The risk of the failure of the Mullaperiyar dam and the loss of lives of not less than 60 lakhs of people is real and imminent. Read the letter of Shri Mathews J Nedumpara to the Prime Minister

6.4.2022

AN OPEN LETTER

FOR EMERGENT ATTENTION

Hon’ble Shri Narendra Modi

Prime Minister of India

Also to,

The Hon’ble Chief Ministers of Kerala and Tamil Nadu

And Hon’ble Members of Parliament and political leaders

Hon’ble Sir,

Sub: The risk of the failure of the Mullaperiyar dam and the total wiping out of the Districts of Cochin, Alleppey, Kottayam and the loss of lives of not less than 60lakhs of common citizens of this country is real and imminent, and the on-going litigation in the Supreme Court where I appear for the common citizens is all certain to be a futile exercise.

1. I address this letter inviting your excellency’s immediate personal attention because there could be few issues which deserve your attention than the instant one, which I am afraid to say has received none.
2. The Mullaperiyar dam which is made of limestone and surkhi was commissioned in the year 1895. It was meant to last for 50 years. However, today, it remains not yet decommissioned, even after 127 years of its construction, posing the risk of its imminent failure. I consciously used the word imminent because a dam which is made of limestone and surkhi at a time when dam technology was at its infancy, certainly cannot be considered to be safe. Mullaperiyar falls under seismic zone-III and, therefore, is not immune from earthquakes. The Mullaperiyar dam even finds its place in the list of endangered dams prepared by international bodies such as the United Nations University.
3. Anywhere else in the world if the safety of a dam is under doubt, which certainly is the case with Mullaperiyar, a new dam would be constructed and the old dam would be decommissioned. However, in the case of the Mullaperiyar, even that is not required, because as suggested by our ‘Metro man’, E Sreedharan, at minimal cost a tunnel could be dug at the level of 50ft from the floor of the dam to draw water from the Mullaperiyar dam to the Vaigai basin in Tamil Nadu. In other words, to avoid the risk involved with storing huge quantity of water at the Periyar reservoir at 2800 ft from sea level, by constructing a tunnel at the bottom of the dam, the water could be stored at the reservoir at 100 ft from seal level. There is no difficulty to augment the storage capacity of the Vaigai dam. This is the simplest and most inexpensive solution, and there is no rationale or reason to oppose the same.
4. As aforesaid, the other alternative is to construct a new dam downstream, in Kerala, which may cost maybe 1500 crores which the Government of Kerala is more than willing to spend. However, Tamil Nadu outrightly rejected the same as recorded by the Supreme Court.
5. In short, Tamil Nadu is neither willing to construct a tunnel which will help them to draw more volume of water from the Periyar reservoir and store it at the base in the Vaigai dam, utilize it for agriculture or if at all needed, allow the water into flow into the Vaigai river, nor to allow Kerala to construct a new dam to prevent the catastrophe in case the Mullaperiyar fails.
6. Two things are infinite, said Albert Einstein, the stupidity of humans and the infinity of the universe. And the latter, Einstein said he is not sure of. It appears that the sole basis of the stubbornness of Tamil Nadu is the judgment of a 5-judge constitution bench of the Supreme Court in State of Tamil Nadu v. State of Kerala, 2014.
7. In the said case the principal issue framed was whether the structural safety which the Kerala Government raised could even be allowed to be raised, it being barred by the principle of res judicata. Res judicata is a fundamental principle of law evolved by Roman lawyers, particularly, Ulpian, who lived in the 1^st century AD. The core of the principle is that to avoid multiplicity of litigation and ensure finality of judicial decisions, even erroneous decisions are to be given full effect. For instance, a Court of final appeal, in a case between A and B holds that 1+1=0, that decision is to be treated as truth, though ex facie erroneous. Applying this principle, if a Court finds an innocent man guilty of murder and orders him to be hanged, he will be hanged.
8. Res judicata is a principle of public policy for the larger public good and also to avoid the evil consequence of parties being able to re-agitate an issue which was finally adjudicated. This principle is primarily applicable to ‘actions in personam’ and to ‘real actions’ with certain exceptions. It can have no application in a situation as the instant one involving the lives of millions of people. For the doctrine of res judicata to be applied, one ought to be party to the legal proceedings. The millions of common citizens in Kerala who may perish if the dam were to collapse were not parties to the Mullaperiyar case. Further, for the doctrine to apply, the cause of action ought to be the same. The safety and vulnerability of dam is a continuing cause of action. Therefore, res judicata can have no application.
