HOW KRISHNA WATER TRIBUNAL WAS MISGUIDED BY THE STATES AND UNION MINISTRIES AND INDIRECTLY MADE THE TRIBUNAL TAKE UNJUST AND ILLEGAL DECISION ON ALAMATTI DAM
Director, Center for Environmental Studies,
GITAM University, Visakhapatnam.
Abstract: The Krishna Waters Disputes Tribunal has taken into consideration very sound principles of law for making them the foundation for pronouncing a just judgement on equitable apportionment of Krishna river water among the basin states of Maharashtra and Karnataka and Andhra Pradesh. Unfortunately the officials, engineers, experts and the advocates appear to have worked in isolation without coordination among the representatives of any single state and consequently could not present coherent answers to specific issues raised by the Tribunal Members in presenting scientific and technical reports on the damaging impacts of backwater levels in the catchment area of the dam in Karnataka and Maharashtra states and also on the dam break analysis and disaster management reports as per the environmental protection act rules and regulations and guidelines along with the injuries likely to be caused in the command area of the Alamatti dam in hundreds of villages in Karnataka and Andhra Pradesh. Consequently the tribunal was indirectly prevented by these states from pronouncing a just judgement on the increase in the height of the Alamatti dam and thereby millions of farmers and farm workers will have to face the problem of losing the right to life and the right to livelihood. Even today if the states make honest attempts to avoid sacrificing the lives of millions of human and cattle population and valuable properties in the basin states scientific and technical evidence must be presented before the tribunal before the end of March2011 to enable the tribunal to take corrective actions to safeguard the interests of the people of the basin states and the economic wealth of the nation by implementing the principle of development without destruction.
a) SOUND LEGAL PRINCIPLES TAKEN INTO CONSIDERATION BY THE TRIBUNAL:
The Krishna Water tribunal stressed that the harm versus benefit balancing test is also an integral part of the doctrine of equitable apportionment of the common river waters. (Page 627 of KWDT report). The tribunal stated that in larger public interest even where the benefit obtained by the unilateral action of a river basin state outweighs the harmful disadvantages likely to be suffered by a lower state the tribunal may not interfere in such a case. Since mere apprehension or frivolous objections by one state cannot stop any project taken up by another state in the river basin unless the objecting state establishes its legal right and vital or substantial injury to it.
The tribunal also admitted that if vital interests are substantial injury is involved to the upper or lower riparian states such injury based upon the facts of the case may sometimes be such that it may not be possible to compensate or the damaging costs may outweigh the benefit which may be obtained by the construction of the project by a state, that is to say where they harm caused to one state is more than the benefit obtained by the construction of the project by another state, the project may be objected by the state that suffers and so the factual position will be important in each case (Page 676 of KWDT).
b) Alamatti dam construction in Stages-I, II and III
Initially the Brijesh Kumar Tribunal was requested to restrict the height of the Alamatti dam to 512.5m by Maharashtra state and to 515.0 m by Andhra Pradesh and both the states opposed the increase in height of Alamatti Dam to FRL at 524.26m as it would result in catastrophic situation for both the states. (Page 604 of KWDT). Originally, the Upper Krishna Project ( UKP )omprised the Alamatti Dam and Narayanpur dams .The UKP State-I was approved in 1963 for utilizing 119 TMC and stage-II was approved on 31-5-2000 for FRL of 519.6m for utilization of 173 TMC (Page 607 of KWDT) and Stage-III for utilization of additional 130 TMC by raising the height of Alamatti dam from 519.6m to 524.26m was proposed by Karnataka and is approved by the Krishna Water Disputes Tribunal (KWDT) and this proposed increased is opposed at present by Maharashtra and Karnataka states which have been given time to make further representations on the findings of the tribunal upto the end of March 2011 and for demanding the tribunal to revise the present orders on increasing the height of the Alamatti dam and pass the final award after hearing the Appeals from the states and the Union Government.
