Mullaperiyar: The Sun, The Moon and The Facts

“senayor ubhayor madhye rathaṁ sthāpaya me ‘cyuta

yāvad etān nirīkṣe ‘haṁ yoddhu-kāmān avasthitān

kair mayā saha yoddhavyam asmin raā-samudyame”

(Arjuna said: O infallible one, please draw my chariot between the two armies so that I may see those present here, who desire to fight, and with whom I must contend in this great trial of arms.)

My friend NR Tatvamasi has provided us a brilliant perspective on the Mullaperiyar dispute and has delved deep into the issue  to provide the POV of Tamil Nadu in this matter.

 As I sit down to write my thoughts on the issue, I congratulate Tamil Nadu (TN) Chief Minister Dr. J Jayalalitha for reaching out to the people of Kerala and most of the points in her letter seems to have been inspired by Tatvamasi’s post. It’s often said, “ Conflict builds character, crisis defines it”. At this moment of crisis ,it would be the characters of the leaders on both sides, which would ensure that cordial relationships between both states are not affected.

 At the outset I would want to say that although I was born a Malayali, I have spent most of my time outside the state (across India) and I’m currently based out of TN.  Hence my points may not be an absolute POV of Kerala.

 It has been reiterated many time over that Mullaperiyar is not an Inter State water-sharing dispute or is not a Water war as is being made out by some prominent national channels. The crux of the issue as of now lies in the safety of the dam as per Kerala and raising the height of water in the existing dam for TN.

If you clearly look at the circumstance of the 1886 agreement between Travancore King Sri. Moolam Thirunal Marathadavarma and the Secretary of State for the British in India, we can clearly see that it was an imperial power arm-twisting a small princely state into an unequal agreement. To say that the area was inaccessible prior to development of the dam premises by the British and hence the Maharaja gladly gave up his claim is untrue.

It has been documented that between 1817 and 1820 the Travancore Maharaja had laid claim to entire timber in the Cardamom hills (covering Adimali, Devikulam, Peermede, Rajakad, Rajakumari stretch) and the British appointed a conservator during this period.  Infact the Maharajas were earning major revenues from the Timber and cardamom trading from this belt in association with The Aspin wall Co. Vishakam Thirunal the earlier Raja is believed to have resisted the attempts by the British to build a dam here from 1862.

Also the argument that a hitherto undeveloped area was developed thanks to building the dam by the British seems similar to the argument that, missionaries came down to India civilize a barbaric and superstitious population.

The Indian Independence Act , 1947 passed by the British Parliament , Section 7 , clearly states that “the suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian States, all functions exercisable by His Majesty at that date with respect to Indian States, all obligations of His Majesty existing at that date towards Indian States or the rulers thereof, and all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise;”

Essentially this meant that the treaty of 1886 was null and void for all practical and legal purposes. TN did continue to enjoy the water and acquired factual rights over the water by the usage and possession of the same for a long period of time (parallels to Ayodhya case where court did look at long possession by parties as a means of acquiring title and ownership) .

The agreement was however renewed in 1970 by the Achuthamenon ministry who headed a CPI government backed by the Congress in a crafty coalition stitched together by K Karunakaran. The agreement was signed between the Secretaries of both states without discussions in the Legislature or approval. We have seen similar instances viz. 1) IAEA safeguards agreement & 123 Agreement signed by UPA without discussion in parliament 2) Mamta scuttling the Teesta water sharing agreement for lack of discussion in West Bengal, being criticized severely. The ideal situation would have been that such agreements need to debated among public at large and the feedback taken to legislatures.

Another argument put forward is under the linguistic reorganization  of states, TN gave up rights to Idduki inspite of having a majority of Tamil speaking population there. Here we should also understand the context of the reorganization of the states. Nagercoil, which had a majority of Malayalam speaking population, was also given as part of Tamil Nadu. To go back and analyze what would have been the basis of this at this point seems a futile exercise.

