Supreme Court of India
DR. JOE JOSEPH & ORS. versus STATE OF TAMIL NADU & ORS. on 8 April 2022
[2022] 3 S.C.R. 95
DR. JOE JOSEPH & ORS.
v.
STATE OF TAMIL NADU & ORS.
(Writ Petition (Civil) No. 880 of 2020)
APRIL 08, 2022
[A.M. KHANWILKAR, ABHAY S. OKAAND C.T. RAVIKUMAR, JJ.]
Dam Safety Act, 2021 – ss.8 and 9 – Mullaperiyar Dam –Interim arrangement until “regular National Dam Safety Authority(NDSA)” under the 2021 Act becomes fully functional – Forpurposes of surveillance, inspection, operation and maintenanceof dams such as Mullaperiyar Dam, the responsibility is fastenedupon the National Dam Safety Authority (NDSA) established u/s.8of the 2021 Act – Functions of the Authority so established havebeen spelt out in s.9 of the 2021 Act –Establishment of a regularstructure in the form of NDSA with all essential organisational andlogistical facilities at its disposal is however likely to take somemore time – Until the regular NDSA becomes functional, theSupervisory Committee, as reconstituted in terms of this order, shallbe accountable for all matters relating to safety of the Dam includingreferred to in the 2021 Act and discharge the functions of NDSAspecified in s.9 of the 2021 Act – The competent authority may takeappropriate steps to ensure that the regular NDSA under the 2021Act is established at the earliest.
State of Tamil Nadu v. State of Kerala & Anr, (2014) 12SCC 696 : [2014] 12 SCR 875 – referred to.
Case Law Reference
[2014] 12 SCR 875referred toPara 5
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.880 of 2020.
(Under Article 32 of The Constitution of India)
With
Special Leave Petition (Civil) No.3924 Of 2021, Writ Petition(Civil) Nos.771 And 1225 of 2021, Writ Petition (Civil) No.86 of 2022.
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ATushar Mehta, SG, Ms. Aishwarya Bhati, Sanjay Jain, ASGs, V.Krishnamurthy, AAG, Jaideep Gupta, Shekhar Naphade, N. R. Elango,G. Umapathy, Dr. S. Gopakumaran Nair, Sr. Advs., Ms. ShradhaDeshmukh, Ms. Manisha Chava, Rajat Nair, Ms. Vanshaja Shukla, ArvindKumar Sharma, G. Prakash, Jishnu M. L., Ms. Priyanka Prakash, Ms.Beena Prakash, Anoop R., D. Kumanan, Ms. Pavitra Balakrishnan, SuvinBKumaran, Ms. Aishwarya Dhasi, Ms. Farah Hashmi, T. G. NarayananNair, Sooraj T. Elanjickal, Ms. Priya Balakrishnan, Ashwin Kumar M.J., Wills Mathews, Mathen Joseph, Devendra Kumar Tewari, RakeshGarg, Ashish Gopal Garg, Paul John Edison, Nand Ram, Ms. ShwetaGarg, Ginesh P., V. K. Biju, Ms. Ria Sachthey, Chetanya Singh, AmlenduCKumar Akhilesh Kumar Jha, Abhay Pratap Singh, Shaji George, Ms.Vijay Laxmi, Umang Tripathi, Rajeev Yadav, Ms. Aayushi, Mathews J.Nedumpara, Ms. Manju Jetley, Ms. Merry S. Mathew, Hitesh KumarSharma, Akhileshwar Jha, Ms. Kavita M. S. Sebbi, Naresh Kumar, SatishMurthi, Ms. Uma Devi M., C. R. Jayasukin, Ms. Divya Mishra, Ms.Suresh Kumari, Narender Kumar Verma, Ms. Smitha Pandey, Manoj V.DGeorge, Zulfiker Ali P. S., Ms. Shilpa Liza George, Faisal M. Aboobacker,Ms. Lakshmi Sree P., Augustine Peter, Ms. Akriti Jai, N. Subramaniyan,Pranav Sachdeva, Jatin Bhardwaj, Ms. Neha Rathi, PrabuRamasubramanian, Raghunatha Sethupathy B., Ms. Priya R., K. PaariVendhan, Advs. for the appearing parties.EThe following order of the Court was passed:
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ORDER
1. During the pendency of these matters, a new law has beenenacted by the Parliament titled “the Dam Safety Act, 2021[1]”, whichhas received assent of the President on 13.12.2021 and has been notifiedFvide gazette dated 14.12.2021. As per the note filed by respondent No.3, the appointed date for coming into force of the 2021 Act has beenspecified as 30.12.2021.
