The over six decade old water dispute between Northern states on Thursday assumed a new dimension with the Supreme Court holding as unconstitutional the 2004 law passed by Punjab to terminate the Sutlej-Yamuna Link (SYL) canal water sharing agreement with neighbouring states. “All the questions have been answered in the negative,” a five-judge bench headed by Justice A R Dave said, while pronouncing its decision on the presidential reference received by it.
The judgement makes it clear that the Punjab Termination of Agreements Act, 2004 is “unconstitutional” and Punjab could not have taken a “unilateral” decision to terminate the water sharing agreement with Haryana, Himachal Pradesh, Rajasthan, Jammu and Kashmir, Delhi and Chandigarh.
The bench, which also included Justices P C Ghose, Shiva Kirti Singh, A K Goel and Amitava Roy, was unanimous in holding that all the five questions of Presidential reference have to be answered in the negative.
Thursday’s judgement implies that the 2004 Act was not in consonance with the apex court judgement of 2003 which had mandated the construction of the SYL canal that has been stalled.
By the 2004 Act brought by the then Congress government led by Amarinder Singh, the state had sought to nullify the SC verdict by stopping the construction of the remaining part of the SYL canal.
The water dispute between the northern states continues even 61 years after the first agreement signed in 1955 which was followed by a number of agreements, including the 1960 Indus Water Treaty, 1966 Punjab Reorganization Act, the 1981 Indira Gandhi award as also 1985 Rajiv Longowal Accord besides litigations in the Supreme Court, the first one being in 1976 when Punjab took the initiative in approaching the Apex Court.
As per the agreement of 1955, signed between the states of Punjab, Pepsu, Jammu and Kashmir and Rajasthan, Punjab (including Pepsu) was allocated 7.20 Million Acre Feet (MAF) surplus waters of the Ravi and Beas estimated at 15.85 MAF, based on flow series of 1921-45, excluding pro-partition use, Rajasthan was allocated 8.0 MAF and Jammu and Kashmir 0.65 MAF.
Haryana was carved out on the reorganization of erstwhile state of Punjab on November 1, 1966, and as per Section 78 of the Reorganization Act of 1966, the right to receive and to utilize the waters available for distribution, as a result of the Bhakra Nangal Project and BEAS Project, became the right of the successor states in such proportion as may be made by an agreement entered into by the said states after consultation with the central government.
This Section also provided that if no such agreement was entered into within two years of the appointed day, the Centre may by orders determine the shares of the States having regard to the purpose of the projects.
Since the state of Punjab and Haryana could not arrive at any amicable settlement, Government of India by its notification dated March 24, 1976, determined the distribution of waters of Ravi and Beas among the states of Haryana, Punjab and Delhi.
As per the 1976 notification Haryana was allocated 3.5 MAF, Punjab 3.5 MAF and Delhi 0.2 MAF out of the total water of 7.2 MAF to be allocated amongst the three from the total available 15.2 MAF water of the Satluj, Ravi and Beas. The remaining water was to go to other states, including Jammu and Kashmir.
The first litigation in the water sharing dispute came in 1976 when Punjab was dissatisfied and filed a suit in the Supreme Court challenging the validity of the Section 78 of the Reorganization Act. Haryana also filed a suit for implementing the Centre’s notification of April 24, 1976
Consequent to this order of 1976, Haryana’s share of Ravi Beas was intended to be carried through a new proposed Satluj Yamuna Link (SYL) Canal, starting near Lohand Khud (from the tail of Anandpur Sahib Hydel Channel).
This channel was designed to be 121 kms in length in Punjab portion with a designed capacity of 6500 cs and 91 kms. in length in Haryana portion with a designed capacity of 7435 cs.
The portion of the canal in Haryana was started during October 1976 and was completed in June 1980 at an expenditure of Rs 56 Crore. In addition Haryana also spent about Rs 250 Crore for constructing the canal infrastructure in its area to utilize these waters. The new canal system so constructed included Sewani, Jui, Loharu, and Jawahar Lal Nehru (JLN) Lift Canals etc.
As Haryana could not utilize its share without a carrier channel in the Punjab territory, Haryana took up the matter with Punjab in the year 1976 to construct the SYL Canal and deposited Rs 1.0 Crore in November 1976 and another Rs 1.0 Crore in March, 1979.
When Punjab failed to take up the construction of SYL Canal in their territory, Haryana filed a suit for implementation of the decision of the Centre on April 13, 1979 in the Supreme Court. Punjab also filed a suit in the apex court on July 11, 1979 challenging the orders of Centre of March, 1976.
