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Mullaiperiyar dam/REJOINDER TO THE REPLY FILED BY STATE OF KERALA TO THE ABOVE APPLICATION in sc

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IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
I.A. No. 174262 Of 2022
In
Writ Petition No. 880 Of 2020

In the matter of:
Dr. Joe Joseph & Ors. :: Petitioners
Versus
State of Tamil Nadu & Ors. :: Respondents

REJOINDER TO THE REPLY FILED BY STATE OF
KERALA TO THE ABOVE APPLICATION

I, M. Selvaraju, Son of Shri. S.C. Muthusamy, aged
66 years, having my office at Water Resources Department,
Government of Tamil Nadu, No. 406, Pantheon Road, Egmore, Chennai-600 008, Tamil Nadu, do hereby solemnly affirm and state as under:

  1. I am the Vice Chairman, Cauvery Technical Cell cum
    Inter State Waters Wing, Water Resources Department, Chennai, Tamil Nadu and as such I am conversant with the facts of the case and competent to swear the present Rejoinder to the reply filed by State of Kerala to the above Application.
  2. I deny each and every averment made in the reply filed by the State of Kerala to the above Application except those that are specifically admitted herein or matters of record. The State of Kerala has filed a Response to the above application on 22.03.2024. However, it has not filed any response with regard to the Additional Affidavit filed by the Applicant State of Tamil Nadu in the above I.A. in August 2023.
  3. It is stated that the State of Kerala, inspite of directions in the Judgment of this Hon’ble Court reported in [(2006) 3 SCC 643)] and the Constitution Bench Judgment reported in [(2014) 12 SCC 696], has persistently continued its obstructionist attitude by not permitting the balance strengthening works and other works relating to the upkeep of the dam on one pretext or the other. The Applicant State of Tamil Nadu has raised the issues in various proceedings before this Hon’ble Court and also before the Reconstituted Supervisory Committee constituted pursuant to the order of 08.04.2022 passed by this Hon’ble Court. The Reconstituted Supervisory Committee clearly recorded the various pending works and the failure of State of Kerala to ensure that the said works are completed by according necessary permissions. However, in the present Affidavit, the State of Kerala on one hand raises the issue of comprehensive dam safety review, but on the other hand is obstructing in granting permissions and approvals for conveying materials and machinery to enable the Applicant State of Tamil Nadu from completing the remaining strengthening works. The reconstituted Supervisory Committee, which has power under the Dam Safety Act, 2021 [Act, 2021] to ensure that the directions contained in the Judgment of this Hon’ble Court (vide, Clauses 6 & 7, Page – 40, Annexure : A of the Application for directions filed by the State of Tamil Nadu on 14.11.2022) and its directions given by it, has miserably failed to ensure that the State of Kerala and its instrumentalities ensure compliance by permitting and facilitating to carry out the balance strengthening works and other related works, which are referred to in para 8 of the Application.
  4. It is stated that inspite of clear directions issued by the Reconstituted Supervisory Committee and the two Judgments of this Hon’ble Court of 2006 & 2014, the State of Kerala is raising objections on one pretext or the other and failed to ensure compliance of the same.
  5. The State of Kerala in para 8 of its reply, has stated the details of permissions granted, which are matters of record. Even for the routine annual maintenance works, the State of Kerala has taken two months to more than a year, for 13 items listed in the table, under this para. These works are small routine maintenance works like painting, patch works, repair to staff quarters, etc. A statement showing the time taken by the State of Kerala for granting permission to convey materials is annexed as ANNEXURE: I (Page Nos. 39 to 41). It is pertinent to state here that prior to the Judgment of this Hon’ble Court dated 07.05.2014, the materials required for routine annual maintenance works were conveyed based on the information provided by Executive Engineer of the Applicant State of Tamil Nadu to the DFO, Periyar Tiger Reserve, Kerala, with necessary concurrence obtained in one or two days. However, presently the process of conveying materials even for such small routine maintenance works take couple of months or even more, upto a year. The State of Kerala is willfully obstructing the officials of the Applicant State of Tamil Nadu to carry out even the routine maintenance works in time, while it is crying foul about the safety of the Dam.
  6. However, the major works referred to in para 8 of the application filed by the Applicant State of Tamil Nadu are yet to be accomplished, the details of which are as under:
    i. Balance strengthening works to Baby Dam & Earth Dam as directed by this Hon’ble Court in its judgment dated 27.02.2006 & 07.05.2014
    ii. Grouting the Main Dam, as directed by this Hon’ble Court in its judgment dated 07.05.2014.
    iii. Restoring the permission to cut 15 trees to carry out strengthening of the Baby Dam, which was granted on 05.11.2021 and arbitrarily withdrawn subsequently on 11.11.2021;
  7. As regards the repairing the Ghat road from Vallakadavu to Mullai Periyar Dam site, G.O. has been issued by State of Kerala, and Applicant State of Tamil Nadu has already deposited funds for the work.
    The work has been just commenced by the State of Kerala.
  8. In the reply, the State of Kerala has referred to certain procedure to be complied with by the Applicant State of Tamil Nadu with regard to Forest and Wildlife Clearances for carrying out balance strengthening works and cutting of trees, etc., which is not acceptable.
  9. The State of Kerala has stated that the balance strengthening works, viz., strengthening the Baby dam and Earthern dam require Forest clearance and Wildlife clearance, which is denied. Thus, the State of Kerala has invented a new devise to obstruct in carrying out the above strengthening works which were directed by this Hon’ble Curt in its Judgment reported in 2006 (3) SCC 643 dated 27.02.2006, inter alia reads as follows:-
    “28. …….. On the facts and circumstances of the case, the strengthening work of existing dam in the forest cannot be described as a non-forestry activity so as to attract Section 2 of the Forest (Conservation) Act, 1980, requiring prior approval of Union of India.
    “32. Under the aforesaid circumstances, we permit the State of Tamil Nadu to carry out further strengthening measures as suggested by CWC and hope that the State of Kerala would cooperate in the matter. The State of Kerala and its officers are restrained from causing any obstruction.…..”

