Historical
Background:
1. The
geography of the Indian Peninsula is very peculiar at the southern end. The Western Ghats stands tall at the western
end and the gradient on the western side is smooth; but on the eastern side
there is no gradient at all; it suddenly falls to abyss. The south-west monsoon that brings rains to
whole India is blocked in Kerala by the tall mountains preventing its entry
into Tamil Nadu and made Tamil Nadu a ‘Rain shadow’ state. The North East Monsoon is very erratic and does
not reach the entire area of Tamil Nadu .
Hence, Tamil Nadu is rain starved State. While
most of the river waters go waste into Arabian Sea, as it cannot be used for
irrigation, in Kerala .But in Tamil Nadu, large extent of irrigable
agricultural lands was fallow due to unavailability of water.
That resulted in frequent famines in Madras Province.
2. Under
those circumstances, the unique idea of controlling and using the westward
flowing waters of the Mullai and Periyar rivers and diverting it to the
eastward flowing Vagai river was first explored in 1789 by Pradani Muthirulappa
Pillai, a minister of the Ramnad king Muthuramalinga Sethupathy. Though it was found feasible, the King of
Ramanadapuram gave it up as he found it very expensive. Subsequently, Captain J. L. Caldwell, Madras
Engineers identified the location for a dam; he directed to investigate the
feasibility of providing water from the Mullai and Periyar rivers to Madurai by
building a tunnel through the mountains. Caldwell discovered that the
excavation needed would be in excess of 100 feet in depth and hence the project
was abandoned; while so deciding, he made the comment in his report that the
project was `impossible to complete and unworthy of any further consideration`.
3. In spite
of such a strong and negative conclusion, it was tried again and again because
of the compelling necessity of fighting famine.
The first attempt at damming the Periyar with an earthen dam was made in
1850 but was given up due to demands for higher wages by the labour citing
unhealthy living conditions. The proposal was resubmitted a number of times. In 1862 Captain J. G. Ryves, M.E. carried out
a study and submitted proposals in 1867 for another earthwork dam, 62 feet
high. The matter was debated by the Madras Government but it was further
delayed by the great famine of 1876-77. Finally,
in 1882, the construction of the dam was approved. Major John Pennycuick, M.E. was placed in charge to prepare a revised
project and estimate. His report was
approved in 1884 by Madras Government.
Agreement
1886:
4. Meanwhile,
negotiations were also going on between the Maharaja of Travancore and the
British for a period of 24 long years. Then,
on 29 October 1886, a lease agreement for 999 years was made between the Maharaja of Travancore, Visakham
Thirunal Rama Varma and the British
Secretary of State for India for Periyar Irrigation Works. The lease agreement
was signed by Dewan of Travancore V Ram Iyengar and State Secretary of Madras
State J C Hannington. The lease indenture granted full right, power
and liberty to the Secretary of State for India to construct make and carry out
on the leased land and to use exclusively when constructed, made and carried
out, all such irrigation works and other works ancillary thereto to. The
agreement gave 8000 acres of land for the reservoir and another 100 acres to
construct the dam. The rent for an acre was fixed at Rs.5 per year. The lease gave
the British the rights over `all the waters flowing into through over or from
the said tract of land`.
Agreement
1970:
5. In
1947, when India obtained Independence, the Princely States of Travancore and Cochin
joined the Union of India and State of ‘Travancore-Cochin’ was formed. The Madras Presidency became ‘Madras State’. As
per the principle of ‘State Succession’, one of the Cardinal principles of
International law, the 1886 agreement came to be binding on State of
Travancore-Cochin and Madras State. Thus
the agreement between Maharaja of Travancore and Govt. of India was binding on
the State of Travancore and Cochin and State of Madras. After 1956, it became binding on the State of
Kerala and State of Madras (Tamil Nadu) under S.108 of State Reorganization
Act. Therefore, the State of Kerala and
the State of Tamil Nadu were bound by the obligations under the 1886 agreement.
Hence, the agreement was enforceable by either party.
6. Thereafter,
in 1970, two other agreements were signed by the States of Tamil Nadu and
Kerala, whereby of Tamil Nadu gave up certain rights (accrued under the 1886 agreement)
in favour of State of Kerala. These
agreements also re-affirmed the entire 1886 agreement. But clause 6 of 1886
agreement (relating to the fishing rights over the impounded waters) was
deleted; that right was given to Kerala.
