Mullaperiyar Dam Case : Supreme Court Asks Centre About Scope Of Authority Under Dam Safety Act 2021

Mehal Jain

31 March 2022 12:36 PM GMT

  • Mullaperiyar Dam Case : Supreme Court Asks Centre About Scope Of Authority Under Dam Safety Act 2021

    In connection with the Mullaperiyar dam issue, the Supreme Court on Thursday asked the Centre to file a note by Tuesday, detailing a time-line and plan as regards making functional the National Dam Safety Authority and the other bodies, the structure envisaged by the Dam Safety Act, 2021, and for making operational the scheme and the framework under the Act.Last week, the Court had adjourned...

    In connection with the Mullaperiyar dam issue, the Supreme Court on Thursday asked the Centre to file a note by Tuesday, detailing a time-line and plan as regards making functional the National Dam Safety Authority and the other bodies, the structure envisaged by the Dam Safety Act, 2021, and for making operational the scheme and the framework under the Act.

    Last week, the Court had adjourned the Mullaperiyar dam matter, 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.
    A bench comprising Justices AM Khanwilkar, Abhay S Oka and CT Ravikumar was hearing a batch of writ petitions, filed by Kerala-based parties, seeking measures to ensure the safety of the 126-year old dam. Kerala and Tamil Nadu have taken contrary stances in the case, with the former stating that the only resolution to the issue is the construction of a new dam and the latter stating that the existing dam is safe and reinforcements can be done under the supervision of the Committee.

    On Thursday, Senior Advocate Jaideep Gupta, for State of Kerala submitted that a consensus could not be reached with Tamil Nadu: "We could not break the ice"

