ASHIS BANERJEEASHIS BANERJEEDIRECTORDIRECTOR

CENTRAL WATER COMMISSIONCENTRAL WATER COMMISSION

Water a State List subject on which State has the power to make laws (refer-Entry 17, Entry 6 of List II, Seventh Schedule with Article 246)

However, Inter-state rivers and river valleys a Union List subject on which the Centre may make laws (Entry 56, List I)

Centre’s power to make law for Disputes relating to Inter-state rivers and river valleys (Article 262)

Panchayats and Municipalities obligation on water management (Eleventh &Twelfth Schedule with Article 243G, 243W)

List I Entry 56 (Union List)Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest

List II Entry 17 (State List)Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of List I

Article 262 Adjudication of Disputes Relating to waters of Inter-state Rivers or River valleys262(1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-state river or river valley

(2) Notwithstanding anything in this constitution, Parliament may by law provide that neither the Supreme Court nor any other Court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1)

Government of India Act 1935 Section 130  If a province (or State) felt that it was likely to be adversely affected due to distribution or control of water from any natural source, it could complain to the Governor General.

Section – 131 Except for complaints of trivial nature, the Governor General was required to refer any such complaints to a Commission for investigation and report. Jurisdiction of courts in regard to such disputes was barred.There was no entry in the Federal List of the 1935 Act corresponding to Entry 56 of List I of the Constitution.

Contd…

Section 19Section 19 Water, that is to say, water supplies, irrigation and Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and canals, drainage and embankments, water storage and waterpower.waterpower.

It was however, recognized that the use of inter-State It was however, recognized that the use of inter-State river waters could lead to disputes. Provisions of Section river waters could lead to disputes. Provisions of Section 130 and 131 under the 1935 Act were therefore made for 130 and 131 under the 1935 Act were therefore made for adjudication of such disputes.adjudication of such disputes.

In the Constitution, matters of national concern have In the Constitution, matters of national concern have been placed in the Union List and those of purely local been placed in the Union List and those of purely local concern in the State List.concern in the State List.

Certain subjects of legislation, which in the first belong Certain subjects of legislation, which in the first belong exclusively to the States, became the subject of exclusive exclusively to the States, became the subject of exclusive Parliamentary legislation if a declaration is made as Parliamentary legislation if a declaration is made as provided in the relevant Entries.provided in the relevant Entries. Contd…

Entry 56 of List I is one such case. Entry 17 of List II is subject to List-I. Clearly the framers of the Constitution recognized the need for Union control over waters of Inter-State rivers and river valleys for regulation and development.

But waters of inter-State rivers are not located in any one State. They only flow through their territories. No State, therefore, can lay claim to the exclusive use of such river waters and deprive other States of their just share. Since the jurisdiction of a State by virtue of Article 245 is territorially limited, only Parliament can effectively regulate by law, beneficial use and distribution of such waters among the States.

List I Entry 7 (Union List)Industries declared by parliament by law to be necessary for the purpose of defence or for the prosecution of war

List I Entry 23 (Union List)Highways declared by or under law made by Parliament to be national highways.

List I Entry 24 (Union List)Shipping and navigation on inland waterways, declared by Parliament by law to be national waterways, as regards mechanically propelled vessels; the rule of the road on such waterways.

Contd…

List I Entry 52 (Union List)Industries, the control of which by the Union is declared by Parliament by law to be expedient in public interest

List I Entry 54 (Union List)Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in public interest

List I Entry 56 (Union List)Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.

Contd…

List II Entry 17 (State List)Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of entry 56 of List I.

List II Entry 23 (State List)Regulation of mines and mineral development subject to the provisions of List I

List II Entry 24 (State List)Industries subject to the provision of Entries 7 and 52 of List I.

Under the Existing Constitutional Provisions, the Central Government has Enacted Two Acts so far

- RIVER BOARD ACT, 1956

- INTER STATE WATER DISPUTE ACT, 1956

Contd…

RIVER BOARD ACT, 1956 River Board Act, 1956 was enacted under

the provision of Entry 56 of List I River Board Act provides for creation of

Advisory River Boards The Act envisaged that the Boards would

help in coordinated and optimum utilisation of river water and development of irrigation, drainage, water supply, flood control and hydro power.