Changes in the quantum of rent and its periodic revision once in 30
years were also agreed upon.
Important
Terms of Agreement :
7. A
perusal of the terms of the agreements would show that there was no aspect that
was not foreseen by those who had drafted the 1886 and 1970 agreements. The
terms of the agreements are the basis on which Tamil Nadu is drawing water and
Kerala is harvesting the fishery resources and other benefits.
8. While
so, the Kerala Government is trying to project the Mullaperiyar agreement as if
it is only about the water in the 8,000-acre and the 155-feet height reservoir. But the fact is that the agreement is not
just about water but also about anything and everything over the land and also related
to the storage and drawing of water in that particular territorial segment. The pact says that it is about the land where
the water is stored by specifically explaining that it concerns the “tract of
land situated in or near the Periyar River bounded on all sides by contour line
155 feet above the deepest point of the river bed at the site of the dam to be
constructed”. Thus the water and the land would belong to Tamil Nadu for 999
years, and as long as the agreement period.
Earthquakes
?
9. It
is now alleged by some that frequent earthquakes occur in this area. As per the ‘List of major earthquakes in the
21st century’ recorded up to 14th December, 2011, no
major earthquake occurred in Kerala. As
per the list published by ASC, ‘Seismicity of Kerala and Lakshadweep Islands,
India’, from 1784 till date, only three instances are referred with respect to
Idukki in Kerala. It is to be noted that
these earthquakes had occurred only after the construction of Idukki dam. There was no earthquake before 1988 in the
dam area though a few earthquakes were recorded in Kochi, Trivandrum and
Palakkad and other areas in Kerala. All
these, including the three earthquakes near Idukki, were of lesser
magnitude. As per the list published by ‘National
Geographic Research Institute’, they are all of insignificant intensity.
Dam
strengthened :
10. In
view of the doubts raised by the Kerala State about the strength of the dam,
Expert Committee by the Supreme Court was formed. The Committee examined in detail and gave
certain suggestions to strengthen the dam.
All the suggestions were followed and implemented and strengthening of
the dam also has been done in accordance with the advise given by the Expert
Committee. It is said that 15 ft. of
solid concrete capping has been made to support the original masonry dam. Further, it is said that pillars were
inserted from the top of the dam filled with reinforced concrete using the latest
technology and holes were made 30-40 feet deep on the solid rocks on the
mountain and therefore, the present strengthened dam can withstand any earthquake that may
occur in future. It is said that even if
the mountain breaks, the dam will not collapse.
Other
masonry dams in India:
11. The
National Register of large dams of India shows that there are 60 masonry dams, many
of which have crossed 100 years and some of the dams are more than 1000 years old. They are in Karnataka, Andhra Pradesh,
Maharashtra, Rajasthan and Uttar Pradesh.
Therefore, masonry dams do not loose strength even after 100 years. It is also said that as age grows, the
concrete dams get weakened whereas the masonry dams grow in strength.
Attempt
to nullify the agreements :
12. The
argument that Govt. of Kerla, after constructing a new dam, is prepared to give
water to Tamil Nadu, is only a ruse to nullify the two agreements. As per the agreements Tamil Nadu is entitled
for possession of 8000 acres of land and for using the the entire water
collected therein. If the present Mullai
Periyar dam is de-commissioned, it is tantamount to losing all rights of Tamil
Nadu over the waters, unless and until another dam is constructed on the same
site. It appears that the Govt. of
Kerala wants to nullify the rights and obligations created under the two agreements
in favour of T.N. If the real concern of the Govt. of Kerala is the
safety of the people of Kerala, living downstream, the
Kerala govt. should only make a request to Tamil Nadu to strengthen the dam. The proposal of the Kerala govt. is to
construct a new dam at a level (1300 feet) below the present level. It would be impossible to divert water
eastward to Tamil Nadu from that level.
It would be unfair to suggest that during the period 1850-1886, the
Chief Engineers of Madras did not think of the feasibility of drawing water
from any lower level, than from the present height. In fact, the Mullai Periyar Dam is an
engineering marvel, considering the period when it was built. Water is taken out only through a tunnel over
a length of 5700 feet, before reaching the ravine.
