- (1.) It is, inter alia , argued by Shri Naphade, learned senior counsel appearing for the petitioner in this contempt petition that contrary to the orders dated 07.05.2014 and 11.01.2018, passed by this Court, respondent- State of Kerala is going ahead with the plan to construct new independent dam in place of Mullai Periyar Dam (MPD). He has drawn our attention to the following paragraphs from the judgment dated 07.05.2014, passed in Original Suit No. 3 of 2006, reported in (2014) 12 SCC 696 : "218-.This issue is founded on the offer made by Kerala to Tamil Nadu to construct a new dam across river Periyar in the downstream region of Mullaperiyar dam. EC in Chapter VIII under the title "Way Forward - Towards An Amicable Resolution" has dealt with this aspect as a first alternative and suggested as follows: "1. That the SoK may construct a new dam, at its own expense to serve its own perceptions, if techno-economically cleared by the Planning Commission, and cleared by MoEF in accordance of their regulations. The construction of a new dam, giving due margin for inflation etc, may cost the exchequer more than Rupees one thousand crores. The statutory clearances, fixing of a construction agency, preliminary works, the actual construction and decommissioning with demolition of existing dam is likely to take 8 to 10 years. The existing dam shall not be dismantled, demolished or decommissioned till the new dam construction is completed and it becomes operational. Till such time, the rights of the SoTN in the existing Dam to all waters of Mulla Periyar Dam arising out of the Lease Deed of 1886 and the Agreements of 1970, shall be fully honoured. 2. However, the operation of the New Dam would commence only after: 2(a) A fresh MOU is executed between the SoK and the SoTN. 2(b) That to control, manage, operate, maintain and regulate the waters of the New Dam, an Independent Committee / Board, to be chaired by a representative of the Union of India, with representatives of the SoK and the SoTN as its Members, is put in place; 2(c) That the terms of rent/levies etc payable by the SoTN to the SoK are settled and the power generation rights of the two States are settled beforehand; 2(d) That before construction of the new dam and till its commissioning, the existing dam will be strengthened by the measures suggested by the CWC, including Dam Safety requirements as already voiced, which still remain to be carried out. 2(e) That the SoTN will be entitled to all its existing rights including all water levels under the Lease Deed of 1886 and Agreement of 1970. 2(f) That decommissioning or demolition of the existing dam would be subject to the conditions 2(a) to 2(e) being met by the two Party States. 2(g) The Empowered Committee had made the suggestion to the two States during the hearing on 2nd January, 2012. Learned counsel for the parties had sought time to consult the States and file their responses. Counsel for the parties later on gave their responses in general terms, but there has been no direct response or opposition to the alternatives suggested." 222-EC has itself noted that the second alternative is dependent on agreement between the two States but to us there appears to be no possibility of mutual agreement on this aspect as well. The alternatives suggested by EC are worth exploring by the two States but having regard to the unbending stance adopted by them, this does not seem to be possible. We, however, grant liberty to the parties to apply to the Court if they are able to arrive at some amicable solution on either of the two alternatives suggested by the EC. 229. However, to allay the apprehensions of Kerala- though none exists - about the safety of the Mullaperiyar dam on restoration of the FRL to 142 ft., a 3-Member Supervisory Committee is constituted. The Committee shall have one representative from the Central Water Commission and one representative each from the two States - Tamil Nadu and Kerala. The representative of the Central Water Commission shall be the Chairman of the Committee. The Committee will select the place for its office, which shall be provided by Kerala. Tamil Nadu shall bear the entire expenditure of the Committee.
(2.) Shri Naphade, learned senior counsel also submits that contrary to the directions given in paragraph 229 of the judgment, the committee which was constituted had given clearance to the effect that MPD is structurally, Hydro-logically and seismically safe. On the basis of the above, his submission is that there cannot be any construction of new dam and proposed action on the part of the Stat e of Kerala amounts to violation of the aforesaid orders. He also submits that even no study in respect of construction of new dam could have taken place.
(3.) Shri Jaideep Gupta, learned senior counsel appearing for the respondents informs that the respondents have only carried a study in respect of MPD dam viz. whether this dam needs to be constructed or not. He has made a categorical statement at the bar, on instructions from the respondents, that modalities in paragraph 218 should be followed and the State of Kerala does not propose to start any construction of a new dam. The aforesaid submission on behalf of Shri Gupta adequately protects the interest of the petitioner. The question as to whether any study could at all be carried out or not can always be considered and this move on the part of the State of Kerala can be questioned in case the respondents make any application to this court for any such permission.;