Precautionary Principle

In this post, I want to discuss about the ‘Precautionary Principle’, which is the basis of the New Dam offered by the State of Kerala. State of Kerala strongly defending our case for a New Dam before the Hon’ble Supreme Court and also before the Hon’ble Empowered Committee citing this principle, which advocates prevention is better than cure. As there is reasonable apprehensions about the imminent danger and the possibility of a dam failure of archaic Mullaperiyar dam, the State of Kerala should not take any chances with its people’s life, which it is duty bound to protect under the Constitution of this great nation.

The origin of the Precautionary Principle can be traced back to Germany in the 1970s with the Vorsogeprinzip. Translated as the ‘Foresight’ Principle, this broad principle is a philosophical approach to risk prevention by taking protective measures against specific environmental/safety hazards in order to avoid or reduce environmental/safety risks. This approach was subsequently adopted in various International agreements.

Precautionary Principle must be invoked:

·       Where the scientific evidence for safety is insufficient, inconclusive or uncertain.

·        Where preliminary scientific evaluation suggests that effects on the environment, health or safety may be unacceptable and/or inconsistent with the chosen level of protection; and precautionary principle may be applied without waiting for the reality and seriousness of those risks to become fully apparent.

Litigation History

This blog post detail with the latest litigation started during 1997-98 and end in a Supreme Court judgment allowed Tamil Nadu to store water up to 142ft in Mullaperiyar reservoir. In the earlier arbitration litigation in 1930-40, Travnacore won the arbitration proceedings, where Sir C.P. Ramaswamy Iyer himself argued before the Arbitrators and Umpire.

WRIT PETITIONS BEFORE HIGH COURTS

During 1997-98, A.G. Sojan, Devassia Joseph, and Sajan Kolath & Anthr filed writ petitions before the High Court of Kerala to reject the request of Tamil Nadu Government to raise the water level in Mullaperiyar reservoir from 136 ft. R. Sundaram, a Contractor from Tamil Nadu also filed a writ petition in Kerala High Court to issue directions to facilitate to carry out his work in respect of Mullaperiyar Dam. Meanwhile, similar petitions were filed in Madras High Court by Dr. Subramoniam Swamy, R.K. Ramachandran, Periyar-Vaigai Single Crop Cultivating Agriculturist Society and A. Suresh filed writ petitions before High Court of Madras to raise the water level in Mullaperiyar reservoir up to 152 ft.  Dr. Subramoniam Swamy filed a transfer petition before the Supreme Court of India on 5^th August 1998 citing that there is a possibility of conflicting orders being passed by the High Courts and hence requested that the entire cases may be transferred to Supreme Court.

Mullaperiyar Dam - Technical Details

River Periyar originates from the Western Ghats in ‘Sundara Malai’ in the Sivagiri group of hills at an elevation of about 1830m above MSL. From its origin, it traverses through an immense cliff of rocks in a northerly direction receiving several rivulets in its course. About 48 Km downstream, the Mullayar joins the main River at an elevation of 845m above MSL and the River then flows westwards. About 11 Km downstream of the above confluence, the river passes through a narrow gorge. A dam was constructed at this gorge to intercept the flow and it got christened as ‘Mullaperiyar dam’, which received the above title from the rivers Mullayar and Periyar. The dam have a catchment area of 624 square kilometres, which lies completely inside Kerala territory.

The Mullaperiyar dam is having a length of 1200 feet and a height of 155 feet from the river bed and the height from the deepest foundation is 176ft. The front and rear faces of the dam are of uncoursed rubble masonry in lime, surki and sand mortar. The hearting is of lime surkhi concrete with 3.125 parts of stone and 1 part of mortar.  The proportion of lime surkhi mortar is 2 parts of lime, 1 part of surkhi and 3 parts of sand.The central core constructed with lime surkhi concrete occupies about 60% of the total volume of the dam. As part of the strengthening measures suggested an RCC capping was added to the top of the dam. Also a 10 m concrete backing was provided to the downstream side, but the joint between the old dam and the new dam remain ungrouted even though shear keys were provided.

Supplemental Agreements of 1970

Agreement Amending the Periyar Lease Deed of 1886

dated 29^th May 1970

This Agreement is executed on this the twenty ninth day of May One thousand nine hundred and seventy BETWEEN the Governor of Kerala (hereinafter referred to as 'the Government of Kerala' which expression shall, where the context so admits, include his successors in office and assigns) of the one part and the Governor of Tamil Nadu (hereinafter referred to as 'the Government of Tamil Nadu' which expression shall, where the context so admits, include his successors in Office and assigns) of the other part.

