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Mahanadi water row: SC unhappy with Centre stand on tribunal

New Delhi : The Mahanadi River water-sharing row between Odisha and Chhattisgarh has taken the shape of a major inter-state dispute that has seen sharp political lines being drawn up even as the Centre has refused so far to set up a tribunal to deal with the problem.

The Supreme Court had recently admonished the Centre, saying that it had “no valid purpose” in resisting the setting up of a tribunal to deal with the dispute between Odisha and Chhattisgarh over the Mahanadi waters. The apex court said it was “disappointed” that the Centre had not yet issued a notification on the constitution of a tribunal to deal with the issue despite stating before it in October 2017 that a decision would be taken in this regard by November 19.

A SC bench comprising Justices S A Bobde and L Nageswara Rao did not buy into the Centre's argument that Odisha had not participated in the negotiations on the issue. “Are you (Centre) saying if they (Odisha) do not come for negotiations, a tribunal cannot be constituted,” the bench asked.

The Odisha Government had moved the apex court in December 2016 and sought an order asking Chhattisgarh to stop construction work in projects on the upstream of Mahanadi. Odisha has been opposing Chhattisgarh’s plans to build 13 barrages and seven pick up weirs on Mahanadi, saying these projects would adversely affect the interests of its farmers.

In the SC hearing on December 11, the Centre had said that Odisha was not coming forward for negotiation in the matter. To this, the bench observed that “failure of negotiation has nothing to do with it. Odisha is saying they do not want to negotiate. If they are not coming forward, it is failure of negotiation”.

“We are disappointed at this. We were told that you will issue a notification. You had made a statement that a notification will be issued for constitution of a tribunal. You had made this statement before the court", the bench observed.

The Centre had also stated in the SC that it was in the process of finalising a bill to constitute a composite tribunal that would deal with all inter-state river water disputes in the country.

Just before the hearing on December 11, the Odisha Government and the Centre had filed affidavits before the Supreme Court on separate dates. While the Odisha Government said in its affidavit that the Centre has provided misleading information on the ongoing dispute between Odisha and Chhattisgarh, the Centre stated that there was no point in constituting a tribunal to settle the Mahanadi water dispute at this juncture as the Naveen Patnaik Government in Odisha was not providing necessary information in the matter.

The Odisha Government's counter affidavit in the Supreme Court was in response to the Centre's affidavit that there was no need to constitute a tribunal since Odisha had failed to supply facts and figures or adduce any evidence in support of its claim.

In its affidavit, the State Government accused the Centre of providing erroneous information and violating the law by not constituting the tribunal.

Odisha contended that the Centre had initially agreed to set up a tribunal to resolve the dispute and later was unwilling for the same in contravention of the provisions of the Interstate River Water Disputes Act, 1956 (IRWD Act).

The allegation that Odisha did not provide relevant facts to the Centre was also not correct, the State Government said before the SC, pointing out that negotiations between Chief Ministers of the two states had failed.

The Inter-State River Water Disputes (Amendment) Bill 2017 was introduced in Lok Sabha by the then Union Water Resources, River Development and Ganga Rejuvenation Minister Uma Bharti on March 14, 2017. The Bill proposes to set up an inter-state river water disputes tribunal for adjudication if an issue is not resolved through the Disputes Resolution Committee.

In Odisha, the issue seems to have united the Opposition against the BJP. Several political parties, including the ruling BJD and Congress have said they would intensify their agitation against the Centre. In early December, leaders of as many as 13 political parties staged a demonstration in front of Raj Bhawan in Bhubaneshwar to protest against the Centre’s go-slow attitude on formation of a tribunal.

A local outfit Mahanadi Banchao Andolan (MBA), along with its convenor Sudarshan Das, and a delegation from all political parties have jointly submitted a memorandum to President Ram Nath Kovind through Odisha Govenor SC Jamir. The delegation has demanded Kovind's intervention in formation of the tribunal and also demanded that all ongoing projects on Mahanadi by the Chhattisgarh Government should be stopped even as the completed projects should not be made operational till the dispute gets amicably resolved.

The Mahanadi water dispute has also spilled over to Parliament.

BJD Parliamentarians had created an uproar in the Lok Sabha during the current winter session of Parliament after Speaker Sumitra Mahajan did not accept an adjournment motion for discussion on a tribunal formation.

The issue has created a divide among parties in Odisha too. Following the Centre’s refusal to constitute a tribunal, there was an uproar in the State Assembly too recently, which resulted in the adjournment of the House.

Even as the vexed issue has gone to the apex court, Odisha Chief Minister Naveen Patnaik has once again sought the intervention of Prime Minister Narendra Modi for constitution of a tribunal.

“I once again request you to kindly issue instructions for constitution of a tribunal by issuing necessary notification under Section 4(1) of the ISRWD Act to protect the interest of four and a half crore people of Odisha,” Naveen said in a letter to the Prime Minister, as per news reports.

Patnaik has emphasised the need for constitution of a tribunal, which is a mandatory statutory obligation of the Centre as per the Act.

The Odisha Government does not see any purpose in further negotiating with the “recalcitrant state of Chhattisgarh” which has unilaterally and surreptitiously gone ahead with construction of dams and barrages in Mahanadi basin far exceeding its share of water, said Patnaik. Though Chhattisgarh’s share of Mahanadi water is 8.33 million acre feet (MAF) in minimum flow and additional 2.5 MAF of surplus flow totalling 10.83 MAF, its ultimate plan is to utilise 27.48 MAF.

“I may emphasise that the federal scheme of our Constitution does not countenance forcing the unwilling state to negotiate or deliberate particularly in a situation like this, where the opposite state has been using negotiation only as a handle to delay the adjudication to complete its projects and create a fait accompli,” he added.

Patnaik also pointed out that the Union Water Resources Ministry had taken a clear stand that the water dispute cannot be settled by negotiation and a tribunal under the provisions of the ISRWD Act was required. The same was also stated by then Union Minister of State for Water Resources Sanjeev Kumar Balyan in Rajya Sabha on July 31, 2017 and in Lok Sabha on August 10, 2017.

"However, to the utter surprise of the people of Odisha for whom Mahanadi is a lifeline, the Union Ministry of Water Resources filed a written statement on December 4 this year changing its stand completely by stating that the tribunal cannot be constituted. This volte-face is not only surprising but prima facie smacks of considerations other than what is legal or what is just and fair," Patnaik said.

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