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Mullaperiyar Dam Case : Supreme Court Mulls Empowering Supervisory Committee To Pass Orders For Safety; Asks Kerala & Tamil Nadu To Discuss [Hearing Day-2]

Mehal Jain
24 March 2022 12:20 PM GMT
Mullaperiyar Dam Case : Supreme Court Mulls Empowering Supervisory Committee To Pass Orders For Safety; Asks Kerala & Tamil Nadu To Discuss [Hearing Day-2]
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The Supreme Court on Thursday adjourned the Mullaperiyar dam matter to Tuesday, orally asking Senior Advocates Shekhar Naphade and Jaideep Gupta, for Tamil Nadu and Kerala respectively, to prepare the minutes of order for an arrangement where the Court-appointed Supervisory Committee can itself be empowered to pass directions to either state to carry out the necessary works within a...

The Supreme Court on Thursday adjourned the Mullaperiyar dam matter to Tuesday, orally asking Senior Advocates Shekhar Naphade and Jaideep Gupta, for Tamil Nadu and Kerala respectively, to prepare the minutes of order for an arrangement where the Court-appointed Supervisory Committee can itself be empowered to pass directions to either state to carry out the necessary works within a specified timeline and, upon failure to implement the same, the Committee may itself execute the works from the funds at its disposal.

Also, the bench orally observed that the Court may, in its order, make Chief Secretaries of both states accountable for implementation of the directions of the Committee, failing which they may be held in contempt of court. The bench asked Mr. Naphade and Mr. Gupta to prepare the minutes of the order at their personal level, though they may seek instructions from their clients. The bench orally remarked that the minutes may be modified or improved in the hearing on Tuesday and passed as an order of the Court, to be binding on the parties.

A bench comprising Justice AM Khanwilkar, Abhay S Oka and CT Ravikumar was hearing a batch of petitions filed by Kerala-based parties seeking measures for the safety of the 126-year old Mullaperiyar dam.

