The Mullaiperiyar dispute - A saga of Committees (Part 2)
SC appointed expert committee along with help of other central agencies like Central Materials Research and Soil station conducted tests and studies and submitted its report in 2001. At the time the expert committee submitted its report to SC in 2001, an organization by name Mullaperiyar Environmental Protection forum filed an appeal, seeking 1886 and 1970 agreements to be declared as null and void. It also contended that increasing reservoir level once again was against environmental rules.
The SC considered the questions on legality of agreement, environmental concerns and safety concerns and still permitted Tamil Nadu to raise the storage level to 142 ft in an order by a bench headed by then CJI of India- Justice Sabharwal. SC also ordered that Kerala cooperate with Tamil Nadu, CWC in order to complete remaining minor strengthening works in the baby dam,earth bund and a 20mt portion of the main dam. SC had to incorporate in the order after it found Keralas attitude obstructionist. Besides, SC had permitted another assessment, following which level could be raised to 152 ft.
With regards to safety issue SC opined that
Regarding the issue as to the safety of the dam on water level being raised to 142 ft.from the present level of 136 ft, the various reports have examined the safety angle in depth including the viewpoint of earthquake resistance.
The apprehensions have been found to be baseless. In fact, the reports suggest an obstructionist attitude on the part of State of Kerala.
The Expert Committee was comprised of independent officers. Seismic forces as per the provisions were taken into account and structural designs made accordingly while carrying out strengthening measures.
It also shows the various strengthening measures suggested by CWC having been completed by Tamil Nadu PWD on the dam including providing of RCC backing to the dam. The report also suggests that the parapet wall of the baby dam and main dam have been raised to 160 ft. (48.77 mt.) except for a 20 mt. stretch on the main dam due to denial of permission by the Government of Kerala.
Some other works as stated therein were not allowed to be carried on by the State of Kerala. * The report of CWC after inspection of main dam, the galleries, baby dam, earthen bund and spillway, concludes that the dam is safe and no excessive seepage is seen and that Mullaperiyar dam has been recently strengthened. There are no visible cracks that have occurred in the body of the dam and seepage measurements indicate no cracks in the upstream side of the dam
The Deputy Director, Dam Safety, Monitoring Directorate, Central Water Commission, Ministry of Water Resources in affidavit of April 2004 has, inter alia, sated that during the recent earthquake mentioned by Kerala Government in its affidavit, no damage to the dam was reported by CWC officers who inspected the dam. The experts having reported about the safety of the dam and the Kerala Government having adopted an obstructionist approach, cannot now be permitted to take shelter under the plea that these are disputed questions of fact. There is no report to suggest that the safety of the dam would be jeopardized if the water level is raised for the present to 142 ft. The report is to the contrary
It is pertinent to note that earthquake being mentioned in the above judgement is the 2000 earthquake measuring over 5 in richter scale. At that time too reports had appeared in the Kerala press about cracks being found and alleging that entire dam network was in danger.
The SC had also gone into possibility of dam breaking in its judgement and based on Kerala’s submission observed that Idukki dam was enough to hold even if Mullaiperiyar dam breaks. With regards to validity of the agreement, SC upheld the agreements validity. It also found no substance in the contention that there will be adverse effect on environment, after making detailed observations on the same.
Kerala Govt’s Legislation & subsequent legal battle :
This order came on Feb 27 2006. The two states were headed to election in April and May. Kerala called for special session of assembly and amended the Kerala irrigation and water conservation act(2003) and barred any civil court from adjudicating on matters pertaining to this act and set the height of Mullaperiyar dam at 136 feet.
The law empowered the Kerala’s Dam Safety Authority to arrive at its own findings on the dam safety and direct Tamil Nadu to suspend or restrict the functioning of the dam or even decommission it, and Tamil Nadu was obliged to comply with such directions.
Kerala filed a review petition of SC judgement but it was dismissed and the judgement upheld. Tamil Nadu’s petition on the validity of a Kerala Act overruling SC led to setting up of a 5 judge bench. SC had declined to answer Tamil Nadu ‘s prayer of interim stay of the Kerala act.
Kerala next proceeded to appoint an IIT Delhi team led by George Paul and retd professors AK Gosain and Subash Chander. This team funded by Kerala opined in 2009 that hydro-logically dam was unsafe.
The independent CWC team appointed by SC rejected these arguments saying the difference in the adopted values of Design Rainfall (Storm) depth, Time distribution of rainfall, Unit hydrograph & Infiltration rate have resulted in estimation of higher flood peak (PMF) and the said studies by the IIT Professor does not appear to be well founded.
Kerala next proceeded to appoint an IIT Roorkee team headed by KA Paul and Sharma.
This team opined dam is unsafe in event of an 6.5 or above earthquake occuring within 16 km vicinity of dam. Both these reports were rejected by SC. In Oct of 2009 while hearing the TN petition on the act, a bench comprising Justices D K Jain, Mukundakam Sharma and R M Lodha observed “ If every state in inter-state dispute sought enacting a legislation not to give effect to our judgment, it would have serious consequence,”
“When this court said that Tamil Nadu can raise water level up to 142 feet, can you (Kerala) nullify it by enacting a legislation and fixing the water level at 136 feet?” it asked senior counsel Rajiv Dhawan appearing for Kerala. “What is the sanctity of the Supreme Court if its judgments are not implemented?”
Kerala government counsel said that it had to come up with the legislation as it was concerned with the safety of its people. At this, Justice Jain said: “This court is equally concerned with the safety of the people. The court had taken all the facts and concerns expressed by the two parties before passing the decree.”
The court asked Kerala whether it favoured the idea of having an “independent mechanism” in the form of an expert body which would monitor the dam’s functioning. The counsel for the state said he would seek instructions from the government and report back.
Countering Kerala’s objecton to CWC, the court remarked that the CWC is a statutory body and asked Kerala not label it with tar. Following this a 5 member constitutional bench was constituted in November 2009.
In Feb 2010, a constitution bench comprising Justice D K Jain, B Sudershan Reddy, Mukundakam Sharma, R M Lodha and Deepak Verma remarked “Your arguments are unfounded, misleading, fallacious and jugglery of words. You should support it (claim) with evidence,”
The apex court made the remarks as it was not impressed with the state’s argument that if the water level of the dam, which supplies water to Tamil Nadu, was allowed to be raised beyond 136 feet would lead to its collapse endangering public safety as it would submerge several villages in the state.
The bench said the arguments cannot be accepted as even during the three floods witnessed in 1924, 1943 and 1961, the water level had reached a maximum of 152.35 feet as against the danger level of 155 feet.
On Feb 18, SC appointed an empowered committee to look into various aspects of case and former CJI AS Anand was appointed as its chairman. TN and Kerala appointed two former SC judges from their respective states to the panel and it was completed by CWC members making it a total of 5.
Currently the term of this committee is till Feb 2012 and SC has asked it to submit its final report. The TN govt in April 2011 had asked SC to stay any plans for new dam by kerala, to which SC has opined that no meaning must be attached to statements of Kerala ministers and is just an irresponsible statement. Arguments on new dam issue will commence once the empowered comm. submits its report.
The empowered committee has made site visits, conducted remote operated vehicle tests lead by Alex Verghese of CWC. Besides this tests have been conducted by BARC, CMRSS, GIS. The empowered comm. has rejected the reports of IIT Roorkee professors in July 2011. Kerala appealed against this decision on Nov 22 2011 and EC will meet on Dec 5th regarding this issue.