RUSSEL JOY versus UNION OF INDIA & ORS. on 11 January 2018

[2018] 1 S.C.R. 206

SUPREME COURT REPORTS

[2018] 1 S.C.R.

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RUSSEL JOY

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UNION OF INDIA & ORS.

(Writ Petition (Civil) No. 878 of 2017)

BJANUARY 11, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKARAND DR. D. Y. CHANDRACHUD, JJ.]

Constitution of India – Art. 32 – 121 years old Mullaperiyardam in the State of Kerala, Chief Engineer of the dam projectCenvisaged the lifetime of the dam for a period of 50 years – Needfor assessment of lifespan of Mullaperiyar dam, keeping in viewthe safety of the citizens especially the persons residing downstreamof the river – Writ petition seeking issuance of Writ of Mandamusdirecting the Government of India to appoint an international agencyDto study and to adjudge the lifespan of Mullaperiyar Dam and thedam to be de-commissioned within the time period – Held: Therehas to be a greater degree of disaster management and betterpreparedness to face any kind of disaster caused by the dam –Issuance of directions to Central Government, State of Kerala aswell as State of Tamil Nadu to constitute a separate sub-committeeEu/s. 9 of the 2005 Act, to exclusively monitor the measures forensuring a high level of preparedness to face any disaster, occurringfrom Mullaperiyar Dam – All States to work in harmony with theCentral sub-committee – Disaster Management Act, 2005 – ss. 9,21, 23(4).

FState of Tamil Nadu v. State of Kerala and another[2014] 12 SCR 875 : (2014) 12 SCC 696 – referredto.

Case Law Reference

[2014] 12 SCR 875referred toPara 3GCIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.878 of 2017.

Under Article 32 of the Constitution of India.

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Manoj V. George, Ms. Shilpa Liza George, Amit Masih, KamlendraMishra, Narender Kumar Verma, Advs. for the Petitioner.

K. K. Venugopal, AG, Ms. Pinky Anand , ASG, SubramoniumPrasad, Sr. Adv./AAG, Umavathy, K. V. V. Vijayakumar, Mohan V.Katarke, G. Prakash, Advs. for the Respondents.

The Judgment of the Court was delivered by DIPAK MISRA, CJI. 1. This writ petition is preferred by apublic spirited person under Article 32 of the Constitution of India prayingfor issue a Writ of Mandamus directing the Government of India toappoint an international agency with the technical expertise to study andto adjudge the lifespan of Mullaperiyar Dam and ascertain the date/period on which the said dam must be de-commissioned; appoint a HighPowered Committee to suggest to this Court to declare a date/time periodfor de-commissioning of Mullaperiyar Dam; direct the State owning thedam, that is, Tamil Nadu to make financial provisions for damages to lifeand restoration of environment in the eventuality of a burst of MullaperiyarDam before it is de-commissioned, and pass any other order or directionas this Court may deem fit and proper to do so in the facts andcircumstances of the case.

2. The essential facts which need to be stated for adjudication ofthis petition are that Mullaperiyar Dam was constructed under a leaseagreement executed in the year 1886 between the Maharaja of erstwhileTravancore with the British Secretary of State for Madras Presidencyfor a duration of 999 years. In pursuance of the said agreement, the damwas constructed across river Periyar in crude lime surky mortar at atime when dam engineering was in its infancy. Periyar river originatesfrom Sivagiri and Western Ghats at an elevation of 2400 meters fromthe sea level and joins Mullayar river downstream at an elevation of 850m. It is at this elevated junction, the Mullaperiyar dam was built havinga 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 Stateof Tamil Nadu under the said lease agreement.

3. There is an assertion in the petition that the Chief Engineer ofthe dam project, Mr. John Pennycuick envisaged the lifetime of the damfor a period of 50 years. As 121 years have expired from the date of theconstruction of the dam, the decommissioning of the said dam has becomeessential and there is need for assessment of the lifespan of the dam A

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Aregard being had to the safety of the citizens especially the personsresiding downstream of the river. There is reference to the litigationsfiled between the State of Kerala and State of Tamil Nadu for longperiod and more recently in CS (OS) No. 3 of 2006 before this Courtwhich was decided on 07.05.2014 in State of Tamil Nadu v. State ofKerala and another[1]whereby this Court apart from issuing otherBdirections had appointed a Supervisory Committee to take measurespertaining to the dam in emergent situations.

