Article by Pradeep Purandare
ABSTRACT
On the
occasion of tenth anniversary celebration of Maharashtra Water Resources
Regulatory Authority (MWRRA), this paper makes an attempt to take a critical
review of MWRRA – the first ever Quasi Judicial
Independent Regulatory Authority (IRA) in India’s water sector. First, this paper explains how MWRRA is in
catch-22 situation because of its 100% dependence on Water Resources
Department. Then the paper points out that MWRRA’s catch–22 situation becomes more complex & serious
because of systemic constraints like (i) physical system being not compatible
& amenable to new concepts of regulation & governance (ii) nature &
quality of O & M practices (iii) absence of separate administrative
guidelines for sanctioning irrigation projects & (iv) non – implementation
of water laws. Next, the paper takes MWRRA under microscope & tries to find
out what MWRRA itself has done to come out of catch-22 situation & overcome
systemic constraints. The paper further argues that MWRRA has not used its
powers as a quasi judicial
Independent Regulatory Authority & in fact, has not done many things it is
supposed to do as per the Act. It then lists out many contradictions on
the part of WRD & raises a question whether WRD is confused or there is
method behind the madness. Based on
above discussions the paper draws obvious conclusions. At the end, many recommendations
are given regarding restructuring & strengthening of MWRRA. Some of the
important recommendations are as
follows: Elevate the legal status of MWRRA, delink it from Water Resources
Department, let MWRRA be run by young & well qualified experts, build up a
substantial corpus, make separate & substantial provision for the authority in the annual
budget, let it be an interdisciplinary Authority, and select Chairman strictly
on merit basis.
Key words: Quasi judicial Independent
Regulatory Authority, catch-22 situation, River Basin Authority, State Water
Board, State Water Council, Integrated State Water Plan,
Compatible
systems, Water Laws, Restructuring & Reforms in water sector, Water
Entitlement
_______________________________________________________________________
# Retired Associate Professor, WALMI,
Aurangabad 431005, Maharashtra, India.
Former Expert Member, Marathwada Development Board.
E-mail:pradeeppurandare@gmail.com, Mobile No. 9822565232 Address: B-12,
Pride Towers, Vedantnagar, Aurangabad 431005, Maharashtra, India
$ A catch–22 situation means
a tricky or disadvantageous condition; a catch!;
a paradoxical situation that has no happy ending; a frustrating situation in
which one is trapped by contradictory regulations or conditions; an impossible situation where you are prevented from doing one thing until you have
done another thing that you cannot do until you have done the first thing; a
situation in which a desired outcome or solution is impossible to attain
because of a set of inherently contradictory rules or conditions. (Google)
Introduction:
On the occasion of tenth anniversary celebration of
Maharashtra Water Resources Regulatory Authority (MWRRA), it is necessary to
take a critical review of this
first ever Quasi Judicial Independent
Regulatory Authority (IRA) in India’s water sector. It’s time to do introspection, consolidate the
gains, identify & remove weaknesses & further strengthen the IRA in the
larger interests of the State in general & water sector in particular. This
is, of course, easier said than done!
An attempt has
been done in this article to analyse why MWRRA is trapped in a catch – 22 situation.
This author sincerely believes in the concept of IRA & knows the potential
of MWRRA as an Institution . He was actively
involved as a representative of WALMI in many thought processes & activities
of MWRRA since its inception till his voluntary retirement in Dec, 2011. He
does appreciate some of the decisions taken by MWRRA. For example, its decision
regarding Nira Deoghar & its order regarding release of water for Jayakwadi
Project from reservoirs in Upper Godavari sub basin. But this author sincerely
feels that MWRRA could not utilise its potential. Hence, the author would like
to play a role of `responsible opposition’ & raise many issues that would
ultimately help MWRRA only.
1.
Maharashtra Water Resources
Regulatory Authority (MWRRA)1, since its inception, is in a
tricky or disadvantageous condition; a catch! It is totally dependent on Water Resources
Department (WRD) for its very existence for reasons given below:
(i) WRD has a
decisive role in the appointments of the Secretary, Members, and Chairman of
MWRRA
(ii) MWRRA gets its funds from WRD
(iii) MWRRA has to perform all of its activities
through WRD only.