During pendency of the suit, however, an agreement was entered into Punjab, Haryana and Rajasthan on December 31, 1981, under which 17.17 MAF surplus Ravi Beas waters, assessed on revised flow series of 1921-60, were agreed to be allocated to Punjab 4.22 MAF, Haryana 3.50 MAF, Rajasthan 8.60 MAF, J-K 0.65 MAF and Delhi 0.20 MAF.
Punjab Chief Minister Amarinder Singh has got this very agreement of 1981 and all other subsequent agreements annulled “to protect the interests of the border state” even though this agreement was signed with Indira Gandhi as Prime Minister.
Not only that the Prime Minister belonged to the Congress the three Chief Ministers of Punjab Darbara Singh, Haryana’s Bhajan Lal and Rajasthan’s Shiv Charan Mathur also belonged to the party.
It was further stipulated in the Agreement, known as the Indira Gandhi Award of 1981 that Punjab would complete the SYL Canal within a period of 2 years, that is up to December 31,1983.
On signing of this agreement on December 31, 1981. Punjab and Haryana unconditionally withdrew their suits pending in the Supreme Court in February 1982 and the work on SYL Canal was also taken up by Punjab during March, 1982 when the then Prime Minister Indira Gandhi commenced the digging work from Kapuri in Patiala district.
Earlier in 1960 the Indus Waters Treaty was signed between India and Pakistan under which water of the Ravi, Beas and Satluj were reserved for exclusive use by India after transition period.
Six years later in 1966 when Punjab was reorganized, the Section 78 of the Reorganization Act provided for the apportioning of rights and liabilities of the existing state of Punjab among the successor states (Haryana and Himachal Pradesh) in relation to the Bhakhra-Nangal project and the Beas project, by agreement entered into by the states after consultation with the Centre.
But since the 1981 Indira Gandhi award failed to see the light of the day and she was assassinated in 1984, her son and successor Prime Minister Rajiv Gandhi initiated steps to resolve the inter-state issues and on July 24, 1985 the ‘The Punjab Settlement’ popularly known as the ‘Rajiv Longowal Accord’ was signed at Delhi with a new deadline, August 15, 1986, being set for the completion of the SYL canal to carry Haryana’s share of Ravi Beas water.
Paragraph 9 of this accord, bearing the question of sharing of river waters provided that the farmers of Punjab, Haryana and Rajasthan will continue to get waters not less than what they were using from the Ravi Beas system as on July 1, 1985. Water used for consumptive purposes will remain unaffected.
The claim of Punjab and Haryana regarding the shares in their remaining water was to be referred for adjudication to a Tribunal to be presided over by a Supreme Court Judge. The decision of this tribunal was to be rendered within six months and was to be binding on both parties. All legal and constitutional steps in this respect were to be taken expeditiously.
The construction of the SYL Canal was to continue and the canal was to be completed by August 15, 1986.
In pursuance of the Rajiv Longowal Accord the Centre-constituted a Tribunal namely Ravi Beas Waters Tribunal (Eradi Tribunal) on April 2, 1986.
The tribunal gave its report on January 30, 1987 and the quantum of water used by the farmers and other consumptive users of the three party states as on 1st July 1985, was estimated for Punjab at 3.106 MAF.
The Punjab share was inclusive of 0.352 MAF of permissive use allowed by Rajasthan under clause (ii) of the 1981 agreement and subject thereto but was exclusive of the pre-partition use of 1.98 MAF as well as 0.32 MAF in Shah Nehar Canal areas.
The share of Haryana was 1.620 MAF and Rajasthan 4.985 MAF (This figure is exclusive of the pre-partition use of 1.11 MAF).
The Eradi Tribunal on adjudication of the claims of Punjab and Haryana regarding the shares in their remaining waters, the tribunal decided to allocate surplus Ravi Beas waters to Punjab 5.00 MAF and Haryana 3.83 MAF.
The Tribunal stressed the need for the completion of the SYL canal “at an early date since this canal is lifeline for the farmers of Haryana.”
The Eradi Tribunal in its report increased the surplus Ravi Beas waters by another 1.11 MAF available downstream of run stations, fixed the total availability at 18.28 MAF. It provided Punjab 5.00 MAF, Haryana 3.83 MAF, Rajasthan 8.60 MAF, J-K 0.65 MAF and Delhi 0.20 MAF.
But both Punjab and Haryana Governments filed the applications under Section 5(3) of the Interstate Water Disputes Act, 1956 for some clarifications/guidance on the report of the Tribunal.