But Karnataka wants to go to Supreme Court to get Alamatti dam height increased to 528.3meters
During the previous hearings on Krishna Water Disputes since 2004, the Brijesh Kumar Tribunal members put searching questions to the expert panels of officials and engineers and advocates of Maharashtra,Karnataka and Andhra pradesh to present evidence to show what kinds of substantial injuries and disadvantages the Maharashtra and AP States will experience if the height of the Alamatti dam is increased from 519.6m to 524.26m.as requested by the Karnataka state Government.
2) WHY ANDHRA PRADESH ARGUMENTS FAILED TO CONVINCE THE TRIBUNAL TAKE A JUST DECISION ON INCREASING THE HEIGHT OF THE ALAMATTI DAM:
Andhra Pradesh (A.P) State raised objections before the tribunal that Alamatti dam should be restricted with its FRL upto 515m which along with the storage at Narayanapur will be adequate to utilize 160 TMC allotted to Upper Krishna Project by Bachawat Tribunal. (Page 637 of KWDT Report) Alamatti dam height upto 519.6m was permitted by Supreme Court on 25-4-2000 for using 173 TMC under Stage-I and II of the project. AP state argued that increasing height of the dam upto 524.26m would spell disaster to AP State as its irrigation projects planned to utilize 75% dependable waters of Krishna would fail. But Karnataka experts wanted additional 130 TMC under Stage-III of Upper Krishna Project (UKP) to increase utilization from 173 TMC to 303TMC by increasing the storage FRL to 524.26m.
The objection of AP was overruled by the tribunal by stating that a co-riparian state will have no right to veto the project of another basin state unless there is some substantial and vital injury to such a state. (Page 643 of KWDT report) With the assistance of the river gauge readings from the Central Water Commission (CWC) the tribunal stated that the inflows from Krishna into AP State on an average amount to 932 TMC and even if there is a reduction of 230 TMC due to increase of Alamatti upto 524.26m still the inflows into Andhra Pradesh will be 702 TMC. Hence the contention that the inflows into AP State due to increase in height of Alamatti dam would reduce to a negligible quantity was not accepted by the Tribunal (Page 657 of KWDT report). In this connection while the AP sate Government told the tribunal that with FRL 519.6m of Alamatti dam the loss of Krishna water inflow to AP state will be 121 TMC and this view was contradicted by AP State expert Dr.MS Reddy who estimated such loss of inflow at 70 TMC (Page 651 of KWDT) . Thus the tribunal felt irked at the different points of view expressed by the experts on behalf of the AP State. If the AP state experts presented evidence on the Dam Break Analysis and the tricky problems involved in implementing the Emergency Action Plans and the consequential economic costs of damage for human and animal populations, agriculture and other infrastructure facilites the project could have been proved as not only highly injurious but also economically unviable resulting in cancellation of the project by the Tribunal but AP state officials, engineers, experts and advocates failed to do it and thereby sacrificedthe interests of the state.
3) MAHARASHTRA FAILED TO PROVE THAT IT SUFFERS INJURY DUE TO RAISING OF ALAMATTI DAM HEIGHT:
Maharashtra state Government failed to show to the tribunal that their state will experience substantial injury and economic losses due to frequent submersion of lands consequent to increased backwater levels caused by the back push of the flood waters by the obstruction of Alamatti dam in the path of the natural flow regime of Krishna river in the mode of its open channel flow. Submersion is caused by a dam to villages which will be permanently submerged under the reservoir created by the dam. Submersion of lands occurs on either side of the upstream side of a dam and construction of afflux bunds helps to contain the flood waters without flowing over the river banks. Submersion along the reservoir margins occurs due to siltation and the consequential increase in the level natural floods
a) Auditors Report for 2006 confirms serious injury and economic losses to Sangli due to backwater afflux caused by Alamatti Dam: The Auditors report of Maharashtra state for the year 2006 presented elaborate report on the failure of the state to avoid flooding of Sangli for 10 days in August 2005 due to the backwater levels from Alamatti dam.