Furthermore if you analyze the linguistic traits of Malayalam and its dialects, you will find that a pure form of Malayalam is spoken only in central Kerala. At all other places you will find influences of the language of the neighboring states, like in Trivandrum and Idduki areas you will find a lot of Tamil influences in the language. It is also true that both languages have lots in common in terms of words and usages and hence a pure linguistic division of Kerala or Tamil Nadu would be next of impossible especially along border areas.

The 1979 Incident and the curious case of the vanishing new dam

The Dam Safety issue shot into prominence after cracks and leaks were found in the Dam following some mild tremors in 1979. It is around that time that the Morvi Dam breached and , Malayalam Manorama , a leading Malayalam daily, ran a story titled “sahyasanukalil mattoru morvi ”(meaning Another Morvi in the Western Ghats).

The story reported on cracks and seepages in the existing Mullaperiyar dam. The story created tremendous impact in Kerala and a large-scale agitation was started. Startled by the agitations the union government entrusted CWC (Central Water Commission) to seize the matter and initiate discussions on strengthening the dam.

As per a submission of former Kerala water resource Minister NK Premachandran , in the ministerial level meeting between Kerala and TN in the presence of Union Minister for water resources in New Delhi on 18/12/2006 :

“The Expert Committee formed in 1979 to inspect the ailing dam held a discussion on 25/11/79 at 11 AM in Thiruvananthapuram. In this, one of the long term measures suggested to this issue was as follows: “A joint team of engineers from Tamil Nadu and Kerala will explore the possibility of locating a new dam within reasonable distance from the existing dam, within a month’s time, as an alternative to long term measures for strengthening the existing dam” (Annexure A). In the minutes drafted after the joint inspection of the team of engineers of Tamil Nadu and Kerala, it is stated that “the team feels after inspection of the site AA (1300 ft below the existing dam) and examination of other sites with reference to contour map, that site AA is the nearest possible alignment from geographical considerations without impairing the safety of the existing dam during construction of dam” (Annexure B).

The same has been signed by the representative of Tamil Nadu Sri. A. Mohanakrishnan. But, surprisingly, in the memorandum on ‘Strengthening Proposal of Mullaperiyar Dam’ submitted by the Central Water Commission in 1986 it is stated that it was decided to strengthen the existing dam and the case of construction of new dam was not pursued (Annexure C). In the Expert Committee report (March 2001) filed before the Supreme Court, it is stated that “Although originally it was suggested that the engineers of Tamil Nadu and Kerala will explore the possibility of locating a new dam within a reasonable distance from the existing dam, subsequently this was not found feasible and the proposal was dropped” (Annexure D).

It is not known what made them to say so. The measures taken in this direction are not known. The proposal to construct a new dam is the sustainable solution to assure water to Tamil Nadu and save the life of the downstream population. But from the above it is seen that this suggestion once put forward by the Central Water Commission, has been sidelined, on unknown grounds.”.

Experts are still baffled on why the original long-term proposal of building a new dam was dropped by the CWC. CWC still has not provided any concrete answers for the same.

A new dam proposal of the  CWC just vanished without any reasons!

 Strengthened or Did We?

There is no doubt that TN PWD adopted various strengthening measures under the CWC supervision. The measures included RCC topping , Cable Anchoring and RCC covering with foundation of the downstream side of the dam.

A cross section of the Mullaperiyar dam shows that the centre of the dam is still the lime and surkhi mixture of the old time. And since the dam could be never emptied there was no actual maintenance  that could be carried out on the upstream side.

It is this, which has been precisely the point of contention. Most of the cracks start getting exposed when the water level falls down. It has been generally believed by the experts that the lime had leeched away in the 65 years before the RCC capping works were carried out. Even TN’s star witness agreed to the fact MP dam looses 30 Tone / year of lime due to leeching, making it almost hollow at the centre.

The Remote Operate Vehicle survey and photography revealed further alarming facts on the state of the dam . A report submitted by M Sashidharan an member of Inter state water committee and a representative of Kerala during the ROV studies shows serious damage to the dam structure due to the unscientific RCC Topping.