Court-room exchange as it transpired on Thursday-

Justice A. M. Khanwilkar to Senior Advocate Jaideep Gupta, for the state of Kerala: "The factors which weighed with the experts and were taken into account for reaching the conclusion that there is no safety problem at all at this stage- that report has been referred to and reproduced here in the judgment which found favour with the court. If there is some more new technical aspect to be looked into which has not been dealt with, have you identified that aspect specifically in your pleadings so that we can deal with that also? Because in 16 years, we can understand some technical aspects may be there which ought to have been taken into account and which were not taken into account then?"
Mr. Gupta: "I am not saying 142 feet is not the level to which it has to go"
Justice Khanwilkar: "We are on safety and not level. Naturally, level will lead to safety. If the level needs to be brought down because this structure has become slightly weak, then this level will have to be brought down. But if the structure is remaining the same, unless you have pointed out aspects in your pleadings due to which 142 should be brought down...one aspect may be because the structure by itself is not able to withstand that pressure- Some technical report or expert opinion on that? Then we may have to have an independent opinion with regard to that aspect..."
Mr. Gupta: "We are saying seepage measurements (by Tamil Nadu) are not correct. The water coming from the old part of the dam to the new part of the dam is getting blocked because the drainage hole is blocked. Seepage factor has changed over the years"
Justice Khanwilkar: "One approach is that you are not questioning what was done then but you are saying there are new techniques available which were not available then to measure the safety of the dam, and that the relook has to be done in respect of those techniques. The second is that the structure itself is weakening. These are additional aspects to be looked into by the expert committee and the supervisory committee has not looked into it. Is this your pleading?"
Mr. Gupta: "Yes. The supervisory committee never went into this issue at all. It is our submission that for the purpose of the future, seepage aspect is very important, things have happened, it it has not been covered by the previous rounds of litigation.There is a tension between both the parties. They (Tamil Nadu) say this you did not allow us to do. But what they were in a position to do has also not been done. They did not require anything from us to correct the instrumentation and put new instrumentation in place. But they have not done this. Even as per the Central Water Commission guidelines, the situation has to be reassessed in every 10 years- so from 2012 to 2022 now it has to be done"
Justice Khanwilkar: "Is it possible for us to say that the supervisory committee will also have the wherewithal to carry out any activity needed and not leaving it to them? The supervisory committee and the joint committee can do it?
Mr. Gupta: "We will welcome it"
Justice Khanwilkar: "So these issues which are being raised by this side or that side will be put to rest. The committee will itself provide the technical persons and ensure the needful is make available and where it has to be supplemented, you can also do that. Some mechanism on those lines- is it possible or not? Because this is not a one-day affair. This has to be maintained permanently and erennially so long as the dam exists, this dam or the other dam. This is affecting the two states. So that both sides' interest is secured and both sides' obligations are taken care of and nobody can blame each other. The committee can be strengthened by adding two more technical persons including the instrumentation department- there can be a subcommittee formed by the supervisory committee. Instead of debating here, ground level action is required and that action is required at that moment and not in the future to ensure the safety of the people. Work out that mechanism"
Mr. Gupta: "We will certainly do that"
Senior Advocate Shekhar Naphade, for the state of Tamil Nadu: "We are interested in maintaining the dam. 2006 judgment says that we should carry out certain works and then we can raise the level to 152 feet which is the original position. There is no reason why we should not be interested in doing this first. All this talk about us not doing it, we will show how fallacious it is"
Justice Khanwilkar: "What we are saying is that at this point of time, it is not open for you to say 'we will go beyond 142'. Because 142 is freezed by this judgment"
Mr. Naphade: "That is not my suggestion at all at this stage that we will go beyond 142 right now. But your lordships have not conferred any power on the supervisory committee to carry out the work…"
Justice Khanwilkar: "We are not changing the basis of the Constitution bench judgment at all. We are not taking away the mechanism provided there at all. We are just providing something more. That is not modification of the earlier order"
Mr. Naphade: "The purpose of the supervisory committee was to ensure that all necessary steps are taken…"
Justice Khanwilkar: "Ground-level things show that there is still miscommunication between the parties and still difference of opinion and the safety issue is still everywhere. So why not have the supervisory committee itself do the work that you are expected to do? So that the supervisory committee is ultimately accountable for whatever is required to be done"
Mr. Naphade: "We bow down to what Your Lordships are putting"
Justice Khanwilkar: "The funds will be dedicated to the supervisory committee which will utilise them as and when it wants"
Mr. Naphade: "We will put it to the clients and get back to your lordships…this would help in resolving a dispute which dates back to 1979. I am probably the third generation lawyer appearing in this matter…"
Justice Khanwilkar: "All this can be left to the supervisory committee, it can be mediated by the supervisory committee. It will be the end of the dispute forever. We will say that a timeline will be provided for the direction issued by the Committee to be implemented, that the directed work to be carried out within so-and-so period. If it is not done, then the supervisory committee can itself do the instrumentation work. So that there is come accountability. The grievance is that instrumentation has not been done so far. So is it possible or not possible?"
Mr. Naphade: "It is possible…Your Lordships know these are all politically sensitive matters, Your Lordships know everything"
An advocate on behalf of ASG Aishwarya Bhati, for the Supervisory Committee: "Ms. Bhati will elaborate this point, but the problem has been that if we call for inputs, inputs are not received; if directions are passed, they are not implemented!"
Justice Khanwilkar: "Then we will provide some accountability of the Chief Secretary himself. The communication can be sent by the supervisory committee to the concerned department and the Chief Secretary of the states of Kerala and Tamil Nadu. So that the chief secretary will be made accountable for this non-compliance. And it will be treated as contempt of court. That line we can add at the end if required. Everyone should take the responsibility, there has to be accountability of the authority. Multiple authorities are creating problem. It is in larger public interest that supervisory committee is strengthened, with timelines for every activity and every direction, and somebody made responsible to comply with that"