2. The 2021 Act deals with subjects which are broadly matters inGissue in the present petitions such as surveillance, inspection, operationand maintenance of the Mullaperiyar Dam including for prevention ofdam failure related disasters.
3. The 2021 Act predicates that multi-tier institutional mechanismbe established for providing institutional mechanism to ensure the safe H1 for short, “the 2021 Act”
functioning of the concerned dam(s) and for matters connected therewithor incidental thereto. Section 5 mandates constitution of NationalCommittee who is required to discharge functions delineated in Section6 of the 2021 Act. For the purposes of surveillance, inspection, operationand maintenance of the dams such as Mullaperiyar Dam, which is thesubject matter in these proceedings, the responsibility is fastened uponthe National Dam Safety Authority[2] established under Section 8 of the2021 Act. The functions of the Authority so established have been speltout in Section 9 of the 2021 Act. Further, by virtue of the first proviso toSection 24(1) of the Act, the National Dam Safety Authority has also toact as the State Dam Safety Organisation for the purposes of this Actand to perform all duties and functions in relation to dam safety as relatesthe Dam in question.
4. Suffice it to observe that the sweep of the 2021 Act is verywide and comprehensive, as it focusses on all aspects regarding thesafety of specified dams across the country, including the MullaperiyarDam. It also provides for objective standards for ensuring propermaintenance and institutional mechanism for safe functioning of theconcerned dams and for matters connected therewith.
5. As regards the Mullaperiyar Dam, this Court vide its judgmenttitled as “State of Tamil Nadu Vs. State of Kerala & Anr.[3 ]hadconstituted a Supervisory Committee, consisting of three members,namely, one representative from the Central Water Commission andone representative each from the two States - Tamil Nadu and Kerala.That Committee has been functioning satisfactorily since then anddischarging the task assigned to it, as mentioned in paras 229 and 230 ofthe reported decision.
6. However, after coming into force of the 2021 Act, a statutorydispensation needs to be put in place. We have been informed that atemporary structure of NDSA has been created by the Central WaterCommission (CWC) under the Ministry of Jal Shakti, Government ofIndia vide letter No. T-20/2/2021-DSM DTE/158-61 dated 30.03.2022.The establishment of a regular structure in the form of NDSA with allessential organisational and logistical facilities at its disposal is likely totake some more time. It would be desirable that the regular NDSA is putin place, which can immediately take over the task of surveillance, 2 for short, “NDSA”
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Ainspection, operation and maintenance of the Mullaperiyar Dam anddischarge the functions in that regard, as specified in Section 9 of theAct, as also, exercise all enabling powers invested in it under the 2021Act. Until such time, we may have to continue with the presentarrangement, as specified in the reported decision, namely, the SupervisoryCommittee discharging the task assigned to it in terms of direction givenBby this Court. At the same time, it may be in larger public interests tostrengthen the Supervisory Committee, both in regard to its composition,as well as, scope of its functions to be brought in conformity with theprovisions and powers of NDSA, as specified in the 2021 Act.
