Come monsoon, all attention in Kerala turns to Mullaperiyar, the 131-year-old gravity dam situated in the forests of the Western Ghats. Anxiety in the central districts rose sharply this year after Tamil Nadu’s new chief minister, C. Joseph Vijay, reiterated his predecessors’ demand that the water level in the dam be raised from the present 136 feet to 152 feet.
The tension has a long history. Several attempts have been made over the past half-century to resolve the dispute between Kerala and Tamil Nadu, but, on every occasion, Kerala has got a raw deal from all concerned. The latest blow came in the form of a Supreme Court verdict in 2014. In arriving at its decision, the court relied heavily on the findings of an Empowered Committee it had constituted.
The committee, and subsequently the court, concluded that the gravity dam had no safety problem at all and that the water level could be raised to 142 feet to enable Tamil Nadu’s “integrated use” of the water.
In the tense atmosphere surrounding the dispute, some people seek comfort in the Empowered Committee report and the court verdict. But research that lasted nearly two years convinced me that both are riddled with factual inaccuracies and questionable conclusions. The Mullaperiyar dam has serious safety problems. Yet Tamil Nadu, which has violated bilateral agreements, has been treated with considerable sympathy.
The Kerala government ought to stop trying to appease Tamil Nadu with dangerous or impractical promises. Instead, it should cancel the lease agreements of 1886 and 1970; doing so would be legally and morally valid.
From the legal standpoint, Tamil Nadu has been violating the basic conditions of the agreements with impunity. From the moral standpoint, an oft-heard mantra in Kerala is “water for Tamil Nadu and safety for Kerala”, while Tamil Nadu’s slogan is “Mullaperiyar water is our right”. Kerala’s safety does not appear to figure in this scheme of things.
The statements I make in this article are supported by what I consider irrefutable evidence, including details from the two lease agreements, observations and comments in the court order and in the reports of committees that examined the dispute, replies to my queries under the Right to Information Act, newspaper reports and other material. I write this not to spread fear, but out of concern for the people of Kerala.
The question of safety has immediate importance. If Mullaperiyar crashes, the massive Idukki dam downstream may not survive its impact. If that happens, the result could be the world’s worst man-made disaster, in which millions of lives would be destroyed. The property loss could wipe out insurance companies and severely dent the country’s banking system.
The colonial government of the Madras Presidency and the princely state of Travancore, now part of Kerala, signed the lease deed for the Periyar Irrigation Project in 1886. The water that was to be diverted to what is now Tamil Nadu was meant for irrigation purposes only.
The Mullaperiyar dam was completed by 1895. In 1970, the governments of Tamil Nadu and Kerala signed a supplementary agreement confirming the lease period as 999 years. The purpose for which the water was made available remained irrigation.
Tamil Nadu has averred that the basic character of the 1886 agreement did not change. The Supreme Court has noted this. This means that Tamil Nadu and the Supreme Court know that Kerala’s obligation is to provide water for irrigation only. Why, then, this muscle-flexing by Tamil Nadu?
Tamil Nadu has been supplying the water not only to farmers but also to industries, municipalities and others. The Madurai Corporation has almost completed work on a drinking-water project using Mullaperiyar water. Do they not know that they have been violating the lease agreement for a long time? Who will tell them that the lease agreements deserved to be cancelled at the first instance of violation?
Institutions that were supposed to take strict action in such cases not only condoned the violations but encouraged them. The Kerala government’s response has been weak and unnecessarily apologetic.
When the Madras Presidency and Travancore had a dispute over the use of the water to generate electricity, the colonial government appointed the famous jurist Sir Nalini Ranjan Chatterjee as umpire. In 1941, he ruled that the water should be used only for irrigation and that, if power was generated using the water, it should be used only for irrigation purposes.
This is the only just and fair verdict that has come so far in the Mullaperiyar dispute. Curiously, the key word “irrigation”, which appeared in the titles of both the 1886 and 1970 lease agreements, is missing from the titles of the two agreements in the Empowered Committee report and the Supreme Court verdict. The titles appear as “Periyar Lake Lease Agreement” and “Periyar Project”. Is this an inadvertent error? If so, it suggests that the approach to the issue was casual. If not, the less said, the better.
Whatever the truth, people cannot be blamed if they argue that the court verdict concerned non-existent lease agreements rather than the actual Mullaperiyar dispute.
An earthquake in 1979 left cracks in the dam wall. At the suggestion of the Central Water Commission, Tamil Nadu engaged a contractor to carry out repair work. Who was the contractor? There is no information. Who decided the nature of the work? Again, there is no information. The CWC replied to my query under the RTI Act that it had no records of the repair work. It advised me to approach the Tamil Nadu government. Are evidentiary details in the sole custody of one party to the dispute?
The first reported violation of the lease agreement occurred in 1958, when Tamil Nadu widened the tunnel that carries water to its side. This action required the permission of the Kerala and Central governments, but there is no record of any such discussion having taken place.