9. A 3-judge bench of the Supreme Court in 2006 in the Mullaperiyar Environment Protection Forum case, based on the report of a Committee formed by the Court came to the conclusion that the dam was structurally safe and allowed the water level to be raised to 142 ft from 136 ft, which was what Kerala is willing to permit. The Court arrived at the said finding primarily based on three factors. Namely, (a) that the Idukki dam despite the “copious rain” is not filled to its full capacity, that against 70.500 TMC it was only filled to the extend of 57.365 TMC, (b) that the recent earthquakes that the reservoir area had experienced had caused no damage to the dam, and that (c) in the event of the Mullaperiyar dam giving away, the flood waters will flow to the Idukki reservoir and that it has the capacity to contain the extra inflow.
10. It is shocking that the 3-judge bench of the Supreme Court came to the conclusion that the Mullaperiyar dam is safe and that in the worst scenario of the dam bursting, the flood waters will flow downstream into the Idukki reservoir and that the Idukki reservoir has the ability to contain the flood waters without any study ever having been conducted as to the what direction the flood waters would flow. The Mullaperiyar dam is situated at 840 meters from sea level. It flows downstream towards and the west and takes a turn towards the north-west after a distance of 2.8 kms because of a small hill which is at an elevation of 842 meters. Just two meters above the natural ground level (NGL). However, in the event of the collapse of the dam huge volumes of water wiping out everything in its path will be forced to gush down at great speed towards the west, because there are huge mountains on the north and the south sides. For water which is gushing down in such quantity and with such immense force, the two-meter elevation will be of no consequence. In its westward flow from a height of 789 meters it will with unthinkable force fall to a depth of 160 meters from sea level. That would mean a waterfall from the ridge of the western ghats with a height of 629 meters, i.e., 2064 ft. To compare, 57 meters, i.e., 188 ft is the height of the Niagara Waterfalls.
11. The Supreme Court in 2006 held that in the event of the dam breaking the flood waters will flow to the downstream Idukki reservoir located downstream at a distance of 25 km. How insensitive and casual the Court has been is obvious from the fact that it is not bothered in the least about the ten thousand people living on the banks of river Periyar who will be washed away in the event of the dam giving away. Our political executive maybe corrupt and inefficient. But they can be criticised and made to see reason. Our courts on the other hand consider any form of dissent as contempt. They speak of freedom of speech and expression on one side and use the law of contempt, which belongs to the dark ages and which has fallen out of practice in most countries except India and Pakistan, to suppress any dissent, nay, much needed constructive criticism.
12. The constitution bench of 5-judges in 2014 on a total misconception of the doctrine of res judicata held that the judgment of the Court of 2006 “operates as res judicata in respect of the issue of safety of the dam” and, therefore, it is not open for Kerala to question the safety of the dam any longer. It pronounced a judgment that the dam is safe because a 3-judge bench held so in 2006 and held that it cannot be re-agitated. It held “… and the structural safety of the Mullaperiyar have been finally decided by the judgment of this Court dated 27.2.2006 and Kerala is estopped from raising or re-agitating these issues in the present suit.” The meaning of res judicata is not what the learned judges have understood it to be. Even between the same parties, a difference in the cause of action will give a distinct right for action. Res judicata can apply only if the parties in previous case and the present are the same and the cause of action is the same, and the cause of action has been fully adjudicated on merits. The Governments cannot be said to represent the individual citizens whose lives are at risk. Further, res judicata is in the realm of procedure or evidence, a matter of public policy, for the welfare of the people at large. There is no estoppel (res judicata) against fundamental rights. There is no res judicata or estoppel against statute. Yet, the Supreme Court, erroneously, declared unconstitutional, the amendment that Kerala brought to the Water Conservation Act on the ground that it is hit by res judicata.
13. There is a fundamental difference between the decision of a Court and an Act of Parliament. The decision of a Court binds only and only the parties before it and not the public large, because it is against the principles of natural justice to bind one to a decision where he is not a party. On the contrary, a law enacted by the Parliament binds every citizen, because it is presumed to have received the consent of the citizens because all citizens are present in the Parliament through their representatives. Unfortunately, in India, the supremacy of the Parliament has been undermined by judicial decisions which hold that the ultimate power is vested in the Court.