In Constitution Bench Judgment dated 07.05.2014, this Hon’ble Court inter-alia held as under.

  1. … … The 1st defendant – State of Kerala – is restrained by a decree of permanent injunction from applying and enforcing the impugned legislation or in any manner interfering with or obstructing the State of Tamil Nadu from increasing the water level to 142 ft. and from carrying out the repair works as per the judgment of this Court dated 27.2.2006 in W.P. (C) No.
    386/2001 with connected matters.

Further in the 15th meeting of the Supervisory Committee of Mullai Periyar Dam held on 06.06.2022, which was reconstituted as per the Order of this Hon’ble Court dated 08.04.2022, the Chairman of the Committee stated that the strengthening works are to be carried out at the earliest. It is further stated that the above works do not require any new or additional forest land and no Compensatory Afforestation (CA) of forest land is required. After ten years of the Judgment of 2014, the State of Kerala is willfully raising that Forest and Wild life clearances are required, which is evidently to further delay the implementation of the Judgment and thereby to subvert the Judgment, which ought not to be permitted.

As regards cutting of trees, after following the due procedure of applying through online portal of MoEF & CC, the permission was initially granted by State of Kerala on 05.11.2021, and the same was arbitrarily withdrawn on 11.11.2021 (vide, pages 48 to 50 & pages 53 to 55 of Annexure – V to Response of State of Tamil Nadu filed on 23.03.2022, to the Reply Affidavit dated 21.03.2022 on behalf of State of Kerala, to Response of Tamil Nadu dated 03.02.2022 to the Status Report filed by Union of India on 27.01.2022). The issue was raised before the
Supervisory Committee and inspite of several communications in this regard, the State of Kerala has failed to restore the order for cutting the trees and on the contrary is persisting with its obstructionist attitude and raising objections on one pretext or the other.

PARAWISE REPLY:

  1. The averments made in paras 3 to 7 does not call for any reply.
  2. The averments made in para 8 and the table containing the permissions granted with respect to Serial Nos. 1 to 13, exhibits the delay caused to carry out even for Annual Routine routine repair / maintenance works. These are minor routine repairs, which are done in all dams periodically, and they are to be done in time. Even for these works, the State of Kerala has obstructed under the pretext that details are not provided etc., and the delay ranged from two months to more than one year. Thus, even for carrying out routine maintenance works, the State of Kerala exhibits its obstructionist attitude. As stated supra, the State of Kerala is causing obstruction even for these small works after the Judgment delivered on
    07.05.2014.
  3. However, the averment, that permission for the proposed strengthening works and maintenance works, is due to short-coming in the proposal furnished by Tamil Nadu, is totally denied. The State of Kerala, is either denying or consciously delaying to
    give permission to even convey materials and machinery to the dam site for the above works, which are pending since 2006. The State of Kerala is persisting with its obstructionist attitude in preventing to carry out these pending works by the Applicant State of Tamil Nadu. It is stated that the balance strengthening works, viz., strengthening the Baby dam by backing concrete as done earlier for Main dam and strengthening the Earthen dam, do not require any new or additional forest land. These strengthening works to be executed will fall fully within the limits of 100 acres leased to the Tamil Nadu exclusively for the construction of Dam structures, already leased to Tamil Nadu, as per 1886 Agreement, the validity of which had been upheld in the Judgment of this Hon’ble Court dated 07.05.2014 [(2014) 12 SCC 696]. No extra forest land is required and hence the issues raised by the State of Kerala, viz., ground demarcation of forest land by the officer of Forest Department, and identification of Compensatory Afforestation do not arise. The State of Kerala, which is well aware of the above facts, has intentionally raised the above issues to continue its obstructionist attitude, which is prohibited by the Judgments of this Hon’ble Court. The State of Kerala has stated that the State Board of Wild Life (SBWL) has to recommend the proposal. Infact the Board is headed by the Chief Minister of Kerala. The proposal of cutting trees, which after having been granted and cancelled by the Government of Kerala within a week is solely with a view to obstruct the strengthening works.
  4. However, the procedure set out in para 8 and the Annexure-A referred to therein with regard to the procedure for clearances under the Forest and Wildlife for cutting 15 trees had been scrupulously followed by the Applicant State of Tamil Nadu, the details of which are given below: Copy of the Email alert from System Administrator of Online submission and Monitoring of Wildlife clearances Proposal portal online dated 08.06.2015 (acknowledgement for the Application made on 29.05.2015 by Tamil Nadu) and 01.01.2019 that the proposal seeking prior approval of Central Government under the Forest
    (Conservation) Act 1980, has been examined by the Nodal Officer, Government of Kerala has been found to be complete in all respect, are annexed as ANNEXURE: II (Page Nos. 42 to 43).
    ● On 03.02.2015 the Forest and Wild life Dept., Govt. of Kerala was requested by the Applicant State of Tamil Nadu to give permission to cut the trees in the required format prescribed by the Act in offline mode.
    ● Based on the letter dated 09.02.2015, received on 22.05.2015, from the Deputy Director, Periyar Tiger
    Reserve, Kerala, Tamil Nadu applied on online in PARIVESH Portal for cutting the trees in May 2015 and the proposal was numbered as FP / KKL / IRRIG / 12012 / 2015.
    ● On 19.11.2016 the Additional Chief Conservator of
    Forest and Nodal Officer, Thiruvananthapuram, Kerala informed that the Government of Kerala has advised to reject the proposal.
    ● On 01.01.2019, there was an email alert from System Administrator of Online Submission and
    Monitoring of Forests Clearances Proposal portal (OSMFCP) that the Application is found to be in order and instructing to upload a copy of the acknowledgement of submitting signed hard copy of the proposal with enclosures from the concerned Divisional Forest Officer and the District Collector
    & upload them, which was uploaded on
    20.02.2020.
    ● After prolonged correspondences, and requests made by Govt. of Tamil Nadu in different fora, and after much persuasion, a joint inspection of the area, where the trees exist, was made on
    11.06.2021, when it was decided that 15 trees that exist within the area of 73m x 12m, in the downstream side of Baby Dam had been identified, to be removed.
    ● The details of the proposed 15 trees viz., name, GBH and approximate tree height were sent to the Deputy Director, Project Tiger, PTR, on 15.06.2021 for further processing of the Wildlife Clearance application and the acknowledgement obtained from the Deputy Director, Project Tiger, was uploaded in the portal on 21.06.2021.
    ● The Deputy Director, PTR, Thekkady, vide, letter dated 06.11.2021 conveyed that the Principal Chief Conservator of Forest and Wild Life granted permission for felling 15 trees, on condition that timber and the firewood shall not be used or taken outside the sanctuary area.
    ● But, the Forest and Wildlife (C) Department of Government of Kerala issued a Government Order vide G.O. Ms. No. 23/2021/F&WLD Dated 11.11.2021 cancelling the orders issued by the Principal Chief Conservator of Forests (Wildlife).