This 100%
dependence on WRD leads to a paradoxical situation i.e. instead
of the so called Independent Regulator regulating WRD; it is the WRD that
regulates the Regulator for all practical purposes sometimes directly &
always indirectly.
2.
MWRRA has to face a frustrating situation if government (read WRD) does following:
(i) Amends the MWRRA Act unilaterally & in
an ad-hoc manner2
(ii) Does not amend the said Act as per
MWRRA’s felt needs / experience
(iii) Does not frame the Rules
of MWRRA Act for years together
(iv) Prepares
the Rules that are contradictory to the provisions of the Act3
(i) Irrigation Development
Corporation (IDCs) have not been converted into River Basin Agencies (RBAs)4
(ii) State Water Board (SWB) & State Water
Council (SWC) have not become fully operational as separate legal entity on
regular basis in a proactive manner
(iii) There is an inordinate
delay in giving hydrological data & vetting the hydrology of river basins
/sub basins
(iv) Integrated State Water Plan (ISWP) is not ready.
(v) MWRRA has
been forced to give clearance to water resources projects even in the absence
of ISWP.
MWRRA’s catch–22
situation becomes more complex & serious because of systemic constraints.
Systemic
Constraints:
(i)
Compatibility of the physical system:5
Large
Scale Public Sector Irrigation Projects [LSPSIP] in Maharashtra are, in fact, Water-Infrastructure-Systems
[WIS] which provide water not only for irrigation but even for non-irrigation
[drinking, domestic, industrial, etc] purposes. These systems are highly
complex Public Distribution Systems [PDS] comprising of several Techno-Socio-Economic-Legal
[TSEL] processes. It is expected (but not designed for) to simultaneously
achieve multiple & at times, even competitive / conflicting objectives.
Existing WIS in Maharashtra are up stream controlled, manually operated, mostly
open channel systems without water-control-situation [functioning control
gates, cross regulators, measuring devices]. Present performance of WIS is
obviously an outcome of its original nature, system constraints & inherent
characteristics. For example, the Overall Project Efficiency (OPE) assumed in
the design of WIS normally ranges between 41 to 48% only! It is needless to say
that the actual OPE is hardly 20 to 25% because of host of real life practical
considerations. Any discussion on Regulation
of Water Resources
in Maharashtra should not, therefore, ignore such real life system constraints.
It would not be correct to expect something for which the system is not
designed.
(ii)
Operation & Management (O & M) practices of
irrigation projects:6
Prevailing O & M practices are
project-centric & hence, do not consider river basin / sub basinwise
integrated approach. WRD has not changed its Govt Resolutions (GR), Circulars,
Notifications, Agreements & Techno-Managerial Guidelines as per
recommendations of Maharashtra Water & Irrigation (Chitale) Commission
Report7 1999, State Water Policy8 (SWP) 2003 & new Water
Laws, namely, MMISF9 & MWRRA Acts 2005. Since, the operative
part is not as per SWP & new Water Laws, practically nothing has changed in
practice.
O & M practices include:
(a) Water Budgeting (Preliminary Irrigation
Program, PIP),
(b) Irrigation Scheduling,
(c)
Monitoring & Regulation of
Irrigation Schedules,
(d) Water accounting & auditing,
(e) Maintenance & Repairs (M & R) &
(f) Assessment & Recovery of water
charges.
Ground reality about all these
important aspects is going from bad to worse. It is simply not conducive to &
amenable for Regulation of Water Resources based on modern concepts & reforms. Following two
comments, perhaps, aptly summarise the O & M scenario.
- There is no
management in irrigation, its only administration!
- Whatever irrigation takes place, it is not
the result of any planning as such. Its irrigation by accident!
