Past, present and future of Mullaperiyar dam – Is Kerala victimized?
This is an article on the highly controversial Mullaperiyar Dam. The issue is between the States of Kerala and Tamilnadu with a mediator role by the Government of India. But the Dam issue is on the tongues of every one in India. The Mullaperiyar Dam is an epitome of the principle of the British Rule in India. A Dam in the land and rivers of Kerala built by the British to be controlled and used by Tamilnadu for a small rent. Read on for the details.
The issues of Mullaperiyar Dam
The lease agreement of the dam in the present form was one of several British mischief of divide and rule policy introduced in various parts of our country. Since the whole country was under them, they could dictate as they wanted. It is like a powerful thug forcing two parties for an agreement. The parties have no option but to follow the dictate. The British, by force and might subjugated us to accept them as our Rulers. It is like international goondaism and that is why the people of our nation fought them and won the independence and we introduced democratic system of Government for the states and the Country. So in the normal course and on the principle of natural justice, the matter should have discussed denovo and arrived at afresh understanding on equitable terms after independence. Unfortunately that did not happen after independence. Is the stand of Kerala justified?
The contention of the state of Kerala is that the dam has completed about 120 years and is weakened. Hence the height water level should not be increased from the present level of 136 feet. Besides there were a series of earthquakes in the area around the dam so it is an earthquake prone area. If the dam is damaged further, the flood water of the dam will inundate the vast area of the central south part of Kerala causing loss of lives and loss of properties. The loss of life involved is huge. There are 3 other dams downstream which cannot take the force of the flood waters, if it happens. Therefore the State wants to construct a new dam downstream of the present one while recognizing the need of T N for water. Even the Supreme Court feels justification in the argument and because of it S C suggested for the formation Empowered Committee to look into the matter. Prevention is better than cure
As the above say goes, it is always better, wiser and practical to take steps before the expected incident happens. In this case the dam is old and outlived its life span and the area is earthquake prone and therefore the best solution is to build a new dam for the reservoir. The U N conference on environment and development held in 1992 where India is a party, laid down certain principles in this regard. The recent global struggle for climatic condition control measures of which we are aware is an example of this principle and the global meeting has adopted these principles to which also India was a party.
The principle on precaution states that the nations should not wait for the proof for damage to take place for remedy.
The parties must take anticipatory, precautionary and preventive measures to avert the calamity if possible or at least reduce the adverse effects to the least possible levels.
Where there is threat of serious destruction or damage, the lack of scientific certainty should not come in the way of taking remedial action and this reason should not be taken for an excuse to postpone the action.
It is worthy to note in the above context the International incidents involving question of safety of people, quoted by an ex Revenue Minister of Kerala and an ex Justice of Supreme Court and a respectable citizen of India Justice Sri V R Krishna Iyer.
The Supreme Court itself in a case of 4033 of 2004 gave a verdict to the effect that matters involving actions where there is possible serious threats or irreversible damage, in many cases the preferable alternative is not clear. If an action is taken it may cause irreparable damage to the environment; if action is not taken it could cause irreparable damage to the economic interests. In cases of doubt, protection of environment should take precedence over economic interest. The precautionary principle requires anticipatory action to be taken to prevent harm. This can be done even on a reasonable suspicion and it is not always necessary that there should be direct evidence of harm to the environment.
In the USA after the collapse of Tenton Dam in 1980s, the authorities decided to review the condition of the 1st Dam of USA the Boyds Corner Dam built in 1872. There was divided opinion on the safety of the dam. Despite opposition, the US Government decided to construct a new dam did it so by 1990 and the old one was demolished.
Another example is in Australia. A century old dam the Victoria Dam constructed in 1891 using similar technology to that of the Mullaperiyar Dam. In 1966 there were seepages like that of the Mullaperiyar Dam. The Australians also carried out some strengthening measures which were found to be inadequate in 1988. Therefore the authorities decided to decommission that dam and in its place a new one was constructed.
