REPORTABLE  

 IN THE SUPREME COURT OF INDIA  

 CIVIL ORIGINAL JURISDICTION  

 Writ Petition (Civil) No. 878 of 2017  

RUSSEL JOY                                          … Petitioner(s)  

                                 VERSUS  

UNION OF INDIA & ORS.                              … Respondent(s)  

J U D G M E N T  

Dipak Misra, CJI  

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/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

2  

environment in the eventuality of a burst of Mullaperiyar 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 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  

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.   

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

3  

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 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 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, 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 Tamil Nadu over the contractual rights over the  

                                                 1 (2014) 12 SCC 696

4  

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  

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 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  

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

5  

of India.  

7. We have heard Mr. Manoj V. George, learned counsel for  

the 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 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 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 for the said dam keeping in view the special features of

6  

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.  

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 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 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:-

7  

“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 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 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 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 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 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.”    

8  

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 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 Mulla Periyar Dam  (MPD), the MPD is hydrologically, structurally 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 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 the stand with regard to the disaster management,  

has commended us to Section 2(e) of the Disaster Management

9  

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  

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:-  

“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 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 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;

10  

(iii)  capacity-building;  (iv)  preparedness to deal with any disaster;  (v)  prompt response to any threatening disaster  

situation or disaster;  (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 (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 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 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).”  

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 forms of disasters;  (b) the measures to be adopted for prevention and  mitigation of disasters;

11  

(c) the manner in which the mitigation measures  shall be integrated with the development plans and  projects;  (d) the capacity-building and preparedness  measures to be taken;  (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 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-  

(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;  

(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-  

(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;  

(iii) procurement of essential resources;  

(iv) establishment of communication links; and   

(v) the dissemination of information to the public;

12  

(e) such other matters as may be required by the  State Authority.”   

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.    

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.  

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  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 and only one  conclusion that there is no change in the  circumstances necessitating departure from

13  

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  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.    

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  

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

14  

of speculation.  Life and liberty are to be understood, projected  

and protected in concrete terms.  It is because fear brings  

numbness to 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 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 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  

monitor the measures for ensuring a high level of

15  

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 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.  

(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 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.  

24. Our directions for constitution of exclusive Sub-

Committees for the disaster management for the Mullaperiyar

16  

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.  

25. With the aforesaid directions and observations, the writ  

petition is disposed of. There shall be no order as to costs.  

           ...............................CJI.          [Dipak Misra]                ..................................J.          [A.M. Khanwilkar]                ..................................J.          [Dr. D.Y. Chandrachud]  New Delhi;  January 11, 2018.