"Almatti Dam : Delay in raising alarm :The height of the Almatti Dam in Karnataka, constructed (1978-1989) on the river Krishna, flowing down from Maharashtra was the subject matter of a Supreme Court case. Technical studies conducted in the past by GOM indicated that the territory of Maharashtra in the vicinity of Sangli Town (RL- 518 Meters) would come under submergence, if the full reservoir level (FRL) was kept at 519.60 M Supreme Court allowed FRL upto 519.60 M (2000) expecting the issue of submergence to be adjudicated by a competent tribunal.
Clearance for raising storage level to 519.60 M was accordingly given by GOI (Central Water Commission and Planning Commission) subject to the condition that water storage level shall be so regulated, by discharging sufficient water, that there would not be any submergence in the territory of Maharashtra.
In monsoon-2005, the Karnataka Government did not care to pre- deplete the reservoir for avoiding submergence in Maharashtra till 31 July 2005. Water storage due to heavy rainfall had reached full reservoir level (FRL-519.60 M) on 26 July 2005 itself. First letter for releasing water from Almatti Dam was written on 3 August 2005 to Karnataka, after Sangli got flooded fully. The Government of Karnataka from 31 July 2005, started releasing water from 519.60 M to 519.10 M and upto 517.20 M on 4 August 2005. Sangli remained under prolonged submergence for seven to eight days, mainly due to back water effect of Almmatti Dam, affecting many families, towhom GOM had granted relief assistance of Rs 58.78 crore. This could have been avoided, had the conditional clearance to the project by GOI been timely monitored by keeping close vigil on water levels in the Almatti dam by keeping a note of it in the State Disaster Management Programme ( DMP.)
see website for details:
Maharashtra argued before the tribunal that since its ground level and the Karnataka border on the Krishna river is 518 meters the FRL of Alamatti should not be above 518meters to prevent submersion of Maharashtra territory. But Karnataka stored water upto 519.6meters during 2002 -2003 submergisng Maharahstra territory without the consent of Mahrasthra (Page 609 of KWDT report) Further Maharahstra wrote to Central Water Commission that storage level at Alamatti may not be cleared beyond FRL 512.2meters as that may result in submergence of Maharashtra territory unless Maharahstra consented for it. (Page 610 of KWDT report) Having thus objected to the level of Alamatti beyond 518meters due to backwater submersion due to the dam when it came to presenting scientific evidence before the tribunal the Government did not present a scientific and technical reports on submersion due to backwater levels caused by the existing Alamatti dam.
b) Experts of Maharahstra told the Tribunal that Maharashtra will not face flood havoc due to backwater levels caused by the Alamatti dam inspite of the past experience of August 2005:
Maharashtra produced an expert before the tribunal and examined Mr.S.Y.Shukla on the point of submergence of Maharashtra due to Alamatti dam with FRL at 519.6m. Unfortunately Mr.Shukla admitted that there will be no submergence in Maharashtra region due to increase in the FRL of Alamatti dam but for the effect of siltation which occurs in the reservoir. Even Karnataka examined its experts witness on the point of siltation and another expert also gave an opinion on behalf of Maharashtra about the annual silt load. c) Study by M/s.Tojo Vikas says there was to be no backwater effect and no submergence on account of silation and Maharashtra fails to file objections against this incomprehensive report: M/s.TOJO Vikas, International company also engaged by the Government to make an independent indepth study on siltation study when the tribunal asked the advocate he stated that no objections were to be filed on these studies. According to this study there was to be no backwater effect also the study indicates no submergence on account of siltation in Hipparigi and Alamatti dam and Maharashtra told the tribunal that they do not propose to file any objections to the reports submitted by the Tojo Vikas firm in whose study report on page-12 it is indicated that the lowering of the FRL at Alamatti dam offers no advantage to Maharashtra and it was held that so far the flood levels are concern, they continued to be the same as at pre-dam level (page 632 of KWDT). It is shocking to realize how Maharashtra has accepted this view that Alamatti dam will not cause any change in the flood levels in Maharashtra territory although the ground level of Maharashtra at Karnataka border in between Narsobavadi and Ankali is 518m above the mean sea level while the full reservoir level of Alamatti is proposed to be kept at 524.26m in the initial stages which may be ultimately taken to 528.8m for hydro power generation. Since water flows from a higher to a lower level any person with common sense can understand that Maharashtra territory will be highly flooded due to Alamatti dam. Surprisingly when a joint study by the Karnataka and Maharashtra Engineers were made to evaluate the potential submersion of Maharashtra territory due to Alamatti dam they jointly certified that even Alamatti dam is raised upto FRL 524.26m there will not be any submersion in Maharashtra due to Alamatti and this report was accepted by the CWC.
