RUSSEL JOYversusUNION OF INDIA & ORS.

206                      [2018]REPORTS
               SUPREME COURT    1 S.C.R. 206                 [2018] 1 S.C.R.


A                                 RUSSEL JOY
                                        v.
                          UNION OF INDIA & ORS.
                      (Writ Petition (Civil) No. 878 of 2017)
B                               JANUARY 11, 2018
                [DIPAK MISRA, CJI, A. M. KHANWILKAR
                    AND DR. D. Y. CHANDRACHUD, JJ.]
             Constitution of India – Art. 32 – 121 years old Mullaperiyar
      dam in the State of Kerala, Chief Engineer of the dam project
C     envisaged the lifetime of the dam for a period of 50 years – Need
      for assessment of lifespan of Mullaperiyar dam, keeping in view
      the safety of the citizens especially the persons residing downstream
      of the river – Writ petition seeking issuance of Writ of Mandamus
      directing the Government of India to appoint an international agency
D     to study and to adjudge the lifespan of Mullaperiyar Dam and the
      dam to be de-commissioned within the time period – Held: There
      has to be a greater degree of disaster management and better
      preparedness to face any kind of disaster caused by the dam –
      Issuance of directions to Central Government, State of Kerala as
      well as State of Tamil Nadu to constitute a separate sub-committee
E     u/s. 9 of the 2005 Act, to exclusively monitor the measures for
      ensuring a high level of preparedness to face any disaster, occurring
      from Mullaperiyar Dam – All States to work in harmony with the
      Central sub-committee – Disaster Management Act, 2005 – ss. 9,
      21, 23(4).
F           State of Tamil Nadu v. State of Kerala and another
            [2014] 12 SCR 875 : (2014) 12 SCC 696 – referred
            to.
                              Case Law Reference
            [2014] 12 SCR 875         referred to               Para 3
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            CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
      878 of 2017.
            Under Article 32 of the Constitution of India.

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                                       206
                 RUSSEL JOY v. UNION OF INDIA                                  207


     Manoj V. George, Ms. Shilpa Liza George, Amit Masih, Kamlendra            A
Mishra, Narender Kumar Verma, Advs. for the Petitioner.
      K. K. Venugopal, AG, Ms. Pinky Anand , ASG, Subramonium
Prasad, Sr. Adv./AAG, Umavathy, K. V. V. Vijayakumar, Mohan V.
Katarke, G. Prakash, Advs. for the Respondents.
      The Judgment of the Court was delivered by                               B

       DIPAK MISRA, CJI. 1. This writ petition is preferred by a
public spirited person under Article 32 of the Constitution of India praying
for issue a Writ of Mandamus directing the Government of India to
appoint an international agency with the technical expertise to study and
to adjudge the lifespan of Mullaperiyar Dam and ascertain the date/            C
period on which the said dam must be de-commissioned; appoint a High
Powered Committee to suggest to this Court to declare a date/time period
for de-commissioning of Mullaperiyar Dam; direct the State owning the
dam, that is, Tamil Nadu to make financial provisions for damages to life
and restoration of environment in the eventuality of a burst of Mullaperiyar   D
Dam before it is de-commissioned, and pass any other order or direction
as this Court may deem fit and proper to do so in the facts and
circumstances of the case.
       2. The essential facts which need to be stated for adjudication of
this petition are that Mullaperiyar Dam was constructed under a lease          E
agreement executed in the year 1886 between the Maharaja of erstwhile
Travancore with the British Secretary of State for Madras Presidency
for a duration of 999 years. In pursuance of the said agreement, the dam
was constructed across river Periyar in crude lime surky mortar at a
time when dam engineering was in its infancy. Periyar river originates
from Sivagiri and Western Ghats at an elevation of 2400 meters from            F
the sea level and joins Mullayar river downstream at an elevation of 850
m. It is at this elevated junction, the Mullaperiyar dam was built having
a height of 53.6 m (176 ft.) from the foundation and a length of 365.7 m
(1,200 ft) for catering to the irrigational needs of the neighbouring State
of Tamil Nadu under the said lease agreement.                                  G
       3. There is an assertion in the petition that the Chief Engineer of
the dam project, Mr. John Pennycuick envisaged the lifetime of the dam
for a period of 50 years. As 121 years have expired from the date of the
construction of the dam, the decommissioning of the said dam has become
essential and there is need for assessment of the lifespan of the dam
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208               SUPREME COURT REPORTS                          [2018] 1 S.C.R.


