NEW DELHI: The Supreme Court on Wednesday said it is not deciding about the distribution of water as the issue is regarding safety of the 126-year-old Mullaperiyar dam and the first question to be addressed is what quantity of water the reservoir can withstand.
While hearing arguments on the pleas which have raised issues pertaining to the dam, the court said that rule curve may be the most crucial issue for deciding about safety of the dam.
Senior advocate Jaideep Gupta, appearing for Kerala, told a bench headed by Justice A M Khanwilkar that the process for setting up a new dam in the downstream reaches of the existing dam should start and the upper rule level of Mullaperiyar dam should be 140 feet and not 142 feet.
He told the bench that the issue is not about sharing of water but it relates to the safety of the dam.
"Frankly, we are not here deciding about the distribution of water... The first question to be addressed is this dam can withstand what quantity of water. That quantity is defined in the form of rule curve," said the bench, also comprising Justices A S Oka and C T Ravikumar.
Gupta argued that Kerala is before the apex court saying that the dam is not safe as it stands.
The bench said the state has broadly raised four points -- height of water level, release of water and modalities for that, modernisation of the instrumentation and regular supervision and maintenance of the dam.
The state's counsel said there are one or two other issues and Kerala has suggested that the supervisory committee should be re-constituted and its functions should be expanded.
Gupta said they have suggested that both Kerala and Tamil Nadu should have their technical members in the committee.
He said the other long-standing issue for Kerala is the process for setting up a new dam has to start. The bench observed that the central government's presence is essential for that.
"As I said, the dispute is not relating to sharing of water. It is relating to dam safety. Kerala is before your lordships saying that the dam is not safe as it stands. Safety depends upon the height of the water in the reservoir...," Gupta said.
He said the peak level should be 140 feet and not 142 feet as at the peak of monsoon, if the level is kept at 142 feet and the monsoon continues, it goes beyond 142 feet.
The bench observed that this issue of upper level has been considered by the apex court earlier.
"If it is decided, unless there is change in circumstances, why it needs to be changed," the bench asked.
Kerala's counsel said there is change in circumstances according to them and the climate change, which is seen in the region, is one of them.
The hearing would continue on Thursday.