 The report suggests “Apart from innumerable pot holes, crevices and other openings that were visible on the surface of the dam, the masonry cover provided at the upstream side of the dam was seen to have undergone a crushing between 106 feet and 95 feet throughout the entire length of the dam”

It is suggested that there is currently strong evidence of the Lime leeching on the upstream end of the dam with huge voids, deep potholes, wide-open joints, deep crevices and hollowness. The report further says pre-stressing done by cable anchoring through the upstream masonry portion might have loosened and damaged the masonry.

 The following table of the causes for dam failure from IIT Madras is quite revealing

The MP dam seems to suffer from 5 of the causes mentioned above.

 The fact of 2006 SC Judgment

One of the major setbacks for Kerala for in the MP case has been the 2006 SC judgment where the division bench of YK Sabarwal , CK Thakker and PK Balasubramanyan ruled against the interests of Kerala and permitted Tamil Nadu to raise the water level of the Dam. When we look at the case holistically we understand that the Kerala interests were represented by the Mullaperiyar Environmental Protection Forum and the Tamil Interest’s by Dr. Subramanyam Swamy.

While Swamy was backed to hilt by the TN  providing all data required with best legal support, Kerala government were not so enthusiastic. The Kerala side’s arguments were weak and not supported by real scientific data. One of such goof ups were on the arguing the Dam was stated as a masonry dam whereas it was a composite dam. The calculation of seismic coefficients based on IS 1893:1984 was also wrongly interpreted. It is not know why such weak arguments were made but a recent report of TN CM ordering an intelligence investigation of properties gifted/owned by Kerala politicians in Theni, Cumbum and Madurai may be a pointer .

However what is interesting is that later, the SC did not strike down the “Kerala Irrigation and Water Conservation (Amendment) Act 2006 , or popular called the Kerala Dam Safety Act to restrict the height of water to 136 feet.

If the act were unconstitutional we would have seen the SC strike it down with immediate effect. TN prayed to SC for to striking down the act that was nullifying the SC judgment, but we have not seen the SC even ordering a stay on the Act, but it did order for an Empowered Committee to study the issue. The Court did not see merit to stand by its earlier judgment and sought further hearing and studies.

There were some stinging remarks made by the SC judges for the Act of Kerala, but we need to see it in the context of being instigated by non-obedience of a brother judge’s verdict. If there was a case the SC, would have initiated contempt proceeding against the Kerala Govt ,but it didn’t do so.

We should also take into consideration there was no appeal mechanism as the case was transferred to SC for hearing by both HC’s and a review petition is not regarded an appeal.

Interestingly in this article on Judicial Dissent by Renowned SC Lawyer Navin Kumar he says “The Supreme Court does not easily acknowledge error or overturn its own past judgment’s. Stare Decisis, the authority of the past, has always and necessarily been a vital principle of the Court’s conduct. The Court bows to the lessons of experience and the force of better reasoning. The Court is, besides, and above all else, an institution– with all that the term implies regarding roots and a respect for tradition. What it comes down to, then, is recognition that precedent is a valuable stabilizer, not lightly to be overridden, yet not slavishly to be obeyed.” However in this case we see that the SC was ready to look again at its own earlier order. He further goes on to say “Justices of the Supreme Court are rarely TITANS, they are mortal men, endowed usually with more than ordinary intellectual powers and with exceptional richness of learning and with experience, but nevertheless subject like other mortal men to vagaries and failures of understanding. And so, from time to time, the Court confesses error and corrects itself, overturning its own past judgment, not capriciously on the basis of changing personal preferences but rationally, in the light of logic and experience. The process of self-correction has been repeated again and again when experience overrode a logic demonstrable in a later Judgment.”

