Kerala Flood: An Interstate Tussle

Author: Vaishnavi Navghare.

INTRODUCTION

In 2018 and 2019 many regions of Kerala were affected by the floods which killed around 470 and 101 people respectively in each flood. Due to which people of Kerala faced heavy monetary loss and properties worth around 40,000 crore were damaged in 2018 and loss caused by 2019 flood is still yet to be estimated.

Reasons given for the floods were heavy rain, landslide, low pressure and discharges, but one of the important reason for the cause of the flood is opening of the gates of dams due to surplus of water. Gates of the thirty-five out of fifty-four dams within Kerala were opened and this happened for first time in history of Kerala. Two important dams which are always in the controversy for flood are ‘Idukki’ dam and ‘Mullaperiyar dam’ this both dams are situated in the Idukki district of Kerala.

This research article mainly focuses on the on- going controversy of Mullaperiyar dam from 1886 to 2019. It analyses the judgement of the court in 2006 from constitutional perspective and also suggest the safety measures for the dam to avoid the flood like situation in future.

HISTORY OF THE DAM (HOW THE DAM CAME INTO EXISTENCE)

Location of the dam 

Mullaperiya dam is a mansonry gravity dam. It is built on the Periyar river which is located in Thekkady town, Idukki district of Kerala. The dam is surrounded by cardamon hills of western ghats and its reservoir. The dam is also surrounded by the Periyar National Park of Thekkady town.((Srinivas Chokkakula, “Interstate water dispute, perils and prospects of democratization”, Economic and political weekly, vol 49, No.9, 1st March 2014, pp.75-81.))

Salient features of the dam¹

1. The dam is a mansonry gravity dam, mansonry is form of building structure were building is made by individual units such as brick, stone, granite, etc. Mullaperiyar dam is made by ‘surkhi’ which is a concrete prepared from burnt brick powder, sugar and calcium oxide. It is also a gravity dam, this form of dams are specially designed to hold back water primarily using the weight of material used in construction alone to resist the pressure created by flow of water, this type of dams are stable and independent of any other dam section.
2. Height of dam- 53.66 m (176 ft)
3. Length of dam- 365.85 m (1,200 ft)
4. Width (crest)- 3.6 m (12 ft)
5. Width (base)- 42.2 m (138 ft)
6. The dam is located 881 m (2890 ft) above mean sea level.
7. Spillway- spillway are built in dams to avoid the overflow of water from dam when it is full, it usually releases water in downstream. The Mullaperiyar dam has 13 spillway and type of spillway is chute. Capacity of spillway is 3,454.62 cubic meters per second.
8. Full reservoir level – 4.33 m (152 ft)
9. Maximum water level by design of dam can be reached up to 47.24 m (155 ft)
10. The dam consist of main dam, spillways on left and a baby dam. Length of baby dam- 73.15 m (240 ft)
11. Active storage- usually dam can hold 443,230,00 m³ of water, now its active storage is 299,130,000 m³ of water.

Lease agreement (How the dam was built)                                     

