DR. JOE JOSEPH & ORS.versusSTATE OF TAMIL NADU & ORS.

                          [2022] 3 S.C.R. 95                             95


                    DR. JOE JOSEPH & ORS.                                A
                                  v.
                STATE OF TAMIL NADU & ORS.
                (Writ Petition (Civil) No. 880 of 2020)
                            APRIL 08, 2022                               B
             [A.M. KHANWILKAR, ABHAY S. OKA
                   AND C.T. RAVIKUMAR, JJ.]
       Dam Safety Act, 2021 – ss.8 and 9 – Mullaperiyar Dam –
Interim arrangement until “regular National Dam Safety Authority
(NDSA)” under the 2021 Act becomes fully functional – For                C
purposes of surveillance, inspection, operation and maintenance
of dams such as Mullaperiyar Dam, the responsibility is fastened
upon the National Dam Safety Authority (NDSA) established u/s.8
of the 2021 Act – Functions of the Authority so established have
been spelt out in s.9 of the 2021 Act –Establishment of a regular        D
structure in the form of NDSA with all essential organisational and
logistical facilities at its disposal is however likely to take some
more time – 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          E
specified in s.9 of the 2021 Act – The competent authority may take
appropriate steps to ensure that the regular NDSA under the 2021
Act is established at the earliest.
      State of Tamil Nadu v. State of Kerala & Anr, (2014) 12
      SCC 696 : [2014] 12 SCR 875 – referred to.                         F
                       Case Law Reference
[2014] 12 SCR 875               referred to               Para 5
      CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
880 of 2020.                                                             G
      (Under Article 32 of The Constitution of India)
      With
       Special Leave Petition (Civil) No.3924 Of 2021, Writ Petition
(Civil) Nos.771 And 1225 of 2021, Writ Petition (Civil) No.86 of 2022.
                                                                         H
                                 95
96                 SUPREME COURT REPORTS                      [2022] 3 S.C.R.


A           Tushar Mehta, SG, Ms. Aishwarya Bhati, Sanjay Jain, ASGs, V.
     Krishnamurthy, AAG, Jaideep Gupta, Shekhar Naphade, N. R. Elango,
     G. Umapathy, Dr. S. Gopakumaran Nair, Sr. Advs., Ms. Shradha
     Deshmukh, Ms. Manisha Chava, Rajat Nair, Ms. Vanshaja Shukla, Arvind
     Kumar Sharma, G. Prakash, Jishnu M. L., Ms. Priyanka Prakash, Ms.
     Beena Prakash, Anoop R., D. Kumanan, Ms. Pavitra Balakrishnan, Suvin
B
     Kumaran, Ms. Aishwarya Dhasi, Ms. Farah Hashmi, T. G. Narayanan
     Nair, Sooraj T. Elanjickal, Ms. Priya Balakrishnan, Ashwin Kumar M.
     J., Wills Mathews, Mathen Joseph, Devendra Kumar Tewari, Rakesh
     Garg, Ashish Gopal Garg, Paul John Edison, Nand Ram, Ms. Shweta
     Garg, Ginesh P., V. K. Biju, Ms. Ria Sachthey, Chetanya Singh, Amlendu
C    Kumar Akhilesh Kumar Jha, Abhay Pratap Singh, Shaji George, Ms.
     Vijay Laxmi, Umang Tripathi, Rajeev Yadav, Ms. Aayushi, Mathews J.
     Nedumpara, Ms. Manju Jetley, Ms. Merry S. Mathew, Hitesh Kumar
     Sharma, Akhileshwar Jha, Ms. Kavita M. S. Sebbi, Naresh Kumar, Satish
     Murthi, Ms. Uma Devi M., C. R. Jayasukin, Ms. Divya Mishra, Ms.
     Suresh Kumari, Narender Kumar Verma, Ms. Smitha Pandey, Manoj V.
D
     George, Zulfiker Ali P. S., Ms. Shilpa Liza George, Faisal M. Aboobacker,
     Ms. Lakshmi Sree P., Augustine Peter, Ms. Akriti Jai, N. Subramaniyan,
     Pranav Sachdeva, Jatin Bhardwaj, Ms. Neha Rathi, Prabu
     Ramasubramanian, Raghunatha Sethupathy B., Ms. Priya R., K. Paari
     Vendhan, Advs. for the appearing parties.
E              The following order of the Court was passed:
                                      ORDER
            1. During the pendency of these matters, a new law has been
     enacted by the Parliament titled “the Dam Safety Act, 20211”, which
F    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 respondent No.
     3, the appointed date for coming into force of the 2021 Act has been
     specified as 30.12.2021.
            2. The 2021 Act deals with subjects which are broadly matters in
G    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
     1
H        for short, “the 2021 Act”
    DR. JOE JOSEPH & ORS. v. STATE OF TAMIL NADU & ORS.                           97


functioning of the concerned dam(s) and for matters connected therewith           A
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
                                                                                  B
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      C
the Dam in question.
       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                 D
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,                 E
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.
                                                                                  F
       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             G
essential organisational and logistical facilities at its 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,
2
    for short, “NDSA”
3
    (2014) 12 SCC 696                                                             H
98             SUPREME COURT REPORTS                             [2022] 3 S.C.R.


A    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
B
     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
C    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
D    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 safety of the Mullaperiyar
     Dam, as also, prevention of dam failure related disasters.
            8. For the purpose of strengthening the existing Supervisory
E    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.

F           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
G    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
H
 DR. JOE JOSEPH & ORS. v. STATE OF TAMIL NADU & ORS.                           99


Tamil Nadu to invite attention of the reconstituted committee to those         A
pending works. We have no manner of doubt that the Supervisory
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      B
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      C
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          D
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 setting       E
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
                                                                               F
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                  G
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.             H
100             SUPREME COURT REPORTS                         [2022] 3 S.C.R.


A           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.
             19. We clarify that in absence of nomination of expert member by
B     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.
C           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
D     way of a formal application in that regard.

      Bibhuti Bhushan Bose                                      Directions issued.




E




F




G




H