Y.K.Sabharwal, J. - (1.) MULLAPERIYAR reservoir is surrounded by high hills on all sides with forest and is a sheltered reservoir. The orientation of the dam is such that the direction of wind in the south west monsoon would be away from the dam. It is said that for past 100 years, Tamil Nadu Government Officers have been approaching the reservoir during the flood season only from Thekkady side in a boat and have not noticed any significant wave action.
(2.) THE main question to be determined in these matters is about the safety of the dam if the water level is raised beyond its present level of 136 ft. To determine the question, we may first narrate factual background. "(1) An agreement dated 29th October, 1886 was entered into between the Maharaja of Travancore and the Secretary of State for India in Council whereunder about 8000 acres of land was leased for execution and preservation of irrigation works called 'Periyar Project'. In pursuance of the said agreement, a water reservoir was constructed across Periyar river during 1887-1895. It is known as Mullaperiyar Dam consisting of main dam, baby dam and other ancillary works. (2)THE salient features of the dam as mentioned in the agreement are as follows JUDGEMENT_31_JT3_2006Html1.htm (3) In the past, reservoir was filled up to full level of 152 ft. as per the agreement. THE agreement was modified in the year 1970. THE State of Tamil Nadu was allowed to generate electricity from the project and it surrendered fishing rights in the leasehold land in favour of State of Kerala. It also agreed to pay annually a sum specified in the agreement to the State of Kerala. THE Government of Kerala was also granted right of fishing over and upon the waters, tanks and ponds in the land and agreed that the principal deed and all the conditions shall remain intact without affecting in any way the irrigation and power right of the Government of Tamil Nadu. (4) According to the petitioner, there was leakage in the gallery of the dam which affected its security and, therefore, the water level was stopped at 136 feet. In view of such situation, the Central Water Commission (CWC) inspected the dam, held meetings with representatives of both the States of Kerala and Tamil Nadu for considering ways and means to strengthen the Mullaperiyar Dam. At the meeting, certain decisions were taken for the purpose of ensuring security and safety of reservoir and by taking several necessary measures. Three types of measures were envisaged, namely, (i) emergency measures, (ii) middle term measures, and (iii) long term measures. THE progress of implementation of measures was also reviewed in the meetings held in 1980, 1983, 1996 and 1997. In this light, it is claimed that water level cannot be raised from its present level of 136 feet. (5) In view of apprehension expressed in the light of leakage, in the year 1979 the water level was allowed upto 136 ft. instead of 152 ft. After thorough study and considering all aspects, the CWC felt that certain steps were required to be taken immediately and both the States of Tamil Nadu and Kerala ought to cooperate. On taking those steps, water would be allowed to be filled upto 142 feet. Some other steps were also suggested for allowing the water to be filled in at the full level of 152 feet. THE State of Kerala expressed reservations against the report submitted by CWC and according to a dissent note, appended by the representative of the State of Kerala, the water level could not be allowed to be raised beyond 136 feet." For the present, the only question is whether water level can be allowed to be increased to 142 feet or not. The State of Kerala has filed an affidavit justifying its stand of not allowing raising of water level from 136 feet. According to it, the life of the dam was said to be 50 years from the date of construction. Since it had completed more than 100 years, it had served the useful life. It was, therefore, dangerous to allow raising of water level beyond 136 feet. It was also stated that if something happens to the dam, serious consequences could ensue and three adjoining districts could be completely wiped out and destroyed. It was also the stand of the State that the dam was constructed at a time when the design and construction techniques were in infancy. There was no testing laboratory to get accurate and detailed tests of construction materials. The stress and other elements were observed in the dam right from the initial filling and remained there in spite of remedial measures taken out. Moreover, there were frequent tremors occurring in that area and in case of an earthquake, it could result in serious calamities and total destruction of life and property. It was also alleged that the technical officials of CWC had submitted the report without effective participation of the technicians from Kerala and view points of Kerala had not been considered at all. According to the State, CWC also could not be considered as the highest technical body in the country for giving technical advice and the decision taken by CWC without consultation of State of Kerala, was not binding on the State.
(3.) ON the other hand, the State of Tamil Nadu said that the apprehension voiced by the State of Kerala was totally ill-founded, baseless and incorrect and based on mere figment of imagination. CWC was the highest technical authority with the required expertise on the subject. It had inspected the dam in detail and found various allegations as incorrect and baseless. It also stated that an expert committee was constituted in pursuance of an order passed by this Court and a report was submitted in the year 2001. As per the report, water level deserves to be allowed to be raised upto 142 feet as an interim measure on taking certain steps and after execution of the strengthening measure in respect of Baby Dam, earthen bund and on completion of remaining portion, the water level could be allowed to be restored at FRL i.e. 152 feet. Unfortunately, however, the State of Kerala did not cooperate and did not allow increase of water level even upto 142 feet. It was stated that the committee consisting of experts considered the question and thereafter various recommendations were made and actions were suggested. It was, therefore, not open to the State of Kerala to refuse to cooperate and not to accept the suggestions and the recommendations of CWC. According to the State of Tamil Nadu, its prayer for raising water level upto 142 feet at the initial stage and 152 feet at the final stage deserves to be accepted. A Committee was constituted with terms of reference as under : "(a) To study the safety of Mulla Periyar Dam located on Periyar river in Kerala with respect to the strengthening of dam carried out by the Govt. of Tamil Nadu in accordance with the strengthening measures suggested by CWC and to report/advise the Hon'ble Minister of Water Resources on the safety of the dam. (b) To advise the Hon'ble Minister of Water Resources regarding raising of water level in Mulla Periyar reservoir beyond 136 ft. (41.45 m) as a result of strengthening of the dam and its safety as at (a) above. The Committee will visit the dam to have first hand information and to assess the safety aspects of the dam. It will hold discussions with Secretary, Irrigation of the Kerala Govt. as well as Secretary, PWD, Govt. of Tamil Nadu with respect to safety of the dam and other related issues." According to the State of Tamil Nadu, the Committee after inspecting the dam and after holding discussions with the officials of the two States, submitted its interim report wherein recommendations were made as under: "1. The Tamil Nadu PWD Department should immediately test the masonry of the Baby dam to find out the permissible tensile strength that can be adopted for the lime surkhy mortar used in the construction of Baby dam. Central Soil and Materials Research Station (CSMRS), Government of India, New Delhi, should carry out these tests. CSMRS are specialist in carrying out geophysical and core tests and have a good reputation. These tests should be carried out in the presence of the representatives of Tamil Nadu PWD, Irrigation Department, Government of Kerala and CWC. The results of these tests should be made available to the Committee by end of November, 2000. The Government of Kerala should permit Tamil Nadu PWD and CSMRS to carry out these tests without any hindrance. 2. Core samples of Baby dam shall also be extracted and tested by CSMRS, New Delhi, at the upstream and downstream faces of the dam. These results may be used to develop co-relation between the actual tests and the results obtained by geophysical testing. 3. The strengthening measures pertaining to the Baby dam and the earthen bund as already suggested by the CWC and formulated by the Government of Tamil Nadu should be carried out at the earliest. Government of Kerala is requested to allow the execution of strengthening measures of the Baby dam and earthen bund immediately. 4. Raising of water level beyond 136 ft. (41.45 m) will be decided after obtaining the tensile and compressive strength of the masonry of the Baby dam." ;