Punjab River Waters and The SYL Canal
[Submission made by Sikh Core Group to Punjab Government in 2002 on the question of SYL Canal and Supreme Court of India’s directions to Punjab government.]
The Legal Angle
1. Haryana is not entitled to any additional waters from Punjab Rivers : At the time of Reorganisation of Punjab in 1966, the then extant canal irrigation system covered some areas which now form a part of Haryana. Haryana is no more riparian to the Punjab rivers (Satluj, Beas and Ravi). So even under a most liberal view, its claim, if at all, has to be restricted to the quantum of water received by those areas only.
This view is endorsed by no less an authority than Dr Kanwar Sain, Chairman, Central Water and Power Commission (1953-1958), who was also Chairman, Haryana Review Board (1969-72). He says :
After the 1955 Agreement, two important events occurred. PEPSU was merged with Punjab. The share allotted to PEPSU in 1955 Agreement was merged with the Punjab share; thus raising the Punjab share to 7.20MAF. In 1966, the State of Punjab was reorganized. Details are given in the Punjab Reorganization Act, 1966. Para 48, Clause 2 of this Act provides, As the water allotted to Punjab in 1955 Agreement was for
specific areas, now geographically located in Punjab, this water shall pass on to the successor State in whose territory such areas are located. Specific areas included by the Punjab in 1955 were as below :
i. Upper Bari Doab canal. All areas with water table below 10 foot were provided perennial irrigation
ii. Shahnehar canal
iii. Beat areas of Ravi and Beas
iv. Sirhind feeder
v. Eastern Canal
It will thus be seen that no area from Districts which formed Haryana was taken for claiming supply from Ravi and Beas rivers because all areas in Haryana can be irrigated only by lift and the 1955 Agreement excluded lift areas. Thus, according to 1955 Agreement no area in Haryana was entitled to any supply from Ravi and Beas rivers.[Kanwar Sain (Chairman, CentralWater and Power Commission, 1953-1958; also Chairman, Haryana Review Board, 1969-1972) : Sharing Ravi Beas Waters, JOURNAL OF WATER RESOURCES SOCIETY, VolV, October 1985, p. 38]
2. Notification 1976 : The relevant portions of the notification of 1976 are mentioned below :
As the successor States failed to reach an Agreement with regard to their rights and liabilities in relation to the Beas Project within the period specified in the Punjab ReorganizationAct, 1966, the State of Haryana made an application to the Central Government for making the determination. The Central Government in exercise of the powers conferred by the Punjab Reorganization Act of 1966, made the following Notification on 24th March, 1976 :
Taking note of the facts that Haryana has a large arid tract and several drought prone areas and the present development of irrigation in the State of Haryana is substantially less as compared to that in the State of Punjab, and further taking into consideration that comparatively large quantities of water is needed
for irrigation in the State of Haryana and there is limited availability of water from other sources in that State, the Central Government hereby direct that out of the water which would have become available to the erstwhile State of Punjab on completion of the Beas Project, 0.12MAF whereof is earmarked for Delhi Water Supply, the State of Haryana will get 3.5MAF and the State of Punjab will get the remaining quantity not exceeding 3.5MAF. When further conservation works on the Ravi are completed, Punjab will get 3.5
MAF out of 7.2 MAF which is the share of the erstwhile State of Punjab. The remaining 0.08 MAF out of 7.2 MAF, is recommended as additional quantum of water for Delhi Water Supply for acceptance by both the
Governments of Punjab and Haryana. [Kanwar Sain (Chairman, CentralWater and Power Commission, 1953-1958; also Chairman, Haryana Review Board, 1969-1972) : Sharing Ravi Beas Waters, JOURNAL OF WATER RESOURCES SOCIETY, VolV, October 1985, p. 39.]
This notification suffered from two fundamental infirmities :
i) Sections 78-80 of Punjab Reorganisation Act which were taken as the basis for this notification, were ultra vires as has been explained in the Appendix A.
ii) The Beas Project plan had been finalised before 1966. It envisaged the utilization of waters as follows :
I. Beas project canal from Harike did not include any supply of water to Haryana. Entire 3.2MAFsupply there was projected for Punjab areas.
