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Over to the Supreme Court

Print edition : Nov 25, 2000 T+T-

After years of inconclusive talks and arguments, the Mullaperiyar dispute will now come up before the Supreme Court for a final settlement.

R. KRISHNAKUMAR in Thiruvananthapuram

KERALA wants its river back, at least in part. For realisation is growing in the State of its profligate and negligent utilisation of water resources in the past. And a crisis in per capita fresh water availability now stares it in the face. On the other hand, Tamil Nadu, which has drawn water from the river for more than 105 years now, has growing needs of irrigation, drinking water supply and power generation. Its entitlement is based on an 1886 lease deed. Kerala says the deed was imposed by the Brit ish rulers on their vassal state of Travancore, which became a part of the State when it was formed in 1956. This deed was, in any case, revalidated by a 1970 inter-State agreement.

The genuine needs of the two States ensure that the talks on the sharing of the waters of the Mullaperiyar, a river which originates in the Western Ghats in Kerala, almost always end in deadlock. Of late both sides, especially Tamil Nadu, have had to con tend with the increasing political costs of conducting talks that achieve nothing or, at best, only short-term, unpopular compromises.

Protests are beginning to be voiced in Kerala, but the State is yet to realise that it badly needs to utilise the waters of what is geographically its own river. On the other hand, the issue inflames passions and encourages political manoeuvring in Tamil Nadu, which has a well-established and over-a-century-old system to utilise the waters of the Mullaperiyar. In fact, if vast stretches of the arid rain-shadow region, such as those in Theni, Madurai, Sivaganga and Ramanathapuram districts of Tamil Nadu, look green and fertile, it is largely because of the effective utilisation of the waters from the Mullaperiyar.

The focus has now shifted to a potentially long battle of wits in the Supreme Court. The court will soon resume hearing on the petitions filed by Janata Party leader Subramanian Swamy and the Tamil Nadu government, seeking the transfer of all cases regar ding the dispute in the Madras and Kerala High Courts to the apex court for speedy disposal. Last year, the court had asked the two States "to arrive at some consensus" during a long period of adjournment.

A meeting between the Chief Ministers of the two States held in Thiruvananthapuram on April 5, 2000, had ended in deadlock (Frontline, April 28, 2000). The disagreement was over Tamil Nadu's long-pending demand for raising the storage level of the 105-year-old masonry dam inside the Periyar Tiger Reserve area in order to allow more water from the Mullaperiyar to flow into Tamil Nadu. The "talks", at which Chief Ministers E.K. Nayanar and M. Karunanidhi merely read out statements, were in fact exp ected to fail. Public pressure on the two governments had convinced them about the futility of the talks.

Significantly, in addition to the 8,000 acres (3,200 hectares) of land used for the construction of the masonry dam across the river and the irrigation works (mainly, a tunnel through the watershed) for its trans-basin diversion, the 1886 lease agreement had given the British the rights over "all the waters" of the Mullaperiyar and its catchment, for diversion to the then British territory (now Tamil Nadu) for 999 years, for an annual rent of Rs.40,000 (Frontline, October 23, 1998). After Indepen dence, the leaders of the two States agreed informally on the continued use of the Mullaperiyar waters by Tamil Nadu. After 1959, Tamil Nadu began to use it for power generation also, without any formal agreement.

In May 1970, in what is now considered in Kerala as a "blunder" committed by its leaders, the two States signed a formal agreement to renew almost in toto the 1886 lease agreement, which had by then become invalid. Subsequently, Kerala also became aware of the increasing use of the Mullaperiyar waters by Tamil Nadu. (By the early 1990s, the total irrigated area in the Periyar-Vaigai basin in Tamil Nadu had been extended by 44,000 acres. This led to a quantum jump in the amount of water required for irri gation, and a worsening of the water scarcity in the four districts of Tamil Nadu.)

Kerala signed the agreement without assessing the possible use it might have in future for the Periyar waters. Thus Tamil Nadu was once again given the legal rights over "all waters" from the Mullaperiyar for its exclusive use. From the mid-1980s, despi te having 44 rivers (which are currently described as "minor rivers"), Kerala began to face extended spells of acute water and power shortages. Kerala had constructed the Idukki hydroelectric project 50 km downstream from the Periyar dam but did not have enough water to utilise its full capacity. Except on rare occasions when there was heavy rainfall in the catchment areas, no water flowed down to Kerala from the Mullaperiyar. Tamil Nadu was virtually utilising "all the waters" from the Mullaperiyar, an d Kerala was forced to make a reassessment of its own age-old belief about the relative abundance of its water resources.