As the safety issue continued to crop up, an Expert Committee was set up in 2000 by the Union Ministry of Water Resources. It had a CWC member as its chairman and nominees from Kerala and Tamil Nadu. Kerala’s representative, M.K. Parameswaran Nair, presented his state’s concerns forcefully. But the committee concluded that the dam was safe. Its chairman also theorised that a well-built dam, if properly maintained, would always remain safe.
The Supreme Court permitted Tamil Nadu in 2006 to raise the water level in the dam to 142 feet. Following this, Kerala amended the Kerala Irrigation and Water Conservation Act to cap the maximum water level at 136 feet. Tamil Nadu again moved the Supreme Court. The court struck down the Kerala law.
Mullaperiyar is a dam with known safety problems. It is on the United Nations University’s list of dams posing a growing threat. When Tamil Nadu filed a case in 2006, the Supreme Court ought to have sought the opinion of the world’s leading dam experts before taking a decision. Instead, the court constituted a five-member Empowered Committee to assist it. A former Chief Justice of the Supreme Court, A.S. Anand, was appointed its chairman. Former CWC chairman C.D. Thatte and former CWC chief engineer D.K. Mehta were the technical experts. Former Supreme Court judges K.T. Thomas and A.R. Lakshmanan were the nominees of Kerala and Tamil Nadu, respectively.
The Empowered Committee’s report reads like a script written to help Tamil Nadu’s cause. The Supreme Court’s verdict drew heavily from the report. The Committee rejected the reports of safety tests conducted on behalf of Kerala by experts from the Indian Institute of Science, Bangalore, and IIT Roorkee, two of the country’s leading scientific institutions.
Do you know whom the Empowered Committee chose to conduct further tests? Tamil Nadu’s own agencies—Anna University, Tamil Nadu’s technical university, and the Institute of Hydraulics and Hydrology at Poondi near Chennai, an establishment under Tamil Nadu’s Public Works Department.
In other words, evidence provided by impartial agencies was rejected, while evidence provided by employees of one of the two parties to the case was accepted.
Again, in order to establish that lime-mortar dams have a very long life, the Empowered Committee claimed that the Khadakwasla dam near Pune, which was built ten years before Mullaperiyar, remained healthy. The committee cited an ICOLD (International Commission on Large Dams) report of 1967 to make this claim. But the Khadakwasla dam had collapsed in 1961. It was subsequently rebuilt. The RTI reply I received from the Maharashtra government confirms this.
Dr Thatte is no stranger to Pune. So was the Empowered Committee hiding the truth?
Kerala’s dam expert Parameswaran Nair spoke to the media about an incident that, he said, reflected the Empowered Committee’s negative attitude towards Kerala’s concerns. He explained how a difference of opinion developed between Kerala’s experts and Dr Thatte over sonic testing on the dam. Kerala’s experts pointed out that sonic testing had been conducted in only one block. The Tamil Nadu team claimed that the test had been conducted in three blocks. Dr Thatte accepted the Tamil Nadu version.
Isotope testing was conducted in only one hole, and that too without inviting Kerala’s representative. The Kerala side suggested, in vain, that the test be conducted in five holes. Later, at one point, Dr Thatte asked Kerala’s chief engineer P. Lathika to keep quiet.
The Central Soil and Materials Research Station (CSMRS), a Central agency, was involved in testing material extracted from the dam wall. I sought information about its findings under the RTI Act. The agency replied that all records had been handed over to the Empowered Committee. It also stated that “CSMRS is not the custodian of those records and hence the information sought may be treated as nil.”
What is happening to the country’s scientific and technological institutions? Do they not keep records of important work they undertake? Or was this an act of cover-up?
Tamil Nadu stores Mullaperiyar water in the Vaigai dam. It has a height of about 111 feet, and water can be stored safely up to a height of about 71 feet. Yet water is currently stored in the dam only up to around 35 feet. Why can they not build a bigger dam and store more water?
There may be two reasons. One is that Tamil Nadu does not want a dam break on its territory. The second is that Tamil Nadu does not want to expose the Mullaperiyar dam’s wall below the 110-foot level. According to the Empowered Committee itself, the face of the dam from 110 feet down to 103 feet is severely deteriorated.
In this context, the informed comments of Ramaswamy R. Iyer, the well-known water-policy expert and former secretary to the Union Water Resources Ministry, are quite relevant. He described the court’s position on Mullaperiyar as a matter of judicial overreach. “Whether a dam is safe or not is a matter for expert determination. If there is a difference among the experts, then it is not for a judge to say which view is right.” (The Hindu, May 16, 2014).
In an article published in the same newspaper earlier, on January 2, 2012, he rejected former Tamil Nadu minister Durai Murugan’s claim that “the waters (of the Periyar) are not exclusively Kerala’s, but an inter-State resource governed by the principles of inter-State rivers.”