In any case, Clause 5 of the Lease Deed of 1886, gives the Applicant State the right to fell down trees. Clause 5 of the Lease Deed of 1886 reads as under:
“FIFTHLY, All timber and other trees woods underwoods and sapling, which now are or shall during the continuance of this demise be growing or standing upon any of the said demised lands with liberty to the lessee to fell grub up and use free of all charge for the same all such of the said timer and other trees woods underwoods … … …”

However, the clearances are not given yet on one pretext or the other. It has failed to restore the permission already granted on 05.11.2021, which was arbitrarily withdrawn on 11.11.2021. The State of Kerala is now raising untenable grounds that the procedure has not been complied with by Tamil Nadu. This Hon’ble Court in its Judgment dated 07.05.2014 and through several directions of the Supervisory Committee, directed State of Kerala and its instrumentalities to ensure necessary permissions are granted. However, till date, the State of Kerala and its officials are in continuous disobedience of the orders passed by this Hon’ble Court. This Hon’ble Court may be pleased to issue appropriate directions forthwith permitting Tamil Nadu to carry out the pending works with regard to felling of trees and strengthening of balance strengthening works.

  1. With regard to the averment of Kerala in Para 8, that Comprehensive Dam Safety Review needs to be conducted, it is stated that Section 38 of Act, 2021 (vide, para 41, page 22 of Response of State of Tamil
    Nadu filed on 23.03.2022 to the Reply Affidavit dated
    21.03.2022 on behalf of State of Kerala to Response of Tamil Nadu dated 03.02.2022 to the Status Report filed by Union of India on 27.01.2022) contemplates that the owner of a dam has to make a Comprehensive Dam Safety Evaluation for the purpose of determining the condition of the Dam and Reservoir, and that first such evaluation be conducted within five years from the date of commencement of the Act, viz., 30.12.2021. Thus, the same has to be completed by 30.12.2026. Therefore, as soon as the necessary directions sought for in the applications is granted by this Hon’ble Court, all the strengthening work will be completed in time bound manner and thereafter Comprehensive Dam Safety Evaluation would be carried out by State of Tamil Nadu. The State of Kerala from 2006 onwards is deliberately, consciously and continuously obstructing and thwarting all the strengthening works, but however wants comprehensive Dam Safety Evaluation without allowing any strengthening works being carried out at Mullai Periyar dam.
  2. The CWC has also clarified in its letter dated
    24.02.2022 (vide, Annexure–VIII, Page: 73 of Response of State of Tamil Nadu filed on 23.03.2022 to the Reply Affidavit dated 21.03.2022 on behalf of State of Kerala to Response of Tamil Nadu dated
    03.02.2022 to the Status Report filed by Union of India on 27.01.2022) that as per Act of 2021, which came into force on 30.12.2021, a Comprehensive Dam Safety Evaluation shall be carried out within five years from the date of functioning of the Dam Safety Act, by the owner of the dam viz., State of Tamil Nadu and thereafter at a regular interval.
  3. However, it is submitted that the Dam is continuously monitored by the Supervisory Committee and by the Sub Committee of Supervisory Committee every month during monsoon season and once in every two months during non- monsoon and the dam is found to be continuously safe. It is therefore reiterated that a meaningful comprehensive review has to be done only after completing the balance strengthening works ordered by this Hon’ble Court.
  4. With regards to the statement of Kerala in para 9, that the 3rd and 4th Respondent (CWC & Supervisory Committee) has to file their Reply / Response separately, the Applicant State of Tamil Nadu reserves its right to argue and make appropriate submissions at the time of hearing.
  5. With regard to the averments of State of Kerala in para 9 (in response to para 7(i) of the Application), regarding cutting of trees and the repair to the approach road from Vallakadavu to Mullai Periyar dam site are not the issues raised by the Writ Petitioner in the present Writ Petition, is totally incorrect and denied. The stand of the parties before this Hon’ble Court is that the Supervisory Committee should ensure that all the necessary steps are taken for the safety and upkeep of the dam. The Supervisory Committee itself observed in its various meetings held
    that the State of Kerala failed to ensure Tamil Nadu in completing the remaining works on one pretext or the other, vide Minutes of the meetings dated 06.06.2022 & 27.03.2023.

