REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

Writ Petition (Civil) No. 878 of 2017

RUSSEL JOY … Petitioner(s)

VERSUS

UNION OF INDIA & ORS. … Respondent(s)

J U D G M E N T

Dipak Misra, CJI

This writ petition is preferred by a public spirited person

under Article 32 of the Constitution of India praying for issue a

Writ of Mandamus directing the Government of India to appoint

an international agency with the technical expertise to study and

to adjudge the lifespan of Mullaperiyar Dam and ascertain the

date/period on which the said dam must be de -commissioned;

appoint a High Powered Committee to suggest to this Court to

declare a date/time period for de-commissioning of Mullaperiyar

Dam; direct the State owning the dam, that is, Tamil Nadu to

make financial provisions for damages to life and restoration of

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environment in the eventuality of a burst of Mullaperiyar Dam

before it is de-commissioned, and pass any other order or

direction as this Court may deem fit and proper to do so in the

facts and circumstances of the case.

2. The essential facts which need to be stated for adjudication

of this petition are that Mullaperiyar Dam was constructed under

a lease agreement executed in the year 1886 between the

Maharaja of erstwhile Travancore with the British Secretary of

State for Madras Presidency for a duration of 999 years. In

pursuance of the said agreement, the dam was constructed

across river Periyar in crude lime surky mortar at a time when

dam engineering was in its infancy. Periyar river originates from

Sivagiri and Western Ghats at an elevation of 2400 meters from

the sea level and joins Mullayar river downstream at an elevation

of 850 m. It is at this elevated junction, the Mullaperiyar dam

was built having a height of 53.6 m (176 ft.) from the foundation

and a length of 365.7 m (1,200 ft) for catering to the irrigational

needs of the neighbouring State of Tamil Nadu under the said

lease agreement.

3. There is an assertion in the petition that the Chief Engineer

of the dam project, Mr. John Pennycuick envisaged the lifetime of

the dam for a period of 50 years. As 121 years have expired from

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the date of the construction of the dam, the decommissioning of

the said dam has become essential and there is need for

assessment of the lifespan of the dam regard being had to the

safety of the citizens especially the persons residing downstream

of the river. There is reference to the litigations filed between the

State of Kerala and State of Tamil Nadu for long period and more

recently in CS (OS) No. 3 of 2006 before this Court which was

decided on 07.05.2014 in State of Tamil Nadu v. State of

Kerala and another

1 whereby this Court apart from issuing

other directions had appointed a Supervisory Committee to take

measures pertaining to the dam in emergent situations.

4. It is contended in the petition that because of the efflux of

time and the safety of the dam being doubtful, fear remains

embedded among the people who reside downstream of the

Mullaperiyar dam. That apart, the residents of the area in

proximity do not feel safe. In such a situation, as set forth,

precautionary steps are required to be taken to protect the life

without waiting for a disaster to happen in the form of a dam

burst which can be triggered due to multiple reasons. According

to the petitioner, due to the differences between State of Kerala

and State of Tamil Nadu over the contractual rights over the

1

(2014) 12 SCC 696

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1886 lease agreement, they have not taken any steps to mitigate

the fear or dispel the threat to life of many citizens who live in the

zone of immediate catastrophe. The petition has highlighted a

serious concern about the lifespan of the dam. It is contended

that if it is treated to be 999, it is a speculation in the realm of

impossibility which law does not accept, and is completely averse

to it.

5. It is urged that safety and security of the people and that of

the nation are of paramount importance and, therefore, the

respondents are obligated in law to have concrete safeguards so

that there is no irreversible environmental consequences and the

fear that affects the bones and brains of the citizens gets

vaporised. By no stretch of imagination the lifespan of the dam

can be conceived to be 999 years which is the term of the lease

deed and there has to be decommissioning of the dam to save the

human life. Any kind of hazard that affects the life cannot be

allowed to remain. The existence of the dam without necessary

assessment is a peril to the people residing in the affected locality

and it is also a continuous threat to the environment.

6. As the grievance raised by the petitioner pertain s to

apprehended cataclysm and unforeseen calamity to human life, it

was directed that a copy of the petition to be served on the Union

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of India.