 Another issue in contention is the overwhelming dependence of the SC on the report of the CWC in this matter. The CWC maybe one of the premier institutions of the country but is not always however the most efficient. One such case has been the Jaswant Sagar dam breach were the CWC monitored strengthening measures funded by World Bank was found to be ornamental in nature and did not prevent a dam collapse in July 2007 .

The state CAG had severely criticized the State Dam Safety committee and the CWC in its report. The CWC also suffers from the fact that it doesn’t want to be seen going back on its earlier report which will point fingers at its efficiency. Another example of the lackadaisical attitude of the CWC on the issue of Dam safety has been that it took 25 years to draft a Dam Safety bill and when it submitted it the Parliament Standing Committee ridiculed the Commission for producing a ‘toothless’ Bill that doesn’t mention any penalty for violation of the Act and compensation to victims during disasters.

Yet another example of CWC’s bias stems from its calculation of PMF (Probable Maximum Flood Levels) for MP with respect to other Dams:

The performance of the TN Government on Dam safety in totality has also not been encouraging. TN was in receipt of funds from World Bank under the Dam Safety Project . In its 2000 report, the bank said that the CWC was not pro-active in dam safety measures. Tamil Nadu was criticized for its poor management of the Mullaperiyar dam and was chucked out of the project. The following observations the WB 2009 assessment report is interesting :

1. “In1998,TamilNadu state withdrew from the project because it failed to meet the revised performance targets during the project extension period,”
2. “Orissa and Tamil Nadu prefer ad hoc expert committees to carry out the functions of Dam Safety Review Panels.”
3. “The TamilNadu DSO has basic office facilities and some computer equipment, but  lacks space even for storing past reports fromdams.”

 It also be noted that the current spurt of information campaign has been spearheaded by a group of retired PWD senior officials. Is there something they would like to be hidden ??

 Apples with Pumpkins

Some of the example given in support of the safety of the MP dam and strengthening is a case of comparing Apples to Pumpkins.

One such example is the Kallanai – Grand Anicut but by the Chola Kings in 2^nd Century. The structure has underwent constant changes and that too over a period of time. The fact of the matter is that Kallanai is technically not a dam but a minor Water diversion structure on the Delta. Kallanai was originally made of large stones and has a height of 18ft, on the other end MP dam is located at 2890 ft above sea level, facing the populous state of Kerala  built of Lime Surkhi and has a height of 176 ft.

 Another example given out is the renovation of Roosevelt Dam in USA, which underwent renovation in 1989 primarily to increase the capacity of the Dam. The Rubble Masonry dam was emptied almost fully and completely encased with Concrete. The reconstructed Dam was almost a new dam. The pics below prove the point.

 However the same votaries fail to point out that USA also decommissioned their 1000^th dam recently, or the case of Francis Dam disaster where seepages and cracks was mocked at and called “natural for a dam” till it breached. It sounds very similar to the tones heard on MP Dam cracks and seepages as of today.

Another case to be considered is that of Victoria Dam of Western Australia, where the old dam was built with cement concrete in 1891. In 1912 leakages were discovered in the dam due to leeched lime from the concrete. In 1912 and 1966 the upstream side of the dam wall was covered with reinforced concrete to reduce further leaking. However, a 1988 review of the dam’s design concluded that it lacked sufficient safety margins in the event of floods or earthquakes, and its concrete had degraded to such a level that it could not be repaired, and needed replacement. Sounds very similar isn’t it??

It is also surprising why people do not mention the Kodaganar Dam failure in TN in 1977 or the why Peranai Dam (made of Lime and Surkhi) downstream of Vaigai was rebuilt.

Couple of other incongruent arguments are the following:

1) A nuclear reactor built with latest technology and certified by the highest nuclear authorities, similar to CWC , is still unsafe for TN govt while a similar authorities report on  MP seems to be acceptable.

2) Recently a check dam built at the cost of 14 cr by TN PWD nearly 9 months back collapsed when Vaigai was in spate. TN PWD, which certifies a 116 year old dam to be safe failed to build a fail safe check dam and didn’t calculate correct PMF levels (Probable Maximum Flood).