The averments, that the above permissions are pending separately in an Execution Petition filed by Applicant State and that in the present proceedings no such orders could be granted, is another evidence to show the dual stand of Kerala, namely, the obstructionist attitude and willful disobedience of the orders of this Hon’ble Court. The averment that if Tamil Nadu would have applied as per the protocol, permission would have been given by it, is contrary to the facts. This is evident from the action of Government of Kerala, vide its G.O. dated 11.11.2021, in which it has cancelled the Order of cutting 15 trees, for which Orders were given on 05.11.2021 after following the due process, viz., inspection of forest area, identification of boundaries, identification of trees etc., before issuing the Order.

Thus, it is submitted that the Applicant State of Tamil Nadu has scrupulously followed the procedure laid down by MoEF & CC, by providing all the details requested, both in soft and hard copies as requested by the officers of Kerala, which were found to be in order, by the Forest Officer of the State of Kerala.
Even then, the Government of Kerala after granting permission, cancelled the Order for cutting 15 trees, within a week of granting the same. Thus the averment of Kerala that Tamil Nadu has not followed the procedure or provided insufficient details are incorrect & denied.

It is submitted that the Chairman of the Supervisory Committee as early as in February 2015, directed to carry out the strengthening works recommended by the Expert Committee, 2001 & Empowered Committee, 2012 to be taken up and completed without let up. The Chairman of the Supervisory Committee in the 15th meeting held on 06.06.2022
(vide, Annexure–I, Item No: 15.9 Dam Strengthening Works @ page 283 of the I.A. No. 174262 of 2022 filed by the State of Tamil Nadu on 14.11.2022) was of the opinion that long pending balance strengthening works are directly related with the safety of the MPD and was recommended by CWC, Expert committee & Empowered Committee; hence these works must be carried out at the earliest, and not linked with the dam safety review of MPD. He requested the members of the Committee from both the States to extend their full co- operation in carrying out the strengthening measures in the interest of safety of the Dam. Further in the 16th meeting of the Supervisory Committee held on 27.03.2023, (vide, Annexure–IX, Item No: 16.8, Dam Strengthening Works @ page 78 of the Additional Affidavit in I.A. No: 174262 of 2022 filed by the State of Tamil Nadu on 07.08.2023), the Chairman of the Committee opined that as decided in the 15th Supervisory committee, long pending balance strengthening works recommended by CWC, Expert Committee & Empowered Committee needs to be carried out at the earliest for the safety of the Dam. For this both States need to resolve the issues at the earliest. The GoTN shall conduct the Comprehensive Dam Safety Review of the dam as per the provisions of Act, 2021. The Chairman also advised that the balance strengthening works shall not be halted till such time.

The State of Kerala, has further stated in para 9, that permission to convey materials without detailed estimate & specifications and supporting documents is the cause for delay for issuing permission to convey the materials to the dam site, is totally denied.

As per the 1886 Agreement, Tamil Nadu as owner of the Dam is entitled to carry out the maintenance works as and when required and to carry out the routine maintenance works. See Clauses 3 & 7 of the Lease Agreement, which read as under:
“THIRDLY Full right power and libedy to construct make and carry out on any pad of this said land hereinbefore demised and to use exclusively when constructed made and carried out by the lessee a// such irrigation works and other work ancillary thereto as the lessee shall think fit for a// purpose or any purpose connected with the said Periyar Project or with the use exercise or enjoyment of the lands rights libedies and powers hereby demised and granted or any of them.
SEVENTHLY Free way leave and right and liberty of way and passage in manner hereinafter mentioned through and over the lands of the lessor and libedy for the lessee his officers agents and servants and workmen to enter upon and to make lay and repair such one and not more than one main or wagon way from any point on the boundary line between British territory in India and the Territory of Travancore to any part of the said demised lands. … … …”

However, after the Judgment of 2014, the State of Kerala is insisting to provide all details about the repair & maintenance works, under the plea for giving permission to convey materials through the Ghat road, under its jurisdiction. In that process, it delays by raising unwarranted queries or in the guise of requesting clarification, etc., & thereby causes delay in giving permission to convey the materials. In any event, getting approval for routine and maintenance works, either from the Supervisory Committee or the Government of Kerala does not arise.
Even as per Clause 21 of the Dam Safety Act, 2021, it is the responsibility of the owner of the Dam to carry out the annual routine and maintenance work in time. Therefore, causing delay to give permission to convey materials through the Ghat road in one form or the other, is not acceptable.