A     regard being had to the safety of the citizens especially the persons
      residing downstream of the river. There is reference to the litigations
      filed between the State of Kerala and State of Tamil Nadu for long
      period and more recently in CS (OS) No. 3 of 2006 before this Court
      which was decided on 07.05.2014 in State of Tamil Nadu v. State of
      Kerala and another1 whereby this Court apart from issuing other
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      directions had appointed a Supervisory Committee to take measures
      pertaining to the dam in emergent situations.
              4. It is contended in the petition that because of the efflux of time
      and the safety of the dam being doubtful, fear remains embedded among
      the people who reside downstream of the Mullaperiyar dam. That apart,
C     the residents of the area in proximity do not feel safe. In such a situation,
      as set forth, precautionary steps are required to be taken to protect the
      life without waiting for a disaster to happen in the form of a dam burst
      which can be triggered due to multiple reasons. According to the
      petitioner, due to the differences between State of Kerala and State of
D     Tamil Nadu over the contractual rights over the 1886 lease agreement,
      they have not taken any steps to mitigate the fear or dispel the threat to
      life of many citizens who live in the zone of immediate catastrophe. The
      petition has highlighted a serious concern about the lifespan of the dam.
      It is contended that if it is treated to be 999, it is a speculation in the
      realm of impossibility which law does not accept, and is completely averse
E     to it.
             5. It is urged that safety and security of the people and that of the
      nation are of paramount importance and, therefore, the respondents are
      obligated in law to have concrete safeguards so that there is no irreversible
      environmental consequences and the fear that affects the bones and
F     brains of the citizens gets vaporised. By no stretch of imagination the
      lifespan of the dam can be conceived to be 999 years which is the term
      of the lease deed and there has to be decommissioning of the dam to
      save the human life. Any kind of hazard that affects the life cannot be
      allowed to remain. The existence of the dam without necessary
G     assessment is a peril to the people residing in the affected locality and it
      is also a continuous threat to the environment.
            6. As the grievance raised by the petitioner pertains to apprehended
      cataclysm and unforeseen calamity to human life, it was directed that a
      copy of the petition to be served on the Union of India.
      1
H         (2014) 12 SCC 696
                 RUSSEL JOY v. UNION OF INDIA                                  209
                      [DIPAK MISRA, CJI]

       7. We have heard Mr. Manoj V. George, learned counsel for the           A
petitioner, Mr. K.K. Venugopal, learned Attorney General for India
alongwith Ms. Pinky Anand, learned Additional Solicitor General, for the
Union of India, Mr. Subramonium Prasad, learned senior counsel/AAG
assisted by Mr. Umavathy, learned counsel for the State of Tamil Nadu
and Mr. Mohan V. Katarke alongwith Mr. G. Prakash, learned counsel
                                                                               B
for the State of Kerala.
      8. Mr. George, learned counsel for the petitioner has raised the
following submissions in the course of his argument:-
       (i) Non-recording of the findings with regard to lifespan of the
Mullaperiyar dam would invite a great man made disaster to the people          C
of the locality and bring in ruination to the atmosphere.
       (ii) It is the duty of the States as well as the Union of India to
dispel and eliminate the fears from the marrows of the persons residing
in the downstream areas of the dam.
        (iii) It is imperative to have a separate disaster management plan     D
for the said dam keeping in view the special features of the obtaining
situation.
      (iv) If the persons who remain in proximity of the dam or
downstream are compelled to live in a state of constant fear, there is
flagrant violation of Article 21 of the Constitution of India.                 E
        9. Mr. K.K. Venugopal, learned Attorney General for India has
emphasised on paragraphs 229 and 230 of the judgment rendered by a
five-Judge Bench in State of Tamil Nadu (supra). Relying on the
same, it is submitted by him that a Committee has been constituted to
keep a close watch on the safety and recommend measures which are              F
necessary to be carried out by the State of Tamil Nadu and further, the
Committee has been given the liberty to take appropriate steps and issue
necessary directions to the two States, namely, Tamil Nadu and Kerala
or any one of them, if so required, for the safety of the people residing in
downstream areas in an emergent situation. He would submit that the
                                                                               G
command given in the last sentence of the paragraph 230(iii) is binding
on all.
      10. Keeping in view the rival submissions, we think it appropriate
to reproduce paragraphs 229 and 230 from the State of Tamil Nadu
(supra). They read thus:-
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210            SUPREME COURT REPORTS                         [2018] 1 S.C.R.


