BEFORE THE HON'BLE NATIONAL HUMAN RIGHTS COMMISSION, NEW DELHI
PETITION No. ……………..OF 2011 IN THE MATTER OF: MATHEW SAMUEL …..PETITIONER VERSUS UNION OF INDIA AND ORS ...RESPONDENTS P A P E R B O O K (FOR INDEX KINDLY SEE INSIDE) DEEPAK PRAKASH, BIJU P RAMAN LEENA NAIR, SOLICITORSINDIA LAW OFFICES, 3, BIRBAL ROAD,JUNGPURA EXTN. NEW DELHI- 110014 ADVOCATES FOR THE PETITIONERS
BEFORE THE HON'BLE NATIONAL HUMAN RIGHTS COMMISSION, NEW DELHI PETITION No. ……………..OF 2011
IN THE MATTER OF: 1.MATHEW SAMUEL FLAT NO.105, DREAMFLOWER BONITA GREEN RIPPLE ROAD SWAMYPADY, ELAMAKKARA, COCHIN-682026 …..PETITIONER VERSUS 1.UNION OF INDIA REPRESENTED BY THE SECRETARY MINISTRY OF DEFENSE, NEW DELHI-110001 2.STATE OF KERALA THROUGH ITS CHIEF SECRETARY GOVERNMENT OF KERALA SECRETARIAT, THIRUVANTHAPURAM, KERALA 3.STATE OF TAMIL NADU, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, CHENNAI - 600 009 TAMILNADU 4.NATIONAL DISASTER MANAGEMENT AUTHORITY REPRESENTED BY IT CHAIRMAN, NDMA BHAWAN, A-1, SAFDAJUNG ENCLAVE, NEW DELHI ….RESPONDENTS
DEEPAK PRAKASH, BIJU P RAMAN LEENA NAIR, SOLICITORSINDIA LAW OFFICES, 3, BIRBAL ROAD,JUNGPURA EXTN. NEW DELHI- 110014 Advocates for the Petitioners NEW DELHI Dated: 02.11.2011
BEFORE THE HON'BLE NATIONAL HUMAN RIGHTS COMMISSION, NEW DELHI PETITION No. ……………..OF 2011
Petitioner is a journalist with experience of 15 years covered with National and International media was experience having worked with the victims mention herein who was born and brought up in Kerala residing in the bank of Mullaperiyar. His friends and relatives and colleagues residing in the area and he is concerned about the life and safety of his fellow men.
1.Name: Mathew Samuel 3. State : Kerala 2.Sex : Male Full Address: Flat No. 105, Dream Flower, Bonita Green Ripple Road, Swamy Padi, Edamakkara, Cochin-682026, Kerala State District: Cochin Pin-682026
B. INCIDENT DETAILS 1. Incident Place (Village/Town/City) : Directly affects 35 Lakhs human population in the districts of Idukki, Pathanamthitta, Ernakulam, Kottyam & Alappuzha. It will affect the flora and fauna including endangered species such as tiger and elephants in the periyar wildlife sanctuary, Thekaddy reservoir also wood impact 3 nearby reservoirs. 2. State : Kerala 3. District : Idukki, Pathanamthitta, Ernakulam, Kottyam & Alapuzha. 4. Date of Incident : Continuing everyday C. VICTIM’S DETAILS 1. Name of the victim : 35 Lakhs people from the districts of Idukki, Pathanamthitta, Ernakulam, Kottyam & Alapuzha 2. No. of victims : 35 Lakhs 3. State : Kerala 4. Full Address : Not possible to mention. 5. District : Idukki, Pathanamthitta, Ernakulam, Kottayam & Alapuzha 6. Pin Code : NA 7. Religion : All religion 8. Caste : All Caste 9. Sex : All Sex 10. Age : All Age Group 11. Whether Disabled (SC/ST/OBC/General) person : Belongs to all section of society.
A.Brief summary of facts/allegations of human rights involved
“The 113-year-old Mullaperiyar dam across one of the tributaries of the Periyar river, over which Kerala and Tamil Nadu are now engaged in a tussle, is a classic instance where the precautionary principle of action cannot wait for a public calamity to happen. However sound the Tamil Nadu engineers’ opinion on the structural integrity of the dam may be, as engineers in Kerala have expressed grave doubts about a tragic alternative scenario, no chances can be taken. It is my firm view that the arguments put forth by some sections with regard to the Mullaperiyar dam are put to sleep and silenced by the Rio Declaration.” Justice V.R Krishna Iyer The most relevant issues for consideration. 1. A 115 year old dam in dilapidated condition in a seismic zone is acting as a dormant water bomb ready to explode posing serious threat to the life of 35 Lakhs people in five districts of Kerala and the flora and fauna is at stake ant the people living in the area are living a life of constant fear of an imminent deluge. 2. The Union of India, Government of Kerala and Government of Tamilnadu are toying with the lives of hapless people on the basis of technicalities and impediment of law and have not come forward with any concrete formula or any disaster management plan to face the disaster which may occur any moment. 3. That 26 Earthquakes has already occurred in the above mentioned area and the entire population lives in constant fear and restlessness awaiting a potential disaster which would draw curtains on their lives. 4. The union Government as the custodian of life and safety of the citizen not discharging their impound duties to casted upon it hence the petitioner before this Hon’ble Commission.