With reference to repairing the Ghat road from Vallakkadavu to Dam site, the State of Kerala has stated that the works towards restoration of Ghat Road and Cause way has been awarded to a contractor on 29.12.2023. This work has commenced.

As regards averment in reply to 7(v) of the Application that it will take time to resolve the issue of transmission of data to telemetric station, it is stated that the inflow forecast of the MPD has to be derived from data which is to be transmitted to Tamil Nadu on real time basis, for monitoring the inflows into the dam and there has been enormous delay in transmitting scientific data on the rainfall, which is crucial for any operation of the dam. The State of Kerala has stated that as decided in the 16th meeting of the Supervisory Committee held on 27.03.2023, the inflow forecast as forecasted inflow graph & corresponding time series data is being shared on a daily basis since 17.06.2023 with the Members of Supervisory Committee. It is submitted that on preliminary examination of the forecasted inflow data upto 01.08.2023, with the actual data, it was found that the predicted data for 45 days are mostly higher than the actual, except for 2-3 days. Hence the system advocated by Kerala does not serve the purpose for which it was set up. This was duly communicated by Tamil Nadu to the State of Kerala, vide letter dated, 02.08.2023. In response to the above, the State of Kerala, vide, letter dated 26.11.2023 has informed that the inflow forecasting system based on real time rainfall data is having severe limitations and therefore there might be some more delay in supplying real time telemetry data to Mullai Periyar Supervisory Committee. This is after
8 years, since the State of Kerala informed in the
7th meeting of the Supervisory Committee held on 22.06.2015, that it will install Rain gauge stations in the catchment area of Mullai Periyar Dam and share the data with Centre and GoTN by telemetry system. Therefore, the State of Kerala may be directed to ensure that this is done at an early date. A copy of letters dated 02.08.2023 from the Applicant State of Tamil Nadu to the State of Kerala and letter dated
26.11.2023 from the State of Kerala to the Applicant State of Tamil Nadu are annexed herewith and marked as ANNEXURE: III (Page Nos. 44 to 50).

  1. With regard to averments made in para 10 and the need for comprehensive dam safety review, it is submitted that Tamil Nadu shall conduct a comprehensive dam safety review of the dam as per the provisions of Act, 2021, which came into force on 30.12.2021. Section 38 of the Act dealing with comprehensive dam safety provides that the first comprehensive dam safety for each specified dam shall be conducted within five years from the date of commencement of this Act. Thus the last date for conducting survey is on or before 30.12.2026. For a meaningful comprehensive dam safety evaluation of the dam, it is necessary that all the pending works such as balance strengthening works, as directed by this Hon’ble Court and the Supervisory Committee from time to time are taken up and completed at the earliest. It is submitted that in the 15th meeting of the Supervisory Committee held on 06.06.2022, the Chairman. of the Committee was of the opinion that long pending balance strengthening works are directly related with the safety of the MPD and was recommended by CWC, Expert Committee & Empowered Committee; hence these works must be carried out at the earliest, and not linked with the dam safety review of MPD. Further in the 16th meeting of the Supervisory Committee held on 27.03.2023, (vide, Annexure – IX, Pages 68 to 80 @ 78, Item No:
    16.8, Dam Strengthening Works of the Additional Affidavit in I.A. No. 174262 of 2022 filed by the State of Tamil Nadu on 07.08.2023) it was decided as follows:
    “Chairman of the Committee opined that as decided in the 15th Supervisory committee, long pending balance strengthening works recommended by CWC, Expert committee & Empowered Committee needs to be carried out at the earliest for the safety of the Dam. For this both the states need to resolve the issues at the earliest. The GoTN shall conduct the
    Comprehensive Dam Safety Review of the dam as per the provisions of Dam Safety Act, 2021. The Chairman also advised that the balance strengthening works shall not be halted till such time.

However, the State of Kerala on the one hand persists with fresh comprehensive review but fails to grant necessary permission to complete the pending strengthening works. As regards averment in reply to 8(a)(iii) of the Application regarding vetting the design and drawing of the retaining wall structure on the left side of spillway shutters, it is submitted that the State of Tamil Nadu, vide, letter dated 14.02.2024 communicated all the requested details to the Embankment (NW&S) Directorate, CWC, except for the properties of foundation rock, viz., its strength & bearing capacity, for which the Executive Engineer, of the Applicant State of Tamil Nadu, vide, letter dated
27.07.2023 requested the Government of Kerala permission for the conveyance of soil investigation equipments to the Mullai Periyar Dam site through the Ghat road. The GoK, vide G.O. dated 20.12.2023 accorded sanction for the conveyance of Investigation equipments, that is, after 5 months. Even after the G.O. was issued by the Government of Kerala, the
Forest Department of Kerala wants letter from the
State of Tamil Nadu. Hence, the Executive Engineer, Periyar Dam Special Division, vide, letters dated 02.01.2024 & 05.02.2024 furnished the list of equipments to be conveyed to the Dam site to the Deputy Director, PTR, Kerala. The Deputy Director, vide, letter dated 13.02.2024 granted permission upto 29.02.2024 for transportation of equipments. This process caused two months further delay. This sub soil investigation was done on 17.03.2024. Thus, the process of investigation of this minor nature had taken more than 7 months, due to the obstructionist attitude of the Government of Kerala. A copy of letter dated 14.02.2024, from the Applicant State of Tamil Nadu to the Embankment (NW&S) Directorate, CWC and letters dated 27.07.2023, 02.01.2024 & 05.02.2024 of the Applicant State to State of Kerala and G.O. dated 20.12.2023 & letter dated 13.02.2024 of Kerala are annexed herewith and marked as ANNEXURE: IV (Page Nos. 51 to 67).