1. Many regions of Madras presidency during British era were facing the water scarcity and drought, therefore from the region of Travancore (princely state) at the end of 19^th century the project of Mullaperiyar dam proposal gained importance. The plan was as such to divert the water flow of Periyar river towards the Bay of Bengal so as to fight against the drought and can provide water to region of Madras presidency, Vaigai river was insufficient in providing water to district of Tamil Nadu. How it was done – The construction of Mullaperiyar dam will give rise to the Periyar Thekkady Reservoir from which the water will be diverted eastward towards the Vaigai river and the Vaigai river was dammed through which the water by the irrigation tracts will be provided to the arid region of Madurai of Madras presidency. Initially it was used for irrigation now it is used for hydroelectricity as well. After delaying the agreement for 20 years at last the on 29 October 1886 agreement was made between Maharaja of Travancore and British secretary of state for India specially for Periyar region work. The Periyar lease deed was for 999 years. For about this many years the Madras presidency was allowed to use the water of Mullaperiyar dam and it can be renewed for 999 years again.((Ibid.))
2. Earlier also the many proposal were placed by Ministers and British officers but they all failed due the its hefty cost and lack of labour. Final project was proposed by  Col. J. Pennycuick, of the British Army Engineering Corps. Basically they were going  to divert the upper reaches of the west flowing water inside the territory of Travancore state to eastward for irrigation of southern part of Madras Province. The whole project was accomplished and managed by the British Royal Engineering Corps, and completed in 1895.((Ibid.))
3. After Indian independence in 1947 Travancore and Cochin joined the union of India merged to form Travancore-Cochin and was recognized as state in 1950 and it is renamed as Kerala. Kerala was formed by State reorganization act by merging the Malabar district and Travancore-Cochin. Madras presidency recognized as state of Madras (now Chennai) in 1947 and it is in Tamil Nadu. After independence the Kerala government announced that the agreement is invalid and it should be renewed, after several attempt finally when in 1970, ‘C Achutha Menon’ was Kerala CM it was renewed.
4. Earlier the lease was signed only for the irrigation purpose for which the Travancore was getting Rs 5 per acre per annum, now the lease is renewed and water is allotted for power generation purpose also. Earlier clause of renewal of lease for 999 is scarped. And now Travancore will get Rs 30 per acre per annum.((Ibid.))

TUSSLE BETWEEN KERALA AND TAMIL NADU OVER SAFETY OF DAM (1961-2015)²

Mullaperiyar Environmental Protection Forum v. Union of India and Ors((AIR 2006 SC 1428.))

In 1980 the CWC suggested certain measures so that the water level can be increased to 142 ft, those were

1. Emergency measures
2. Middle term measures  
3. Long term measures

Many meetings were held but as the there were leakages in the dam the water level was decided to be maintained up to 136 ft. But CWC further decided to take certain steps to raise the water level up to 142 ft and then to 152 ft but the Kerala government was against the report of CWC. Now the question was whether the water level can be increased up to 142 ft?

Issue: whether the water level can be raised to 142 ft or not?

1. Stand of Kerala 

1. The life of dam was 50 years and it has completed its age of usefulness as it is of 100 years now, if any consequences took place it can wiped out many districts of Kerala
2. The dam was made when there were no modern techniques of construction.
3. Dam is on the earthquake prone region and frequent tremors are occurring in that area which can lead to serious calamities.
4. CWC has submitted the report without any participation of technicians from Kerala.((Ibid.))

2. Stand of Tamil Nadu 

1. The stand of Kerala is baseless, as the committee has already submitted the report by which the water level can be extended to 142 ft that is by executing the baby dam and earth bound.

Still the Kerala government was not ready to accept the report of CWC. Now the responsibility of strengthening the dam in accordance with the measures by CWC report is given to Tamil Nadu government and its committee will visit the site and will submit the report to Honorable minister of water resources.((Ibid.))

Expert committee report by Tamil Nadu Government on behalf of both the states 

The report of Tamil Nadu government (expert committee) in accordance with the discussion with officials of two states suggested that

1. It was suggested that Tamil Nadu PWD Department should test the masonry of the Baby dam to find out the permissible tensile strength.
2. Central Soil and Materials Research Station (CSMRS), Government of India, New Delhi, should carry out these tests to check the strength of dam. CSMRS are specialist in carrying out geophysical and core tests.
3. These tests should be made available to the Committee by end of November, 2000. The Government of Kerala should permit Tamil Nadu PWD & CSMRS to carry out these tests without any undue interference and hindrance.
4. Raising of water level beyond 136 ft. (41.45 m) will be decided after obtaining the tensile and strength of the masonry of the Baby dam
5. Finally it was decided that the water level can be extended up to 142 ft which will not endanger the safety of the Main dam, including spillway, Baby dam and earthen bond.

Kerala government was still denying the reports of expert committee as well as recommendations of the CWC. Against this the writ petition was filed by Kerala government stating various prayers.((Ibid.))

