PUNJABWATERS — SYLCANAL
Nature has endowed Punjab with abundance of water in the shape of five perennial rivers. And the Punjabi farmer through his industriousness harnessed this natural wealth and created fertile, rich and prosperous farms. But due to the partition of the country a major portion of these fertile, rich and irrigated fields were left in Pakistan.
After independence and particularly in the context of reorganization of Punjab, the sharing of the river waters of Punjab has remained a vexed issue.
In 1955, an agreement was entered regarding the distribution of waters, both flow and storage, from the Ravi and Beas estimated to be 15.85 MAF over and above the actual pre-partition use. Under this agreement 8.00 MAF of water was allocated to Rajasthan, 0.65 MAF to Jammu and Kashmir and 1.30 MAF to PEPSU. On the merger of PEPSU with Punjab in 1956, the share of composite Punjab rose to 7.20 MAF.
In 1960 the Indus Waters Treaty was signed between India and Pakistan under which the waters of the rivers Ravi, Beas and Sutlej were reserved for exclusive use by India after the transition period.
The State of Punjab was reorganized in 1966. The Punjab Reorganization Act, 1966 makes provision for distribution of assets and liabilities between the successor States. Section 78 provides for the apportioning of the rights and liabilities of the existing State of Punjab among the successor States in relation to the Bhakhra-Nangal Project and Beas Project, by agreement entered into by the States after consultation with the Central Government, and if no agreement is entered into within two years, as the Central Government may by order determine having regard to the purposes of the Projects.
Acting under Section 78(1) for the Punjab Reorganization Act, 1966 the Central Government on 24th March, 1976 issued a notification that out of the available 15.2 MAF waters of the Sutlej, Ravi and Beas, Punjab and Haryana would be allocated 3.5 MAF each, Delhi would get 0.20 MAF and 8.0 MAF were allocated to Rajasthan.
Punjab was dissatisfied with this allocation and filed a suit in the Supreme Court challenging the validity of Section 78 of the Punjab Reorganization Act, 1966. Haryana also filed a suit for implementing the Central Government’s order dated 24.3.1976.
While the matters were yet pending in the Supreme Court an agreement was executed between the concerned States of Punjab, Haryana and Rajasthan on 31.12.1981. In this agreement the flow series was changed from 1921-45 to 1921-60, which had the result of increasing the availability of Ravi Beas waters from 15.85 MAF to 17.17 MAF. The allocation made under this agreement was as under:
Haryana (non-riparian) = 3.50MAF
Rajasthan (non-riparian) = 8.60 MAF
Delhi (non-riparian) = 0.20 MAF
Punjab (riparian) = 4.22 MAF
Jammu and Kashmir (riparian) = 0.65 MAF
Under Clause IV of this agreement Punjab and Haryana withdrew their respective suits from the Supreme Court.
But the controversy still persisted and the sharing of the waters of the Punjab rivers remained an emotive issue in Punjab politics. On 24th July 1985, Punjab Settlement (Rajiv-Longowal Accord) was reached. Paragraph 9 of the Punjab Settlement deals with the sharing of river waters and is reproduced below:
“9. Sharing of River Waters
9.1 The farmers of Punjab, Haryana and Rajasthan will continue to get water not less than what they are using from the Ravi-Beas system as on 01.07.1985. Water used for consumption purposes will also remain unaffected. Quantum of usage claimed shall be verified by the Tribunal referred to in Para 9.2 below.
9.2 The claim of Punjab and Haryana regarding the shares in their remaining waters will be referred for adjudication to a Tribunal to be presided over by a Supreme Court Judge. The decision of this Tribunal will be rendered within six months and would be binding on both parties. All legal and constitutional steps in this respect to be taken expeditiously.
9.3 The construction of SYL canal shall continue. The canal will be completed by 15th August, 1986.”
Pursuant to the Punjab Settlement, the Parliament inserted a new Section (Section 14) in the Inter State Water Disputes Act, 1956, which incorporates by reference Paragraphs 9.1 and 9.2 of the Punjab Settlement. The said Section is in the following terms:
“14(1) Notwithstanding anything contained in the foregoing provisions of this Act, the Central Government may, by notification in the Official Gazette, constitute a Tribunal under this Act, to be known as Ravi and Beas Waters Tribunal for the verification and adjudication of the matter referred to in paragraph 9.1 and 9.2 respectively of the Punjab Settlement.
(2) When a Tribunal has been constituted under Sub-section (1), the provisions of sub-sections (2) and (3) of Section 4, Sub-section (2), (3) and (4) of Section 5 and Sections 5A to 13 (both inclusive) of this Act relating to the constitution, jurisdiction, powers, authority and bar of jurisdiction shall, so far as may be, but subject to sub- section (3) hereof, apply to the constitution, jurisdiction, powers, authority and bar of jurisdiction in relation to the Tribunal constituted under sub-section (1).