PERIYAR LEASE DEED - 1886

This is the first page of the original Lease Deed of 1886. You can see the seal of Registrar Office of the Travancore Palace on the left margin.

LEASE OF LANDS

IN TRAVANCORE FOR THE PURPOSE OF THE PERIAUR PROJECT

INDENTURE made between the SECRETARY OF STATE FOR INDIA and the MAHARAJA OF TRAVANCORE in respect of the lease of certain territory in the Travancore State in connection with the PERIYAR IRRIGATION PROJECT -1886.

Seismic Threat to Mullaperiyar Dam

Within a span of 2 days, two tremors of mild intensity on 5/11/10 (M2.0) and 6/11/2010 (M2.9) occurred in the 50KM range of Mullaperiyar Dam suddenly caused great anxiety in the minds of people, earthquake scientists and dam engineers. Even though, these earthquakes are minor in nature, the above earthquakes are seen as indication of the increased seismicity of the region surrounding Mullaperiyar Dam, which was once thought completely dormant. These warning signals by nature must taken very seriously, even though the present tremors are not able to create any significant damage to the dam due to its low intensity and large distance from the Mullaperiyar Dam.

Upstream face of Mullaperiyar Dam before the recent repairs

The above tremors are coincident with the cosmetic beautification done by Tamil Nadu authorities to the grandma Mullaperiyar Dam to conceal its chronic ailments from the naked eyes. But the ailments of Mullaperiyar Dam are inherent and deep rooted. This dam was constructed during 1886-1895, when the dam engineering was at infancy. The dam is a composite structure with rubble masonry in lime surkhi mortar as facing on upstream and downstream and a lime surkhi concrete inner core. Later in 1980s, a concrete backing of 10 M width was added to the downstream of the old dam.

Arguments by Tamil Nadu and Counter Arguments

1. ARGUMENT: 37 dams exits in India, which are more than 100 years old and still in service and hence it is not prudent to conclude that Mullaperiyar is unsafe based only citing the age of the structure.

COUNTER ARGUMENT: It is true that there are more than 37 dams exists in India which are more than 100 years old (Source: National Register of Large Dams, 2002). But a close look into the above data shows that out of the above 37 dams, 30 dams are of earthen dams having around 20 m height and more over having only an average gross storage capacity of less than 1 TMC! Hence these earthen dams are only can be qualified to be as ‘earthen bunds’ and does not pose much threat. 

If we consider the remaining seven masonry gravity dams, the Mullaperiyar dam surpasses all others with its height of 53.64m and its huge storage capacity of 15.66 TMC. The second one on the above list, Khadakwasla dam, which had already overtopped in 1961 due to the failure of the Panchet dam in the upstream (Maharastra - Pune District).  The third one on the list is having a height of only 16.77m. Hence such comparisons have no meaning.

Mullaperiyar dam is a composite gravity dam which lost of much of its strength due to continuous leaching of lime from its core. This dam is situated in an active fault zone, which makes the dam vulnerable to failure in an earthquake of moderate intensity with an epicenter close to the dam. Also the high hazard this dam poses a direct threat to the lives and property of 35 lakhs people living downstream and also a threat to the mega storage Idukki reservoir. Hence Mullaperiyar dam has no parallels and considering its age, deterioration and high hazard nature, must be decommissioned and a new dam must be built.

Mullaperiyar Dam - A Permanent Threat to Kerala

View of the Mullaperiyar dam and the famous Thekkady lake

Lease Deed of 1886 and Supplemental Agreement

A lease deed was executed in 1886 between the Maharaja of Travancore and the Secretary of the State for India, for irrigation works by the Madras Presidency for diverting all waters of Periyar River of Kerala flowing into the land bounded by a contour line of 155 ft above the deepest point of the bed of the Periyar river to Vaigai basin for a period of 999 years. Two supplemental agreements were executed in 1970 by the successor Governments of Kerala and Tamil Nadu. As per the first supplement agreement, the lease rent was enhanced from Rs.5 per acre to Rs.30 per acre with a provision to revise the same in every 30 years. The second one permitted Tamil Nadu to generate electricity using the waters of Mullaperiyar.