Writ petition and prayers by Mullaperiyar Environmental Protection Forum

1. Government of Kerala firstly prayed that agreements which were made during the years 1886 and 1970 shall be declared as null and void and consequential relief must be granted and also Section 108 of the States Re-organization Act, 1956, must be declared ultra vires and unconstitutional as it invades upon legislative domain of the State Legislature under Entry 17 of List II of the Seventh Schedule of the Constitution of India.
2. Secondly they raised objection about the legality of the agreement between the Maharaja of Travancore and the Governor General. It is claimed that agreement was such as Maharaja was forced and pressurize to accept it.
3. Thirdly they said that under Section 108 of the States Reorganization Act, any agreement entered into by Central Government and one or more existing States relating to the right to utilize water can continue to remain in force subject to certain modifications as may be agreed upon between the successor States. Since Kerala stated that there was no such agreement after November 1, 1957, the agreement will not continue to remain in force. It was also pleaded that the agreements are not covered by Entry 56 of List I of Seventh Schedule of the Constitution of India and hence Parliament has no power to make any law in respect thereof.
4. Lastly it was submitted by Kerala government that the lease land was declared as reserve forest in the year 1899 by the erstwhile State of Travancore under the Travancore Forest Act. The notification remained in force under Sub-section (3) of Section 85 of the Kerala Forest Act, 1961. Therefore if the dam collapsed it can harm the ecosystem of Periyar sanctuary.((Ibid.))

Stand of Tamil Nadu government on writ petition 

Against this the Tamil Nadu Government states that;((Ibid.))

1. On Section 108 of the States Reorganization Act, it states that it deals with “continuance of agreements and arrangements relating to certain irrigation, power or multipurpose projects” and the enactment of the act falls within the provisions of Article 3 and 4 and not under entry list 56 of list I. according to which state of Kerala already reasserted and reaffirmed the agreement and already signed the fresh agreement and it is already sorted out and therefore the agreement is still valid.
2. As per Tamil Nadu the states reorganization falls under the ambit of article 3 and 4 which talks about the formation of new states and provisions. Also if the act comes under the ambit of article 3 and 4 then the schedule seven list will not be applicable.
3. As per the State of Tamil Nadu, the stand of Kerala related to the provisions of Kerala Forest Act, 1961 and the Wild Life Protection Act, 1972 have no applicability to the case. It is also counter argued that raising of water level in any case would not adversely affect the natural environment in fact it will enrich the biodiversity and will increase the tourist attraction.

Issues before the court are:³

1. Is the Section 108 of the States Reorganization Act, 1956 is unconstitutional?
2. Whether the jurisdiction of this Court (Supreme court of India) is barred in view of Article 262 for reading it along with Section 11 of the Inter-State Water Disputes Act, 1956?
3. Is the Article 363 of the Constitution bars the jurisdiction of this Court?
4. Whether disputes of the two states are liable to be referred to Arbitration?
5. Whether the raising of water level of the Mullaperiyar reservoir from 136 ft. to 142 ft. would result in jeopardizing the safety of the people and also degradation and destruction of environment?

Is the Section 108 of the States Reorganization Act, 1956 is unconstitutional?

Court said that the here we can say that court said that the power of parliament to make laws is paramount and no state sate legislative power can interfere in it therefore the decision of parliament. As Section 108 of the States Reorganization Act, 1956 comes under the ambit of article 3 and 4 of the constitution therefore parliament have exclusive power to make decision and therefore this section is not unconstitutional.

Whether the jurisdiction of this Court (Supreme court of India) is barred in view of Article 262 for reading it along with Section 11 of the Inter-State Water Disputes Act, 1956?

The article 262 parliament can provide the adjudication for any water dispute by making any law but by article 262 sub-clause (1) it can barred the jurisdiction of the court by making any law. Article 11 says that if the water dispute is referred to the tribunal then it barred the jurisdiction of the supreme court. “Section 2(c) of this Act defines ‘water dispute’. It means a dispute as to the use, distribution or control of the waters of, or as to the interpretation or implementation of agreement of such waters”.