(iii) Prevailing administrative processes regarding Administrative Approvals (AA),
Revised Administrative Approvals (RAA) & Technical Sanctions (TS):10
Chitale Committee i.e. Special
Investigation Team (SIT) constituted by Govt for Enquiry of Irrigation related
issues, has revealed many things in its land mark report (Feb 2014). For
example, Water Resources Department simply does NOT have following:
(a) River basin-wise master plans
(b)
Its own Rules & Procedure for giving AA,
RAA & TS to Irrigation Projects. (WRD,
strangely enough, follows Public Works Department’s (PWD) Rules, 1984)
(c) Rules
of Irrigation Development Corporation (IDC) Acts (1996 – 1999)
(d)
Rules
& Regulations of IDCs for project-wise distribution of funds,
priorities of projects & norms of
benefits cost ratios
SIT report gives several
examples of cost & time overruns, arbitrary changes in the scope of
projects & variety of (innovative) irregularities. All such things
ultimately reflect in the quality of construction & subsequently in
difficulties in Regulation & Water Resources Management. For example, if
the actual carrying capacity of canal system is significantly less than
designed one & if the conveyance losses are much more than the assumed
ones, it certainly adversely affects the regulation which includes entitlements,
irrigation schedules & hence, equitable distribution of water.
(iv) Non-Implementation
of Water Laws11:
Enacting a law is not sufficient. The
operative part which includes Rules, notifications, agreements, government
resolutions, orders & circulars as per the Act is also equally important.
If operative part is not in place, then the Act remains on paper for all
practical purposes. Incomplete legal processes make regulation & conflict
resolution impossible which finally help free riders & deprive water to
tail enders. A brief review of three Water Laws is given below:
Maharashtra
Irrigation Act, 1976 (MIA76):12
In absence of Rules for last 38 years &
non-issuance of basic notifications (rivers, command areas & appointment of
Canal Officers), MIA 76 which is supposed to be the parent Act has remained
mostly on paper. Locus standi of
implementing authority i.e. Water Resources Department (WRD), therefore, can
itself be questioned. The obvious result is there is no water regulation & governance.
Free for all situation exists. Water theft, vandalism & tampering with
canal system are rampant. Offences go un-punished. Irrigators, particularly the
tail enders neither get water nor compensation. Politically influential
irrigators grab all the benefits. Diversion of water from irrigation to
non-irrigation, flow irrigation to lift irrigation & food crops to cash
crops becomes easy.
Maharashtra Management of Irrigation by
Farmers Act, 2005 (MMISF Act):
MMISF Act was brought in to legally
provide for Participatory Irrigation Management (PIM).This is the only Act
which has got detailed Rules. It, however, is not being implemented in letter
& spirit. Ambiguity in Rules for WUAs at higher level, non formation of sub
committees, delayed or non execution of agreements with Water Users
Associations (WUAs), insincerity in the processes such as “joint inspection” to
“handing over”, not providing measuring devices, confusion over powers of WUAs,
keeping lift irrigation out of purview of
the Act, inordinate delays in returning part of tariff to WUAs for
carrying out maintenance & repairs, asking contractors to form WUAs and
last but not the least, non involvement of WUAs either in water budgeting or in
conflict resolution speak volumes about the actual implementation of MMSIF Act.
Maharashtra
Water Resources Regulatory Act, 2005(MWRRA Act):
Maharashtra established an Independent
Regulatory Authority (IRA) in water sector by enacting MWRRA Act. It’s no doubt
a pioneering effort. But the actual implementation of this Act is frustrating. MWRRA
Rules were prepared after 7 years from the enactment of the Act & that too
only after an order to that effect by the High Court. Prepared Rules were
contradictory to the provisions of the Act & WRD had to withdraw the same.