4. It is contended in the petition that because of the efflux of timeand the safety of the dam being doubtful, fear remains embedded amongthe people who reside downstream of the Mullaperiyar dam. That apart,Cthe 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 thelife without waiting for a disaster to happen in the form of a dam burstwhich can be triggered due to multiple reasons. According to thepetitioner, due to the differences between State of Kerala and State ofDTamil Nadu over the contractual rights over the 1886 lease agreement,they have not taken any steps to mitigate the fear or dispel the threat tolife of many citizens who live in the zone of immediate catastrophe. Thepetition 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 therealm of impossibility which law does not accept, and is completely averseEto it.

5. It is urged that safety and security of the people and that of thenation are of paramount importance and, therefore, the respondents areobligated in law to have concrete safeguards so that there is no irreversibleenvironmental consequences and the fear that affects the bones andFbrains of the citizens gets vaporised. By no stretch of imagination thelifespan of the dam can be conceived to be 999 years which is the termof the lease deed and there has to be decommissioning of the dam tosave the human life. Any kind of hazard that affects the life cannot beallowed to remain. The existence of the dam without necessaryGassessment is a peril to the people residing in the affected locality and itis also a continuous threat to the environment.

6. As the grievance raised by the petitioner pertains to apprehendedcataclysm and unforeseen calamity to human life, it was directed that acopy of the petition to be served on the Union of India.

H 1 (2014) 12 SCC 696

7. We have heard Mr. Manoj V. George, learned counsel for thepetitioner, Mr. K.K. Venugopal, learned Attorney General for Indiaalongwith Ms. Pinky Anand, learned Additional Solicitor General, for theUnion of India, Mr. Subramonium Prasad, learned senior counsel/AAGassisted by Mr. Umavathy, learned counsel for the State of Tamil Naduand Mr. Mohan V. Katarke alongwith Mr. G. Prakash, learned counselfor the State of Kerala.

8. Mr. George, learned counsel for the petitioner has raised thefollowing submissions in the course of his argument:-

(i) Non-recording of the findings with regard to lifespan of theMullaperiyar dam would invite a great man made disaster to the peopleof the locality and bring in ruination to the atmosphere.

(ii) It is the duty of the States as well as the Union of India todispel and eliminate the fears from the marrows of the persons residingin the downstream areas of the dam.

(iii) It is imperative to have a separate disaster management planfor the said dam keeping in view the special features of the obtainingsituation.

(iv) If the persons who remain in proximity of the dam ordownstream are compelled to live in a state of constant fear, there isflagrant violation of Article 21 of the Constitution of India.

9. Mr. K.K. Venugopal, learned Attorney General for India hasemphasised on paragraphs 229 and 230 of the judgment rendered by afive-Judge Bench in State of Tamil Nadu(supra). Relying on thesame, it is submitted by him that a Committee has been constituted tokeep a close watch on the safety and recommend measures which arenecessary to be carried out by the State of Tamil Nadu and further, theCommittee has been given the liberty to take appropriate steps and issuenecessary directions to the two States, namely, Tamil Nadu and Keralaor any one of them, if so required, for the safety of the people residing indownstream areas in an emergent situation. He would submit that thecommand given in the last sentence of the paragraph 230(iii) is bindingon all.

10. Keeping in view the rival submissions, we think it appropriateto reproduce paragraphs 229 and 230 from the State of Tamil Nadu(supra). They read thus:- A

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A“229. However, to allay the apprehensions of Kerala- though noneexists - about the safety of the Mullaperiyar dam on restoration ofthe FRL to 142 ft., a 3-Member Supervisory Committee isconstituted. The Committee shall have one representative fromthe Central Water Commission and one representative each fromthe two States – Tamil Nadu and Kerala. The representative ofBthe Central Water Commission shall be the Chairman of theCommittee. The Committee will select the place for its office,which shall be provided by Kerala. Tamil Nadu shall bear theentire expenditure of the Committee.”

230. The powers and functions of the Supervisory Committeeshall be as follows:

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(i) The Committee shall supervise the restoration of FRL in theMullaperiyar dam to the elevation of 142 ft.

(ii) The Committee shall inspect the dam periodically, moreparticularly, immediately before the monsoon and during themonsoon and keep close watch on its safety and recommendmeasures which are necessary. Such measures shall be carriedout by Tamil Nadu.