Court clarifies here that the issue of the case is safety of the dam related to increase of the water level up to 142 ft. Issue does not contemplates as given in section 2 (C) of the act therefore article 262 and section 11 of inter state water dispute does not apply here and therefore the question of barred of jurisdiction of SC will not arose.

Is the Article 363 of the Constitution bars the jurisdiction of this Court?

Under Article 363 any dispute specially arising out of the treaty, Sanad, agreement before the commencement of the constitution bars the jurisdiction of the supreme court but this agreement is the ordinary agreement and non political in nature and does not comes under the ambit of Article 363.((Mullaperiyar Environmental Protection Forum v. Union of India, AIR 2006 SC 1428, International environmental law research center, ielrc.org.report.))

Whether disputes of the two states are liable to be referred to Arbitration?

In the lease deed of 1886 this clause of arbitration saying that if the matter related to rights, liabilities, duties arise then two sates can move for arbitration, but in the fresh agreement of 1970 this clause is present, also the substance of the dispute is not related to rights or duties but it is concerned with the safety of the dam, therefore there is no contention of arbitration between two states.

Whether the raising of water level of the Mullaperiyar reservoir from 136 ft. to 142 ft. would result in jeopardizing the safety of the people and also degradation and destruction of environment?

Court did not found any factor which can cause destruction of wildlife and environment, they said rather than hampering the environment it will flourish and benefit it and animals will get more water and biodiversity of the area will be strengthen.((The Mullaperiyar forum v. Union of India AIR 2006 SC 1428 (original suit).))

Judgement

The decision of the court by analyzing and justifying all the issues is that the water level of the Mullaperiyar dam can be raised up to 142 ft as no contrary is found. Also by raising the water there is no danger to the villages or safety of dam as well as the wild life of the sanctuary as it is now verified and checked by CWMRS also the seismic tremors of earth quake were taken into consideration. When it comes to raising the water level up to 152 ft nothing cannot be said on that part by taking into the consideration the strength of the dam.((Ibid.))

Year	Event
2006	State of Tamil Nadu v state of Kerala suit no 3 of 2006 it was a suit filed by Tamil Nadu government over the Endangered Dam (Kerala Irrigation and water conservation amendment) Act 2006 by which Tamil Nadu government cannot raise the water level above the 136 ft. In this it was prayed by the Tamil Nadu government that Declare the Amendment act passed by the Kerala government as unconstitutional with regard to the Mullaperiyar dam.And to pass the decree of injunction so that the Kerala government should not obstruct the Tamil Nadu for raising the water level above 136 ft and to carry out the repair work as per 2006 judgement. On this the Supreme court said that “ the two state government independently or with the intervention of the union of India may try to sort out the dispute, if possible.
2007	In 2006 the meeting was organized by union minister between state of Kerala and State of Tamil Nadu but still the consensus of both the state were not found. Then the chief minister of Tamil Nadu met the prime minister and suggested Tamil Nadu to have meeting with Kerala they both had meeting in the presence of union minister. Tamil Nadu minister sent a letter to minister of Kerala stating that they can resolve the issue of measuring the dam seepage by not involving the engineers from either state, CWC and Kerala agreed over it.
2008	Government of Kerala through a letter to Tamil Nadu government demanded joint mechanism to monitor the seepage. But the government of Tamil Nadu was against it. and the government of Kerala was against the neutral mechanism of Tami Nadu. CWC suggested to Form the Monitoring committee consisting of chief engineers and representatives from both the states, but the Tamil Nadu government was not satisfied with this it states that the forming of joint monitoring committee was not discussed in the meeting and and it will lead to more and more complication. Meanwhile the Kerala government did a horological study of dam with the help of professor of IIT Delhi and and filed the suit against the 2006 suit of Tamil Nadu government stating that the dam is unsafe later according to CWC the study by the professor does not appear well founded.
2009	In this year government of Kerala decided to proposed to construct new dam and the financing of the dam will be done by Kerala and they also made it clear that they are willing to give the water from new dam to Tamil Nadu but it does not mean that the old agreement will continue. Tamil Nadu government was against the proposal of Kerala as they said there is no need to construct new dam, by strengthening the old dam it will act as new only.
2010	Further in 2009 supreme court decided to hear the issue of case of Mullaperiyar once again and suit was placed before the Honorable CJI and the five judge bench and they demanded “The contesting parties shall maintain status quo in respect of Mulla Periyar Dam as existing today.” However, order of status quo will not be an applicable to the plaintiff (State of Tamil Nadu) for carrying out the work of maintenance and repairs for Dam.In 2010 Supreme court directed the central government to form the empowered committee to look into this issue and to submit its report within six months which was extended later.
2012	The report by the empowered committee was submitted in 2012
2014	In the state of Tamil Nadu v. State of Kerala