  1. As regards averment in reply to 8(a)(iv) of the Application, which is with reference to conveying materials for erecting seismic equipments, the State of Kerala has stated that no permission is pending with the Government of Kerala. It is submitted that the installation of the seismic instruments were completed in May, 2023, but prior to that, the Applicant State of Tamil Nadu on 08.10.2021 furnished the list of construction materials required for erecting platform for installing the seismic instruments, as suggested by NGRI, to the Executive Engineer, MI, Kerala requesting permission to convey them through the Ghat Road. The State of Kerala, after one year, vide, G.O. dated 07.11.2022 granted permission to convey materials for the installation of 2 Accelerographs & 1 Seismograph, after which the installation could be completed. This shows the obstructionist attitude of the State of Kerala, even for installing instruments.
  2. As regards averment in reply to 8(a)(v) of the Application that permission has been granted for all the routine works, it is submitted that as stated supra, permission was given after inordinate delay, which demonstrates the delaying tactics adopted by the State of Kerala.
  3. As regards averment in reply to 8(a)(e) of the Application, the State of Kerala has stated that assurance was given by Kerala for plying 47 HP boat as per the rules, in the 16th meeting of the Supervisory Committee held on 27.03.2023. Based on the assurance given by the State of Kerala in the Supervisory Committee meeting, the Executive Engineer of the Applicant State of Tamil Nadu addressed the Deputy Director, Periyar Tiger Reserve, Thekkady, Kerala, vide, letter dated 24.04.2023 and requested to give concurrence for the specifications for the purchase of a new boat, to replace the 40 year old boat. However, permission has not been given yet to ply new boats. Hence, vide letter dated 25.04.2024, the Executive Engineer of the Applicant State of Tamil Nadu addressed the Deputy Director, Periyar Tiger Reserve, Thekkady, Kerala. A copy of the letters dated
    24.04.2023 & 25.04.2024 of the Applicant State of Tamil Nadu is annexed as ANNEXURE: V (Page Nos.
    68 to 73).
  4. As regards averment in reply to 8(f) of the Application, the State of Kerala has stated that the forest authorities informed that as per their office records, no such Dormitory exists in TN PWD (IB), which is not correct. It is submitted that the Applicant State of Tamil Nadu on 30.06.2017, requested permission to convey materials to repair the old Dormitory block, for which permission for the execution of renovation work was given by the State of Kerala on 20.07.2017. The renovation work commenced on 04.09.2017. However on 21.09.2017, the Deputy Director (PT), Forest Dept. of Kerala issued a memo to stop all the works with immediate effect. This clearly demonstrates the obstructionist attitude of the Officials of State of Kerala.

It is submitted that as decided in the 16th meeting of the Supervisory Committee, the Executive Engineer, of the State of Tamil Nadu, vide, letter dated 02.05.2023 sent the plan & other details of the old building to Kerala to accord permission for the reconstruction of the Dormitory Block. Further, as requested by Kerala, vide, letter dated 25.09.2023, plan, sketch & photographs were furnished by Tamil Nadu on 25.09.2023. However, the State of Kerala, vide, letter dated 19.02.2024 requested for the original plan of the dormitory block, which was later sent by Tamil Nadu on 20.02.2024 by email. There is no progress till date in this regard. Now the State of Kerala has stated that the State of Tamil Nadu has to submit the proposal through “PARIVESH” portal as though it is a new work. This shows that the State of Kerala is continuing with its persistent obstructionist attitude even for restoring a small dormitory block, which is required for stay of skilled workers and labours at times of emergency or for flood regulation. A copy of letters dated 02.05.2023, 25.09.2023
20.02.2024 (by email) & from the Applicant State of Tamil Nadu to the State of Kerala and letter dated
19.02.2024 from the State of Kerala to the Applicant State of Tamil Nadu are annexed herewith and marked as ANNEXURE: VI (Page Nos. 74 to 80).