d) Backwater levels based on open channel flow hydraulics were not prepared by Maharashtra: The most crucial aspect of submersion of lands upstream of a barrage/dam occur due to the build up of these flood level during extreme flood flows that occur during rainy season due to vigorous monsoon rainfalls caused by prolonged depressions and cyclones with great intensity caused by impacts of climate change and such back water levels have to be calculated based upon principles of open channel flow hydraulics. In the present case Krishna water Tribunal has considered only back water level impacts caused by Alamatti dam only from the angle of siltation and sedimentation which does not deserve so much of attention in preference to more serious problem of build-up of back water levels to be estimated on the fundamental principles of open channel flow. Perhaps the Brijesh Kumar Tribunal members were completely misguided on this crucial factor which governs public safety rehabilitation and resettlement, ecological and environmental damaging impacts on agriculture and animal husbandry, Emergency Action Plans, construction of embankment structures to provide flood proof facilities for hundreds of villages in Karnataka and Maharashtra and the cost benefit analysis which perhaps shows that the proposed project for raising the Alamatti dam becomes economically unviable and thereby forces the Karnataka state to build safer and economical barrages and small dams in preference to this killer Alamatti dam. .
e) Experts of Karnataka, Maharashtra and CWC stated that no injury occurs to Maharashtra due to increased level of water storage upto 524.26m at Alamatti dam:
Irrigation experts also point out that a joint survey by engineers from both States, which was later cleared by the Central Water Commission (CWC), stated that villages upstream up to and beyond Sangli would not be flooded even when the water level at the Almatti dam reached 524.256 m.
See the following article on "DEVASTATION AND DISPUTE" in FRONTLINE MAGAZINE,Chennai
See the following article on "DEVASTATION AND DISPUTE" in FRONTLINE MAGAZINE,Chennai
It means that the experts of Maharashtra and CWC took a very narrow view of the critical impacts of Back water Levels arising from extreme floods during rainy seasons,depressions and cyclones of prolonged duration along with the CWC and consequently their decisions are bound to be very harmful to the interests of lakhs of farmers of Maharashtra and the interests of lakhs of people in the several towns and cities of Maharashtra whose lives and properties have to be sacrificed for the sake of an unsafe, uneconomical and environmentally hazardous and that too a killer dam at Alamatti which may burst in its life time as envisaged by the Karnataka Irrigation minister who consulted his experts and concluded the the safety of Dams in Karnataka and Andhra Pradesh is in danger for many reasons and so warned the union Government to take remedial action in time as seen from web site:. http://www.hinduonnet.com/2000/10/08/stories/0408210c.htm
4) UNION MINISTRIES GRANT REDUNDANT CLEARENCES FOR THE DAM AND MISLEAD THE TRIBUNAL:
The conditional clearances given by the Union Ministries are like the conditions imposed by the judge in the Shakespearean drama of Merchant of Venice where the plaintiff , the greedy merchant Shylock will be directed to take his pound of flesh from the body of his victim without a drop of blood. Such conditional clearances which are not implementable amount to virtually no clearances at all.