7. As certain issues have been raised in the present set of writCpetitions/special leave petition/Applications, including by the locals residingin the downstream areas of the Dam in question, we deem it appropriateto accede to the suggestion given by the State parties to strengthen theSupervisory Committee until the regular NDSA becomes functional interms of Section 8 of the 2021 Act, so that until such time, the reconstitutedDSupervisory Committee would be in a position to discharge all thefunctions and also exercise all the powers which otherwise are requiredto be exercised by the NDSA for ensuring safety of the MullaperiyarDam, as also, prevention of dam failure related disasters.
8. For the purpose of strengthening the existing SupervisoryECommittee, we also accede to the suggestions given by the party-Statesthat two technical experts be made part of the existing SupervisoryCommittee, one each from the State of Kerala and State of Tamil Nadu,who must be well-versed in dam management, reservoir operation,instrumentation, etc.
F9. The party-States shall nominate their technical expert(s) notlater than two weeks from today.
10. The reconstituted Supervisory Committee in terms of this orderpassed in exercise of our plenary powers under Article 142 of theConstitution, as aforesaid, shall in addition to complying with the directionsGgiven in the reported decision, also discharge all the functions of theNDSA delineated in Section 9 of the 2021 Act and also in the samemanner exercise all its (NDSA’s) powers for enforcement of the directionsgiven by it from time to time.
11. It is stated by the learned counsel for the State of Tamil Naduthat there are certain pending works. It will be open for the State ofH
Tamil Nadu to invite attention of the reconstituted committee to thosepending works. We have no manner of doubt that the SupervisoryCommittee will examine that request appropriately and take such decision,as may be necessary.
12. In other words, until the regular NDSA becomes functional,the Supervisory Committee, as reconstituted in terms of this order, shallbe accountable for all matters relating to safety of the Dam includingreferred to in the 2021 Act and discharge the functions of NDSA specifiedin Section 9 of the 2021 Act.
13. We direct the concerned Ministry of the Government of Indiato extend all logistical assistance to the Supervisory Committee, to enableit to effectively discharge its functions and to exercise powers in termsof this order.
14. Needless to mention that the reconstituted SupervisoryCommittee will decide all outstanding matters related to MullaperiyarDam’s safety and conduct a safety review afresh. For this purpose, itmay frame terms of reference in accordance with the provisions of the2021 Act.
15. In case of any operational issues arising during the executionof directions given by the Supervisory Committee, the Chief Secretaryof the concerned State shall be personally responsible to ensure thatevery direction given by the Supervisory Committee (including of settingapart necessary funds or providing logistical assistance) is taken to itslogical end without any exception.
16. In other words, the party-States must extend completecooperation for ensuring that the directions given by the SupervisoryCommittee from time to time for the purpose of maintenance of theMullaperiyar Dam and its safety, are complied with in prescribed time.Failure to do so will not only invite appropriate action for having violatedthe directions of this Court, but all concerned would be liable to beproceeded with under the 2021 Act. We say so because the SupervisoryCommittee, in terms of this order, is deemed to be discharging all thefunctions and powers of the NDSA until a regular NDSA becomesfunctional under the 2021 Act and more so, orders of this Court in thatregard.
17. We express a sanguine hope that the competent authoritymay take appropriate steps to ensure that the regular NDSA under the2021 Act is established at the earliest, as it cannot brook delay.
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[2022] 3 S.C.R.
A18. The Supervisory Committee may also entertain therepresentations or suggestions given by the locals and after examiningthe same in time bound manner, take appropriate measures, as may beadvised.
19. We clarify that in absence of nomination of expert member byBthe State party, the Supervisory Committee shall be free to continue todischarge the task already assigned to it by this Court and also under the2021 Act.
20. As aforesaid, this is only an interim arrangement until the“regular NDSA” under the 2021 Act becomes fully functional.
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21. The matters be notified on 11.05.2022 for submittingcompliance-cum-status report by the Supervisory Committee and forconsideration of other reliefs.
22. In case of any exigency before the next date of hearing, it willbe open to the parties/Supervisory Committee to approach this Court byDway of a formal application in that regard.
Bibhuti Bhushan Bose
Directions issued.
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