Kerala
can construct dams down stream :
13. There
would be no doubt in the minds of right thinking people of Kerala and Tamil
Nadu that the Southern Districts of Tamil Nadu would become deserts and would
go back to pre 1800 era when famine was a regular feature in these areas. At the same time, all the waters that would
flow into Idukki Dam would only go waste into Arabian sea after using for
generating electricity. The waters of
the Mullai and Periyar rivers cannot be put to use for irrigation by
Kerala. In fact of Kerala is free to
construct any number of dams downstream. But
Kerala wants to de- commission the present dam only to go out of the agreement in order to
obliterate the rights of T.N. accrued under the 1886 and 1970 agreements.
Inter-dependent
States:
14. States
of T.N. and Kerala are inter dependent in almost all activities. The benefit
received from the water from Mullai and Periyar rivers are returned in kinds by
T.N. in the form of rice, milk, vegetables, animals, etc. People of both states
are depending on each other for their livelihood. The present uneasiness
amongst Tamils and Malayalies has been created unnecessarily by some vested
interests.
15. As
per the agreement, the catchment area of land through out the contour, when the
water table reaches 155 feet from the bottom of the dam, has been leased out to
Tamil Nadu. When the strengthening work
of the dam was being carried out and when water level was maintained at 136 ft,
many encroachments have grown in the said contour area and they have developed
vested interest over the encroached area.
Those are would submerge when the storage level is increased. It appears, therefore, that they are also
behind the scene in preventing the raising of the water level from 136 ft to
142 or 152 ft.
False
propaganda :
16. A falsehood repeatedly said and propagated will not become true. Justrice V.R. Krishna Iyer has gone on
record stating that the Mullai Periyar Dam was built only to last for 50
years. This statement is not based on
facts. Further it is really uncharitable to Pennycuick and other engineers. The research, planning and the sacrifices
made by the Madras Chief Engineers before
deciding to construct the dam, cannot be ignored or lightly taken by any one.
The dam was intended to last for 1000 years and more. One should not forget the fact that even if
the present dam is de-commissioned or destroyed, Tamil Nadu has the right to
build another new dam at the same site and draw the waters.
Agreements
cannot be repudiated:
17. A few
days ago a former Kerala judge ,Justice
Narayana Kurup ,has called out Kerala govt. to ‘harden the stand’, in a press
conference. He has also stated that
Kerala can repudiate the agreement , relying on the principle of
‘clausula rebus sic stantibus’ that is ‘due to
change of circumstances’. This is a doctrine followed only in the ‘
Civil law’ countries such as France
Germany , Italy etc. This is not followed in the ‘Common law countries’ like U.K. ,USA, India
,Australia etc. Even among the civil law countries all states do not accept
this. So far no international tribunal has held any agreement unenforceable
applying this doctrine. Thus treaties cannot be modified without the consent of
the contracting parties. Judges of High courts and Supreme Court, even after their
retirement, should be neutral and cannot take a partisan stand. They shall
never kindle the emotions of the people in any dispute as their views are taken
seriously by all.
Back
to 1886 Agreement ?
18. It
is also learnt that some have approached the Kerala High Court for a
declaration that the 1970 agreements are invalid. They failed to see that if
those agreements are held invalid by any court, the result would be that Kerala
would be bound by all the clauses of 1886 agreement, including clause 6 which
has been deleted. In that case Kerala
will lose the fishing tights and other benefits granted by those agreements.
Case
pending before Supreme Court :
19. The
ostensible reason for the apprehension in Kerala is that the dam is weak and
will not withstand earthquakes and may break and collapse. Those issues relating to the strength of the
dam and the effect of earthquakes on the dam etc. are pending before the Supreme Court. Any assertion by
any individual is unwarranted under the circumstances. All shall await the verdict of the Hon’ble
Supreme Court.
20. The
good neighbor relationship between the people of the two states shall not be
spoiled for narrow ends. When the
opposition parties in Tamil Nadu demanded for inclusion of Devikulam district
including Peermedu and Moonar and the dam site with Tamil Nadu as the majority
inhabitants of that area were Tamils, Kamaraj, the former Chief minister of
T.N., had observed “both Kerala and T.N. are only in India”.
Chennai
20 - 12- 2011 [ Justice A.K.Rajan ]
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