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(Edited Image Courtesy Tamilnadu Govt.)
 
Modi regime’s ‘cooperative federalism’ is now facing second major test even as the first challenge - its power tussle with Kejriwal Government has got into legal tangle.
The second challenge has landed at the Centre as two separate project proposals from Kerala and Tamilnadu Government regarding Mullaperiyar Dam, which comprises main dam, baby dam and allied infrastructure.  
The 120-years old dam, which is situated in Idukki district of Kerala, has remained a perennial source of tension between the two States since the late seventies. The tension has persisted notwithstanding a slew of Supreme Court verdicts and the Centre’s efforts to resolve the issues over the years. 
Enthused by the return of Selvi J. Jayalalithaa as Tamilnadu Chief Minister, the State Water Resources Department (WRD) has now revived its 15-years old proposal to strengthen the baby dam.  
In a letter dated 29th May 2015 to the Union Government, TNWRD has pointed out that its proposal could not be implemented in 1999 as Kerala Forest officials had stopped the dam strengthening work. 
As put by Executive Engineer, Periyar Dam Special Division, TNWRD, “the work has to be out at least now complying to Hon’ble Supreme Court of India judgment and order dated 07.05.2014.” 
It has thus sought the Centre’s permission to cut 23 trees along with bushes and shrubs located just below the baby dam to undertake strengthening work costing Rs 7.85 crore. 
TN’s move comes close on the heels of a project proposal submitted by Kerala Government for setting up of a new dam on downstream of the 120-years old dam at a distance of 366 metres. It has proposed to demolish old dam after completion of the new dam whose cost is estimated at Rs 633 crore. 
In a letter dated 11th May 2015 addressed to the Centre, Kerala Government pointed out that the existing dam has “already outlived its safe-life” and it is “unsafe” to retain it further. 
The letter, seeking first-stage environmental nod, says: “consequences of any failure of this dam could be catastrophic and its outcome beyond all human imagination.”  It has cited Kerala Government-commissioned studies by IIT, Delhi and IIT, Roorkee on hydrological and structural safety of the dam to justify the need for new dam.  
According to a project document, “In view of the definite conclusions of the scientific studies conducted by National Institutions of repute and the persistent threat which the dam poses, it is imperative that the present old Mullaperiyar dam needs urgent decommissioning for discharging the responsibility of the State to protect the lives and properties of its citizens.”
The document says: “From 1895 onwards, State of Tamil Nadu is utilizing the waters of Mullaperiyar dam for irrigation and drinking water requirements. State of Kerala does not desire to deprive Tamil Nadu of the Mullaperiyar waters on which their needy farmers are greatly dependent.”
As put by the project feasibility report (PFR), “Collapse of the Mullaperiyar Dam will trigger a cascading failure of the (downstream) Idukki group of dams resulting in an unimaginable degree of devastation in the thickly populated districts of central Kerala.”
PFR says: “After getting the clearance from the Hon’ble Supreme Court and also after availing all the mandatory sanctions, construction of the new dam will be taken up.”
Referring to Supreme Court’s verdict dated 7th May 2014, the project summary says that the Court has granted “liberty to the State of Tamil Nadu and Kerala to apply to the Court, if they arrive at some amicable solution on either of the two alternatives suggested by the Empowered committee i.e., construction of new dam or digging a new tunnel.”
Kerala Government intends to complete the project within four years after receiving all statutory clearances. The State Government would ensure adequate flow of funds for speedy implementation of the project. 
The old dam is owned and operated by TN Government by virtue of 999-year lease of 8000 hectares of land by Maharaja of Travancore to Secretary of State for India under British rule in 1886 for construction of the dam. It provides water to five districts of Tamil Nadu through a tunnel.  
Barring this lease deed, TN no legal rights over Periyar waters as the river is not a inter-state water body. It originates from within Kerala and merges into the sea from Kerala. 
As put by detailed project report (DPR) on the proposed dam, “as far as Periyar River is concerned it is not an interstate river, but purely an intra state river. State of Tamil Nadu has absolutely no riparian right on the waters of this river except that derived from the lease deed of 1886.”
The real challenge before Modi Government does not lie in deciding on environmental/forest clearance applications of the respective project proposals of the two States. The challenge lies in convincing them that both the projects complement each other.
Can Modi Government hammer out an agreement between them for ownership, operation and management of the new dam within the framework of 1886 lease deed? Can the Centre transform new dam proposal into a tripartite joint venture, a new model for settling inter-state water disputes? Or, would it let the buck pass to the Supreme Court? 
DPR says: “The benefits arising from the New Mullaperiyar Dam would be shared between the States of Kerala and Tamil Nadu as mutually agreed upon by signing an agreement or decided by the Hon’ble Supreme Court based on what is just and equitable.”
If Prime Minister Narendra Modi fails to demonstrate his skills for facilitating federal cooperation in this case, then the two States are bound to enter into fresh bout of litigation. 
In June 2014, Kerala State assembly passed a unanimous resolution requesting the Centre to serve as a mediator for building the new dam. It was for fourth time that such a resolution was passed by the Assembly.
In compliance with Apex Court’s verdict given in May 2014, the Union Ministry of Water Resources constituted a supervisory committee in July 2014 to oversee safety of the existing dam on restoration of its full reservoir level to 142 feet. 
 
                                                 
 
 
 
 
 
 
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