The geography of the Indian Peninsula is very peculiar at the southern end. The Western Ghats stand 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.
Under those circumstances, the unique idea of controlling and using the westward flowing waters of the Mullai and Periyaru 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 Periyaru 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‘.
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 Periyaru 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.
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 Periyaru 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‘.
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.
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.
While so, the Kerala Government is trying to project the Mullaperiyaru 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 Periyaru 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.
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.
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
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
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 Periyaru 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 Periyaru 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
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 Periyaru 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.
States of T.N. and Kerala are inter dependent in almost all activities. The benefit received from the water from Mullai and Periyaru 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.
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 area 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.
A falsehood repeatedly said and propagated will not become true. Justrice V.R. Krishna Iyer has gone on record stating that the Mullai Periyaru 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
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 ?
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
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.
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”.