In the state of Tamil Nadu v. State of Kerala 2006⁴

Against the 2006 amendment act brought by Kerala government that the water of the dam cannot be raised above to the 136 ft, it opposed to the judgement of the court given in the Mullaperiyar dam v Union of India 2006 therefore the state of Tamil Nadu has filed the petition against the Amendment act in supreme court.

Judgement 

Based on the issues the supreme court has given the judgement that

1. The Kerala irrigation and water conservation act 2006 is ultra virus and unconstitutional. It has violated the doctrine of separation of powers and rule of law. State legislative order cannot nullify the decision of judiciary.      
2. The judgement of Mullaperiyar Environmental Forum v. Union of India acts as Res judicata over concerns of safety of dam and raising the water up to 142 ft and after strengthening of the dam to 152 ft is the given in the judgement and Kerala is estopped from raising the same issue in the present suit.
3. Kerala cannot stop Tamil Nadu from raising the water level upto 142 ft and to carry on the repairing and construction work.   
4. Kerala claim that the Periyar river is the Intra- sate river but they failed to prove it with proper evidence. Court said as some of the catchment of the river lies in the Sate of Tamil Nadu it cannot be regarded as Intra- state river. The Periyar river is not a Intra-state but Inter-state river.
5. The offer given by Kerala on the construction of new dam cannot be forced upon Tamil Nadu. 
6. Permanent injunction has been passed against Kerala to not interfere in the repairing and developmental work of dam.  

Finally the apex court said that the water level as per previous judgement raised to 142 ft. It has also set up a committee which includes the one member from CWC and two representatives from both the states to supervise and look upon the safety work of dam.

Both the judgement given by the Supreme court regarding the increase of the water level to 142 ft were justified by looking at the condition of the dam during years 2006 to 2014. It would have been better if the Kerala government agrees to the repairing and construction of the dam and then the water level should be raised.((Ibid.))

RECENT CONTROVERSY 2018-2019 MAINLY RELATED TO FLOOD IN KERALA

From 2010 to 2017 there was normal rain in Kerala. Only in 2013 there was heavy rainfall in monsoon. But in 2012, 2015 and 2016 there was less rainfall as compared to other years and the value was counted in negative which created a deficit and scarcity like situation. Kerala was under tremendous pressure to store as much as water it can therefore by the end of august all the main dams of Kerala were filled up to the 90% of their capacity and they were not in the position to store or accumulate more water by any means (rain).((Dr. Binny Mathew, “The risk analysis of dam failure, floods and growing water crisis in Kerala”, St Berchman’s college, Kerala, India.))

In 2018 there was heavy rain in Kerala more than the expected and the sudden release of the water from the Tamil Nadu by Mullaperiyar dam made the situation worse, because of that large amount of water came in the Idukki and the gates of the dam were made open by which the water flowed in nearby districts and caused the severe flood like situation. Not only the gates of the Idukki dam were made open but more than thirty five dam’s gates were opened.

The most affected districts by flood are Kannur, Wayanad, Kozhikode, Malappuram, Palakkad, Thrissur, Ernakulam, Allappuzha, Pathanamthitta. The economic, social, agricultural, wild life and human loss the Kerala has experienced is irreparably.((Vinesh Ok, “ Impact of assessment of Kerala flood 2018 and 2019”, Project officer of back ward class of Kerala, A Journal of composition theory, Vol 12, Issue 11, November 2019, pp.10-175.))