No River Boards, even of advisory kind has been set up under this Act.

Contd…

Enacted under Article 262 and provides for setting up of Water Disputes Tribunals for adjudication of disputes relating to inter-State rivers when negotiations do not lead to fruitful results .

i) The State Government may request the Central Government to refer a water dispute to a Tribunal for adjudication.

ii) Constitution of a Tribunal for adjudication of the water dispute by the Central Government

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iii)Tribunal to consist of one chairman and two members to be nominated by CJI from among the sitting judges of Supreme Court or of a High Court.

iv)Tribunal to be assisted by two or more assessors who are experts in Engg. and agriculture to be appointed by Central Govt.

v)The Tribunal to give report to Central Govt.vi)Tribunal to give Further report on explanation

or guidance sought by the Central or State Governments .

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vii)Decision of the Tribunal is binding on the parties to the disputes and shall be given effect to by them.

viii)The ISWD Act prohibits the reference of any dispute to a Tribunal which has already been referred to arbitration under the River Boards Act, 1956.

ix)Section 11 precludes all the courts including the Supreme Court from having jurisdiction in respect of any water dispute which may be referred to a Tribunal under the Act.

x)The Central Government shall dissolve the Tribunal after it has forwarded its report.

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River Boads envisaged under River Boards Act, 1956 are of permanent nature.

If a River Board exists for any particular basin, dispute or difference between the governments interested needs to be resolved within the provisions of the Act.

No River Boards could be established so far under River Boards Act, 1956.

In view of enactment of River Boards Act 1956, ad-hoc Water Disputes Tribunal were in envisaged in the ISWDAct,1956.

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Godavari and Krishna water disputes Tribunal were constituted on 10th April,1969

Though Godavari and Krishna Water Disputes Tribunal were constituted through separate notifications, Chairman and Members of both Tribunals were same.

The tribunal submitted a report on 24th December, 1973 and Further report 27th May, 1976 on Krishna Water Disputes

The allocation of water of Krishna basin to basin States by the tribunal was mainly on the basis of protected use, contemplated use and use of water

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through project considered worth consideration by the Tribunal.

There was agreement among party States for protection to be given for utilisations and evaporation losses from a majority of projects.

The Tribunal submitted its report on Godavari water disputes on 27th November, 1979 and Further Report on 7th July, 1980.

The Tribunal in its decision appended the bilateral and multilateral agreements reached between party states from 1975 to 1980 for use and distribution of Godavari water.

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Central Government constituted the Tribunal on 6th October,1969 on Narmada Water Disputes.

States of Rajasthan, MP, Maharashtra and Gujarat signed an agreement on 12th July, 1974 through which State of Rajasthan was made party to the disputes.

Through this agreement, the yield of Narmada river was determined as 28 MAF at 75% dependability and share of Maharashtra and Rajasthan determined as 0.25 and 0.5 MAF

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Tribunal submitted its report 16th August, 1978 and Further report on 7th December,1979.

Tribunal, in its decision, allocated balance water between MP and Gujarat,

And also included directions with regard to setting up of machinery for implementation of its decision and directions.

Ravi and Beas Water Tribunal was constituted on April, 02, 1986 for verification and adjudication of the matters referred in

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Paragraphs 9.1 and 9.2 respectively of the Punjab settlement in 1985 under Section 14 of ISWD Act, 1956

The Tribunal had submitted its report in January, 1987 to the Government.

The Central Government as well as the party States of Rajasthan, Haryana & Punjab sought explanation and guidance from Tribunal

The Tribunal could not submit its Further report to the Government so far due to various reasons.

Also a Presidential Reference under Article 143(1) of the Constitution is pending before the Hon’ble Supreme Court

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The Cauvery Water Disputes Tribunal (CWDT) was constituted on 2nd June 1990.

The Tribunal passed an Interim Order in June, 1991

State of Karnataka promulgated an Ordinance soon thereafter to nullify effects of the Interim order.

The Central Government made Presidential Reference under Article 143 of the Constitution to the Hon’ble Supreme Court on the issue of validity of the Ordinance and publishing Interim Order in the Official gazatte.