The result is MWRRA Act has no Rules! Integrated
State Water Plan (ISWP) which was to be prepared & approved within one year
from the enactment of the Act is still not in place even after 10 years. River
Basin Agencies (RBA) have not been operationalized & issuing water
entitlements by RBAs has not so far materialized. MWRRA Act has been amended in
2011 to retrospectively protect the non transparent decisions of High Power
Committee regarding transfer of water from irrigation to non-irrigation. Powers
of MWRRA in respect of sectoral water allocation have been withdrawn by the
said amendment. Effective area under water entitlement thus has been
drastically reduced. MWRRA recently decided the criteria for water tariff. But
it opted for the path of least resistance. It reduced the water tariff to avoid
criticism & virtually followed the policy of appeasement by providing host
of concessions. But in the process whether it could follow the mandate given by
the Act is a moot point. Act says that water tariff should fully recover the O
& M Cost & canal system should be properly maintained. MWRRA is
supposed to ensure that WRD accordingly gives adequate funds for the
maintenance irrespective of concessions or no concessions. Issue of concessions
is in the realm of WRD as per political decision of the govt. The burden of concessions will be borne by the
govt. The ever deteriorating conditions of canals in Maharashtra, however, tell
a different story. Revision of water tariff for a period of three years from
2013 to 2016 was due in 2013. That has not been done so far (July 2015). Regulation of all types of water (surface
& ground water) & its uses for different purposes (drinking, domestic,
industrial & irrigation) is supposed to be done by MWRRA. But nothing significant
has been done so far regarding ground water & non-irrigation i.e. drinking,
domestic & industrial water supply.
On this
unfortunate background, now it would be interesting to see what MWRRA itself did
to come out of the catch - 22 situation & overcome the systemic constraints.
MWRRA UNDER MICROSCOPE:
1.
MWRRA
is supposed to be an independent quasi
judicial body armed with following
provisions in its Act:
( i ) Powers
of Authority and Dispute Resolution Officer u/s 13: They have the “powers
as are vested in a civil court, under the Code of Civil Procedure, 1908”
(i)
Disputes
& Appeals u/s 22: Prescribed procedures for Primary Dispute Resolution Officers (PDROs) to hear
the disputes u/s 22 (2) & Authority to hear the appeals 22(4)
(ii) Punishment for non-compliance of orders u/s 26
(iii) Offences by companies u/s 27
(iv) Compounding of offences u/s 28
(v) Cognizance of offences u/s 29: “No Court shall take cognizance of an offence punishable under this Act
except upon a complaint, in writing made by the Authority or by any other
officer duly authorized by the Authority for this purpose”.
MWRRA has hardly used these provisions
in last ten years. It does not behave like a quasi
judicial authority
at all. It acts more like as an academic institute involved in the extension
services and / or as a toothless advisory committee with an ideal wish-list
ever ready in the hand. It is literally running with the hare and hunting with the hounds (try to remain on good terms with both
sides in a conflict or dispute). Therefore, nobody takes MWRRA seriously. MWRRA
has not maintained a safe distance either from WRD officials or from political
leaders. Familiarity breeds contempt! That’s what has exactly happened.
2. It would be better if MWRRA, on its own, declare what it has
done so far in respect of its following powers, function & duties
(a) Sectoral allocation
from 2005 to 2011 i.e. till the amendment of the Act which withdrew its powers
of the sectoral allocation
(b) Adverse impact of
amendment to MWRRA Act in 2011 on the regulation process
(c) Bringing it to the notice of
Hon. Governor (MWRRA’s appointing authority), the Chief Minister ( ex officio President of SWC), Chief
Secretary ( ex officio President of
SWB) & WRD that MWRRA cannot legally
function in the absence of the framework
of water governance which includes Rules, RBAs, SWB, SWC & ISWP. (There are
no Rules, true RBAs & ISWP for last 10 years. SWB & SWC, constituted by
law in 2005 itself, started their functioning only in 2013 & 2015 respectively)
(d) Making it clear to all
concerned that MWRRA’s decisions would be vulnerable in the absence of Rules
& ISWP and may eventually be cancelled by the Court of Law if somebody
moves the court & brings to its notice that basic provisions in the Act
have been bypassed.