Another falsehood being spread is that Periyar originates from TN. It is a fact that Periyar does originate from Sivagiri peaks but is not situated in TN, not even a single drop of water of MP comes from the state of TN .

Some also say that 999-year lease agreement mean the lifetime of the existing dam was supposed to be 999 years. I wouldn’t like to comment on that!

Whither is the Problem?

As of now the issue really seems to stem from who would own and control a new Dam? The signals emanating have indicated TN wouldn’t really mind paying modified lease amounts and probably even share power generated with Kerala if a new Dam comes up.

I’m sure TN wouldn’t mind shelling out more than existing 10 lakh a year to KL for the welfare of its people when nearly 10,000 crore is spend for freebies. The point of contention seems to be that TN is insisting on ownership of the new Dam.

Kerala CM recently offered that the entire cost of new Dam will be borne by Kerala and the operation of Dam could be bilateral, trilateral, under centre or under a third party.

The contention of Kerala in giving ownership of the new dam to TN arises from the following facts:

• TN seen as insensitive to safety of people of KL, hence cannot be trusted for the future.
• TN argues for lower riparian rights in the case of Cauvery but has denied the same for Kerala time and again in the Parambikuam Aliyar Project.
• Efforts made by TN earlier to block the IIT Delhi and IIT Roorkee reports in SC and Empowered committee. If they felt the report was wrong they could have demolished the report in cross-examinations.
• Efforts made by TN to delay the Empowered Committee by not nominating members from TN initially to the committee.

In an article by Ramaswamy R Iyer,in 2006 , the former Secretary of Water Resources for the Government of India and a foremost expert in water issue says “Let us remember that the dam is 111 years old. There have been worries about its safety in the past. Regardless of the certification by the Central Water Commission, it seems to this writer that “the precautionary principle” should prevail. It would be wise to be very careful about subjecting the dam to any avoidable stress. Moreover, as between TN which wants more irrigation and Kerala which is worried about safety, greater weight should surely be given to the latter.”

He further says “The farmers of TN must remember their “rights” over Periyar waters are not natural or riparian rights; they are rights arising out of an agreement. They are receiving waters because Kerala has been good enough to give them that bounty. The attitude of TN farmers towards Kerala should be one of gratitude, and not one of anger or resentment. Secondly, Kerala government is entitled to exercise abundant caution about the safety of people, property, and wildlife in the state. Safety is paramount. TN’s efforts should be to reassure Kerala and assuage its anxiety, and not to complain about its unreasonableness or accuse it of politicizing the issue.”

Inspite of this prevalent feeling,the state of Kerala is ready to sign an agreement to perpetuity to supply more water to TN by raising the water storage in new dam to 142 for TN.

 Way Ahead

The first step to be taken by either state, is to stop political posturing. Appeals, Counter Appeals and Open Letters appears to only worsen the situation as of now. Similarly public mocking of genuine safety concerns as fear mongering, irrational, unscientific seems to only further hurt the cause.

The ideal suggestion as of now seems to be build a bigger dam down stream and flood submerge the existing dam and store water at probably 152 feet and hand over the operations and maintenance to a Central PSU or agency on the lines if Neyveli .

Meanwhile TN should accelerate its river linking programs, increase reservoir capacity at Vaigai for more storage from existing withdrawals .

Meanwhile the following statement from an old article in Front seems very pertinent today “For every argument raised by Tamil Nadu in support of its claims, there is counter-argument in Kerala that appears equally plausible. Yet, each time the controversy gets embroiled in extraneous issues, two things stand out: One is Kerala’s refusal to acknowledge the genuine need of the farmers in the otherwise drought-prone regions of Tamil Nadu for the waters of the Mullaperiyar; the other is Tamil Nadu’s refusal to see that it cannot rely on or continue to expect more and more from the resources of an other State to satisfy its own requirements to the detriment of the other State. A solution perhaps lies in acknowledging the two truths, but neither government can afford the political repercussions of such a confession.”