14. The instant is a classic example of the Courts erring so unthinkably on issues of life and death, influenced by hyper technical considerations which the political executive, who is responsible to the electorate cannot remain a mute spectator. The Court cannot be entirely blamed for committing errors like the instant one. We had a period of weak political executive due to coalition governments. With the executive becoming weak, certain powerful lobbies in Delhi began to increasingly govern the country through so-called “PILS”. Matters of governance of great import were allowed to be brought to court and decided by the Courts. The Mullaperiyar is a tragic example of the said trend. The only difference is that the Mullaperiyar dam case is an issue concerning life and death in its most literal sense. It is only providence that the dam did not collapse during the unprecedented floods of 2018. It should have been an eye-opener for the Governments and the Courts that the issue is not about res judicata, which does not apply here at all! The issue is what is the fallout in the event of the dam breaking.
15. As I have indicated above, if the dam breaks, which is a certainty, only the date is unpredictable, it can happen at any moment, today or tomorrow, what is its consequence? The Mullaperiyar dam is around one-third of the Idukki dam in terms of storage capacity, and thus is not a very small dam. In the event of its collapse, the waters will flow towards the west and fall from the mountain ridge to the valleys from a height of more than half a kilometer. The impact will be unimaginable.
16. Shri Roy George, who was an engineer of the KSEB has conducted an extensive study of the likely flow of the water in the event of the breaking of the dam. The Governmental agencies are yet to conduct any study. The study which is conducted indicates that the water from the Periyar Reservoir will flow downstream towards the west and will fall to the valleys from a point near to Manjumalla to Korithodu in Kottayam District, wiping out everything in its path. Kanjirapally, Mundakayam, Erumelli, Pala, Thiruvalla, Alapuzha, all will be washed away. Due to the topography, the flood waters will inundate the entire districts of Ernakulam, Kottayam and Alleppey. Not less than 60 lakh people of this country will perish. A copy of the findings of the study conducted by Shri Roy George is enclosed.
17. Inspite of the unthinkable catastrophe that awaits, no serious concern is paid by the Governments and the Court. So far as the Courts are concerned it is all about the finality of its judgments and the duty to obey the judgments of larger benches. The need of the hour is to reduce and maintain the water level at 120 ft instead of the 142 ft which is permitted today, no matter what the economic costs to Tamil Nadu. Because nothing is more precious than the lives of the people. The Supreme Court took up the issue in 2018 and ordered the constitution of committees by central and state governments, separately, under the Disaster Management Act. The common man has absolutely no faith in these “Committees”, especially committees lead by retired judges of the Supreme Court, for the very simple reason that they are not experts in these highly technical issues. For the people of Kerala their opinion is of little solace.
18. The immediate reason why I am addressing your Excellency is that instead of realizing that emergent measures are needed and that in the event of the dam collapsing, no committee, no number of hearings, no measure under the Disaster Management Act can work, the Court is now considering entrusting the functions of the authorities under the Dam Safety Act, 2021, to the Supervisory Committee constituted in terms of the 2006 judgment till the National Dam Safety Authority under the 2021 Act is established. This is no solution. Even the 5-judge bench of the Supreme Court refused to re-open the issue of the safety of the Dam on the ground that the 2006 judgment is res judicata on that aspect. For that reason alone, the 5-judge bench rejected Kerala’s plea to limit the water level to 136 ft, so too, Kerala’s offer to construct a new dam at its expense.
19. What I apprehend is a scenario which is extremely horrific. The entire population of the districts of Ernakulam (cochin), Kottayam and Alleppey, being wiped out, me and my family included. Inspite of the gravity of the situation, there is hardly any seriousness or sense of urgency. The solutions are simple. Bring down the water level to less that 120 ft as an emergency measure. And as a long-term solution, either construct a new dam which the Kerala government had offered to do, which for reasons unfathomable, Tamil Nadu refused. Or simpler still, to construct a tunnel at 50 ft or so, from the bottom of the dam to draw water to keep the Periyar reservoir level below 120 ft at all times, which will substantially lower the risk of a dam collapse. All that is to be done is augment the capacity of the Vaigai dam at the base.
20. Sir, as the Prime Minister of the country your good-self possess enormous power and influence. If your good self could convene a meeting of the Chief Ministers of Kerala and Tamil Nadu that can bring a solution to this controversy, and the long-drawn nightmare of the people of Kerala can be put to rest, effortlessly.

With most respectful regards,

Yours Sincerely,

MATHEWS J. NEDUMPARA

9820535428

mathewsjnedumpara@gmail.com

Encl: Study conducted by Shri Roy George, Engineer, who worked for the KSEB and is currently residing overseas.