Ramaswamy asserted: “The Periyar is not an inter-State River. It is a Kerala River partly diverted by human action to Tamil Nadu.”
He went on: “Tamil Nadu’s rights in this case are not riparian rights as in the Cauvery case but arise out of an agreement. Under the agreement, Travancore (now Kerala) had agreed to share its waters with Madras (now Tamil Nadu). This is somewhat unusual, as States are generally reluctant to share their waters with other States. One wishes that Mr. Murugan had expressed some appreciation of this fact.” Ramaswamy hailed from Tamil Nadu.
Nightmare scenarios
Any excess water released by Tamil Nadu from Mullaperiyar flows into the Idukki dam, which lies 35km downstream and has more than five times its storage capacity. The Empowered Committee tries to make one believe that the Idukki dam can safely hold all the water even in the “unlikely event” of Mullaperiyar crashing.
This is an escapist narrative that compares the nightmare scenario of a dam burst with the controlled release of excess water from a dam. A huge volume of water, carrying whatever it encounters on its way, would rush down the slope at great speed. Common sense would tell you that all the water would not move forward in a disciplined manner and settle in the Idukki reservoir. Much of it would spill over the river’s banks at every twist and turn, washing away towns and villages in several districts.
The rest of the water would reach the Idukki dam, but not with peaceful intentions. Having rushed down the slope for a considerable distance, it would have gained tremendous momentum. Is Idukki, though huge, designed to withstand such an impact? There is no clear, direct answer.
Downstream of the Idukki dam lie densely populated areas, including Kochi, which together account for more than one-third of Kerala’s population.
Ownership claims
All along, Tamil Nadu was apparently making calculated moves to tighten its hold over the Mullaperiyar dam. At first, the Expert Committee described Tamil Nadu as its owner. Then, in 2013, the National Committee on Dam Safety recorded that four dams in Kerala, including Mullaperiyar, were owned, operated and maintained by Tamil Nadu. This was done at Tamil Nadu’s request.
A year earlier, in an unfriendly move, former Tamil Nadu chief minister M. Karunanidhi wanted the Peerumedu and Devikulam taluks of Kerala’s Idukki district to be merged with Tamil Nadu.
The Empowered Committee described Tamil Nadu as the owner of the Mullaperiyar dam. Most importantly, Tamil Nadu was made the owner of the dam by the Supreme Court, too, through its verdict. This was done without Tamil Nadu making a formal plea.
Kerala should ask three important questions here.
First, can a leaseholder own a structure standing on leasehold property? Ownership implies a permanent and inalienable right to enjoy it.
Second, if Tamil Nadu is the owner of the dam, where is the liability clause? That is, who will compensate for the destruction the dam may cause? Neither the original lease deed, nor the Empowered Committee report, nor the Expert Committee, nor the Supreme Court order touches upon this subject.
Which means that, if something untoward happens, Tamil Nadu can point a finger at the Supreme Court. The court, we know, is not accountable for its mistakes. In the end, whatever is left of Kerala will have to go around with a begging bowl.
Third, the Mullaperiyar dam was built by the British during the colonial period. After the reorganisation of states, the dam should logically belong to the state of Kerala. So how can the state of Tamil Nadu claim ownership of it?
Even the validity of the original lease deed of 1886 is questionable. The Madras Presidency signed the agreement only with Travancore. Another riparian state of the Periyar, the princely state of Cochin, which is also now part of Kerala, had no role in it. This means that the lease agreement is void ab initio—that is, invalid from the beginning.
Besides, the colonial government took Mullaperiyar water to the Tamil Nadu side as part of its exploitation of Travancore. Under the 1886 agreement, the lease payment was not to be made directly. Instead, it was to be deducted from the tribute that Travancore paid annually.
Under Section 105 of the Transfer of Property Act, 1882, which was enacted by the British government and remains in force in India, the arrangement does not qualify as a legally valid agreement because a reduction in the amount of tribute cannot be treated as payment.
This is because tribute itself is an unlawful payment.
Incidentally, there is another issue of importance in dam safety. Instrumentation is used to determine the safety of dams worldwide. In 1981, the Central Water Commission recommended a scheme of instrumentation for Mullaperiyar as part of strengthening measures. The instrumentation system was subsequently established at the dam.
Curiously, the system became defective after a year. It is important to remember that Tamil Nadu is maintaining the dam and looking after its safety.
The Expert Committee reported that the mortality rate of instruments used to monitor the behaviour of dams was very high in India. Often, the observations made were inconsistent, and this might have led to wrong interpretations. Hence, the committee did not favour installing instrumentation systems at old dams. Across India, very few dams had such systems. Often, visual inspection was used to assess safety, the committee said in its report.
That was the practice a few decades ago.
(Jayakrishnan K. is an advocate and writer. The opinions expressed in this article are those of the author and do not purport to reflect the opinions or views of THE WEEK.)