II. Out of the 2.2 MAF to be supplied at Ropar only 0.9 MAF were to go to Haryana areas.
3. Reallocation 1981 Agreement is not acceptable : The details of the Agreement are quoted below :
(i) According to the flow series 1921-60, the total mean supply of Ravi and Beas Waters is 20.56MAF. Deducting the pre-partition uses of 3.13MAF and transit losses in the Madhopur Beas Link of 0.26MAF, the net surplus Ravi and Beas waters according to the flow series 1921-60 is 17.17 MAF as against the corresponding figure of 15.85 MAF for the flow series 1921-45, which forms the basis of water allocation under the 1955 Agreement. It is now hereby agreed that the mean supply of 17.17MAF (Flow and Storage) may be reallocated as under :
Share of Punjab 4.22 MAF
Share of Haryana 3.50 MAF
Share of Rajasthan 8.60 MAF
Quantity earmarked for Delhi Water Supply 0.20 MAF
Share of Jammu & Kashmir 0.65 MAF
Total 17.17 MAF
(ii) Until such times as Rajasthan is in a position to utilise its full share, Punjab shall be free to utilise the water surplus to Rajasthan’s requirement. As Rajasthan will soon be able to utilise it share, Punjab shall make adequate alternative arrangements expeditiously for irrigation of its own lands by the time Rajasthan
is in a position to utilise its full share. (As on date Rajasthan is already drawing its full share). It would be evident from the figures mentioned therein that the quantum of water available has been cleverly manipulated with mala fide intentions to show an increase from 15.85 MAF to 17.17 MAF by taking figures only upto 1960 and not upto 1980. For these reasons amongst others Kanwar Sain rejected this agreement. He says : It is, therefore, a sound decision that the 1981 Agreement should not remain on the Statute.
4. All Central awards/forced agreements are arbitrary : a) Under Section 78 (1) read with Section 2(i), the rights and benefits of the Beas project could be allocated between the successor States of Haryana, Punjab
and Chandigarh in the ratio of 37.38 to 54.84 to 7.78%. These figures of sharing may be conveniently rounded as 37%, 55% and 8%, respectively, for depiction of respective share of the successor States. Obviously, there is no justifiable basis for this ratio. But surprisingly, even this arbitrarily assumed ratio was never adhered to by the Central Government, and State of Haryana was treated on equal footing with Punjab in utter disregard of the aforesaid statutory provisions of Punjab Reorganisation Act, 1966 not withstanding the fact that the Act itself was ultra vires.
b) Ravi waters and allied works like Thein Dam, constructed subsequently for storing waters of the Ravi, stand excluded from the scope of the aforesaid Section 78, because there is no mention of Ravi waters or any project relating to Ravi in the Punjab Reorganisation Act, 1966. Obviously, the Award of 1976 and subsequent modified agreement of December 1981 providing for distribution of waters of the Ravi and assumed to be made under Section 78 of the Act (ibid) were ultra vires, because there was no such provision relating to Ravi waters in the Act of 1966.
c) The participation of Rajasthan in the Agreement of December 1981 is beyond the provisions of Section 78(i) under which only the successor States as defined in Section 2(M) of the Act, 1966 could participate in the agreement. Consequently, the participation of Rajasthan in December 1981Agreement is illegal, and vitiates the entire agreement.
5. Yamuna Waters : The Yamuna River Agreement was signed for a period of 30 years on May 12, 1994 among the Riparian States of Haryana, Uttar Pradesh, Delhi, Himachal Pradesh and Rajasthan for allocation of their respective shares in the Yamuna waters. It is pertinent to point out that although Punjab was one of the successor States of erstwhile Yamuna River, it was neither called to participate in the Chief Ministers Meeting of respective States, nor was it allocated any share in Yamuna waters. The point to highlight is that the Riparian Principle has been followed in case of the Yamuna River, and its waters denied to Punjab as a non-riparian state. In case of Satluj, Beas and Ravi, however, the Riparian Principle has been thrown to the winds and non-riparian Haryana allotted large chunks of their waters. This blatant discrimination is difficult to swallow.
The following table shows the gross injustice done to Punjab in distribution of River Waters :
Distribution of River Waters
State Satluj Basis Yamuna Basis Actual
+Ravi by Centre
Punjab 30.0 Riparian 13.22
Haryana 0.9 (usage) 5.5 Riparian 14.33
Rajasthan 1.0 (For Gang Canal) (usage) 9.60
J&K 0.6 Riparian 0.65
Total 32.50 5.5 38.00
Punjab River Waters and the SYL Canal — The Economic Aspect
1. Irrigation Water and its Impact on Punjab Economy: During 50’s and 60’s, Punjab’s cropping intensity was about 125%, i.e., crops were raised over about 5 million hectares against the net cultivable area of 4 million hectares. With expansion of irrigation from both ground water (tubewells) and surface water (river water) the cropping intensity increased to about 187%, i.e., crops are now raised over an area of about 7.6 million hectares against the net cultivable area of about 4 million hectares.
