The weird story of Maharashtra Irrigation Act 1976 Rule of Law without Rules!

The weird story of Maharashtra Irrigation Act 1976 Rule of Law without Rules! Pradeep Purandare Not preparing the Rules of Acts amounts to non-implementation of the Constitution itself! Point to be noted, My Lord. Order! Order! A PIL (152 / 2014) has been filed by this author before the Aurangabad bench of Mumbai High Court way back in 2014. Maharashtra Irrigation Act, 1976 (MIA 1976) is not being implemented in letter & spirit; thanks to the absence of Rules of MIA 1976. It is needless to add that Act/Law states the general principles and Rules give the necessary details required for the actual implementation of the Act. For example, Act only says that Water Use Rights may be given to all farmers in the command area as prescribed. Rules of the Act, however, give the details to answer the usual questions like How? How much? When? Where? To whom? Application / Agreement required? Applicable terms & conditions? etc. Rules reduce the scope for discretion and chances to interpret the Act in different manner by different individuals at different times & places. Rules facilitate smooth & uniform implementation of the Act. MIA1976 defines the term “Prescribed” as prescribed in the Rules made under this Act. Since there are no rules made under this Act (MIA 1976), nothing is prescribed. Further, since there are no rules of MIA 1976, Water Resources Dept (WRD), it follows the Bombay Canal Rules,1934 (BCR 1934) which are based on Bombay Irrigation Act,1879 (BIA 1879) which, in turn, has been repealed by MIA 1976. BCR 1934 is not consistent with MIA 1976. Even Vidarbha & Marathwada had separate Irrigation Act depending on their political Journy. In fact. the very objective of the MIA 1976 was to unify & improve existing Irrigation Acts in the State. To make the things more complicated, WRD even follows the BCR1934 in a selective manner. For example, WRD never applied Rule 9 (e) for controlling the area under sugarcane: Rule (9 (e) : Water shall not be supplied to any piece of land for irrigating more than two sugarcane crops during any period of five irrigation years. Not preparing the rules of MIA1976 is not an exception. It seems to have become a rule in Maharashtra. Out of total 9 irrigation related acts listed below, there are no rules for as many as eight acts. Only MMISF Act has the rules. • Maharashtra Irrigation Act (MIA) 1976 • Irrigation Development Corporation (IDC) Acts 1996 – 1998 [Total 5 Acts] • Maharashtra Management of Irrigation Systems by Farmers (MMISF) Act, 2005 • Maharashtra Water Resources Regulatory Authority (MWRRA), Act 2005 • Maharashtra Ground Water (Development & Management) Act, 2009 (MGW) Barring the exception of MGW Act, all other Acts are based on MIA & refer to the same. Role of MIA 1976 in water regulation has been recognised in the Amendments to MWRRA Act in 2011. MMISF Act has also saved most of the provisions under MIA 76 barring certain sections which have been repealed. The Canal Officers appointed & empowered under MIA1976 are only supposed to implement IDC, MMISF & MWRRA Acts. This is not all! MIA 1976 is a parent act because it provides for basic foundation & framework of the Water Management, Governance & Regulation (WMGR) in the State. WRD gets its locus standi & administrative structure due to following provisions in the MIA 1976 if implemented! 1. Notification when water supply to be applied for purposes of canal or for regulation, supply or storage of water (Sec 11, River notification) 2. Lands under irrigable command of canal. (Sec 3 Command Notification) 3. Division of State into irrigation areas (Sec 5) 4. Appointment of Canal Officers, their suitable empowerment, notification of their jurisdiction, allotment of duties, delegation of powers, etc (Sec 5 to 10,109, 110) Since the said procedure has not been completed as prescribed in the Act, the Canal Officers simply don’t have locus standi at all. For example, section 12 of MIA 1976 denies power of entry on land to Canal Officers in the command area of the project if the river is not notified u/s 11. The situation, therefore, is weird and hence, there is complete anarchy in the irrigation management of state sector irrigation projects Annasaheb Shinde, former Minister of Agriculture of India, way back in 1992, while writing preface to the this author’s book entitled “Sinchan Nondi” (Irrigation Notes) made following statement: “Not preparing the Rules of the Act amounts to the insult of the legislature who enacted the Act and also of the people who elected the law makers”. Maharashtra Water & Irrigation Commission (Chitale Commission) in its 1999 Report has stated following as one of the failures of Maharashtra Water Resources Department 13.2.5. After the formation of Maharashtra State in 1960, three different irrigation laws and different