The problem acquired a new dimension in 1979, when leaks were detected in the Periyar dam and that caused concern in Kerala about the safety of the dam. Since then, the question of the safety of the dam has become a dominant factor in the discord over Mu llaperiyar. Kerala found it a convenient tool to outwit Tamil Nadu, which was until then in a position to claim all the waters from the Mullaperiyar.

Following the detection of leaks, a Central Water Commission (CWC) team, led by its Chairman Dr. K.C. Thomas, conducted a study of the dam. It "found no danger to the dam", but had, "as a matter of abundant precaution" recommended the lowering of the res ervoir water level to 136 ft (from 142.40 ft at that time), until measures to strengthen the dam were completed in three stages. The team also recommended that the water level be raised in stages to the full reservoir level of 152 ft.

But giving one reason or the other, Kerala did not allow the reservoir level to be raised beyond 136 ft. Tamil Nadu, on the other hand, has been claiming since 1998 that it has carried out all the important measures suggested by the CWC team to strengthe n the dam. A number of technical committees were appointed by the two States subsequently, but these only helped shore up the respective arguments.

Based on studies conducted by its own technical experts (the latest one was in December 1999), Kerala argued that the strengthening measures done by Tamil Nadu had only made the dam safe at the current reservoir level of 136 ft and that "on no account" s hould the level be raised any further. Kerala cited a recent appraisal, which warned that a major flood could lead to a breach in the dam and expose, as Nayanar described it at the April 5 talks, three districts of Kerala "to deluge and holocaust".

At the talks in Thiruvananthapuram, Kerala demanded that Tamil Nadu agree to install instruments at the dam for a regular, joint technical verification of the dam's parameters and performance, to monitor its safety at the 136 ft reservoir level and to se e "if and when the reservoir level should be reduced further, should the need arise". Tamil Nadu, on the other hand, argued that the two States should jointly approach a body like the CWC and seek a verdict on the safety of the dam. However, each rejecte d the other's demands. The reasons for Tamil Nadu's rejection of Kerala's suggestion is obvious. Kerala argued that a verdict by a third party without a proper joint verification of the dam parameters over a period of time could not be accepted.

It may seem strange that the two States are fighting over the raising of the reservoir level when, especially after 1961, there were only a few occasions when the water in the reservoir touched the full reservoir level (FRL). In fact, according to Keral a Forest department officials based at the Periyar Tiger Reserve, in the past several years, the reservoir level reached 136 ft only two or three times and water never flows to the Kerala side. One factor, on which both sides agree, is that the flow into the reservoir has dwindled. Kerala government officials contend that Tamil Nadu has made improvements in the facilities in order to draw ever-greater quantities of water.

Significantly, a 1997 document on the performance of the Periyar dam over a period of a century, authored by A. Mohanakrishnan (currently representing Tamil Nadu in the inter-State talks) and published by the Central Board of Irrigation and Power, says: "It may be seen that by and large, the reservoir level was not allowed to exceed +152.00 except in two years, 1924 and 1943, when unprecedented, extraordinary floods were seen in the river. It may also be seen that after 1961, there has been no surplus a t all with the reservoir at much below the FRL. This perhaps points to the fact that the Periyar catchment has been badly denuded and the yield had perceptibly come down notwithstanding the fact that the improvements effected to draw larger quantities ac ross the ridge (to Tamil Nadu) through the tunnel has also contributed to this to some extent."

Leaders of both the States have been making statements that suggest that a prolonged legal battle is in the offing. For the first time, at the Thiruvananthapuram talks, Nayanar questioned the very legality of the original lease deed. Nayanar pointedly re ferred to the context in which the lease agreement was entered into. Nayanar said: "This agreement was executed at a time when there was only negligible utilisation of river waters for irrigation, power, industrial and other purposes and when the water a vailability situation on this (Kerala) side of the Western Ghats was completely different. There is considerable concern among large sections of people in Kerala about perceived gross inequities in this agreement. It is an open question whether an agreem ent between an erstwhile princely state and the British government, which was palpably inequitable, and which binds down future generations without any concern for changing circumstances, and which appears to contain provisions that contravene existing e nactments, should continue to be legally binding."