a) TAC Clearance for Stage-II of Alamatti Dam: When Karnataka wanted clearance for Stage-II of Alamatti dam, the Technical Advisory Committee gave conditional clearance on 31-5-2000 insisting on restricting FRL 519.60m and utilization of 173 TMC under Stage-I and Stage-II of the UKP subject to Environmental clearance and also subject to the operation of the project in such a manner that there will not be any submergence in Maharashtra territory.
b) Environmental Clearance: The Environmental clearance for Stage-II of Alamatti was given by the Union Ministry of Environment on 4-10-2000 subject to the condition that Karnataka will submit Dam Break Analysis and Disaster Management Plan within 6 months.
c) AP State questions the correctness of the CWC report on dam break analysis: AP State advocate Deepankar Gupta questioned about the dam break analysis report for FRL 519.6m for Alamatti dam on 12-5-2009 and raised objections against the Dam Break Analysis work under taken by the CWC. But according to the dam break analysis report there was no fear of inundation of any villages below the dam because the flood wave will be contained within the banks of river and this recommendation was attacked on merits by the AP state
d) Karnataka objects to doubts raised by AP State: But unfortunately Karnataka stated that the dam break analysis got done through an independent and reliable agency and hence there should be no reason to raise any grievance or doubt on that account about this project submitted in February, 2002 almost after a delay of one year.
f) Tribunal avoided appointing "amicus curiae" to know the true facts on the impacts of dam break analysis on the correctness and impacts of Dam Break Analysis report: But surprisingly the Brijesh Kumar tribunal took a wrong view on this report and said “we also find that some efforts has been made on behalf of the State of Andhra Pradesh to question the correctness of the report but we do not think it would be a matter to be examined on merits by this Tribunal.
g) Doubtful Dam Break Analysis repsort: The tribunal hastly remarked that it has been indicated earlier also that according to the dam break analysis report, there was to be no inundation in the downstream area beyond the banks of the river. It shall be confined within the banks.
h) AP state failed to get the dam break analysis report confirmed by independent experts: Further AP State questioned why the disaster management report was not prepared under Rule 5 (iii) (a) of the Environmental Protection Rules 1986. But Karnataka said that when no inundation occurs according to the dam break analysis, no question of the next step of preparing Disaster Management Plan arose. (Page 671 of KWDT). These statements by the Krishna Water Tribunal and Karnataka state are invalid because AP State Government experts should have been questioned by the Tribunal whether the dam break analysis report prepared by the CWC for the Alamatti dam is scientifically correct and it should have been examined by independent experts to find out if the results show irreparable injury to the AP farmers and causes serious economic losses in terms of loss of agricultural production and hydro-power generation and any damaging impacts on the irrigation projects in Andhra Pradesh.
It is equally shocking that even representatives of AP State Government miserably failed to get the dam break analysis report examined by independent experts to know the true facts which will help them to demand the tribunal to stop from increasing the height of the Alamatti dam to FRL 524.26m that is how the AP state Government deliberately sacrificed the interests of lakhs of farmers in Telangana and coastal districts of AP.
5) BY PREACHING GOOD LAWS BRIJESH KUMAR TRIBUNAL MADE ILLEGAL DECISIONS ON ALAMATTI DAM
The Krishna Water Disputes Tribunal (KWDT) commenced the proceedings on Krishna river water allocation among the states based upon certain pre-conceived notions which do not hold good in the modern times when the planning and development activities including the irrigation projects came to be governed under a new public welfare measure of Environmental Protection which is covered by the rules and regulations under the Environmental protection Act 1986. Consequently the presumption of the Brijesh Kumar Tribunal on Krishna River waters that “the height of a dam is generally relevant in relation to the quantum of water which is require for utilization in a project” is not valid. (Page 598 of KWDT)
a) Design standards for major dams: In modern times the design of an irrigation project is based not only on the traditional skills and expertise of civil engineers but is also based on the principles of Environmental, economic and hydrological safety criteria which is again based on the special skills of meteorologists, hydrologists, ecologists , environmental engineers and social scientists. The engineering experts of the state and Central Governments failed to present the true facts that the modern design of a dam has to be based upon not only structural safety, hydrological safety but also environmental safety and the hazard potential that depends upon the human habitations and economic assets located downstream of a dam. The design of a dam is governed by the estimation of extreme floods and probable maximum floods for spillway design and backwater level calculations, dam break analysis, risk analysis, Emergency Action Plans, Environmental Management Plans, Rehabilitation and Resettlement schemes and cost benefit analysis. Unless all these factors are taken into account no expert can prepare a detailed project report for a safe dam for sustainable development in the fields of irrigation and hydro-power production.