Irrigation also enabled farmers to adopt high yielding varieties of crops which needed assured water supply especially during initial growth-period of the crops. The result is evident. The cropped area almost doubled, and yield increased by at least 4-5 times, in case of food crops which constitute about 75% of the total cropped area. Last year (2001-02) market arrivals of wheat and paddy alone resulted in a cash inflow of about Rs 12000 crores. Its impact not only on the rural economy but also urban economy can be very well imagined. But for the injection of such large amounts of money in the States economy the urban areas also would have remained undeveloped. In fact, today the rural economy determines the urban economy to a very large extent. The capital generated from the farm sector promotes market economy in urban centres, e.g., trade in consumer goods and capital equipment, besides directly affecting the agriculture related economic activity. Thousands of mechanics handling repair of electric motors and diesel engines running tubewells, labourers handling produce at the markets, and transporters carrying food-grains from the market to the godowns and distribution centres, besides thousands employed in the rice shelling industry, depend on rural economy for their economic survival.
2. Impact of the River Water Award: 3.5 MAF water from Ravi and Beas waters is awarded to Haryana. When Beas waters were diverted to Satluj, about 1.7 MAFof water was given to Haryana via Narwana branch. The remaining 1.8 MAFof water will have to be diverted from Nangal/Ropar headworks (this water cannot be given from Harike). This, if implemented, will mean reducing water supplies from Sirhind and/or releases made into Satluj for Harike reservoir. It will result in reduction of irrigation on about 1.0 million acres in the districts of Ropar, Patiala, Sangrur, Mansa, Moga, Faridkot, Ferozepur and Bathinda. The reduction in releases of water in Satluj will result in reduced recharge of ground water to the extent of 80%, which will ultimately affect water supplies to all tubewells (thousands) alongside its course, on both sides from Ropar to Harike (about 90 miles). The supply of water in Bist Doab too will have to be stopped. Whereas the government is keen to improve the economic well-being of the people, this action of withdrawal of water from a large number of farmers, will result in their economic ruination. Not only that, it will result in lowering the cropping intensity as well as productivity in the affected areas leaving practically no marketable surpluses. Evidently this will affect theeconomyof allwhoare involved in this chain of production to marketing. Already farmers are suffering as their family income has dwindled because of subdivision of land-holdings and higher cost of production. Implementation of the award is bound to cause frustration and a feeling of unrest among the farmers, which may lead to a widespread avoidable agitation.
Punjab River Waters and the SYL Canal — Constitutional Aspects
The Punjab impasse has been kept pulsating through mal-governance and evil designs. A small stroke of administrative, legislative, judicial or political whiff sets in seismic throbbings in the simmering cauldron of Punjab’s unresolved economic, political and social problems. In the skein of complicated Punjab tangle, river-waters dispute is a glaring strain. The recent Supreme Court order of January 15, 2002 regarding the digging of Satluj Yamuna Link canal has stirred up emotions in Punjab and Haryana which are bound to develop into a tinderbox entailing immense damage to the precarious peace and tranquillity of the region.
Explicit provisions of the Constitution of India regarding river waters and river valleys have been subtly made murkier and confusing to the unwary reader while drafting the Punjab Reorganisation Act, 1966 by skilfully interweaving texts and sub-texts, theoretical reasoning and contestable facts. With a view to dispelling misinformation, confusion and ignorance pertaining to the Punjab river waters dispute, I have in this article discussed only the Constitutional and legal aspects of the problem.
Article 262. (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). The Parliament is competent to make laws for the adjudication of disputes relating
to water of inter-State rivers or river valleys. In explaining the need for an extra-judicial machinery to settle inter-State disputes relating to water supplies, the joint Parliamentary Committee Report observed :
The effect of this is to give each Province complete powers over water supplies within the Province without any regard whatever to the interests of neighbouring Provinces.
Under Article 246 of the Constitution, the Legislature of any State has exclusive power to make laws with respect to the matters enumerated in List II (State List) of the Seventh Schedule of the Constitution. Entry number 17 of the State List reads as under :
17. 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 . (Union List)
Entry 56 of the Union List is set out below :
56. 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.