(3) When a Tribunal has been constituted under sub-section (1), the Central Government alone may suo moto or at the request of the concerned State Government refer the matter specified in Paragraphs 9.1 and 9.2 of the Punjab Settlement to such Tribunal.”
On 2nd April, 1986, the Central Government in exercise of the powers conferred upon it by sub-section (1) and sub-section (2) of Section 14 of the 1956 Act constituted the Ravi and Beas Waters Tribunal (Eradi Tribunal). This Tribunal submitted its report on 30.01.1987 and determined the allocations as under:
Rajasthan (non- riparian) = 8.60 MAF
Haryana (non-riparian) = 3.83 MAF
Delhi (non-riparian) = 0.20 MAF
Punjab (riparian) = 5.00 MAF
Jammu and Kashmir (riparian) = 0.65 MAF
But the Tribunal in determining the shares went beyond the terms of reference and committed errors of jurisdiction. Consequently, the State of Punjab filed an application under Section 5(3) of the Inter States Water Disputes Act, on 9.8.87, highlighting the various errors in the report of the’ Tribunal and sought a review of the award. It also filed further submissions in support of the application on 2nd March, 1998. The said application is still pending before the Tribunal.
The State of Haryana filed Suit No. 6/1999, for a decree declaring that the order dated March 24, 1976, the Agreement of December, 31-12-81 and the Settlement of July 24, 1985 are final and binding on the State of Punjab and for a mandatory injunction to the State of Punjab to discharge its obligations under the above said agreements/ orders by immediately restarting and completing the portion of the SYL Canal, which falls in its territory and to make it suitable for use in a time bound manner. The Supreme Court vide its judgment and order dated 15.1.2002 directed the State of Punjab to continue the digging of Sutlej Yamuna Link Canal, portion of which has not been completed as yet and to make the canal functional within one year from that date. It further directed that in the event the SYL canal is not completed by the State of Punjab within a period of one year then the Union Government should get it done expeditiously. The Supreme Court rejected the submissions made on behalf of the State of Punjab that the dispute regarding the construction of the SYL canal falls within the scope of the Inter-States Water Disputes Act, 1956 and consequently the jurisdiction of the Supreme Court is barred on a combined reading of section 11 of the Inter-States Water Disputes Act and Article 262 of the Constitution. The State of Punjab also raised some other pertinent issues before the Supreme Court, namely
i. That the validity of the order dated 24th March, 1976 as well as the agreement dated 31.12.1981 has been challenged before the Ravi-Beas Water Tribunal and the report of the said tribunal has not become final in as much as the application filed by the State of Punjab under Section 5 (3) of the Act has not yet been disposed of.
ii. Section 78 of the Punjab Reorgainsation Act makes no reference to river Ravi and therefore question of conveying any water from river Ravi through SYL canal does not arise. The claim of Haryana over and above the allocations made in the Beas Project were neither legal nor proper and was only for extraneous considerations.
iii. The allocation of 3.5 MAF to Haryana would deprive the State of Punjab of irrigation facilities to lakhs of acres of land which is being irrigated in the State of Punjab.
But the Supreme Court was not persuaded. It traced the genesis of the allocation of water and held that in view of the allocation of water in favour of the State of Haryana and the agreements entered into between the States in the presence of the Prime Minister of India (a reference to the agreement of 31.12.1981) which led to the withdrawal of the earlier suits filed in the Supreme Court now the States cannot be permitted to take a stand contrary to the agreements arrived at between themselves.
Immediately after the above judgement was rendered on 15.1.2002, a review petition was filed in the Supreme Court by the State of Punjab but the same was dismissed.
I am pained to mention here about the way the river water issue has been handled on all these occasions. Allocating 8.0 MAF to Rajasthan (a non- riparian State) in 1955, 1976 and later also is not justified on riparian principles. The decision to withdraw the suit pending in the Supreme Court in terms of Clause IV of the 1981 agreement was in my humble opinion a blunder so far as the interest of the State of Punjab is concerned. Taking Ravi waters into consideration for allocation in the agreement of 1981 was a clear violation of the mandate of Section 78 of the Punjab Reorganization Act. Even the Rajiv-Longowal Accord of 24.07.1985 so far as the legal aspect of the water dispute is concerned did not recognize all the claims that the State of Punjab had as per the riparian law.
In the light of the above factual and legal position, it has to be decided as to what is the best option available to the State of Punjab in the circumstances so that the interests of the Punjab are served in the best possible manner.
Recently the Hon’ble Supreme Court in the case of State of Karnataka vs. State of Andhra Pradesh 2000(3) SCALE 505 held that under Section 6 of the Inter-State Water Disputes Act, the Central Government is duty bound to publish the decision of the Tribunal in the Official Gazette, whereafter the said decision becomes final and binding on the parties to the dispute and has to be given effect to by them.