b) Legal experts should not taken on the role of civil engineering and environmental science and technology experts: Consequently the decision on fixing the height of Alamatti dam cannot be rightly taken up by the Brijesh Kumar Tribunal members who are eminent experts in legal field and they may not come under the experts for design of dams by fixing its height as per the definition of an expert under Sec.45 of the Evidence Act. The Brijesh Kumar tribunal also committed a grave mistake when questioned about the correctness of the Dam Break Analysis report that they do not think it would be a matter to be examined on merits by the tribunal because nobody can prevent the tribunal to appoint independent experts panel as amicus curie to help the tribunal arrive at a just decision whether they can increase the height of the Alamatti dam without sacrificing the right to life and the right to livelihood of lakhs of farmers and agricultural workers who will be subject to drowning by flash floods in case of a failure of this Alamatti dam during the peak flood season.
c) Unscientific decision on height of Alamatti dam : Having presented very sound legal principles, as the basis for their actions, the Brijesh Kumar Tribunal miserably failed to examine the factual position by ordering the state and central government organizations to present true facts on the impacts of Dam Break Analysis and Disaster Management report for Alamatti Dam for different heights and wter storages to know their hazard potentials and backwater levels study reports to determine the Environmental impact under the Environmental Laws Consequently in the absence of such crucial true facts and figures that serve as primary evidence the lives of millions people and cattle populations and valuable properties of Maharashtra, Karnataka and Andhra Pradesh are being sacrificed by the Central and State Government short-sighted experts Consequently the Krishna Water Disputes Tribunal Members are disabled and deprived of their right to know to know the true facts on Environmental impacts of the Damand thereby indirectly forced to come to very wrong conclusions in increasing the height of the Alamatti dam upto FRL 524.26m instead of reducing its FRL to 515m and thereby direct the Government of Karnataka to utilize the additional 130 TMC not to build a hazardous and a killer dam in a highly seismic zone but build more safer and economical smaller dams and barrages to help the farmers of North Karnataka districts.
6) ALTERNATE SAFER AND ECONOMICAL SMALL DAMS AND BARRAGES SHOULD BE PREFERABLE IN PLACE OF A HAZARDOUS AND A KILLER BIG ALAMATTI DAM:
Infact the tribunal should have taken the cue from the Maharashtra project for transferring Krishna waters of about 150TMC from Koyna river through a tunnel and a canal for interlinking with Bhima river by discharging the water into Ujjain dam. Similarly the Krishna water from the existing dam at Alamatti can be pumped by a lift irrigation scheme over a short distance upto Bijapur from where the water will flow by gravity into Bhima river over which the required small dams and barrages canbe constructed to extend irrigation not only to Bijapur and Gulbarga but also to Bidar which is also drought-prone. One or two barrages can also be constructed in between Narayanapur and Jurala dams on Krishna river for irrigating more area in Raichur district. Thus the Krishna water tribunal must follow the principle of just allocation of river waters based upon harm versus benefit and cost versus profit and environmental safety and sustainable development under the circumstances the tribunal must make an entire review of the Krishna river water allocation to the basin state without jeopardizing the right to life and the right to livelihood of the farmers of Maharashtra, Karnataka and AP by following the principles and the spirit of the Bachawat Tribunal Award by making minimum necessary modifications to meet the ends of justice in the larger interests of the nation.