I.The Petitioner a native of Kerala, working in Delhi, who is having varied interest in Cochin, is also afraid of the safety of his aged mother who is staying alone in Cochin, Kerala which also would be affected by any eventuality of the Mullaperiyar dam giving off as a outcome of an earthquake, landslide or floods resulting out of the torrential rains occurring in the parts of the Periyar Tiger Reserve. The Petitioner also wishes to highlight the cause of scores of people like him herein in representative capacity on behalf of the people living in the villages proximate to the Mullaperiyar Dam as a pro bono publico. The Petitioner is constrained to beg for the interference of this Hon'ble Commission to bring to the notice of this Hon'ble Commission the agony of a population living in constant fear of an imminent deluge downstream and ageing dam.
I. II.It is submitted that the people downstream the 115 year old Mullaperiyar dam are helplessly awaiting their inevitable destiny. In the event of a catastrophic involving the aged and outdated dam, the deluge would spell the doom of an estimated 2.5 million inhabitants downstream and with an outdated dam standing against the ever increasing water level and torrential rain this nightmare may turn into a reality any time. III.It is submitted that in the event of such a catastrophe not only the local population downstream but the host of cities and township along with all their progress are in peril and in the events the inevitable happens. People have been living in constant fear for many years after they became aware of the weakening of the Dam. The life of the people living in the downstream of the Dam has been a virtual nightmare for a long time which could be attributed to that of a sheep waiting for the machete of the butcher. IV.It is submitted that there are situations where engineers may disagree with one another. Some experts may consider the condition of a dam to be marginally safer than what others say it is. But nature has its own way, and experts’ expectations and calculations may go awry. V.It is respectfully submitted that there is no point in debating about ‘ifs’ and ‘buts’ or ‘had or had it not’ after a calamity strikes but to pay heed to the warning signals from the mother nature in the form of 26 minor earthquakes over a period of month. It is submitted that the major dam calamities which had occurred across the world over were the result of such neglect as is evident from the Vajont reservoir disaster which is a classic example of the consequences of the failure of engineers and geologists to understand the nature of the problem that they were trying to deal with. Its 1963 over-topping was caused when the designers ignored the geological instability of Monte Toc on the southern side of the basin. Warning signs and negative appraisals during the early stages of filling were disregarded, and the attempt to complete the filling led to a landslide, which created a wave that brought massive flooding and destruction to the Piave valley below, wiping out several villages completely. VI.It is submitted that once there is doubt and the possibility of a risk, the state should not take any chances. This principle was down in the Rio de Janeiro Declaration on Environment and Development of the United Nations Conference on Environment and Development (1992). VII.It is submitted that a sound environment is the supreme law for the survival of our biosphere. The Rio Principles which are binding on developmental engineering are part of cosmic jurisprudence and humanism. This constitutes a fundamental duty which supersedes legalism. VIII.Article 48A of the Indian Constitution makes the preservation of the environment a state obligation. India is a signatory to the Rio instruments. Hence, the Ministers of both the States are bound by the fair principles in it. Justice Krishna Iyer has rightly observed that; “no court that is sensitive to justice will condone Kerala if it fails to act immediately and render the dam absolutely safe for the people of both Kerala and Tamil Nadu. Disputes among States over political considerations have no meaning.” IX.It is respectfully submitted that doubts have no place where heavy human losses and casualties may be involved and when the estimate of the engineers may be simply wrong. Then, what matters is the irreparable cost of human life, not the large expenditure that may be required to make repairs. X.It is further submitted that when two options are available the action should be guided by the Principle of Relative Priority. Principle of Relative Priority states that “All the decisions about item priority have to involve other items which are being traded in favor or the most important one(s). There is no absolute priority, only relative to other items.” XI.It is submitted that in the tussle between the political parties of the two states the lives of innocent people, both Tamilians and Malyalees living on the downstream of Mullaperiyar are at stake. Here two priorities are the water for agriculture and generation of electricity and lives of millions of people. XII.The Mullaperiyar dam dates back to 1895 when it was constructed across the river Periyar in CRUDE LIME SURKI WATER. At the time when the dam engineering was in its infancy the main dam has a length of 3.66 M, base thickness of 44.2 M, the height of the dam from the deepest foundation is 53.64 M, the gross capacity of the reservoirs 15.662 TMC but 244 KM long Periyar