The Empowered Committee after going through several aspects had technically concluded that the Mullaperiyar dam is hydrologically, structurally and seismically safe for raising the water level beyond 136 ft, senior counsel Vinod Bobde, appearing for Tamil Nadu, asserted in the Supreme Court on Wednesday.

Mr. Bobde made this submission before a five-Judge Constitution Bench of Justices R.M. Lodha, H.L. Dattu, C.K. Prasad, Madan B. Lokur and M.Y. Eqbar, hearing the suit filed by Tamil Nadu questioning the law passed by Kerala in 2006, constituting the Dam Safety Authority to regulate the dams in the State.

Counsel quoting the report said the committee duly considered the grievance of Tamil Nadu about its inability to raise the water level in the dam beyond 136 ft upto 142 ft and the concern of Kerala that the dam was not safe and had outlived its span; the water level should not be raised beyond 136 ft and “in case the dam fails, it can release a dam-break flood devastating area and population downstream, potentially resulting into a cascading failure of downstream Idukki complex and further downstream dams, triggering large scale devastation.”

Mr. Bobde said the committee had directed investigations, tests and studies to be carried out by national organisations on hydrological safety; structural integrity and safety and seismic safety and rendered its findings.

On Kerala’s proposal for a new dam, he said this suggestion was examined as early as in 1979 and it was found that the new dam was not found to be feasible and was dropped. Thereafter the Central Water Commission suggested strengthening measures in the Baby dam.

Questioning the 2006 law after the judgment, Mr. Bobde said the Kerala government had no new facts to say that the dam was unsafe and on that alone rushed to a legislative enactment to nullify a judgment.

On Tuesday the Bench had asked Tamil nadu to explain as to how Tamil Nadu became a lessee when the original agreement of 1886 was entered between the then Government of India and the princely State of Travancore.

On Wednesday Mr. Bobde clarified that the 1886 agreement was based on the Government of India Act of 1858. The right which existed under this agreement continued under the 1919 Government of India Act. He said under the 1935 GoI Act, Tamil Nadu derived its rights as a lessee under Section 177 according to which all agreements entered by the Government of India vested in the Government of a Province if it was made for purposes of the States.

Not fully convinced with the reply Justice Lodha told the counsel in lighter vein, “there must be answer some where but we are not able to trace.” Counsel said “the intention is clear. It is to take it out from the Secretary, Government of India and vest it with Madras Presidency.” Arguments will continue on Thursday.

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