The Tribune, Chandigarh, India - Agriculture Tribune

SYL: only fresh adjudication can save Punjab’s case
H.S. Mattewal

Nature has endowed Punjab with abundance of water. 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 rich and irrigated fields fell in Pakistan’s share.

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.

Punjab was reorganised in 1966. The Reorganization Act 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 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) of the Punjab Reorganization Act the Central Government on March 24, 1976, issued a notification that out of the available 15.2 MAF of the waters of 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 filed a suit for implementing the Central Government’s order.

While the matters were yet pending in the Supreme Court, an agreement was executed between Punjab, Haryana and Rajasthan on December 31, 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 were as follows: Haryana (non-riparian) — 3.50MAF; Rajasthan (non-riparian) — 8.60 MAF; Delhi (non-riparian) — 0.20 MAF; Punjab (riparian) — 4.22 MAF; and 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 Punjab remained an emotive issue in Punjab politics. On May 24, 1985, the Punjab Settlement (Rajiv-Longowal Accord) was reached.

Pursuant to this settlement, 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. This 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-sections (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 motu 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 April 2, 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 January 1,1987, and determined the allocations as follows: Rajasthan (non- riparian) — 8.60 MAF; Haryana (non-riparian) — 3.83 MAF; Delhi (non-riparian) — 0.20 MAF; Punjab (riparian) — 5.00 MAF; and Jammu and Kashmir (riparian) — 0.65 MAF; the total coming to18.28 MAF.

But the Tribunal in determining the shares went beyond the terms of reference and committed errors of jurisdiction. Consequently, Punjab filed an application under Section 5 (3) of the Inter States Water Disputes Act, on August 9, 1987, 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 March 2, 1998. This application is still pending before the Tribunal. Haryana also filed a suit for a decree declaring that the order dated March 24, 1976, the Agreement of December, 1981, and the Settlement of July 24, 1985, are final and binding on Punjab and for a mandatory injunction to Punjab to discharge its obligations under the above agreements/orders by immediately restarting and completing the portion of the SYL Canal which falls in its territory.

The Supreme Court vide its January 1, 2002, judgment directed Punjab to continue digging the Sutlej Yamuna Link Canal and to make the canal functional within one year. It further directed that in case the canal is not completed by Punjab within a year then the Centre should get it done expeditiously.

I am pained to mention here 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 too, 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 opinion a blunder so far as the interest 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 July 24,1985, so far as the legal aspect of the water dispute is concerned, did not recognise all claims that Punjab had as per the riparian law.

Recently the Supreme Court in a case of Karnataka Vs. 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 decision becomes final and binding on the parties to the dispute.

These developments lend great urgency to the case and in my view it is appropriate that Punjab files 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.

The Supreme Court in the Presidential Reference on the Cauvery Water Disputes Tribunal AIR 1992 SC 522, has held:

"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, inasmuch 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 challenging 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 Article 262 of the Constitution then there is no mechanism to enforce the Punjab Settlement. Also, 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 Reorganization Act, under which in the absence of an agreement between Punjab and Haryana the matter is left open for determination by the Centre. Resultantly it may be a fallback on the 1981 agreement, which has been viewed as unfair and has led to an agitation against enforcing it in Punjab and has also been repudiated by the Punjab Assembly by a resolution dated November 5, 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 Reorganization 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.

Insisting on a solution strictly within the parameters of Section 78 of the Punjab Reorganization Act may not be in the best interest of Punjab as in that event the Centre 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 Reorganization Act, in 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 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 riparian states—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 Reorganization 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:

—The vires of Sections 78 to 80 of the Punjab Reoganisation Act, 1966, should 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.

—Section 14 of the Inter-State Waters Disputes Act, 1956, should be challenged as being ultra vires Article 262 of the Constitution of India.

—The award of the Ravi-Beas Tribunal should also be challenged at the earliest.

I recommended the above course as Advocate General, Punjab, and the same was agreed to by the Punjab Government in October, 2001. However strangely, no tangible steps regarding that seem to have been taken so far.

The writer is former Advocate-General, Punjab