A           “229. However, to allay the apprehensions of Kerala- though none
            exists - about the safety of the Mullaperiyar dam on restoration of
            the FRL to 142 ft., a 3-Member Supervisory Committee is
            constituted. The Committee shall have one representative from
            the Central Water Commission and one representative each from
            the two States – Tamil Nadu and Kerala. The representative of
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            the Central Water Commission shall be the Chairman of the
            Committee. The Committee will select the place for its office,
            which shall be provided by Kerala. Tamil Nadu shall bear the
            entire expenditure of the Committee.”
            230. The powers and functions of the Supervisory Committee
C           shall be as follows:
            (i) The Committee shall supervise the restoration of FRL in the
            Mullaperiyar dam to the elevation of 142 ft.
            (ii) The Committee shall inspect the dam periodically, more
D           particularly, immediately before the monsoon and during the
            monsoon and keep close watch on its safety and recommend
            measures which are necessary. Such measures shall be carried
            out by Tamil Nadu.
            (iii) The Committee shall be free to take appropriate steps and
E           issue necessary directions to the two States - Tamil Nadu and
            Kerala – or any of them if so required for the safety of the
            Mullaperiyar dam in an emergent situation. Such directions shall
            be obeyed by all concerned.
            (iv) The Committee shall permit Tamil Nadu to carry out further
F           precautionary measures that may become necessary upon its
            periodic inspection of the dam in accordance with the guidelines
            of the Central Water Commission and Dam Safety Organisation.”
            11. According to the learned Attorney General appropriate steps
      have been taken. He has produced the Statement dated 11.1.2018 made
      by Mr. Gulshan Raj, the Chairman of the Supervisory Committee/Chief
G
      Engineer, Dam Safety Organisation, Central Water Commission, Ministry
      of Water Resources, River Development and Ganga Rejuvenation,
      Government of India. The Statement reads as follows:-
            “As per the summary conclusion of the Empowered Committee,
            contained in the Hon’ble Supreme Court’s judgement of 2014 on
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                 RUSSEL JOY v. UNION OF INDIA                                   211
                      [DIPAK MISRA, CJI]