(e) Simultaneously
initiate regulation & monitoring of domestic & industrial water supply
which includes determination of criteria for issuing entitlement, appointment
of Regulators & PDROs, revision of agreements with utilities in the light
of MWRRA Act, & guidelines for Public Private Partnership (PPP) &
bottled water
(f) Playing a role in respect of Interstate Rivers u/s 11
(e) & (p) & categorically point it out to all concerned that any release
of water for - or exchange of water with -any other State need to be
incorporated in ISWP.
(g) Powers used,
functions performed & duties carried out in respect of following:
( i ) State Water Entitlement data base [11
(s)]
(ii ) Hydro-meteorological information
data base [11(t)]
(iii)
Irrigation Status Report [11 (v)]
(iv)
Preservation of water quality
[12(5)]
(v)
Private LIS [12(6)(d), (e)]
(vi)
Water to drought prone areas [12
(10) (a)]
(vii) Restrictions on digging wells [14(3)]
(viii) Drip / Sprinkler [14 (4)]
General perception is, barring the exception
of issues at Sr. No. (vii) & (viii) above, nothing noteworthy has been done
by MWRRA. Even in the case of restrictions on wells & drip, only
notifications have been issued recently. Some experts find even those
notifications inadequate for host of reasons. If MWRRA had initiated the work
of preparing data bases & ensured regular publication of Irrigation Status
Report, many difficulties regarding data would have been reduced.
In
view of above discussions, at the end of this paper, one question needs to be
asked – What WRD is up to?
What WRD is up to?
WRD is either
totally confused regarding what it really wants to do or there is some method
behind the madness. It advocates restructuring but doesn’t go beyond
reshuffling of its offices & changing the designation of some of its
officers. It preaches reforms in water sector but doesn’t solve the problems of
WUAs. It initiates Water Auditing, Benchmarking & Irrigation Status Reports
but doesn’t make any arrangements for water & crop area measurement &
simply abort / abandon all these basically good & necessary things when its
reliability & accuracy gets challenged. It wants RBAs without dismantling
IDCs. It legally provides for Integrated State Water Plan (ISWP) but doesn’t
prepare it for years together. It makes affidavit in the High Court & gives
roadmap of preparing ISWP & in the same affidavit it also talks about
amendments to the same Act. It establishes MWRRA by an Act but doesn’t complete
the prerequisites of that Act. It swears by the State Water Policy but doesn’t
revise it every 5 years as provided for in the policy itself.
WRD, since long,
has outsourced the very thinking process to only one individual. He gives very good advice which is mostly
global in nature & certainly essential in the long run. WRD shows respect
to him but doesn’t officially accept his recommendations for “practical”
reasons because of its own short-sightedness, failure to understand the things in broader perspective &
complete lack of strategic thinking. WRD
only seeks his blessings to use it as sort of a certificate for camouflage
& concealment purposes.. People generally don’t speak anything when WRD
says that “He has appreciated our proposal”.
Conclusions:
1. MwRRA’s 100% dependence on WRD has created number of
hurdles in - & restrictions on - its development as IRA in the truest sense
of the term.
2. Systemic Constraints like compatibility of the physical system, O
& M practices of irrigation projects, prevailing administrative processes
regarding Administrative Approvals (AA), Revised Administrative Approvals (RAA)
& Technical Sanctions (TS) & non-implementation of Water Laws have not
been considered while adopting / transplanting / imposing present IRA model of foreign origin. Ground reality about irrigation projects in
the State is simply not conducive to & amenable for Regulation of Water
Resources based on modern concepts & reforms.
3. MWRRA has hardly used its powers in last ten years. It
does not behave like a quasi judicial authority at all.
It acts more like as an academic institute involved in the extension services
and / or as a toothless advisory committee.
4. MWRRA instead of
carrying out its own functions & duties as per the Act, has unnecessarily
involved itself in functions & duties of WRD & its other institutions.
RECOMMENDATIONS:
·
MWRRA may start functioning like a quasi judicial IRA & start using its
powers.