7. We have heard Mr. Manoj V. George, learned counsel for

the petitioner, Mr. K.K. Venugopal, learned Attorney General

for India alongwith Ms. Pinky Anand, learned A dditional

Solicitor General, for the Union of India, Mr. Subramonium

Prasad, learned senior counsel/AAG assisted by Mr.

Umavathy, learned counsel for the State of Tamil Nadu and

Mr. Mohan V. Katarke alongwith Mr. G. Prakash, learned

counsel for the State of Kerala.

8. Mr. George, learned counsel for the petitioner has raised

the following submissions in the course of his argument:-

(i) Non-recording of the findings with regard to lifespan of the

Mullaperiyar dam would invite a great man made disaster to

the people of the locality and bring in ruination to the

atmosphere.

(ii) It is the duty of the States as well as the Union of India to

dispel and eliminate the fears from the marrows of the persons

residing in the downstream areas of the dam.

(iii) It is imperative to have a separate disaster management

plan for the said dam keeping in view the special features of

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the obtaining situation.

(iv) If the persons who remain in proximity of the dam or

downstream are compelled to live in a state of constant fear,

there is flagrant violation of Article 21 of the Constitution of

India.

9. Mr. K.K. Venugopal, learned Attorney General for India

has emphasised on paragraphs 229 and 230 of the judgment

rendered by a five-Judge Bench in State of Tamil Nadu

(supra). Relying on the same, it is submitted by him that a

Committee has been constituted to keep a close watch on the

safety and recommend measures which are necessary to be

carried out by the State of Tamil Nadu and further, the

Committee has been given the liberty to take appropriate steps

and issue necessary directions to the two States, namely,

Tamil Nadu and Kerala or any one of them, if so required, for

the safety of the people residing in downstream areas in an

emergent situation. He would submit that the command given

in the last sentence of the paragraph 230(iii) is binding on all.

10. Keeping in view the rival submissions, w e think it

appropriate to reproduce paragraphs 229 and 230 from the

State of Tamil Nadu (supra). They read thus:-

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“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.”

230. The powers and functions of the

Supervisory Committee shall be as follows:

(i) The Committee shall supervise the

restoration of FRL in the Mullaperiyar dam to

the elevation of 142 ft.

(ii) The Committee shall inspect the dam

periodically, more particularly, immediately

before the monsoon and during the monsoo n

and keep close watch on its safety and

recommend measures which are necessary.

Such measures shall be carried out by Tamil

Nadu.

(iii) The Committee shall be free to take

appropriate steps and issue necessary

directions to the two States - Tamil Nadu and

Kerala – or any of them if so required for the

safety of the Mullaperiyar dam in an emergent

situation. Such directions shall be obeyed by

all concerned.

(iv) The Committee shall permit Tamil Nadu

to carry out further precautionary measures

that may become necessary upon its periodic

inspection of the dam in accordance with the

guidelines of the Central Water Commission

and Dam Safety Organisation.”

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11. According to the learned Attorney General appropriate

steps have been taken. He has produced the Statement dated

11.1.2018 made by Mr. Gulshan Raj, the Chairman of the

Supervisory Committee/Chief Engineer, Dam Safety

Organisation, Central Water Commission, Ministry of W ater

Resources, River Development and Ganga Rejuvenation,

Government of India. The Statement reads as follows:-

“As per the summary conclusion of the Empowered

Committee, contained in the Hon'ble Supreme

Court's judgement of 2014 on Mulla Periyar Dam

(MPD), the MPD is hydrologically, structurally and

seismically safe. No new development has taken

place and reported upon since 2014 after the

judgement of Hon'ble Supreme Court in the case.

The Supervisory Committee has not noticed any

distress in the MPD.”

12. The heart of the matter is whether adequate measures

have been taken with regard to safety of the dam. As we

perceive from the aforesaid paragraphs from the reported

decision, appropriate steps have already been provided by the

larger Bench while dealing with the suit filed under Article 131

of the Constitution of India. We have also studiedly perused

the statement of the Chairman of the Supervisory Committee.