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•the Interim Order was published in the Official Gazette on 10th November,1991.•The Tribunal submitted its reports and decision to Government on 5th February, 2007•The Central Government as well as the party States of sought explanation and guidance from Tribunal.•Further, the party States have also filed SLPs under Article 136 (1) of the Constitution in the Hon’ble Supreme Court

Hon’ble Supreme Court has granted leave

and its orders are awaited. On the direction of Hon’ble Supreme Court

the decision of 5/2/2007 was published on 19th February, 2013 in the Official Gazette and is in force now.

The CWDT has to devote a long time in conducting the proceedings related to oral evidence of a number of expert witnesses.

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The Act was amended in 1980 and Section 6A was inserted to accommodate directions of NWDT.

This Section provides for framing a scheme for giving effect to a Tribunal's decision.

The Act was amended in April, 1986 to set up a Tribunal known as “Ravi Beas Waters Tribunal”, suo- motu, or on the request of concerned State Government and Section 14 was inserted.

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.•The Act was Further amended in August, 2002 as a follow up to the Recommendations of Sarkaria Commission on Centre State relations.i)The tribunal has to be now constituted within a period of one year from the date receipt of request.ii)The Tribunal has to submit report within a period of three years which could be extended for a further period not exceeding two years.iii)The Tribunal has to submit Further report within a period of one year which can be extended for a further period as it considers necessary.

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iv)As per Section 6 (2), the decision of the Tribunal, after its publication in the Official Gazette, shall have the same force as an order or decree of the Supreme Court.

v) Central Government is also required to maintain a data bank and information system.

vi)The Act was renamed as Inter-State River Water Disputes(ISRWD) Act, 1956.

The amendment to the ISRWD Act 1956 made so far are essentially to meet specific situation.

There is need for comprehensive relook.

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Central Government constituted new Tribunals for Krishna,Vamsadhara and Madei basins in April, 2004, February 24th, 2010 and November 2010 respectively.

The KWDT submitted its report and decision on 30.12.2010.Party States and Central Government sought guidance/ clarification from KWDT. KWDT submitted Further report on 29/11/2013.

Central Government has constituted tribunals on relatively minor issues such as review of decision of Tribunal and the issues involved in Madei and Vamsadhara

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SONE WATER DISPUTE

•State of Bihar in November, 2013 sent a request to Central Government under the provisions of ISRWD Act 1956 for constitution of water disputes Tribunal for adjudication Sone water disputes.•Central Government has directed GFCC Patna to find a negotiated settlement of the disputes in the first instance.•Process of negotiation is underway at GFCC, Patna.

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There is frequent use of Article 131 of the Constitution by the States to bring the issues related to inter-state rivers before the Hon’ble Supreme Court as stated below.

i)State of Tamil Nadu brought the issues related to implementation of Interim Order of CWDT

ii)Andhra Pradesh brought the matter related to Upper Krishna Project.

iii)Hon’ble Supreme Court was actively involved in matters related to implementation of Decision of NWDT

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iv)Haryana filed a Suit during 1995 in the Supreme Court of India for completion of construction of SYL Canal in Punjab portion. v)The Govt. of Punjab has filed a Suit in the Hon’ble Supreme Court under Article 131 of Constitution on 13.1.2003 to seek discharge from the obligation under the Decree dated 15.1.2002 in view of the changed circumstances & other infirmities & consideration.

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v)Suits have been filed by the States before the Hon’ble Supreme Court on issues such as a)Palar River water issue, b)Mulla Periyar Dam issue, c)construction of Babhali Barrage project, d)water as share of Rajasthan in Ravi Beas waters through Bhakra Main line, e) bringing irrigation head-works at Ropar, Harike and Ferozepur under control of BBMB, f)construction of Hansi branch- Butana branch MPLC,

Boards that have been set up through a separate Act of the Parliament e.g- Betwa River Board- Brahmaputra Board

Boards that have been set up under the provision in the award of the Tribunal e.g- Narmada Control Authority set up under the orders of Narmada Water Disputes Tribunal

Contd….

Boards that have been set up as per the Government of India resolutions e.g.

- Ganga Flood Control Board- Bansagar Control Board- Upper Yamuna River Board

Contd…

These Boards / Authorities were created mainly for- Early execution of the specific projects- For preparation of Master plan of a basin- In some cases like NCA for implementing the decision of the NWDT Award

None of these Boards were created under the River Board Act, 1956