sets of rules made thereunder were prevalent in three regions namely Western Maharashtra, Marathwada and Vidarbha. The Department took 16 years to integrate and unify the three acts. But new sets of rules under the new 1976 Irrigation Act have not been made even today. There appears to be a lot of confusion amongst the Departmental engineers about which specific sets of rules are operative in Marathwada and Vidarbha. In Marathwada and Vidarbha, no new or old system of water distribution seem to have been brought within the purview of rules of project management. No special effort appears to have been made in that direction. The PIL brought out the above-mentioned facts and prayed that the High Court may kindly give directives to the govt regarding the framing of the Rules of MIA 1976 within 3 months. Fortunately, The High Court issued a clear & specific order on 5th Aug 2015. Its operative part is: Respondent State is called upon to file reply and specify the time frame required for finalisation, approval and publication of the rules. Affidavit shall be presented within four weeks from today”. Almost 10 years have passed after the issuance of the said High Court Order. MIA1976 doesn’t have Rules! No rules even after 48 years after its enactment!! Unofficially, it is learnt that the concerned committee has submitted the draft rules to the govt in 2015 & ostensibly, the same is being processed at govt level! Now, this author may again go to the High Court & point out that it’s a case of contempt of court. And then the law would take its own course! But in the meanwhile, the author realised that it’s not only the simple case of the contempt of court. It is something more basic & serious. In the remaining part of this article an effort has been made to bring out that something! Maharashtra Legislature has enacted the above mentioned nine irrigation related Acts because water is a state subject as per Article 246, Seventh Schedule of Indian Constitution (Table-1). President of India / Governor of Maharashtra has accorded permission to all abovementioned Acts & then those permissions have duly been published in the official gazette. It can, therefore, be said that the nine irrigation related Acts are part of constitutional process whose sanctity needs to be preserved. Table-1 Subject-matter of laws made by Parliament and by the Legislatures of States. Reference: Article 246, Seventh Schedule List Union List State List Concurrent List Power to make laws with Parliament State Legislature Parliament & State legislature Entry Entry 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 Entry 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 Entry 20: Economic & Social Planning Article 254: If there is any inconsistency between laws made by Parliament and laws made by the Legislatures of States, a law made by Parliament shall prevail. On this background, would it be an exaggeration if this author says that not preparing the Rules of MIA1976 (& other eight Acts) amounts to non-implementation of the Constitution itself? If this is the state of affairs what will be the fate of the following? 1.Considering water as a common pool resource (CPR) of the community. 2.The state holds water in public trust for the people and is obliged to protect water resources as a trustee for the benefit of all. 3.The responsibility of the state as public trustee shall remain even if some of the functions of the state in relation to water are entrusted to any public or private agency. When the govt engaged in making The Constitution redundant, can we expect the government to honor the CPR & shoulder the responsibility as a public trustee? This has not happened because of negligence or callousness! It’s an undeclared & hidden policy silently developed to safeguard the vested interests of irrigation bureaucracy & the ruling class (irrespective of political parties). The author would be grateful to the readers if they offer their opinions & share their experiences regarding the Rules of the Act in their area of interest Canal Officers are supposed to implement MIA 76 & all other Acts (MMISF, MWRRA, IDC) which are based upon MIA 76. Hence, it is utmost necessary to appoint them, specify their duties & suitably empower them equivalent to Civil Courts by the Code of Civil Procedure,1908 & Indian Penal Code, (Section 193 &228) Adverse impact: The obvious result is there is no water governance. Free for all situations exist. 