This must have been the cue for Tamil Nadu. Soon after the meeting, Tamil Nadu Public Works Minister Durai Murugan announced in the State Assembly that Tamil Nadu was now constrained to approach the Supreme Court for a solution. However, several petition s seeking more water from the Mullaperiyar for irrigation and industrial and drinking water supply in Theni, Madurai, Sivaganga and Ramnatha-puram districts had already been filed in the Madras High Court by representatives of farmers' organisations in T amil Nadu.

Significantly, the petitions filed by Subramanian Swamy and the Tamil Nadu government seeking the transfer of all cases related to the dispute to the Supreme Court provided an opportunity for the Central government to intervene in the dispute, as the Sup reme Court asked it to negotiate and seek a consensus solution. On October 17, while announcing the formation of a Cabinet sub-committee to formulate Kerala's strategy in the Supreme Court, Nayanar said that despite the assurance of the Union Minister fo r Water Resources, the Centre unilaterally constituted a seven-member technical committee to study the safety of the dam. "Kerala is concerned about the questions regarding the safety of the dam raised by its own engineers and it cannot agree to any deci sion that ignores that question," Nayanar said.

For the first time, thus, allegations of political bias by the Central government has also formed part of the controversy. State government officials in Kerala and politicians allege that the National Democratic Alliance (NDA) government at the Centre ha s acted beyond its brief and found in the Supreme Court's direction an opportunity to intervene in the matter in a manner that favours Tamil Nadu, which is ruled by a constituent of the NDA, the Dravida Munnetra Kazhagam (DMK). A senior Kerala government official said that Centre constituted the technical committee in such a manner as to ensure that only the Kerala representative would support the Kerala government's arguments.

The committee, with CWC member B.K. Mittal as chairman and R.S. Washni (retired Chief Engineer, Uttar Pradesh), O.D. Mande (Chief Engineer, Design, CWC), B.M. Upadhyay (Chief Engineer, Dam Safety, CWC), J.K. Tiwari (Director, Dam Safety, Madhya Pradesh), A. Mohanakrishnan and M. K. Parameswaran Nair (Kerala's representative) as members visited the dam on October 10 and 11. Its interim report, prepared with a note of dissent from Kerala's representative, will soon be submitted before the Supreme Court, w hen it resumes hearing on the petitions.

Although the detailed contents of the interim report are not known, a senior Kerala government official said that the committee seemed to favour Tamil Nadu demand to raise the reservoir level. He said the report sought to support Tamil Nadu's stand by su ggesting, among other things, that tests be conducted to determine the strength of the masonry-and-earth "baby dam" (situated to the left of the main dam and along which the river was diverted during the construction of the main dam) by a team of experts from the Central Soil and Material Research Station (CSMRS), that Kerala allow further repairs in the "baby dam" and that a decision on the raising of the storage level of the reservoir be taken subsequently, based on the CSMRS team's assessment.

Kerala, the official said, believed that the reservoir level should not cross 136 ft and hence there was no need to strengthen the "baby dam". The suggestion that a decision on whether or not to raise the reservoir level could be taken based on the CSMRS team's report was also not acceptable to the State, he said. Kerala's note of dissent was recorded only after the State's representative threatened to walk out of the meeting, he said.

Even at the time of the constitution of the committee, Nayanar had said that its report would be acceptable only if it was based on a consensus decision of the committee. Obviously, more than the question of safety, what the two States started arguing ab out was the issue of ownership of the waters of the Mullaperiyar.

A new factor was added to the dispute when the reservoir level was lowered in 1979. A large extent of land around the lake, which was previously under water, thus became available for encroachment, and was utilised by property developers. According to lo cal people in the border town of Kumily in Kerala, which adjoins the Periyar Tiger Reserve, several areas that were previously under water now have pucca houses and resort lodgings. But, simultaneously, large tracts of land that emerged from the lake wer e usurped also by dense vegetation. They have become the feeding and breeding ground for wildlife in the reserve forest.

Even as pressure groups of farmers in Tamil Nadu claim that it is really the vested interests of the property developers that restrain the Kerala government from raising the reservoir level, a Rapid Environmental Impact Assessment conducted by the Kerala Forest Research Institute has cautioned that the raising of the reservoir level would prove to be a major threat to the vegetation and wildlife habitat in the Tiger Reserve. The study has concluded from satellite imagery that if the water level in the reservoir is raised to 152 ft, the area submerged by the reservoir will grow from the current 14.308 sq km to 25.527 sq km.

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 ack nowledge 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.

After years of dalliance with technical committees, inconclusive talks, arguments and threats, Tamil Nadu and Kerala now seem reconciled to leave the burden of an inconvenient and volatile decision on the Supreme Court.