      Mulla Periyar Dam (MPD), the MPD is hydrologically, structurally          A
      and seismically safe. No new development has taken place and
      reported upon since 2014 after the judgement of Hon’ble Supreme
      Court in the case. The Supervisory Committee has not noticed
      any distress in the MPD.”
       12. The heart of the matter is whether adequate measures have            B
been taken with regard to safety of the dam. As we perceive from the
aforesaid paragraphs from the reported decision, appropriate steps have
already been provided by the larger Bench while dealing with the suit
filed under Article 131 of the Constitution of India. We have also studiedly
perused the statement of the Chairman of the Supervisory Committee.
At this stage, Mr. George, learned counsel for the petitioner reiterating       C
the stand with regard to the disaster management, has commended us to
Section 2(e) of the Disaster Management Act, 2005 (for brevity, “the
2005 Act”). Learned counsel would highlight that it is obligatory that
safety of the dam or the life span of the dam is different than the disaster
management to meet unforeseen, sudden and emergent situation. In this           D
regard, he has assiduously emphasised on the concept of corrosion of
mental state due to constant fear in the minds of the people who reside
downstream area or areas in proximity of the dam.
      13. To appreciate the said submission, we may refer to Section
2(d) of the 2005 Act. It is as follows:-                                        E
       “2(d) “disaster” means a catastrophe, mishap, calamity or grave
occurrence in any area, arising from natural or man made causes, or by
accident or negligence which results in substantial loss of life or human
suffering or damage to, and destruction of, property, or damage to, or
degradation of, environment, and is of such a nature or magnitude as to         F
be beyond the coping capacity of the community of the affected area;”
     14. Section 2(e), which is the dictionary clause defines “Disaster
Management”. The same is as follows:-
      “2(e) “disaster management” means a continuous and integrated
      process of planning, organising, coordinating and implementing            G
      measures which are necessary or expedient for—
      (i) prevention of danger or threat of any disaster;
      (ii) mitigation or reduction of risk of any disaster or its severity or
          consequences;
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212            SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A           (iii) capacity-building;
            (iv) preparedness to deal with any disaster;
            (v) prompt response to any threatening disaster situation or
            disaster;
B           (vi) assessing the severity or magnitude of effects of any disaster;
            (vii) evacuation, rescue and relief;
            (viii) rehabilitation and reconstruction;”
             15. We may also note with profit the language employed in Section
      11 that deals with “National Plan”. It is useful to reproduce sub-section
C
      (3) of the said Section, which is as follows:-
            “11. National Plan.-
            (3) The National Plan shall include—
            (a) measures to be taken for the prevention of disasters, or the
D           mitigation of their effects;
            (b) measures to be taken for the integration of mitigation measures
            in the development plans;
            (c) measures to be taken for preparedness and capacity building
E           to effectively respond to any threatening disaster situations or
            disaster;
            (d) roles and responsibilities of different Ministries or Departments
            of the Government of India in respect of measures specified in
            clauses (a), (b) and (c).”
F           16. Section 23 deals with “State Plan” and sub-section (4) of the
      same is as under:-
            “23. State Plan.-
            (4) The State Plan shall include,—
            (a) the vulnerability of different parts of the State to different
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            forms of disasters;
            (b) the measures to be adopted for prevention and mitigation of
            disasters;
            (c) the manner in which the mitigation measures shall be integrated
            with the development plans and projects;
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                 RUSSEL JOY v. UNION OF INDIA                                     213
                      [DIPAK MISRA, CJI]

      (d) the capacity-building and preparedness measures to be taken;            A
      (e) the roles and responsibilities of each Department of the
      Government of the State in relation to the measures specified in
      clauses (b), (c) and (d) above;
      (f) the roles and responsibilities of different Departments of the
      Government of the State in responding to any threatening disaster           B
      situation or disaster.”
       17. Similarly, Section 31 deals with “District Plan” and sub-section
(3) of the same is as under:-
      “(3) The District Plan shall include-                                       C
      (a) the areas in the district vulnerable to different forms of disasters;
      (b) the measures to be taken, for prevention and mitigation of
      disaster, by the Departments of the Government at the district
      level and local authorities in the district;
                                                                                  D
      (c) the capacity-building and preparedness measures required to
      be taken by the Departments of the Government at the district
      level and the local authorities in the district to respond to any
      threatening disaster situation or disaster;
      (d) the response plans and procedures, in the event of a disaster,
      providing for-                                                              E

      (i) allocation of responsibilities to the Departments of the
      Government at the district level and the local authorities in the
      district;
      (ii) prompt response to disaster and relief thereof;                        F
      (iii) procurement of essential resources;
      (iv) establishment of communication links; and
      (v) the dissemination of information to the public;
      (e) such other matters as may be required by the State Authority.”          G
        18. On a perusal of the scheme of the 2005 Act, we find that
there has to be an appropriate disaster management plan at different
levels.

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214            SUPREME COURT REPORTS                          [2018] 1 S.C.R.


