or other orders and thus render justice.
46. It is therefore humbly prayed that this Hon’ble Court may be pleased to pass an order of ad-interim injunction restraining the Respondents from in any way constituting the National Committee on Dam Safety and the National Dam Safety Authority under the provisions of the impugned Dam Safety Act, 2021 (Act No. 41 of 2021) pending disposal of the above Writ Petition and pass such further or other orders and thus render justice.
47. It is therefore humbly prayed that this Hon’ble Court maybe pleased to issue a Writ, Order or Direction in the nature of WRIT OF DECLARATION, declaring the Impugned Dam Safety Act, 2021 (Act No. 41 of 2021) as unconstitutional, non-est and void ab initio as it is violative of Art 246(3), 14,19 and 21 and basic feature of the constitution and pass such further or other orders as this Hon’ble Court may deem fit and proper considering the facts and circumstances of the case and thus render justice.

DEPONENT

Solemnly affirmed at Chennai ] BEFORE ME
Dated at day of January 2022]
And signed his name ]
In my presence ] ADVOCATE: CHENNAI

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