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(iii) The Committee shall be free to take appropriate steps andEissue necessary directions to the two States - Tamil Nadu andKerala – or any of them if so required for the safety of theMullaperiyar dam in an emergent situation. Such directions shallbe obeyed by all concerned.

(iv) The Committee shall permit Tamil Nadu to carry out furtherprecautionary measures that may become necessary upon itsperiodic inspection of the dam in accordance with the guidelinesof the Central Water Commission and Dam Safety Organisation.”

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11. According to the learned Attorney General appropriate stepshave been taken. He has produced the Statement dated 11.1.2018 madeby Mr. Gulshan Raj, the Chairman of the Supervisory Committee/ChiefGEngineer, Dam Safety Organisation, Central Water Commission, Ministryof Water 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 H

Mulla Periyar Dam (MPD), the MPD is hydrologically, structurallyand seismically safe. No new development has taken place andreported upon since 2014 after the judgement of Hon’ble SupremeCourt in the case. The Supervisory Committee has not noticedany distress in the MPD.”

12. The heart of the matter is whether adequate measures havebeen taken with regard to safety of the dam. As we perceive from theaforesaid paragraphs from the reported decision, appropriate steps havealready been provided by the larger Bench while dealing with the suitfiled under Article 131 of the Constitution of India. We have also studiedlyperused the statement of the Chairman of the Supervisory Committee.At this stage, Mr. George, learned counsel for the petitioner reiteratingthe stand with regard to the disaster management, has commended us toSection 2(e) of the Disaster Management Act, 2005 (for brevity, “the2005 Act”). Learned counsel would highlight that it is obligatory thatsafety of the dam or the life span of the dam is different than the disastermanagement to meet unforeseen, sudden and emergent situation. In thisregard, he has assiduously emphasised on the concept of corrosion ofmental state due to constant fear in the minds of the people who residedownstream area or areas in proximity of the dam.

13. To appreciate the said submission, we may refer to Section2(d) of the 2005 Act. It is as follows:- “2(d) “disaster” means a catastrophe, mishap, calamity or graveoccurrence in any area, arising from natural or man made causes, or byaccident or negligence which results in substantial loss of life or humansuffering or damage to, and destruction of, property, or damage to, ordegradation of, environment, and is of such a nature or magnitude as tobe beyond the coping capacity of the community of the affected area;”

14. Section 2(e), which is the dictionary clause defines “DisasterManagement”. The same is as follows:- “2(e) “disaster management” means a continuous and integratedprocess of planning, organising, coordinating and implementingmeasures 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; A

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A(iii) capacity-building;

(iv) preparedness to deal with any disaster;

(v) prompt response to any threatening disaster situation ordisaster;

(vi) assessing the severity or magnitude of effects of any disaster; B

(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 C(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 theDmitigation of their effects; (b) measures to be taken for the integration of mitigation measuresin the development plans;

(c) measures to be taken for preparedness and capacity buildingEto effectively respond to any threatening disaster situations ordisaster; (d) roles and responsibilities of different Ministries or Departmentsof the Government of India in respect of measures specified inclauses (a), (b) and (c).”

F16. Section 23 deals with “State Plan” and sub-section (4) of thesame is as under:- “23. State Plan.-

(4) The State Plan shall include,—

(a) the vulnerability of different parts of the State to differentGforms of disasters; (b) the measures to be adopted for prevention and mitigation ofdisasters;

(c) the manner in which the mitigation measures shall be integratedwith the development plans and projects; H

(d) the capacity-building and preparedness measures to be taken; (e) the roles and responsibilities of each Department of theGovernment of the State in relation to the measures specified inclauses (b), (c) and (d) above;

(f) the roles and responsibilities of different Departments of theGovernment of the State in responding to any threatening disastersituation 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 ofdisaster, by the Departments of the Government at the districtlevel and local authorities in the district;

(c) the capacity-building and preparedness measures required tobe taken by the Departments of the Government at the districtlevel and the local authorities in the district to respond to anythreatening 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 theGovernment at the district level and the local authorities in thedistrict;

(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; (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 thatthere has to be an appropriate disaster management plan at differentlevels.