At this stage, Mr. George, learned counsel for the petitioner

reiterating the stand with regard to the disaster management,

has commended us to Section 2(e) of the Disaster Management

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Act, 2005 (for brevity, “the 2005 Act”). Learned counsel would

highlight that it is obligatory that safety of the dam or the life

span of the dam is different than the disaster management to

meet unforeseen, sudden and emergent situat ion. In this

regard, he has assiduously emphasised on the concept of

corrosion of mental state due to constant fear in the minds of

the people who reside downstream area or areas in proximity

of the dam.

13. To appreciate the said submission, we may refer to Section

2(d) of the 2005 Act. It is as follows:-

“2(d) “disaster” means a catastrophe, mishap,

calamity or grave occurrence in any area, arising

from natural or man made causes, or by accident or

negligence which results in substantial loss of life or

human suffering or damage to, and destruction of,

property, or damage to, or degradation of,

environment, and is of such a nature or magnitude

as to be beyond the coping capacity of the

community of the affected area;”

14. Section 2(e), which is the dictionary clause defines

“Disaster Management”. The same is as follows:-

“2(e) “disaster management” means a continuous

and integrated process of planning, organising,

coordinating and implementing measures which are

necessary or expedient for—

(i) prevention of danger or threat of any disaster;

(ii) mitigation or reduction of risk of any disaster

or its severity or consequences;

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(iii) capacity-building;

(iv) preparedness to deal with any disaster;

(v) prompt response to any threatening disaster

situation or disaster;

(vi) assessing the severity or magnitude of effects

of any disaster;

(vii) evacuation, rescue and relief;

(viii) rehabilitation and reconstruction;”

15. We may also note with profit the language employed in

Section 11 that deals with “National Plan”. It is useful to

reproduce sub-section (3) of the said Section, which is as

follows:-

“11. National Plan.-

(3) The National Plan shall include—

(a) measures to be taken for the prevention of

disasters, or the mitigation of their effects;

(b) measures to be taken for the integration of

mitigation measures in the development plans;

(c) measures to be taken for preparedness and

capacity building to effectively respond to any

threatening disaster situations or disaster;

(d) roles and responsibilities of different Ministries

or Departments of the Government of India in

respect of measures specified in clauses (a), (b) and

(c).”

16. Section 23 deals with “State Plan” and sub-section (4) of

the same is as under:-

“23. State Plan.-

(4) The State Plan shall include,—

(a) the vulnerability of different parts of the State to

different forms of disasters;

(b) the measures to be adopted for prevention and

mitigation of disasters;

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(c) the manner in which the mitigation measures

shall be integrated with the development plans and

projects;

(d) the capacity-building and preparedness

measures to be taken;

(e) the roles and responsibilities of each Department

of the Government of the State in relation to the

measures specified in clauses (b), (c) and (d) above;

(f) the roles and responsibilities of different

Departments of the Government of the State in

responding to any threatening disaster situation or

disaster.”

17. Similarly, Section 31 deals with “District Plan” and

sub-section (3) of the same is as under:-

“(3) The District Plan shall include-

(a) the areas in the district vulnerable to different

forms of disasters;

(b) the measures to be taken, for prevention and

mitigation of disaster, by the Departments of the

Government at the district level and local

authorities in the district;

(c) the capacity-building and preparedness

measures required to be taken by the Departments

of the Government at the district level and the local

authorities in the district to respond to any

threatening disaster situation or disaster;

(d) the response plans and procedures, in the

event of a disaster, providing for-

(i) allocation of responsibilities to the

Departments of the Government at the district level

and the local authorities in the district;

(ii) prompt response to disaster and relief thereof;

(iii) procurement of essential resources;

(iv) establishment of communication links; and

(v) the dissemination of information to the public;

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(e) such other matters as may be required by the

State Authority.”

18. On a perusal of the scheme of the 2005 Act, we find that

there has to be an appropriate disaster management plan at

different levels.

19. Mr. K.K. Venugopal, learned Attorney General for India

would submit that the Central Government is determined to

ensure the safety of the dams across the country including the

subject dam and also implement the provisions of the 2005

Act with utmost despatch in letter and spirit.