Mr. Naphade: "The problem is that we are in their territory, we have neither proper police power or anything…"
Justice Khanwilkar: "The supervisory committee will invoke those powers. We will say that. You can come with minutes of the order and we will pass it and then it will be court orders. Both of you (Mr. Gupta and Mr. Naphade) sit and work it out. Give us all details that you want"
Mr. Naphade: "Then I don't see any reason why it cannot be accepted. May I suggest to please keep this matter on Tuesday and we will give that to your lordships…because this requires a political sanction. We are still in your lordships' hand. And therefore, instead of keeping fighting here, if something can be worked out, we will be happy"
Justice Khanwilkar: "We will suggest that both of you sit down and work it out. Whatever points you have said, those points can also be recorded in the minutes of the order and we will pass that order and we will add further conditions to that so that all future apprehensions are taken care of of both sides. The accountability has to be there otherwise consequences would be disastrous…Suggest what you want in the minutes of order, that will be courts' order, it will not just be your suggestions. Comprehensive measures and a holistic approach has to be adopted to strengthen the mechanism"
Mr. Gupta: "No issues at all…one of my submissions before your lordships is reconstitution of the committee and widening its functions"
Justice Khanwilkar: "Technical persons, representative of both sides, can be added"
Mr. Gupta: "And Your Lordships are saying that its powers can be enhanced so that the Committee has the power to execute?"
Justice Khanwilkar: "Yes, you say that in the minutes of order. These activities which are required to be done for the stability of the dam, those entire activities should be the responsibility of the supervisory committee. They can issue directions to the state of Kerala or Tamil Nadu to do something in that regard, and if not done within that timeline, then the supervisory committee shall itself do it and the amount which is payable can be taken from the funds which are available"
Mr. Gupta: "Would this be good enough if the same dam is to be used for the higher level of water also? Our approach is that in the long run, the correct solution is not just to keep increasing the water in the old dam, but to have a new dam"
Justice Khanwilkar: "No, no, increasing beyond 142 is out of question till the 2014 judgment of the five judges is reversed. We will stick to 142 measure as per the rule curve"
Mr. Naphade: "If all the work that has to be carried out has been done, then the question was arise if it can be raised…"
Mr. Gupta: "In the short run, to keep the dam safe till it is possible to build a new dam, what are Your Lordships are saying is absolutely essential"
Justice Khanwilkar: "The new dam issue can also be debated and discussed and resolved by the supervisory committee. We can say that (in the order)…if the supervisory committee feels that the stability issue can be addressed better by having one more dam, then that recommendation the supervisory committee will make and it will be binding on both the states"
Mr. Gupta: "Any dispute resolution mechanism which does not require both parties to rush to this court is a worthwhile exercise…similar things have been tried several times earlier but failed…"
Justice Khanwilkar: "Whatever appeals to both of you on a personal level, put that in the minutes of order. At your level, it will be faster. Don't look to anyone else for instructions. Give us a roadmap so that we can accept it as it is and make it court's orders. It will be binding on both the sides. And the supervisory committee will be accordingly empowered. We will have it on Tuesday so that we can have a permanent solution to this problem. And somebody has to be accountable for what is required to be done. Timeline is also so important in these kind of issues, if anything happens…"
Continuing, the judge observed, "We are not recording anything today, no order is required. We will have it on Tuesday. The hearing will proceed on the same day. If you come up with minutes, we will see whether to improve the minutes or modify the minutes. Minutes, we are expecting from both of you and not from your client. Clients, you can take instructions from, and whatever instructions are given- you are free to espouse those issues. But the minutes are expected from both the senior advocates appearing here"
Mr. Naphade: "(In a lighter vein) Bengal is on the eastern side and Maharashtra is on the western side, perhaps we can meet somewhere in Delhi"
Next, an advocate for one of the petitioners sought to make submissions as regards the constitution of the Supervisory Committee, that the Committee is acting in a biased manner and that the minutes of its meetings reflect how it is dealing with the matter.
Justice Khanwilkar: "We are saying that all writ petitions we are dismissing and only the 2 states will be parties. Do you want to find a permanent solution or do you want to aggravate the problem? It is in the interest of both the states and the residents who live there downstream.You want yourself to be members of the supervisory committee? We will not accede to that. It is the responsibility of the officials and the ex-officio members. We are open to you giving suggestions to the supervisory committee. But their technical expert members who will do every thing. We cannot permit you to question the supervisory committee constituted by this Court. We should be rejecting all the petitions filed by individuals and treating it as public interest litigation. Please don't create litigation like this. Please understand or we will do that immediately. Please take it from us, we can do that immediately. What we are suggesting will be more effective and it will be purposeful!"
Continuing, the judge observed, "We are not averse to hearing, but such individual perceptions? Experts will decide the safety of the dam, not your vision or your perception. Then the entire matter gets deviated. You can give inputs to the supervisory committee which will be the expert committee. Even we cannot take over that work! Whether it is safe or unsafe, it is for the experts to define that. Don't create more situations where it becomes unresolvable. Both states will represent citizens of that area. You should respect that also. We are not working against your interest. It is to strengthen the system and to make it more purposeful and effective. Start with trust and not distrust of the supervisory committee. It has officials and representatives from both states. Don't attribute motives to the committee. It is constituted by the Supreme Court, it is not by any particular state…you are alleging malafides to the committee. You said that the supervisory committee is biased, that the minutes itself will reflect how the committee is dealing with the matter"

Case Title: Dr. Joe Joseph v. State Of Tamil Nadu

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