·
MWRRA may keep an arms distance
from politicians & never succumb to their illegal orders
·
MWRRA may change its priorities as
follows:
(a)
Conversion of IDCs
into RBAs,
(b) Regular functioning of SWB & SWC
(c) Preparation of ISWP
(d)
Making systems compatible & hence, amenable to regulation & governance.
(e) Insisting for introduction of New-CADA (as suggested by Kelkar Committee),
(f)
Ensuring regular O & M systems
(g)
Implementation of Water Laws
·
To resolve the problem of
compatibility, all old water related physical systems & their management
may gradually be replaced by modern systems to substantially increase their
efficiency. A time bound roadmap may be developed for this purpose.
·
Globally best modern – preferably
Green technologies - based on transfer of
knowledge may be brought taking benefit of globalisation
·
New water resources projects may be
cleared only & only if their design & planning is based on modern
concepts
·
Projects requiring rehabilitation
may also be modernised to the extent possible.
·
Ongoing projects, depending upon
their stage of completion, may also be modernized to the extent possible
·
MWRRA may be
delinked from WRD from administrative point of view. It may have direct linkage
with SWB & SWC.
·
Ways & means may
be identified to make MWRRA truly independent by elevating its legal status
& suitably empowering it.
·
MWRRA may be given
some percentage of funds provided for in the State’s annual budget for all
water related departments taken together. Such funds may specially be provided
in the name of MWRRA directly & not through some particular department
·
A corpus of
substantial amount may specially be created for MWRRA
·
MWRRA may have
adequate technical & ministerial staff considering its increased workload
due to added responsibility of aspects related to Ground Water
·
MWRRA may be restructured to ensure that it
would be an interdisciplinary authority comprising of national / international
level young (age group 40 to 50) techno savvy experts of proven track record from
all disciplines directly related to regulation & governance of water. Post
graduation in water management, regulation & governance related subject
from a reputed institution should be the minimum educational qualification. Persons
from various renowned Indian Institutions like IIT, NIT, IIM, IIS, WRDTC, Agricultural
Universities, Gokhale Institute of Politics & Economics, etc may be
preferred.
·
Chairman, MWRRA may be selected
strictly on the merit basis through a national / international level selection
process. Selection committee may accordingly be restructured.
·
MWRRA (Amendments &
Continuance) Act 2011 may be repealed to restore MWRRA’s original powers
·
MWRRA Act may suitably be amended
to incorporate above recommendations.
·
Task Force may be constituted as
per directives given by Hon. Chief
Minister in the first meeting of State
Water Council on 17 Jan 2015 to complete operative part (Rules, Notifications,
Agreements, etc) of all water & irrigation related Acts
REFERNCES:
- Maharashtra Water Resources
Regulatory Authority Act, 2005(MWRRA Act)
- Maharashtra Water Resources Regulatory
Authority (Amendment & Continuance) Act, 2011
- MWRRA (Allocation & Monitoring
of Entitlements, Disputes & Appeals & other Matters) Rules, 2013
- Maharashtra Krishna River basin Act
(MKRBA) Bill
- Purandare Pradeep (2012): “Canal Irrigation
in Maharashtra – Present Status”, Dams, Rivers & People, July – Aug
2012, www.sandrp.in http://sandrp.in/irrigation/Status_of_Canal_Irrigation_in_Maharashtra.PDF
- WALMI, “O & M of Irrigation
Systems in Maharashtra State” Jan 2004, Publication No.20
7.
WRD, GoM(1999): “Report of Maharashtra Water & Irrigation
Commission”
- WRD, GOM, “Maharashtra’s State Water
Policy”, July 2003
- Maharashtra Management of Irrigation
by Farmers Act, 2005 (MMISF Act)
- WRD,GOM, ”Report
of Special Investigation Team (SIT) constituted by Govt for Enquiry of
Irrigation related issues, (Chitale Committee) (Feb 2014)
- Purandare Pradeep, “Irrigation Laws
in Maharashtra: Politics of Non-Implementation”, International Conference
on Political Economy of Water: A Social Response, 19-21 Dec 2013
- Maharashtra Irrigation Act, 1976 (MIA76),
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