  1. As regards averment in para 12 (in respect of para
    10), wherein the State of Kerala has stated that Chief Secretaries level meetings were held on 12.12.2022 & 05.05.2023, it is submitted that no decision for any of the issues could be arrived at, in both the meetings. In the meetings, the State of Kerala stated that in respect of the long pending issues, it will get the nod / permission from their Government. But so far the Government of Kerala did not give its nod for any of the crucial issues. It is further submitted that for the letters, dated 29.12.2023 from the Chief Secretary, Tamil Nadu to the Chief Secretary, Kerala & dated
    29.01.2024 from the Additional Chief Secretary to
    Government, WRD, Tamil Nadu to the Secretary, WRD, Kerala and also for the letters dated 03.03.3022
    & 28.09.2023 from the Minister of Water Resources, Tamil Nadu to the Minister for Water Resources, Kerala, there were no response from the State of Kerala, till date. A copy of the letters dated 03.03.2022, 28.09.2023, 29.12.2023 & 29.01.2024 from the Applicant State of Tamil Nadu to the
    Government of Kerala are annexed as ANNEXURE:
    VII (Page Nos. 81 to 89).
  2. As regards averment in para 13 (in response to para
    11), the State of Kerala has stated that
    Comprehensive dam safety review need to be carried out in obedience to the direction of the Hon’ble Supreme Court Interim Judgment, and that CWC, vide letter dated 19.12.2023 instructed the Applicant State of Tamil Nadu to prepare the draft Terms of Reference (ToR). It is submitted that as stated supra, the Applicant State of Tamil Nadu will carry out the Comprehensive Safety Evaluation of Dam as per the as per the provisions of Act, 2021. Further, the Applicant State of Tamil Nadu, vide its letter dated 27.02.2024 to the Chairman, Supervisory Committee, informed that in regard to the long pending works ordered by this Hon’ble Court, in the Judgments dated 27.02.2006 & 07.05.2014, there is no positive development till date. Kerala’s view that the balance strengthening works should be carried out based on recommendations after conducting fresh dam safety review of MPD, is wholly untenable and is against the Order of this Hon’ble Court. The State of Kerala having obstructed to the works from 2006 (nearly for 18 years) is now attempting to find other means to obstruct further, which is wholly impermissible. On one hand, the State of Kerala insists that the Judgment of this Hon’ble Court has to be carried out in obedience. But on the other hand, on one pretext or the other, it is obstructing to execute the Orders of this Hon’ble Court dated 27.02.2006 & 07.05.2014, which shows their double standards. A copy of the letters dated 19.12.2023 from the Chairman, Supervisory Committee to the Applicant State of Tamil Nadu, & letter dated 27.02.2024 from the Applicant State of Tamil Nadu to the Chairman, Supervisory
    Committee are annexed as ANNEXURE: VIII (Page Nos. 90 to 95).
  3. As regards para 14 to 16, the reply furnished supra hold good.
  4. As regards averment in para 17, the State of Kerala has stated that permission to cut the trees were withdrawn on 11.11.2021, since the sanction was issued without the clearances from MoEF & CC and the Standing Committee of NBWL (National Board of Wild Life), is untenable. It is submitted that from the procedure for obtaining Forest Clearance & Wildlife Clearance, furnished as Annexure : A of the reply of
    the State of Kerala, the Principal Chief Conservator of Forest (PCCF) (Wildlife) has to recommend to the Government for placing the subject in SBWL and on their approval, send the proposal to the Standing Committee of NBWL, in case of Wildlife Clearance & the State Government has to approve the proposal & send to the Regional Office, MoEF & CC, New Delhi for Forest Clearance. But the process has not been recommended by the State Government further to get the approval from MoEF & CC or NBWL. Thus the blame game played by the State of Kerala is very much evident.
  5. As regards averment in para 18 (in response to para 19), the State of Kerala has stated vide, letter dated 18.03.2022, that the Applicant State of Tamil Nadu was requested to carry out analysis before grouting, and added that the reply is still awaited, which is denied. It is submitted that the State of Kerala raised the same issue earlier in letter dated 03.09.2021, for which the Applicant State of Tamil Nadu, vide letter dated 21.10.2021 had replied suitably. Again, the State of Kerala, raised the issue, vide, letter dated
    18.03.2022, for which too, vide, letter dated 05.05.2022 the Applicant State of Tamil Nadu furnished its reply. The recommendation to grout the Main Dam was made by the Empowered Committee, 2012, constituted by this Hon’ble Court, which was also accepted by this Hon’ble Court, vide, its Judgment dated 07.05.2014 Specifications for the same was obtained from CSMRS, a specialist organisation of GoI, on 07.8.2015 and that was approved by CWC on 29.04.2016. On 04.02.2020 the Executive Engineer, of the Applicant State of Tamil Nadu requested the State of Kerala to give the permission to convey materials listed for the grouting work through the Ghat road. But since then, the State of Kerala was dilly dallying & playing delay tactics to grant permission to convey materials & machinery. It’s stand that analysis is pending to be carried out by the State of Tamil Nadu, is therefore incorrect. A copy of the letters dated 03.09.2021 & 18.03.2022 from the State of Kerala to the Applicant State of Tamil Nadu &
    21.10.2021 & 05.05.2022 from the Applicant State of Tamil Nadu to the State of Kerala and the clarification issued by CWC in letter dated 16.12.2021 are annexed as ANNEXURE: IX (Page Nos. 96 to 125).