From the above I do not think that anyone with humanitarian attitude can come in the way of building a new dam and decommissioning the existing one. However, I am giving the past history of the Mullaperiyar Dam. The Past of Mullaperiyar Dam
The original agreement
The dam constructed by the British vide a lease agreement of 29th of October, 1886 between the Travancore Maharaja and the Secretary of the State for India both under the British Rule. The construction of the dam was completed in 1895. The lease is for 999 years to store the waters of Mullai and Periyar rivers in the reservoir of the dam and divert it to irrigate in the region of Theni, Madurai, Sivaganga, Dindigal and Ramanathapuram Districts of the present Tamil Nadu at an annual rent of Rs 40,000. The water from the dam is diverted to Churuliyar River which feeds the Vaigai dam in Tamilnadu. The gross area irrigated by the Mullaperiyar reservoir was 24280 ha in 1896. It increased from that to 69,200 ha in 1970-71. In 1994-95 the irrigation area from the Mullaperiyar water increased to 92,670 ha. The original height of water level in the dam was 46.3 meters (152 feet).Background of 1970 amendment
There were some disputes between the erstwhile Governments of Travancore and the Madras States regarding usage of the water for hydro electric generation purposes as the water was given solely for the purpose of irrigation and the rent for the land etc. This disputes were referred to an arbitration tribunal consisting of Sir David Devadoss an ex judge of the Madras High Court and the Dewan Bahadur V S Subramoniya Aiyer Avergal and ex Dewan of Travancore State. The arbitrators could not come to an agreement on the issues and hence gave separate awards. So the case went to an umpire Sir Nalinni Ranjan Chatterji. The umpire in his award dated 12-5-1941 declared that the lessee had the right to use the water for irrigation purpose only and had no right to use the water for any other purpose than irrigation. However, if it was possible to use electricity in connection with carrying or distributing of water in connection with irrigation, the lessee had the right to generate and use hydro electric energy for such purposes only. For this purpose the representatives of erstwhile Governments of Travancore and Madras discussed and arrived at and agreement. They could not sign the agreement due to reasons unknown, may be due to the freedom struggle and the transition thereafter. In 1970 the secretaries of the 2 states signed the agreement.
In terms of the arbitration award, the original agreement of 29-10-1886 was amended on 29th May 1970. The agreement was validated by an agreement between the States of Kerala and Tamilnadu. The amendment was to the effect of
1. Giving fishing rights in the water bodies like tanks, ponds etc of the leased area to Kerala.
2. Change in the acreage rent of Rs 30/- per acre for 8,000 acres.
3. Kerala gives the right to produce electricity to use for irrigation purposes to Tamilnadu from the Periyar Dam waters.Dispute of water level height in the dam
Since 1970 the dam's reservoir level is the dispute issue between Kerala and Tamilnadu Governments. Kerala's point was that the dam has outlived its life and is unsafe to maintain water at full reservoir level of 46.3 meters (152 feet) and should be brought down to 41.45 meters. In 1979 the Central Water Commission (CWC) dealing with the dam safety was asked to look into the matter and give its suggestion. It suggested reduction of water level to 41.45 meters (136 feet) as an emergency measure and suggested other measures to strengthen the dam.
On the basis of reports in 1979 about the inadequate safety of the Mullaperiyar Dam, The Central Water Commission (CWC) held discussions with the concerned departments of Kerala and Tamilnadu and suggested certain emergency, short term and long term measures to strengthen the dam. One of the emergency measures was to keep the shutters of spillway raised fully to lower the reservoir level to 136 feet. The CWC felt that after completing all the emergency measures suggested the water level can be raised to 152 feet. Legal battles on Mullaiperiyar Dam
In the meantime, both Kerala and Tamilnadu approached their respective High Courts for order on disputed points. But all these cases were transferred to the Supreme Court. The S C on 28.4.2000 directed the Honorable water resources minister to sort out the issues amicably with discussion between the C Ms of both the states. The W R minister constituted a committee of experts in consultation with both the states to report on the proper completion of the emergency measures, for strengthening the dam, suggested and as to the feasibility of increasing the water level. In March, 2001 the committee gave report stating that the strengthening measures are done and the water level may b raised to 142 feet. After full completion of work, the further raising of the level to 152 feet may be considered according to the committee. In the case filed by the Environmental Protection Forum in 2001 the Supreme Court permitted the T N Government to raise the water level of the Mullaperiyar Dam from 136 feet to 142 feet and take up the remaining strengthening measures.
The Kerala Government passed the Kerala irrigation and Water Conservation (Amendment) Act, 2006 which prohibited the raising of water level beyond 136 feet in the Mullaperiyar Dam as the dam was placed under the schedule of endangered dams. On 31.3.2006 the T N Government filed a case suit No. 3 of 2006 for declaring the Kerala amendment 2006 as unconstitutional and pass a decree of injunction restricting Kerala from enforcing the provisions of the amended act and permit T N to raise the water level to 142 feet as per its earlier judgment. Kerala filed a review petition on 3.4.2006 and the S C dismissed the petition on 25.9.2006 stating that the state governments independently or with the intervention of the Union Government may try to sort out the dispute, if possible.
The Union water resources (WR) minister convened the meeting of the 2 state C M s on 29.11.2006 at New Delhi and also with the concerned state ministers also, but without success. Again on the suggestion of the Prime Minister the 2 Chief Ministers met with the W R minister on 19-12-2007. On 20-12-2007 The T N Chief Minister wrote to the effect that in the meeting of 19th he (T N C M) suggested to oversee the seepage measurement of the dam by engineers not belonging to either of the states but through the CWC. The letter further stated that the Kerala C M agreed to the same. But the C M of Kerala wrote to the Tamilnadu C M on 22.1.08 stating that in the 19th December meeting the Kerala C M suggested a joint mechanism to monitor the seepage. In the letter of 4.2.08 by the C M of T N to the Kerala C M mentioned that the joint monitoring was not discussed in the meeting. The C M of T N requested to the Center to suggest a mechanism for monitoring the seepage and a committee to monitor. The Central Water Commission (CWC) suggested a 9 member committee headed by the A Chief Engineer of the CWC with representatives from both the states for monitoring the seepage. The composition of the Committee with the terms of reference was sent to the chief secretaries of the Kerala and T N for their suggestion. The T N Government replied on 17.6.08 stating that the Central Government's proposal of the committee with members from both states to measure the seepage is not acceptable to them. The Kerala in its letter of 24.2 09 informed that the stand of the T N for team excluding those from Kerala and T N is not acceptable to them.