In view of the above referred decision of the Supreme Court, there may be no remedy available with the State of Punjab once the Tribunal gives its Award on the Review Application and the same is notified by the Central Government. These developments lend great urgency to the case and in my view it is appropriate that we file a writ petition in the Supreme Court challenging the errors of jurisdiction and interpretation of the terms of reference made by the Ravi Beas Water Tribunal. This course will be feasible as the Supreme Court in 1991 Supp.(1) SCC 240 has held that the Supreme Court as the ultimate interpreter of the provisions of the Inter State Water Disputes Act, 1956, has authority to decide the limits, powers and jurisdiction of the Tribunal constituted under the Act.
The Supreme Court in the Presidential Reference on the Cauvery Water Disputes Tribunal AIR 1992 SC 522, has held that:
“ The provisions of Inter-States Water Disputes Act clearly show that apart from its title, the Act is made by the Parliament pursuant to the provisions of Article 262 of the Constitution specifically for the adjudication of the disputes between the riparian States with regard to the use, distribution or control of the waters of the Inter-State rivers or river valleys.”
In view of this decision, it is possible to argue that Section 14 of the Inter State Water Disputes Act, 1956, which has been inserted pursuant to the Punjab Settlement is ultra vires Article 262 of the Constitution, in as much as it seeks to determine the dispute regarding the shares claimed by Haryana in the Ravi Beas Waters qua which Haryana is a non-riparian State, and hence this dispute cannot be resolved by taking recourse to the provisions of the Inter State Water Disputes Act. However before undertaking to challenge the provisions of Section 14 of the Inter State Water Disputes Act, it is necessary to keep in view the fact that it is only by virtue of Section 14 of the Inter- States Water Disputes Act that the Punjab Settlement of 1985 has statutory sanction. If Section 14 of the Inter States Water Disputes Act, 1956 is ultra vires of Article 262 of the Constitution then there is no mechanism to enforce the Punjab Settlement. Further if Section 14 is ultra vires then the field will be left open to apportion the shares of the River waters under Section 78 of the Punjab Reorganisation Act, under which in the absence of an agreement between Punjab and Haryana the matter is left open for determination by the Central Government. Resultantly it may be a fall back on the 1981 agreement which has been viewed as unfair and led to an agitation against enforcing it in Punjab and has also been repudiated by the Punjab Assembly by a resolution dated 5.11.1985. The 1981 Agreement in taking into consideration the Ravi Waters may also be said to be a violation of Section 78 of the Punjab Reorgainsation Act, 1966, which in terms is limited only to apportioning the rights and liabilities of the existing State of Punjab in relation to the Bhakhra Nangal Project and the Beas Project.
Further insisting on a solution strictly within the parameters of Section 78 of the Punjab Reorganisation Act, may not be in the best interest of the State of Punjab as in that event the Central Government will become the ultimate arbiter in apportioning the shares between Punjab and Haryana in the absence of any agreement between them.
Moreover Section 78 to 80 of the Punjab Reorganisation Act vesting the control and distribution of the exclusively Punjab Rivers and Hydel Power in the Central Government may be said to be unconstitutional as it constitutes an encroachment on the exclusive powers of the State under Entry 17 List II of the Seventh Schedule of the Constitution.
The endeavour should be to have the water shares of the Punjab Rivers determined on acknowledged principles of distribution and allocation between the riparian States namely on the basis of the equitable share of each State. This will be possible if the matter is adjudicated afresh without the fetters imposed by Section 78 of the Punjab Reorganisation Act and the agreements/ decisions based thereon as also Section 14 of the Inter States Water Disputes Act, 1956.
Therefore in my view the following immediate steps need to be taken:
i. The vires of Sections 78 to 80 of the Punjab Reoganisation Act, 1966 be challenged in the Supreme Court and a declaration be sought that all the agreements/ decisions consequent thereof are null and void and of no effect.
ii. Section 14 of the Inter-State Waters Disputes Act, 1956 be challenged as being ultra vires of Article 262 of the Constitution of India
iii. The Award of the Ravi-Beas Tribunal be also challenged at the earliest.
The above course was recommended by me as Advocate General, Punjab and the same was agreed to by the Punjab Government in October, 2001. However strangely, no tangible steps in pursuance thereto seem to have been taken in this regard so far.
Before concluding, I would humbly submit that though all the States in India can legitimately claim and struggle to protect their Constitutional and legal rights, yet we must not lose sight of the fact that we are one nation in whose survival and integrity we all have a stake. The people of Punjab can claim legitimate pride that their contribution to making India what it is today, is perhaps the maximum. It is the duty of each State to cooperate and help the less fortunate ones.
It devolves on the political leadership of the country and each State to ensure that the resources of the nation, be it waters, energy or minerals are harnessed in the best possible way so that no State or region is denied its legitimate share and all can progress in a spirit of co-operation, harmony and give and take. In this context the long pending project of linking the major rivers of the country to control floods and drought, which the Supreme Court now impressed upon the Union Government to try and complete by 2012, is significant, which when achieved may solve lots of problems.