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. Since nothing is legally committed, nothing can legally be challenged. The overall situation is best suited for privatization. An unnotified river or command area, relatively speaking, can easily be handed over to private company. That’s seems to be the ulterior motive of missing operative part! What the Supreme Court recognizes? (a) water as a common pool resource and has applied the public trust doctrine to water. (b) the fundamental “right to water” as integral to the “right to life” The constitutional provisions & stand taken by the Supreme Court make it crystal clear that enacting a Law is not an event but is a constitutional process which needs to be implemented as prescribed in letter & spirit. Needless to add that it is incumbent on the law makers to ensure that the sanctity of the process is maintained. It is obvious that the said process must be completed in all respects at the earliest. Not framing the rules of a law for almost 48 years amounts to creating hurdles in the constitutional process itself. Legal Paradox?: On one hand the Supreme Court not only recognizes water as a common pool resource & applies the public trust doctrine to water but also recognizes the fundamental “right to water” as integral to the “right to life” And on another hand, here is a so called progressive State which trivializes the process & brazenly aborts the same by not framing the Rules & by not issuing legally vital notifications endangering its own locus standi.(There are 8 more such water & irrigation related laws in Maharashtra. Seven of them don’t have rules!) It would be necessary to take a review of Acts from various fields & check whether they have Rules. I am afraid there may many many Acts without Rules If this is allowed to continue unchecked, an unprecedented legal crisis is in offing in Maharashtra. Will the Bombay High Court, suo moto, take the cognizance of these unruly waters & do the needful in the larger interest of the State? Table -2: The weird situation of Maharashtra Irrigation Act 1976 (MIA 76) Preliminary The President of India gave his consent on 26th July 1976 to MIA 76 enacted by Maharashtra Legislature. The consent was then first published in Maharashtra Gazette dt 5th August 1976. MIA 76 came into force on 1st Jan 1977 Constitutional Provisions Article 246, Seventh schedule, State List (List II), Entry 17 Operative part – most important Enacting a law is not sufficient. The operative part which includes rules, notifications, agreements, government resolutions, orders & circulars as per the new Act is also equally important. If the operative part is not in place, then the Act remains on paper for all practical purposes. Rules of MIA 76: Not prepared for almost 50 years t Old Rules, for example, Bombay Canal Rules,1934 (BCR1934) being used. BCR 1934 are based on Bombay Irrigation Act,1879 (BIA 1879) And BIA 1879 has been repealed by MIA76 No Rules – nothing prescribed. As per Sec 2 (20) “Prescribed” means prescribed by the Rules made under this Act. Since there are no Rules, nothing is prescribed Notifications under MIA 76 to create a strong legal foundation & structure for Irrigation Management and to provide locus standi to WRD River (Sec11) Command(Sec 3) Canal Officers* Water in rivers, by default, is under the control of the Revenue Dept. WRD can get Power of Entry on Land (12) for Irrigation Management using river water, only if it notifies the river (11). WRD can get powers of Irrigation Management in the command areas of irrigation projects only if it notifies the command area (3) To notify (1) Regions, Circles, Divisions, Subdivisions & Sections (5) (2) Appointment of Canal Officers at above mentioned offices (6,7,8) (3) Allotment of Duties to the Canal Officers (10) (4) Empowerment of Canal Officers by delegation of power (110) (5) Power to summon & examine witnesses (109) ** (6) Delegation of Powers (110) PIL (152/2014) Petitioner: Pradeep Purandare, Retd Asso Prof, WALMI, Aurangabad Respondents: 1. Secretary (WRP & Devp) 2. Secretary (WRM & CAD) Advocates For the petitioner: Ad P S Paranjape For the Respondents: Mrs M A Deshpande AGP for the State Prayer: The Respondents may kindly be directed to frame rules in respect of implementation of MIA 76 within a period of three months High Court Order dt 5th Aug 2015 Respondent State is called upon to file reply. And specify the time frame required for finalization, approval & publication of the rules. Affidavit shall be presented within four weeks from today (5th August 2015) Present Status: The Committee constituted by the Govt. to prepare the Draft Rules of MIA-1976 has submitted its Report to the Govt. on July 28th 2015. The Rules however have not yet been published, even after almost ten years. About Author Retd. Associate Professor, WALMI, Aurangabad, Former Expert Member of (1) Marathwada Development Board, (2) MMISF Act & Rules Committee, (3) Integrated State Water Plan Committee, (4) Krishna Floods 2019 Study Committee. Awards– (1) Maharashtra Foundation (USA)Award 2020, (2) Vilasrao Salunkhe Award 2020 given by ग्राम गौरव आणि पाणी पंचायत; Books: सिंचननोंदी (१९९२), विधिलिखित (२०१४), पाण्याशप्पथ (२०१७), महाराष्ट्रातील कालवा सिंचन (२०२२). पाण्याशप्पथ (भाग-२ , २०२४) Email: pradeeppurandare@gmail.com.