In the meanwhile the Kerala Government got a hydrological review studies done by a professor of IIT, Delhi and has filed the hydrological study report in the S C on 15.7.08 in reference to the Suit No 3 of 2006 filed by the T N Government. The report is to the effect that the Mullaperiyar Dam is hydrologically unsafe for passing the estimated probable maximum flood (2, 91,275 cusec / 8,248 cusec) with the existing spillway capacity. The CWC has commented to the effect that the study by the IIT professor does not appear to be well founded. In May 09 the Kerala Government constituted a Committee and the committee gave its report in June 2009 suggesting for mapping of the underwater area, installation of highly sensitive computer operated seismograph and construction of a new Dam downstream of the existing dam. According to the report the dam has reached such a deteriorated condition that no amount of rectification work could salvage the dam to a safe and healthy condition. In view of this report the Central Water Resources Minister advised the CWC in July, 09 to constitute a team of officers to visit the dam and assess the present condition and look into the issues raised in the report of the expert committee. The secretary of W R convened a meeting at the dam site on 31.7.09 attended by the Principal Secretary, PWD, Tamilnadu and Additional Chief Secretary, WRD, Kerala. Kerala representative informed that the only solution to the safety problem is to build a new dam and have started the survey to find an alternate site. Downstream of the existing one at the cost of Kerala State. The representative further informed that Kerala recognizes the established use of water from the dam by the T N, and will continue to allow the facility after the new dam constructed. The representative of Tamil Nadu informed that they will examine the proposal of the Government of Kerala for the new dam after they receive the proposal formally. On this basis the Water Resources Minister of the Center wrote on 26.8.09 to Kerala Chief Minister to send the proposal to the T N for their consideration. On 14.9.09 The T N Government informed that they have already communicated vide their letter dated 13.7.09 to the Governments of India and Kerala that there is no need for a new dam as the existing dam after it is strengthened functions like a new dam. Wide a letter dated 26.9.09 commenting on the minutes of the 31st July meeting, Kerala clarified its position that what was agreed by it in the meeting was to give water to Tamilnadu.
After hearing the issues related to the Mullaperiyar Dam, on the 10th of November, 2009 the Supreme Court issued its order to the effect that as the case involves the resolution of the said questions, the Suit may be placed before the Honorable Chief Justice of India for necessary directions for placing it before a constitution bench. The contesting parties are to maintain status quo in respect of the dam as existing at the present time except for carrying out any maintenance or repair by the state of Tamilnadu. The Empowered Committee
On 18.2.10 the case was heard by the 5 judges designated and directed the Central Government to constitute an empowered committee on this matter. The committee would hear the parties to the Suit on all issues that will be raised before them, and furnish a report, as far as possible within 6 months from their constitution.
The Central Government, received the Court order vide the communication dated 29.2.10. The Central Ministry of Water Resources constituted the Empowered Committee vide their notification dated 30th April, 2010. The Supreme Court vide its order dated of 20th September, 2010 has extended the term of the committee by a further period of 6 months w.e.f. 30-10-2010.
The empowered committee met many times and decided to take up the following issues in its meeting held on 15-10-2010:
Out of the measures suggested by CWC, which are the measures already carried out by the Tamilnadu for strengthening the dam?
Which are the remaining suggestions yet to be carried out to by the T N for the safety and stability of the dam, when they are to be taken up and completed?
Has the State of Kerala complied with the suggestions of the CWC and taken appropriate measures in this respect?
Need the level of the water level in the reservoir to be raised from 136 feet and yes what further steps are to be taken to strengthen the dam to raise the level to 142 feet according to the two parties concerned?
Since the State of Kerala wants for the safety aspect of the present dam is not satisfactory, wants to build a new dam at its own expenses the Committee has sought answers for the following points:
How much time the Kerala will take to carry out survey, feasibility studies, preparation of DPR, tying of finances, obtain clearance and construction of the dam?
Who would control, operate and maintain the new dam, i.e. the state of Kerala or Tamilnadu?
Whether and how the new existing dam would continue the supply of water to the state of Tamil Nadu till the new dam becomes operation?
Would the construction of the new dam will any way affect the supply of water for use in Tamil Nadu during its construction?
The committee is in the midst of conducting tests and studies. Conclusion
Let us hope that the Government of Kerala is able to give its case forcefully and effectively. Let us hope that the Empowered Committee goes through the facts and give an opinion to the Supreme Court keeping the Kerala side of the view to get justice to Kerala. Let us hope The Supreme Court takes similar decision as of its case No 4033 of 2004.
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