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The apex court observed that issue raised by Kerala, which has said that process for setting up a new dam in the downstream reaches of the existing dam should start, can be debated, discussed and resolved by the supervisory committee which can make its recommendation on this.
While hearing arguments on the pleas raising issues pertaining to Mullaperiyar dam, which was built in 1895 on the Periyar river in Idukki district of Kerala, a bench headed by Justice A M Khanwilkar said a “holistic approach” should be adopted and a comprehensive measure should be there to strengthen the system.
“Now, the experience shows that there is still difference of opinion, there is still miscommunication between the parties and there is apprehension about the safety issue everywhere. So, why not have this supervisory committee itself doing the work of what you are expected to do,” said the bench, also comprising Justices A S Oka and C T Ravikumar.
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Senior advocate Shekhar Naphade, appearing for Tamil Nadu, said the purpose of the supervisory committee was to ensure that all necessary steps are taken and he would take instructions on this issue as these are sensitive matters.
He said the state of Tamil Nadu is interested in “retaining the dam”.
The bench observed that the issue is affecting both the states and they can work out a mechanism so that interest of both the sides is secured and nobody blames each other.
“All this can be left to the supervisory committee. If the directions issued by the supervisory committee are not carried out, we will say time line will be provided. The supervisory committee can itself do that instrumentation work because the grievance is that instrumentation has not been done,” it observed.
It said the activities relating to structural safety should be the responsibility of the supervisory committee which can issue directions to both the states to do what is required to be done.
“The accountability has to be there. It has to be fastened otherwise the consequences may be disastrous,” the bench observed.
Regarding Kerala’s submission about construction of a new dam, the bench said, “If the supervisory committee so feels that stability issue can be addressed better by having one more dam, like baby dam has been created, that recommendation the supervisory committee can make and that will be binding on both the states.” An advocate, appearing for the supervisory committee, told the bench that she is being led by Additional Solicitor General Aishwarya Bhati in the matter.
The lawyer said the recommendations passed by the supervisory committee after discussion with both the states are not being followed and the directions passed are not implemented.
The bench said it can have some accountability on the chief secretaries of the states.
“The communication can be sent by the supervisory committee to the concerned department and the chief secretaries of the states so that the chief secretary will be made accountable for non-compliance and it will be treated as contempt of court,” The bench observed.
Senior advocate Jaideep Gupta, appearing for Kerala, continued his arguments in the matter and referred to the rule curve and safety issues.
The bench said the structural safety issue has to be gone into by the experts.
It said the supervisory committee can be strengthened and time lines for every activity, every direction given by the panel and someone accountable if it is not implemented, has to be there.
The bench posted the matter for March 29 and asked both the parties to give a road map which can be accepted and made part of the court order.
When an advocate, appearing for one of the petitioners, argued about functioning of the supervisory committee, the bench said, “We cannot permit you to question the supervisory committee constituted by this court.” “Whether it is safe or unsafe, it is for the experts to define that,” it said, adding, “Don’t create a situation that it becomes unresolvable.” The counsel appearing for Kerala had on Wednesday told the bench that the process for setting up a new dam in the downstream reaches of the existing dam should start and the upper rule level of Mullaperiyar dam should be 140 feet and not 142 feet.
The Kerala government had earlier told the apex court that ”no amount of rejuvenation” can perpetuate the dam and there is a limit to the number of years one can keep dams in service through maintenance and strengthening measures.
In its response to the affidavit filed by Kerala, the state of Tamil Nadu had earlier said that “repeated assertion” of Kerala and petitioners from there in the pleas filed from time to time seek to decommission of the existing dam and construction of a new dam, which is “wholly impermissible” in the light of the apex court verdict on the safety of the dam.
”The dam has been found to be hydrologically, structurally, and seismically safe,” Tamil Nadu had said.