A           19. Mr. K.K. Venugopal, learned Attorney General for India would
      submit that the Central Government is determined to ensure the safety
      of the dams across the country including the subject dam and also
      implement the provisions of the 2005 Act with utmost despatch in letter
      and spirit.
B           20. Mr. Subramonium Prasad, learned AAG for the State of Tamil
      Nadu has drawn our attention to paragraph 205 of State of Tamil Nadu
      (supra). The said paragraph reads thus:-
              “205. Moreover, this Court appointed EC to assure itself about
            the safety of the Mullaperiyar dam. The EC, we must say, has
C           completed its task admirably by thoroughly going into each and
            every aspect of the safety of Mullaperiyar dam. We do not find
            any merit in the objections of Kerala challenging the findings and
            conclusions of the EC on hydrologic safety, structural safety and
            seismic safety of the dam. The findings of EC with elaborate
            analysis of reports of investigations, tests and studies lead to one
D           and only one conclusion that there is no change in the circumstances
            necessitating departure from the earlier finding on the safety of
            Mullaperiyar dam given by this Court in 2006 judgment. As a
            matter of fact, there is no change in circumstances at all much
            less any drastic change in circumstances or emergent situation
E           justifying the reopening of safety aspect of Mullaperiyar dam
            which has been determined by this Court in the earlier judgment.”
             21. Mr. Mohan V. Katarke, learned counsel for the State of Kerala
      would contend that in the said suit, the Court was only concerned with
      the increasing of water level of the Mullaperiyar Dam.
F            22. As far as the safety measures of the Mullaperiyar Dam are
      concerned, the directions given in State of Tamil Nadu (supra) shall be
      binding on all. However, there has to be a greater degree of disaster
      management and better preparedness to face any kind of disaster caused
      by the dam. Therefore, the concern that has been pronouncedly
G     propounded by Mr. George, learned counsel appearing for the petitioner,
      cannot be brushed aside. It is to be borne in mind that life without basic
      needs of life and liberty replete with fear, is like a concept without
      structure, a house without a plinth, a metaphor not conveying an idea, a
      sea without waves or, for that matter, an idea constantly remaining in the
      realm of speculation. Life and liberty are to be understood, projected
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                 RUSSEL JOY v. UNION OF INDIA                                  215
                      [DIPAK MISRA, CJI]

and protected in concrete terms. It is because fear brings numbness to         A
passion of purpose and converts an active individual a quitter who resigns
himself to fate. History records with sorrow and agony how civilisations
have perished mostly due to fear. Citizenry growth stands still, for culture
and creativity take the back seat when fear reigns. Some may say that
there is no fear but the man who is so told, may appear to be consoled
                                                                               B
though his heart or mind may not be convinced. Therefore, it is the duty
of the States involved to create a sense of confidence in the real sense
of the term and ensure that adequate measures have been taken so that
in any event safety of the individuals shall not be affected and well
preserved and their life and liberty remain protected. To speak differently,
steps taken should reflect convincing and concrete perceptibility and not      C
merely a consolatory shadow.
      23. In view of the aforesaid, we think it appropriate to issue the
following directions:-
      (i) The Central Government shall constitute a separate Sub-
          Committee under Section 9 of the 2005 Act, to exclusively            D
          monitor the measures for ensuring a high level of preparedness
          to face any disaster, which is unpredictable in relation to
          Mullaperiyar Dam.
      (ii) The State of Kerala as well as the State of Tamil Nadu shall
          also constitute separate Sub-Committees under Section 21 of          E
          the 2005 Act, to exclusively monitor the measures for ensuring
          a high level of preparedness to face any disaster occurring
          from Mullaperiyar Dam. They must provide for a separate
          dispensation under the State plan as envisaged under Section
          23(4) of the 2005 Act.                                               F
      (iii) The State of Tamil Nadu, which has been directed to cooperate
          as per the decision in State of Tamil Nadu (supra), shall also
          have a Sub-Committee for disaster management and with a
          specific plan.
      (iv) Constitution of all sub-committees shall be in addition to the      G
          existing Committees. All the States shall work in harmony
          with the Central Sub-Committee and ensure high level
          preparedness to face any disaster occurring due to Mullaperiyar
          Dam, so that life and property are not damaged.
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216                SUPREME COURT REPORTS                        [2018] 1 S.C.R.


A            24. Our directions for constitution of exclusive Sub-Committees
      for the disaster management for the Mullaperiyar Dam does not anyway
      remotely suggest that there is any doubt about the safety or life span of
      the dam, as is alleged in the writ petition. We have said so only keeping
      in view the consequences of unpredictable disaster, which have astutely
      been canvassed before us.
B
             25. With the aforesaid directions and observations, the writ petition
      is disposed of. There shall be no order as to costs.


      Nidhi Jain                                             Writ Petition disposed of.
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