    Justice A. M. Khanwilkar: "Then we will pass order. The whole problem can be resolved by improving the mechanism which already exists. We only have to make it more effective"
    Mr. Gupta: "That is the line on which we exchange notes"
    Justice Khanwilkar: "Then you give your notes. On that basis, appropriate orders will be passed. That is the whole issue"
    Mr. Gupta: "We will give those notes to your lordships also. The difficulty is that some of those can only follow if your lordships have heard us out"
    Justice Khanwilkar: "Yes, yes, certainly, but those inputs can be given to us. we will take that into account and we have to pass that order"
    Senior Advocate Shekhar Naphade, for the state of Tamil Nadu: "There is one more dimension which I must bring to your lordships' notice. There is a Dam safety act which has come into force in December, 2021 under which several new authorities are constituted. The most important authority is the national Dam safety authority. It virtually takes over all functions which the (court-appointed Supervisory Committee was carrying out)…that is what the Union of India wanted to show to your lordships"
    Justice Khanwilkar: "We can consider that"
    Mr. Gupta: "There is no difficulty if there is a statutory provision. But I must tell you that none of these committees have come into existence…"
    Mr. Naphade: "That is true. I am only pointing out there is a new regime"
    Justice Khanwilkar: "we will look at that provision also and see if it is already operational or not. That will also be considered"
    Mr. Naphade: "the point of difference is that they want at any cost the new dam"
    Mr. Gupta: "it is one of the most fundamental aspects that whatever was discussed in the negotiation should be mentioned here. If we were leading on the negotiation, then of course everything would be placed before your lordships"
    Justice Khanwilkar: "yes, that will not happen…If there are certain directions required, we will consider"
    Mr. Gupta: "the only one issue we have agreed on is adding 2 technical members to the supervisory committee"
    Mr. Naphade requested that the bench allow him to circulate the new Act and adjourn the matter to Tuesday to peruse the same. The bench insisted on listening to the matter on Thursday itself after the overnight part-heard, indicating that if need be, it may be adjourned to Tuesday.
    In the post-lunch session, Additional Solicitor General Aishwarya Bhati told the bench, "your lordships may consider the latest status report that the supervisory committee has also filed. We have said it is time for another safety evaluation of the dam. This statute now deals with everything. The supervisory committee was a smaller committee which your lordships appointed. Now this mandate(under the Dam Safety Act) will take care of larger issues also. They can submit a report to your lordships at a time that your lordships deem appropriate. Then your lordships may take a call. Because a lot of problems have continued to remain- the strengthening of the three portions of the dam has not happened, the approach Road is not repaired, small things we are still struggling for several years"
    Justice Khanwilkar: "Under this act, which authority, which committee will be responsible to supervise this dam?"
    ASG: "National Dam Authority as per section 8"
    Justice Khanwilkar: "If this Act came into force in December 2021, why reference to this enactment is not made in your response which is filed"
    ASG: "we did not file any response after that. We filed a status report prior to this. At that time, it was a bill"
    Justice Khanwilkar: "The act has come into effect but the authority has to be notified? When the notification under section 8 was issued?"
    ASG: "Yes, The authority has also been notified. The Act came into force on 30 December 2021. Notification under section 8 has also been issued. Section 5 National Dam safety committee and the National Dam Safety Authority under section 8 has been notified on 17th February. There is a temporary structure of the NDSA which has been finalised till the recruitment rules are finalised which is of 30th of March 2022"
    Justice Khanwilkar: "On your perspective with reference to this act, give us a small note- what areas are covered- there should not be overlapping in the directions issued by this court…You have to give an assurance that within this timeframe, the authority will become functional, and all the issues which have been raised in the petitions, to which provision of this act they are ascribable. Give us a note or tabular format so that the other side can also deal with it. We will have it on Tuesday. But broadly it seems the authority is there"
    Justice Khanwilkar: "Subjects covered are alteration of dams, dam incident, dam failure…Surveillance, inspection, operation and maintenance- everything is included; the preamble itself makes it clear…For our purpose section 9 is the most relevant provision for the purpose of making reference- Section 9(2) and subsection (3) (the Authority shall make all endeavours to resolve any issue between the State Dam Safety Organisations of States or between a State Dam Safety Organisation and any owner of a specified dam in that State; Every decision of the Authority taken in respect of matters under this Act shall be final and binding upon all the parties to the issue)…All these issues which have been debated between two states, the authority is empowered and obliged to resolve them"
    Mr. Gupta: "if the central government could take a stand…"
    Justice Khanwilkar: "that is why we want them to file a note as to what their plea is and what their stand is"
    Justice Khanwilkar: "It is a very comprehensive act. Even without looking at this act, we wanted the two of you (Kerala and Tamil Nadu) to work on these lines. Now that the Act is there, the authority is there, all functions must go to that authority. Even the efficacy of the supervisory committee formulated by this court will have to be gone into- Whether it should remain"
    The bench indicated that the authorities under the Act are responsible for undertaking "remedial measures" which are defined as "such structural or non-structural measures, as may be required in relation to the specified dam or appurtenant structure or reservoir or reservoir rim or catchment area of reservoir for the purpose of removing or mitigating the distress condition of the specified dam"
    Justice Khanwilkar (in lighter vein): "This is not exhaustive. It is short of settling of political scores. That authority is not with this authority"
    Mr. Gupta: "even in the report that the Centre has filed in January, this Act is not referred to…"
    ASG: "I apologise I mistakenly said no response was filed after the Act…but the notification in terms of the Act had not taken place then"
    Justice Khanwilkar: "File your note. The timeframe you will have to define- when this authority becomes functional because it will have to deal with the issues; how does the authority resolve all the issues; the wherewithal to do that…Now it is completely within the scope of the authority, it is not only the power to do something but an obligation and duty in respect of all matters relating to safety of specified Dams. The Centre will now have to take a firm stand as to what extent and how early you can do it so that these issues can be straightaway referred to that committee or authority. Let them file a note as to how they want to go about the act. Because now it is entirely the responsibility of the authority. Give us the timeline, give us the structure, how to go about it- because every issue is covered by this scheme. There is no doubt about it. We will have it on Tuesday. File your note"

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

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