  6. As regards averment in para 18 (in response to para 19), the State of Kerala stated vide letter dated 18.03.2022 that Tamil Nadu was requested to carry out analysis before grouting, and the reply is still awaited. It is submitted that Tamil Nadu, vide letter dated 05.05.2022 replied to State of Kerala. The recommendation to grout the Main Dam was by the Empowered Committee, 2012 constituted by this Hon’ble Court and the said recommendation was accepted by this Hon’ble Court, vide, its Judgment dated 07.05.2014 Specifications for the same was obtained from CSMRS, a specialist organization of GoI, on 07.08.2015 and that was approved by CWC on 29.04.2016. On 04.02.2020 the Executive Engineer, of the Applicant State of Tamil Nadu requested the State of Kerala to give the permission to convey materials listed for the grouting work through the Ghat road. But since then, the State of Kerala was dilly dallying & playing delay tactics to grant permission to convey materials & machinery.
  7. With regards to para 19, it is stated that even for this work of constructing a Retaining wall, left of spillway, for taking core samples from the site, there was delay in giving permission to convey the equipments to the site, by about 6 months.
  8. Reply given supra, hold good for paras 20 to 25.
  9. As regards averment in para 26 (in response to para 27) that there were many shortfalls in the data, is a bald statement. The data on seepage, daily water level, geodetic data etc., are provided periodically. While the State of Kerala has not provided any detail about the shortfall or requested any clarification on
    the furnished data, it is not correct on its part to state that there are shortfalls in the data.
  10. It is pointed out that the data on seepage & water samples are collected periodically by the Sub Committee of Supervisory Committee, almost every month, in the presence of officers of both the States, and the Sub Committee submits to the Supervisory Committee. If there is any issue, Kerala could have raised and could have got the clarification. Instead it has chosen, to raise the issue here to side track its obstructionist attitude. Whatever clarification sought by Kerala on the Rule curves of MPD were clarified by
    CWC to the State of Kerala, vide, letter dated
    28.07.2021, (wherein it is stated that the rule curve of
    Mulla Periyar Reservoir, prepared by Government of Tamil Nadu in consultation with the CWC is as per the ruling of this Hon’ble Court) and in the Minutes of the 15th Meeting held on 06.06.2022, the Chairman submitted that necessary technical clarification to all the observations of the technical experts of Kerala on the Rule Curve for MPD have been provided by CWC to GoK. Chairman, further stated that CWC shall be requested again through its hydrological experts to submit the clarification raised by Kerala. In the 16th meeting held on 27.03.2023, it was informed by Director, DSM of CWC that the concerns of Govt. of Kerala on Rule Curve have been examined by CWC and clarifications issued vide Letter dated 08.02.2023. From the above, it is evident that the State of Kerala is repeatedly raising the settled issue, wantonly.
  11. With regards to hiring 3rd party Instrumentation, to assess the status of the instruments in the Dam, the Applicant State of Tamil Nadu has entered into a Memorandum of Understanding (MoU) with the National Institute for Rock Mechanics, Bangalore. They have inspected the Dam on 07 & 08.11.2023 and made a study of the existing instrumentation and submitted an Interim Report in December, 2023 and will be furnishing their Final Report soon, which will be submitted to the Chairman, Supervisory Committee for further action. Thus the Applicant State of Tamil Nadu is carrying out the suggestion of the Supervisory Committee scrupulously.
  12. The State of Kerala, inspite of several binding directions contained in the judgments reported in (2006) 3 SCC 643 and (2014) 12 SCC 676, where this Hon’ble Court has clearly directed as under:
    (a) (2006) 3 SCC 643 – Mullaperiyar Environment Protection Forum V. UOI: –
    “xxx xxx xxx
  13. Under the aforesaid circumstances, we permit the State of Tamil Nadu to carry out further strengthening measures as suggested by CWC and hope that the State of Kerala would cooperate in the matter. The State of Kerala and its officers are restrained from causing any obstruction. After the strengthening work is complete to the satisfaction of CWC, independent expeds would examine the safety angle before the water level is permiHed to be raised to 152 ft.State of Tamil Nadu Vs. Kerala (2014) 12 SCC 676: (Constitution Bench)
    206.3 The earlier judgment of this Court given on 27-2-2006 [Mullaperiyar Environmental Protection Forum v. Union of India, (2006) 3 SCC 643j operates as res judicata on the issue of the safety of the Mullaperiyar Dam for raising water level to 142 fi and ultimately to 152 fi after completion of further strengthening measures on the Mullaperiyar Dam.
    206.5. Kerala cannot obstruct Tamil Nadu from increasing the water level of the Mullaperiyar Dam to 142 ft and from carrying out repair works as per judgment dated 27-2-2006 [Mullaperiyar Environmental Protection Forum v. Union of India, (2006) 3 SCC 643J.”

and the directions issued by the constituted / reconstituted Supervisory Committee pursuant to the directions of this Hon’ble Court, is persisting with its obstructionist attitude and preventing the Applicant State of Tamil Nadu from carrying out the remaining strengthening works and other related works for the safety and upkeep of the dam.

  1. In the light of the above, this Hon’ble Court may be pleased to allow the present application by directing the State of Kerala to ensure permissions are granted at the earliest inter-alia on the following.
    (i) direct the reconstituted Supervisory Committee to issue appropriate directions as mandated in the Dam Safety Act, 2021 for completing the pending works;
    (ii) direct the State of Kerala and its instrumentalities to give necessary permission to Tamil Nadu to convey materials and machinery to the Dam site through the Vallakadavu-Mullai Periyar dam site – Ghat road for the following works, without further delay: –
    a. Balance strengthening works to Baby Dam & Earth Dam as directed by this Hon’ble Court in its judgment dated 27.02.2006 &
    07.05.2014,
    b. Grouting the Main Dam as directed in the Judgment dated 07.05.2014,
    (iii) Direct the State of Kerala to restore the permission to cut 15 trees to carry out strengthening of the Baby Dam, which was

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