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19. Mr. K.K. Venugopal, learned Attorney General for India wouldsubmit that the Central Government is determined to ensure the safetyof the dams across the country including the subject dam and alsoimplement the provisions of the 2005 Act with utmost despatch in letterand spirit.

20. Mr. Subramonium Prasad, learned AAG for the State of TamilNadu has drawn our attention to paragraph 205 of State of Tamil Nadu(supra). The said paragraph reads thus:- B

“205.Moreover, this Court appointed EC to assure itself aboutthe safety of the Mullaperiyar dam. The EC, we must say, hasCcompleted its task admirably by thoroughly going into each andevery aspect of the safety of Mullaperiyar dam. We do not findany merit in the objections of Kerala challenging the findings andconclusions of the EC on hydrologic safety, structural safety andseismic safety of the dam. The findings of EC with elaborateanalysis of reports of investigations, tests and studies lead to oneDand only one conclusion that there is no change in the circumstancesnecessitating departure from the earlier finding on the safety ofMullaperiyar dam given by this Court in 2006 judgment. As amatter of fact, there is no change in circumstances at all muchless any drastic change in circumstances or emergent situationEjustifying the reopening of safety aspect of Mullaperiyar damwhich has been determined by this Court in the earlier judgment.”

21. Mr. Mohan V. Katarke, learned counsel for the State of Keralawould contend that in the said suit, the Court was only concerned withthe increasing of water level of the Mullaperiyar Dam.

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22. As far as the safety measures of the Mullaperiyar Dam areconcerned, the directions given in State of Tamil Nadu (supra) shall bebinding on all. However, there has to be a greater degree of disastermanagement and better preparedness to face any kind of disaster causedby the dam. Therefore, the concern that has been pronouncedlyGpropounded by Mr. George, learned counsel appearing for the petitioner,cannot be brushed aside. It is to be borne in mind that life without basicneeds of life and liberty replete with fear, is like a concept withoutstructure, a house without a plinth, a metaphor not conveying an idea, asea without waves or, for that matter, an idea constantly remaining in therealm of speculation. Life and liberty are to be understood, projected H

and protected in concrete terms. It is because fear brings numbness topassion of purpose and converts an active individual a quitter who resignshimself to fate. History records with sorrow and agony how civilisationshave perished mostly due to fear. Citizenry growth stands still, for cultureand creativity take the back seat when fear reigns. Some may say thatthere is no fear but the man who is so told, may appear to be consoledthough his heart or mind may not be convinced. Therefore, it is the dutyof the States involved to create a sense of confidence in the real senseof the term and ensure that adequate measures have been taken so thatin any event safety of the individuals shall not be affected and wellpreserved and their life and liberty remain protected. To speak differently,steps taken should reflect convincing and concrete perceptibility and notmerely a consolatory shadow.

23. In view of the aforesaid, we think it appropriate to issue thefollowing directions:-

(i) The Central Government shall constitute a separate Sub-Committee under Section 9 of the 2005 Act, to exclusivelymonitor the measures for ensuring a high level of preparednessto face any disaster, which is unpredictable in relation toMullaperiyar Dam.

(ii) The State of Kerala as well as the State of Tamil Nadu shallalso constitute separate Sub-Committees under Section 21 ofthe 2005 Act, to exclusively monitor the measures for ensuringa high level of preparedness to face any disaster occurringfrom Mullaperiyar Dam. They must provide for a separatedispensation under the State plan as envisaged under Section23(4) of the 2005 Act.

(iii) The State of Tamil Nadu, which has been directed to cooperateas per the decision in State of Tamil Nadu(supra), shall alsohave a Sub-Committee for disaster management and with aspecific plan.

(iv) Constitution of all sub-committees shall be in addition to theexisting Committees. All the States shall work in harmonywith the Central Sub-Committee and ensure high levelpreparedness to face any disaster occurring due to MullaperiyarDam, so that life and property are not damaged.

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[2018] 1 S.C.R.

A24. Our directions for constitution of exclusive Sub-Committeesfor the disaster management for the Mullaperiyar Dam does not anywayremotely suggest that there is any doubt about the safety or life span ofthe dam, as is alleged in the writ petition. We have said so only keepingin view the consequences of unpredictable disaster, which have astutelybeen canvassed before us.B

25. With the aforesaid directions and observations, the writ petitionis disposed of. There shall be no order as to costs.

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Nidhi Jain

Writ Petition disposed of.

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