20. Mr. Subramonium Prasad, learned AAG for the State of

Tamil Nadu has drawn our attention to paragraph 205 of

State of Tamil Nadu (supra). The said paragraph reads

thus:-

“205. Moreover, this Court appointed EC

to assure itself about the safety of the

Mullaperiyar dam. The EC, we must say, has

completed its task admirably by thoroughly

going into each and every aspect of the safety

of Mullaperiyar dam. We do not find any merit

in the objections of Kerala challenging the

findings and conclusions of the EC on

hydrologic safety, structural safety and seismic

safety of the dam. The findings of EC with

elaborate analysis of reports of investigations,

tests and studies lead to one and only one

conclusion that there is no change in the

circumstances necessitating departure from

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the earlier finding on the safety of Mullaperiyar

dam given by this Court in 2006 judgment. As

a matter of fact, there is no change in

circumstances at all much less any drastic

change in circumstances or emergent situation

justifying the reopening of safety aspect of

Mullaperiyar dam which has been determined

by this Court in the earlier judgment.”

21. Mr. Mohan V. Katarke, learned counsel for the State of

Kerala would contend that in the said suit, the Court was only

concerned with the increasing of water level of the

Mullaperiyar Dam.

22. As far as the safety measures of the Mullaperiyar Dam are

concerned, the directions given in State of Tamil Nadu

(supra) shall be binding on all. However, there has to be a

greater degree of disaster management and better

preparedness to face any kind of disaster caused by the dam.

Therefore, the concern that has been pronouncedly

propounded by Mr. George, learned counsel appearing for the

petitioner, cannot be brushed aside. It is to be borne in mind

that life without basic needs of life and liberty replete with

fear, is like a concept without structure, a house without a

plinth, a metaphor not conveying an idea, a sea without waves

or, for that matter, an idea constantly remaining in the realm

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of speculation. Life and liberty are to be understood, projected

and protected in concrete terms. It is because fear brings

numbness to passion of purpose and conver ts an active

individual a quitter who resigns himself to fate. History

records with sorrow and agony how civilisations have perished

mostly due to fear. Citizenry growth stands still, for culture

and creativity take the back seat when fear reigns. Some may

say that there is no fear but the man who is so told, may

appear to be consoled though his heart or mind may not be

convinced. Therefore, it is the duty of the States involved to

create a sense of confidence in the real sense of the term and

ensure that adequate measures have been taken so that in

any event safety of the individuals shall not be affected and

well preserved and their life and liberty remain protected. To

speak differently, steps taken should reflect convincing and

concrete perceptibility and not merely a consolatory shadow.

23. In view of the aforesaid, we think it appropriate to issue

the following directions:-

(i) The Central Government shall constitute a separate Sub-

Committee under Section 9 of the 2005 Act, to exclusively

monitor the measures for ensuring a high level of

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preparedness to face any disaster, which is unpredictable

in relation to Mullaperiyar Dam.

(ii) The State of Kerala as well as the State of Tamil Nadu

shall also constitute separate Sub-Committees under

Section 21 of the 2005 Act, to exclusively monitor the

measures for ensuring a high level of preparedness to face

any disaster occurring from Mullaperiyar Dam. They must

provide for a separate dispensation under the State plan

as envisaged under Section 23(4) of the 2005 Act.

(iii) The State of Tamil Nadu, which has been directed to

cooperate as per the decision in State of Tamil Nadu

(supra), shall also have a Sub-Committee for disaster

management and with a specific plan.

(iv) Constitution of all sub-committees shall be in addition to

the existing Committees. All the States shall work in

harmony with the Central Sub-Committee and ensure

high level preparedness to face any disaster occurring due

to Mullaperiyar Dam, so that life and property are not

damaged.

24. Our directions for constitution of exclusive Sub-

Committees for the disaster management for the Mullaperiyar

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Dam does not anyw ay remotely suggest that there is any

doubt about the safety or life span of the dam, as is alleged in

the writ petition. We have said so only keeping in view the

consequences of unpredictable disaster, which have astutely

been canvassed before us.

25. With the aforesaid directions and observations, the writ

petition is disposed of. There shall be no order as to costs.

...............................CJI.

[Dipak Misra]

..................................J.

[A.M. Khanwilkar]

..................................J.

[Dr. D.Y. Chandrachud]

New Delhi;

January 11, 2018.