The rivers Ravi, Beas and Satluj being intra-State rivers belong to Punjab and the Parliament cannot deprive people of Punjab of their rights to exclusive use of these waters. While enacting the Punjab Reorganisation Act, 1966, the Government of India unconstitutionally engrafted Sections 78, 79 and 80 impinging upon the exclusive rights of Punjab. The relevant provisions of Section 78 of the Punjab Reorganisation Act, 1966 are as follows :
Rights and liabilities in regard to Bhakra-Nangal and Beas Projects :-
1. Notwithstanding anything contained in this Act but subject to the provisions of Section 79 and 80, all rights and liabilities of the existing State of Punjab in relation to Bhakra-Nangal Project and Beas Project shall, on the appointed day, be the rights and liabilities of the successor States in such proportion as may be fixed, and subject to such adjustment as may be made by agreement entered into by the said States after consultation with the Central Government or if no such agreement is entered into within two years of the appointed day, as the Central Government may be order determine having regard to the purpose of the Projects :
Provided that the order so made by the Central Government may be varied by the subsequent agreement entered into by the successor States after consultation with the Central Government.
2. An agreement or order referred to in sub-section (1) shall if there has been or extension or further development of either of the projects referred to in that sub-section after the appointed day provide also for the rights and liabilities of the successor States in relation to such extension or further development.
3. The rights and liabilities referred to in sub-section (1) and (2) shall include : a) the rights to receive and to utilise the water available for distribution as a result of the projects and b) the rights to receive and to utilise the power generated as a result of the projects, but shall not include the rights and liabilities under any contract entered into before the appointed day by the Government of the existing State of Punjab with any person or authority other than Government. On March 24, 1976 Government of India issued a notification distributing Punjab river waters. (Prime Minister Indira Gandhi and Congress Government in Punjab) The Akali Government of Punjab in suit No. 2 of 1979 challenged this distribution as also the
vires of the Sections 78 to 80 of the Punjab Reorganisation Act, 1966 before the Supreme Court. The Akali Government in Punjab was succeeded by Congress Government and the Prime Minister Indira Gandhi had an agreement hammered out on 31-12-1981 among the Chief Ministers of Punjab, Rajasthan and Haryana (all of them of her party) and had the 1979 Punjab suit withdrawn on 12-2-82. The Prime Minister inaugurated the digging of SYL canal at Kapuri (Distt. Patiala). The Shiromani Akali Dal and Communist Party (Marxist) launched agitation against the 31-12-81 agreement and consequential start of the canal digging (CPM withdrew from this agitation when it was turned into Dharam Yudh by the Akalis who carried on this agitation for a long time). This agitation ended with the signing of an accord between Prime Minister Rajiv Gandhi and President, SAD Sant Harchand Singh Longowal on July 24, 1985. (Punjab Settlement). As per this settlement, dispute was referred to aTribunal and thisTribunal was recognised by adding Section 14
in the Inter-StateWater Disputes Act, 1956 which reads as under :
Section 14 : Constitution of Ravi and Beas Waters Tribunal :-
(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 the Ravi and Beas Waters Tribunal for the verification and adjudication of the matters referred to in paragraphs 9.1 and 9.2 respectively of the Punjab Settlement.
The Punjab Assembly through a resolution on 5-11-85 repudiated the agreement of 31-12-81.
The Inter-StateWater DisputesTribunal (Eradi Tribunal) gave interim award on January 30, 1987 with respect to the distribution of Punjab river waters. The Punjab Government filed objections before thisTribunal which are still awaiting decision. No award has been notified by the Government of India and consequently there is no award to be enforced. The Haryana Government filed suit under Article 131 of the Constitution which was decided by the Division Bench comprising of Justice G.BPattanaik and Justice Ruma Pal on January 15, 2002. In their order, the learned Division Bench held that the construction of the SYL canal has absolutely no connection with the sharing of water between the states and as such is not a water dispute and that the State Governments having entered into agreementsamongthemselves on the intervention of the Prime Minister of the country, resulting in withdrawal of the pending suits in the court, cannot be permitted
to take a stand contrary to the agreements arrived at between themselves. The Supreme Court further held that theSYLcanal should be completed and made functional within one year from its order of January 15, 2002.