is abounded with 435 TMC of fresh water per year. It originates from Shivigiri in the Western Ghat at an alleviation of 2400 Metres from sea level and joins the Mullaperiyar downstream at an alleviation of 815 M, it is at this alleviation junction the Mullaperiyar dam has been built for the noble cause of catering to the irrigation needs of the neighbouring states of Tamil Nadu under a 999 years lease agreement. XIII.Mullaperiyar Dam is a masonry gravity dam over River Periyar, with a height of 155 feet and length 1200 feet and is located 3900 feet above M.S.L. on the High Ranges (Cardamom Hills) of Western Ghats in Thekkadi, Idukki District of Kerala, India. It was constructed in 1895 by the British Corps of Royal Engineers. After the first dam was washed away by floods, a second dam was built in 1895 with stone and surki (a mixture of sugar and Calcium oxide). The Mullaperiyar dam is constructed at the confluence of both the rivers Periyar and Mullaiyar to create the Periyar reservoir. Periyar river originates in the Sivagiri Hills of the Western Ghats in Kerala, flows northwards and at Thekkady joins the west-flowing Mullaiyar, also originating in the Western Ghats in Kerala. Water is diverted eastwards from Periyar Thekkady Reservoir, the Periyar river flows northwestward into the Idukki reservoir formed by the Idukki, Cheruthoni and Kulamavu dams. From Idukki reservoir, Periyar river flows northwestwards and then westward to join the Arabian sea at Munambam near Kodungallur and the Vembanad lake at Kochi. XIV.On 29 October 1886, a lease indenture for 999 years was made between Maharaja of Travancore, Vishakham Thirunal and Secretary of State for India for Periyar irrigation works. The lease agreement was signed by Dewan of Travancore, V. Ram. Iyengar and State Secretary of Madras State (under British rule) J C Hannington. The lease indenture inter alia granted full right, power and liberty 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 Secretary of State for India (now Tamil Nadu). The agreement was to give 8000 acres of land for the reservoir and another 100 acres to construct the dam. When India became independent, the lease got expired. After several failed attempts to renew the agreement in 1958, 1960, and 1969, the agreement was renewed in 1970 when C. Achutha. Menon was Kerala Chief Minister. This agreement expired in 2000. XV.The dam built over the headwaters of the west-flowing Periyar River and its tributary Mullaperiyar, to divert water eastwards to Madras Presidency area (the present-day Tamilnadu) via a tunnel enabling the water to join the Vaigai River. The dam's purpose was to divert the waters of the west-flowing Periyar River eastward, taking the water from the reservoir through a tunnel cut across the watershed and Western Ghats to the arid rain shadow regions of Theni, Madurai District, Sivaganga District and Ramanathapuram districts of Tamil Nadu. The Periyar Power Station in Tamilnadu also generates hydro-electricity from the diverted waters and distributes electricity to Tamilnadu. XVI.The catchment areas and river basin of River Periyar downstream include five Districts of Central Kerala, namely Idukki, Kottayam, Ernakulam, Alappuzha and Thrissur with a total population of around 3.5 million. Minor earthquakes in the area have raised concerns. XVII.It submitted that a separate dates and events and newspaper reports have been produced along with this petition for the convenience of this Hon'ble Commission. E. Whether complaint is against Members of Armed Forces/ Para-Military : No F. Whether similar complaint has been filed before any Court/ State Human Rights Commission No G. Name, designation & address of the public servant against whom Complaint is being made NA H. Name, designation & address of the authority/officials to whom the public servant is answerable. 1)Union of India Through Ministry of Defence represented by the Secretary Ministry of Defence, New Delhi-110001 2)State of Kerala through its Chief Secretary Government of Kerala Secretariat, Thiruvanthapuram, Kerala 3)State of Tamilnadu, represented by Chief Secretary, Secretariat, Chennai - 600 009 4)National Disaster Management Authority represented by its Chairman, NDMA Bhawan, A-1, Safdajung Enclave, New Delhi
I. Prayer/ Relief if any sought: a.To direct the Ministry of Defence, Government of India to take necessary measures to meet any eventuality of the Mullaperiyar Dam ceasing and also to ensure the safety of the hapless residents and; or b.To direct the National Disaster Management Authority to take immediate steps to prepare an action plan to meet any eventuality in the downstream of the periyar river and also to take immediate steps to alleviate the fear of the residents and; or c.To direct the Central Soil and Materials Research Station, (CSMRS) New Delhi to place before this Hon'ble Commission, details and outcome of the study conducted by it on 15.03.2011 in the Mullaperiyar Dam and; or d.To direct the media to educate the inhabitants of the area and the people living downstream about the precautions to be taken in the event of such a deluge and or; e.Pass any further order or orders as this Hon’ble Court may deem just and proper in the circumstances of the case. AND FOR WHICH ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY. DEEPAK PRAKASH, BIJU P RAMAN LEENA NAIR, SOLICITORSINDIA LAW OFFICES, 3, BIRBAL ROAD,JUNGPURA EXTN. NEW DELHI- 110014 Advocates for the Petitioners NEW DELHI Dated: 02.11.2011