Friday, December 8, 2023

A Doctrinal Breach

The established doctrine of res judicata might need to be overlooked, vis-a-vis the issue of the Mullaperiyar dam in Kerala. Man-made structures change considerably over time, and ground realities do, too. Public safety becomes the primary and only concern.

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By Mathews J Nedumpara

We inherited from the British a wonderful legal system. The British were not doing us any charity in providing this; they needed a sound legal system for the governance of their own affairs. That system was, and is, based on common law. The common law is to an extent founded on Roman law and also to a large extent on British judge-made laws that bear hundreds of years of wisdom of tradition.

Common law—against civil laws, or those legislated by acts of Parliament—as in Roman law, reflects nothing but the thoughts of great philosophers such as Socrates, Plato, Aristotle, Cicero, Ulpian, et al, and also the early British experiences in dealing with social issues, down from Nordic times. These are mostly unwritten laws, full of common sense and wisdom of ages and hundreds of case references that are referred to, even today.

The occasionally overlapping doctrines of estoppel (the principle which precludes a person from asserting something contrary to what is implied by a previous action or statement of that person or by a previous pertinent judicial determination) and res judicata (a matter that has been adjudicated by a competent court and therefore may not be pursued further by the same parties) are the cardinal principles on which the Roman laws, or the early British common laws—the basis of our laws—are founded. In recent times, these pearls of wisdom that make up our common laws seem to be ignored by India’s legal luminaries.

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The Mullaperiyar dam issue makes this obvious. The dam was constructed between 1887 and 1895 by John Pennycuick, a British army engineer at the confluence of Mullayar and Periyar rivers (in Thekkady, Idukki district of Kerala). The construction, with the technology of the time, involving lime, surkhi (even though cement had been invented in 1824) and brickwork was solid, but it had been built in a seismically active zone. Modern technology would have wanted the dam to be decommissioned and reconstructed with modern technology, because this old dam poses a risk to the lives of 3.5 million people.

The dam, when constructed, was expected to last for 50 years. It lasted much longer, before major leaks were observed in the late 1970s. The Kerala government, based on expert advice, took the stand that the dam is not safe and that a new dam ought to be constructed in its place. The governments of Kerala and Tamil Nadu and also the central government were deeply concerned and were on the verge of reaching a unanimous decision to construct a new dam. However, this thinking process dragged on for too long.

Then, in 2000, a PIL was filed with which the Tamil Nadu government took an adversarial stand. In 2006, the Supreme Court held that the dam was safe and that even if it breaks, the flood waters would flow in the natural course of the river to the Idukki reservoir, and that the Idukki reservoir would be able to contain the entire flood waters.

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The government of Kerala thought the judgment to be erroneous, especially taking into account the frightening implications if the dam broke. The Kerala government brought in a legislation limiting the storage capacity of the dam to 136 feet. The State of Tamil Nadu challenged the constitutionality of the Kerala legislation. Realising that no dam can remain in perpetuity, especially a dam made of lime and surkhi, the Kerala government made a budgetary provision for the construction of a new dam.

In 2014, came the judgment of the five-judge constitution bench of the then Chief Justice of India RM Lodha. The Supreme Court held that in 2006, a three-judge bench had found that the dam is safe, and therefore, the question as to the safety of the dam cannot be re-agitated, for to do so is barred by the doctrine of res judicata. The Court rejected the plea of the Kerala government for the construction of a new dam at its own cost on the ground that the Supreme Court had held the dam to be safe in 2006 and, therefore, the issue of safety cannot be re-agitated.

In this, we have to remember that a dam is not a static entity. Every fluctuation in the water level creates stress and strain on the dam structure. A dam, like all man-made structures, has a life. It cannot remain safe infinitely. The doctrine of res judicata has its limitations, as far as such instances are concerned. There is a school of thought which believes that this doctrine is founded on the realisation of Roman lawyers of the undeniable truth that no judge can assuredly ascertain the facts correctly, but that for the sake of finality and to avoid the scenario where parties to the same dispute re-agitate the issues, even an erroneous decision of a court ought to be accepted as truth.

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The ideal situation for the doctrine of res judicata to apply would be that the Court should have jurisdiction of the subject matter, the parties to litigation must be the same, the cause of action should be the same, the dispute should have been adjudicated on its merits, etc.

However, the basics may have changed from the last judgment. As pointed out before, a dam is not a static entity. Laws of physics say that with the passage of time the structure deteriorates, becomes weaker. Added to that are changes in the seismic activity of the area, also affecting the safety of the dam. With the basics having changed substantially, one believes that the doctrine of res judicata has no application. Whatever the reading of the Court in 2006, might not have been applicable eight years hence. The textbook application of the doctrine here may not have been the correct approach.

There have also been undeniable external changes, such as the climatic changes through global warming. This has led to drastic changes in the monsoon pattern, evident all across the country. The quantum of rainfall has substantially increased, so has density of rainfall at a given time. In 2006, even at the peak of the monsoon season, the Idukki reservoir remained only half full. Now, every monsoon, the gates have to be opened. The Mullaperiyar dam is believed by many experts to be far more susceptible to a breach than it was in 2006. However, the Kerala government cannot construct a new dam because in 2014, that plea was rejected by the Supreme Court. The only saving grace is that, apparently to overcome the judgment of the Supreme Court, the central government has brought in the Dam Safety Act of 2021. But it is doubtful whether the Kerala government will proceed to construct a new dam in the teeth of the judgment of the Supreme Court of 2014.

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No prudent man can remain satisfied in the blind faith that the dam will not break. On the contrary, one should prepare to meet any eventuality, namely, that the dam may give away in the coming monsoons. Sadly, nothing is done except the forming of a few committees titled “Supervisory Committee, committee under the Disaster Management Act”, etc.

It is time this issue is further examined and, for the sake of the safety of the people at large, let us pay more heed to science than to legal strictures. Possibly this exception will prove the rule.  

Repair work on the Mullaperiyar dam

To be clear, repairs and changes have been made to the Mullaperiyar dam from time to time. When cracks did appear, a study was conducted by the Centre for Earth Science Studies, which reported that the dam will not be able to withstand an earthquake beyond magnitude 6 on the Richter scale. And this dam has been built on a seismically active zone.

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Then in 1979, the Tamil Nadu PWD took some steps, as per the recommendations of the Central Water Commission. These were:

  • Grouting of the old dam with concrete.                     
  • Guniting (a process used in construction for slope stabilization and various other rehabilitation purposes in the construction of retaining walls, water retaining structures and concrete repair works) the upstream face of dam.
  • Cable anchoring of the dam’s structure with the foundation throughout its length.
  • RCC (Reinforced Concrete Construction) capping on top of the dam at height above 145 feet.
  • Building a 10 m RCC concrete backing structure with 10 feet foundation up to height of 145 feet     in downstream face of dam and binding the RCC structure using shear keys and concrete grouting with the old structure and the foundation along the downstream face of dam.
  • And some more.

The issue is that despite all this, the old dam still remains critically placed.

Mathews J Nedumpara

The writer is a lawyer practising in the Bombay High Court. The opinions expressed are entirely his own.

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