The Supreme Court assumed to itself authority which is not vested in it by the Constitution of India and erred in arriving at its conclusions. The whole case before the Supreme Court was with respect to the completion of SYL canal for the carriage of Punjab river waters to Haryana pursuant to the notification 24-3-76, agreement of 31-12-81 and settlement of July 24, 1985. Case of none of the parties before the Supreme Court was with respect to any matter other than the use, distribution and carriage of Punjab river
waters through a canal termed as SYL canal. The SYL canal, as per contention of the parties is meant only for use as irrigation canal. It is crystal clear that theSYLcanal is to be used for the carriage and distribution of river waters and is not intended for any other use, say, engineering museum, tourist park or a defence embankment. So far there is no enforceable award for the distribution of Punjab river waters and theSYLcanal, if dug up, cannot be used as a canal for carriage of any waters.
The March24, 1976 notification (Government fiat)wassuperseded by the agreement of 31-12-81 and the latter was superseded by the Punjab Settlement of 24-7-1985. It was not an agreement between competent parties and even this settlement was rejected by the PunjabAssembly on 5-11-85. Thus there had been no binding agreement between the parties and Punjab has been persistently and assiduously pleading against the unjust and unconstitutional awards and agreements all this time. The conduct of Punjab has
through out been consistent in its opposition to the awards and agreements. Furthermore, the 24-7-1985 Settlement (Punjab Settlement) was recognised as part of the Inter-State Water DisputesAct, 1956. It clearly established that the matter was treated as inter-State waters dispute by the Government of India.
Contentions of the parties, phraseology of the agreements and the provisions of relevant enactments leave nothing in doubt that the matter of dispute concerns the construction of a canal for use, distribution and carriage of water of Punjab rivers to Haryana. The rivers Ravi, Beas and Satluj being intra-State rivers of Punjab, these belong to Punjab and as per entry 17 of the State List of the Seventh Schedule of the Constitution of India, the State of Punjab is entitled to their ownership and control. In case these rivers
are reckoned as inter-State, disputes in respect thereof are to be dealt with in accordance with the provisions of Clause (2) of Article 262 of the Constitution. In either case, Supreme Court jurisdiction is barred with respect to adjudication of this dispute concerning rivers Ravi, Beas and Satluj (exclusively of Punjab).
Sometime back Punjab farmers filed a writ petition before the High Court of Punjab and Haryana at Chandigarh whichwasadmittedbythe then Chief Justice S. S. Sandhawalia. Justice Sandhawalia was transferred to Patna and the case was transferred by the Supreme Court to its own file. That case is still pending. As per the Constitution of India and the relevant law, Punjab has complete powers over waters of its rivers Ravi, Beas and Satluj and it cannot be deprived of its right to enjoy its natural, constitutional and legal endowments. Of the three dispensations of 24-3-76, 31-12-81 and 24-7-85, only the 31-12-81 transaction was termed as agreement.
Even that was ab initio void and subsequently superseded by the 24-7-85 settlement and was outrightly rejected by the PunjabAssembly on 5-11-85. It is apparent that there was/is no volitional agreement which may be binding on Punjab. Right since the enactment of the Punjab Reorganisation Act, 1966, resulting in the creation of Haryana, Punjab has been agitating / protesting against the unconstitutional provisions of Sections 78, 79 and 80 ibid and unremittingly asserting that Haryana had no claim on Punjab river waters. Thus Punjab has by its consistent conduct demonstrated non-acceptance of any obligation of any sort for supply of its river waters to Haryana.
Various factors, like the quantum of water in Punjab rivers, methods of determination of their flow, drainage gradient. Punjab’s needs, technical, financial, economic and historical appraisals, contractual obligation, moral values, cost-benefit effectiveness of irrigation/hydel power capacity, determination of projects durations etc. etc. can be relevant only after a decision is made regarding the use of Punjab river waters by another State either through constitutional-judicial verdict bindingonthe parties or through volitional agreement between Punjab and seekers of its river waters.
Experience of most countries has shown that rights and interests with respect to river waters are best settled through mutual goodwill and cool headed negotiations. The courts have to function within certain judicial parameters which would not sometime help arrive at decisions satisfying the disputants. Neither will terminological twists, phraseological jugglery, legal shibboleths, political chicanery, vacuous verbosity replete with moral bankruptcy lead to amicable solutions in the matter of water disputes concerning rivers
and valleys. Geographical geometry, geological contours, historical veracity established through millennia of natural processes cannot be altered to suit the whims of political operators with puny visions.