The main reasons for the flood

1. Sudden heavy rainfall
2. Ignorance of Kerala towards the IMD prediction of heavy rain.
3. Very poor water and dam management. Filling the dam up to their full capacity.((Amita Baviskar, “ A plan for resolving Mullaperiyar conflict”, Vol 46, No 51, 17th December 2011, pp.4-5.))

Recent petition by Kerala on behalf of 35 million people 

Advocate Russel joy has filed the the petition in supreme court of India saying the condition of Mullaperiyar dam is not well enough to hold much water and in case if the dam broke then it will cost us millions of life as the dam has already passed his expiry. He has also claimed that the weakness of the dam is ultimately the infringement of the fundamental right of the people of Kerala. As it is taking away the security of people life’s and their property. He urged the court to form the committee of international expertise to examine the dam for its safety.((Dr. Binny Mathew, “The impact of floods, water contamination and hidden dangers of dams in Kerala”, St Berchman’s college, Kerala, India.))

From the whole situation we can say that not only the improper management of the water from the Mullaperiyar dam but the so many factors contributed to the flood in Kerala. But somehow it was the negligence of State of Tamil Nadu that contributed more in the making the situation worse. At last we can say current concern regarding the repairing and safety issues of the dam should be the given prior most importance by both the sates, as if the dam get ruptured or cracked out due to heavy flow of water then it will cost millions of life to them.((The Hindu Chennai India 2018.))  

SUGGESTION

1. Short term safety measure can be reducing the level of the water to 120 ft and check the damaged parts of the dam. This will help to give space to dam to accumulate more water in the times of rainfall, also less water level will help in checking the dam properly and combating the earthquake radiation.
2. Long term safety measures can include
3. Checking the dam thoroughly and deciding its capacity to store water and according to that level only the water can be filled in it.
4. Decreasing the water pressure of dam by minimizing the requirement and carrying the local requirements from other means.
5. It is very important to study the dam to strengthen its each section, like from diversion to baby dam to walls etc.
6. Giving strong support to the base and the walls of the dam, so that it can bear the seismic radiation of the earthquake.
7. Finding out the effective and smart ways to increase the life of the dam with respecting each others opinion and providing the people with the best out of that by equally giving importance to their safety.

ANALYSIS 

In the first part of the project we saw the history of the dam and how it was built in the second part of the project we saw the controversy and whole tussle between the Kerala and the Tamil Nadu government regarding the safety of the dam in this we saw the two important judgement 1. Mullaperiyar Environmental Protection Forum v. Union of India ((AIR 2006 SC 1428.)) and 2. State of Tamil Nadu v. State of Kerala⁵. These both judgements gave the permission to the state of Tamil Nadu to raise the water of the dam up to 142 ft, and Kerala was always oppose to this due to safety issue of dam.

Therefore the tussle of States started turning into the political fight due to their non conscience and impatience. For so many years this fight continues and later in 2018 and 2019 Kerala was hit by tremendous flood which cost him the hundreds of life and major economic loss. The major reason of the flood is the the poor management of the dam. If the both state had tried to resolve the issue of the dam with equal conscience and effective measures, then this situation would not have been arose.

CONCLUSION

The fight between Kerala and Tamil Nadu is still going on and they haven’t find any solution yet on the issue and the relation between the state can be defined as sweet and sour. But looking at the condition of the dam and the safety of the people it is the high time for the both of the States to put aside their political agendas and garages and to look into the issues from the safety purpose of the people, otherwise the worst situation can take place.

1. State of Tamil Nadu v. State of Kerala ((2014) 12 SCC 695 (original suit). [↩]
2. The Mullaperiyar forum v. Union of India AIR 2006 SC 1428 (original suit). [↩]
3. Ibid. [↩]
4. State of Tamil Nadu v. State of Kerala (2014) 12 SCC 695 (original suit). [↩]
5. (2014) 12 SCC 695. [↩]