Issue to be addressed on safety of Mullaperiyar dam is what quantity of water it can withstand: SC

New Delhi, Mar 23 (PTI) The Supreme Court Wednesday said it is not deciding about the distribution of water as the issue is regarding safety of the 126-year-old Mullaperiyar dam and the first question to be addressed is what quantity of water the reservoir can withstand.

While hearing arguments on the pleas which have raised issues pertaining to the dam, which was built in 1895 on the Periyar river in Idukki district of Kerala, the Supreme Court said that the rule curve may be the most crucial issue for deciding about safety of the dam.

The counsel appearing for Kerala told a bench headed by Justice A.M. Khanwilkar that the process for setting up a new dam in the downstream reaches of the existing dam should start, and the upper rule level of Mullaperiyar dam should be 140 feet and not 142 feet.

Senior advocate Jaideep Gupta, appearing for Kerala, told the bench that the issue is not about sharing of water but it relates to the safety of the dam.

"Frankly, we are not here deciding about the distribution of water. That is very clear. The only issue is about safety of dam. The first question to be addressed is this dam can withstand what quantity of water. That quantity is defined in the form of rule curve", said the bench, also comprising Justices A.S. Oka and C.T. Ravikumar.

Gupta argued that Kerala is before the Supreme Court saying that the dam is not safe as it stands.

The bench said the state has broadly raised four points – height of water level, release of water and modalities for that, modernisation of the instrumentation, and regular supervision and maintenance of the dam.

The state's counsel said there are one or two other issues, and Kerala has suggested that the supervisory committee should be re-constituted and its functions should be expanded.

Gupta said they have suggested that both states, Kerala and Tamil Nadu, should have their technical members in the committee.

He said the other long standing issue as far as Kerala is concerned is that the process for setting up a new dam has to start.

The bench observed that the union government's presence is essential for that.

"It is our submission that the correct remedy in the long term is construction of a new dam, just downstream…", Gupta said, adding, "Once the dam is ready, the existing dam can be discontinued and the new dam will take over."

He said the instrumentation is inadequate and what is there is not functioning.

Instrumentation is the only way to track the safety of a dam, he said during the hearing, which would continue on Thursday.

"As I said, the dispute is not relating to sharing of water. It is relating to dam safety. Kerala is before your lordships saying that the dam is not safe as it stands. Safety depends upon the height of the water in the reservoir. There are very factors", Gupta said.

He said the peak level should be 140 feet and not 142 feet as at the peak of monsoon, if the level is kept at 142 feet and the monsoon continues, it goes beyond 142 feet.

The bench observed that this issue of upper level has been considered by the Supreme Court earlier.

"If it is decided, unless there is change in circumstances, why it needs to be changed?", the bench asked.

Kerala's counsel said there is change in circumstances according to them and the climate change, which is seen in the region, is one of them.

"140 feet is the correct level. Two feet cushion has to be kept", he said, adding that the climate change problem is very critical and from 2017, the rainfall pattern in the area has changed.

"Now this aspect has to be taken into consideration in deciding whether everything that was decided in the past is to remain or we should look at something", he said.

Kerala's counsel told the bench that "after all, this is not between two states as we are all citizens of India and if even one citizen of India is in danger, then whoever will be the authority, will be concerned."

At the outset, the bench said this is not an adversarial litigation and what are the issues that really need to be addressed have to be seen and gone into.

"We are not going to decide here political issues", the bench said.

It said all the parties before it in the matter will be heard.

The Kerala government had earlier told the court that "no amount of rejuvenation" can perpetuate the dam and there is a limit to the number of years one can keep dams in service through maintenance and strengthening measures.

It had said the only permanent solution for removing the "eternal threat owing to the safety concerns" of the dam and for protecting the safety of lakhs of people living downstream of Mullaperiyar dam is to build a new dam in the downstream reaches of the existing dam.

In an affidavit filed before the court, the Kerala government had urged that the proposal to fix the upper rule level of Mullaperiyar dam at 142 feet on September 20 as formulated by Tamil Nadu may be avoided.

In its response to the affidavit filed by Kerala, the state of Tamil Nadu had earlier said that repeated assertion of Kerala and petitioners from there in the pleas filed from time to time seek to decommission of the existing dam, and construction of a new dam, which is wholly impermissible in the light of the apex court verdict on the safety of the dam.

"The dam has been found to be hydrologically, structurally, and seismically safe", Tamil Nadu had said.