Dr. Joe Joseph vs State Of Tamil Nadu

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 880 OF 2020

DR. JOE JOSEPH & ORS. ...PETITIONERS

VERSUS

STATE OF TAMIL NADU & ORS. …RESPONDENTS

WITH

SPECIAL LEAVE PETITION (CIVIL) NO. 3924 OF 2021

WRIT PETITION (CIVIL) NO. 771 OF 2021

WRIT PETITION (CIVIL) NO. 1225 OF 2021

WRIT PETITION (CIVIL) NO. 86 OF 2022

ORDER

1. During the pendency of these matters, a new law has been

enacted by the Parliament titled "the Dam Safety Act, 20211", which

has received assent of the President on 13.12.2021 and has been

notified vide gazette dated 14.12.2021. As per the note filed by Signature Not Verified

respondent No. 3, the appointed date for coming into force of the 2021 Digitally signed by DEEPAK SINGH Date: 2022.04.08 14:40:14 IST Reason:

Act has been specified as 30.12.2021.

1 for short, “the 2021 Act” 2

2. The 2021 Act deals with subjects which are broadly matters in

issue in the present petitions such as surveillance, inspection,

operation and maintenance of the Mullaperiyar Dam including for

prevention of dam failure related disasters.

3. The 2021 Act predicates that multi-tier institutional mechanism

be established for providing institutional mechanism to ensure the

safe functioning of the concerned dam(s) and for matters connected

therewith or incidental thereto. Section 5 mandates constitution of

National Committee who is required to discharge functions delineated

in Section 6 of the 2021 Act. For the purposes of surveillance,

inspection, operation and maintenance of the dams such as

Mullaperiyar Dam, which is the subject matter in these proceedings,

the responsibility is fastened upon the National Dam Safety Authority2

established under Section 8 of the 2021 Act. The functions of the

Authority so established have been spelt out in Section 9 of the 2021

Act. Further, by virtue of the first proviso to Section 24(1) of the Act,

the National Dam Safety Authority has also to act as the State Dam

Safety Organisation for the purposes of this Act and to perform all

duties and functions in relation to dam safety as relates the Dam in

question.

2 for short, “NDSA” 3

4. Suffice it to observe that the sweep of the 2021 Act is very wide

and comprehensive, as it focusses on all aspects regarding the safety

of specified dams across the country, including the Mullaperiyar Dam.

It also provides for objective standards for ensuring proper

maintenance and institutional mechanism for safe functioning of the

concerned dams and for matters connected therewith.

5. As regards the Mullaperiyar Dam, this Court vide its judgment

titled as "State of Tamil Nadu Vs. State of Kerala & Anr.3 had

constituted a Supervisory Committee, consisting of three members,

namely, one representative from the Central Water Commission and

one representative each from the two States - Tamil Nadu and Kerala.

That Committee has been functioning satisfactorily since then and

discharging the task assigned to it, as mentioned in paras 229 and

230 of the reported decision.

6. However, after coming into force of the 2021 Act, a statutory

dispensation needs to be put in place. We have been informed that a

temporary structure of NDSA has been created by the Central Water

Commission (CWC) under the Ministry of Jal Shakti, Government of

India vide letter No. T-20/2/2021-DSM DTE/158-61 dated

30.03.2022. The establishment of a regular structure in the form of

NDSA with all essential organisational and logistical facilities at its

3 (2014) 12 SCC 696 4

disposal is likely to take some more time. It would be desirable that

the regular NDSA is put in place, which can immediately take over the

task of surveillance, inspection, operation and maintenance of the

Mullaperiyar Dam and discharge the functions in that regard, as

specified in Section 9 of the Act, as also, exercise all enabling powers

invested in it under the 2021 Act. Until such time, we may have to

continue with the present arrangement, as specified in the reported

decision, namely, the Supervisory Committee discharging the task

assigned to it in terms of direction given by this Court. At the same

time, it may be in larger public interests to strengthen the Supervisory

Committee, both in regard to its composition, as well as, scope of its

functions to be brought in conformity with the provisions and powers

of NDSA, as specified in the 2021 Act.

