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The top court, which appealed to both the states to “let the water flow” safely, said it would pass the order in the matter on Friday. A bench headed by Justice A M Khanwilkar is hearing pleas raising issues about the Mullaperiyar Dam, which was built in 1895 on the Periyar river in the Idukki district of Kerala.
On April 5, the apex court had said the supervisory committee can be asked to carry out all the statutory functions until the NDSA is established.
“Today, immediate attention is required to be given to the safety of the existing dam, for which there is an authority under the Act but it is not established,” the bench, also comprising Justices A S Oka and C T Ravikumar, said on Thursday.
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He said the state has drawn some proposals.
Kerala’s counsel said the state is suggesting that the chairman of the supervisory committee should be changed and a senior official should be appointed to head the committee.
Senior advocate Shekhar Naphade, appearing for Tamil Nadu, said they have been obstructed in implementing measures which the apex court had permitted them to undertake in its 2006 and 2014 judgements.
The bench observed the focus should be on strengthening the supervisory committee.
“We will say that all functions and powers will be vested in the supervisory committee and all the steps as are required to be taken by the authority will be taken by the supervisory committee,” it said.
When Naphade argued about the “obstructionist attitude” of Kerala, Gupta said he will have to place the entire matter if Tamil Nadu want to argue this.
“What is there to argue now after the Act,” the bench observed, “We are not examining these allegations and counter-allegations.” “Take it forward now, don’t go into history and the past…..The dam has withstood till now, therefore let us not go into history. Concentrate on the future of the dam,” the bench said.
Naphade told the court about the apprehension of Tamil Nadu.
“The whole attempt of Kerala is to drive us out of Kerala and we are in a position to demonstrate that every year they raise this issue of the flood, every year they raise the question of safety,” he said, adding, that safety has been examined in January and it has been said that the dam is safe.
Kerala’s counsel said if the court is hearing these arguments, then he will have to respond to it. “Can your lordships imagine a submission in independent India that Tamil Nadu is afraid of being driven out of Kerala? Is this a colonization?” Gupta said.
The bench asked Additional Solicitor General (ASG) Aishwarya Bhati, who was appearing for the Central Water Commission and the supervisory committee, about Kerala’s proposal on changing the chairperson of the committee.
After taking instructions, the ASG referred to the proposal given in the court earlier and said the court may allow the present chairman to continue.
“Then we will not disturb the supervisory committee,” the bench said, adding the arrangement has been going on since 2014.
Kerala’s counsel said they want a more senior person as chairperson of the committee.
The bench observed it can constitute a new committee but then it will take some time to acclimatize.
“Please understand half-baked cake will destroy the dam. The dam’s safety is more important than your perception about the committee,” the bench said.
It said safety is the complete prerogative of the supervisory committee and the court will not go into the question of the new dam for the time being.
An advocate, appearing for one of the petitioners, said the Act is not going to prevent the calamity and referred to the 2014 judgement.
“Don’t exceed your brief,” the bench said. It said the order would be passed on Friday as it does not want any interruption while dictating the order. The Centre had earlier said the NDSA will become fully functional in one year.
On March 31, the court had asked the Centre to file a note detailing the time frame and also when the NDSA would be functional.
The counsel appearing for Kerala had earlier told the court 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 said 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 the existing dam and construct a new dam, which is “wholly impermissible” in the light of the apex court verdict on the safety of the dam.