7. As certain issues have been raised in the present set of writ

petitions/special leave petition/Applications, including by the locals

residing in the downstream areas of the Dam in question, we deem it

appropriate to accede to the suggestion given by the State parties to

strengthen the Supervisory Committee until the regular NDSA

becomes functional in terms of Section 8 of the 2021 Act, so that until

such time, the reconstituted Supervisory Committee would be in a

position to discharge all the functions and also exercise all the powers

which otherwise are required to be exercised by the NDSA for ensuring 5

safety of the Mullaperiyar Dam, as also, prevention of dam failure

related disasters.

8. For the purpose of strengthening the existing Supervisory

Committee, we also accede to the suggestions given by the party-

States that two technical experts be made part of the existing

Supervisory Committee, one each from the State of Kerala and State of

Tamil Nadu, who must be well-versed in dam management, reservoir

operation, instrumentation, etc.

9. The party-States shall nominate their technical expert(s) not later

than two weeks from today.

10. The reconstituted Supervisory Committee in terms of this order

passed in exercise of our plenary powers under Article 142 of the

Constitution, as aforesaid, shall in addition to complying with the

directions given in the reported decision, also discharge all the

functions of the NDSA delineated in Section 9 of the 2021 Act and also

in the same manner exercise all its (NDSA’s) powers for enforcement of

the directions given by it from time to time.

11. It is stated by the learned counsel for the State of Tamil Nadu

that there are certain pending works. It will be open for the State of

Tamil Nadu to invite attention of the reconstituted committee to those

pending works. We have no manner of doubt that the Supervisory 6

Committee will examine that request appropriately and take such

decision, as may be necessary.

12. In other words, until the regular NDSA becomes functional, the

Supervisory Committee, as reconstituted in terms of this order, shall

be accountable for all matters relating to safety of the Dam including

referred to in the 2021 Act and discharge the functions of NDSA

specified in Section 9 of the 2021 Act.

13. We direct the concerned Ministry of the Government of India to

extend all logistical assistance to the Supervisory Committee, to

enable it to effectively discharge its functions and to exercise powers in

terms of this order.

14. Needless to mention that the reconstituted Supervisory

Committee will decide all outstanding matters related to Mullaperiyar

Dam’s safety and conduct a safety review afresh. For this purpose, it

may frame terms of reference in accordance with the provisions of the

2021 Act.

15. In case of any operational issues arising during the execution of

directions given by the Supervisory Committee, the Chief Secretary of

the concerned State shall be personally responsible to ensure that

every direction given by the Supervisory Committee (including of 7

setting apart necessary funds or providing logistical assistance) is

taken to its logical end without any exception.

16. In other words, the party-States must extend complete

cooperation for ensuring that the directions given by the Supervisory

Committee from time to time for the purpose of maintenance of the

Mullaperiyar Dam and its safety, are complied with in prescribed time.

Failure to do so will not only invite appropriate action for having

violated the directions of this Court, but all concerned would be liable

to be proceeded with under the 2021 Act. We say so because the

Supervisory Committee, in terms of this order, is deemed to be

discharging all the functions and powers of the NDSA until a regular

NDSA becomes functional under the 2021 Act and more so, orders of

this Court in that regard.

17. We express a sanguine hope that the competent authority may

take appropriate steps to ensure that the regular NDSA under the

2021 Act is established at the earliest, as it cannot brook delay.

18. The Supervisory Committee may also entertain the

representations or suggestions given by the locals and after examining

the same in time bound manner, take appropriate measures, as may

be advised.

8

19. We clarify that in absence of nomination of expert member by the

State party, the Supervisory Committee shall be free to continue to

discharge the task already assigned to it by this Court and also under

the 2021 Act.

20. As aforesaid, this is only an interim arrangement until the

“regular NDSA” under the 2021 Act becomes fully functional.

21. The matters be notified on 11.05.2022 for submitting

compliance-cum-status report by the Supervisory Committee and for

consideration of other reliefs.

22. In case of any exigency before the next date of hearing, it will be

open to the parties/Supervisory Committee to approach this Court by

way of a formal application in that regard.

……....…………………….J. (A.M. KHANWILKAR)1

……....…………………….J. (ABHAY S. OKA)

……....…………………….J. (C.T. RAVIKUMAR) New Delhi;

April 08, 2022.