On 20 February 2018, the Union Cabinet approved the proposal to constitute a tribunal for the adjudication of the ongoing dispute between the State of Chhattisgarh and the State of Odisha over Mahanadi river. For a while now, there has been a bit of clamour by Naveen Patnaik-led BJD government for setting up a tribunal in terms of the Inter-State River Water Disputes Act, 1956 (ISRWD Act) to resolve the Mahanadi river water dispute. As the Union Government finally decides to meet the demand of the Government of Odisha, let us take a step back and delve a little deeper into the dispute.
Mahanadi, the longest and the sixth largest river in India, rises in Chhattisgarh and drains near Paradip, Odisha, into the Bay of Bengal. In Odia, ‘maha’ means great or mighty and ‘nadi’ means river. This ‘mighty river’ or Mahanadi sustains and nurtures cities, townships, and villages, both in Chhattisgarh and Odisha. Upper riparian states are always at an automatic advantage, as is the case with Chhattisgarh. Odisha, an agrarian economy, relies heavily on Mahanadi river for water supply. With catchment area of 141,589 sq. kms., of which 65580 sq. kms. falls within the State of Odisha (as per data available with the Water Resources Information System of India), livelihood of lakhs of inhabitants of Odisha depends on Mahanadi.
Seemingly, Chhattisgarh has constructed/ proposed construction of certain weirs and barrages across the Mahanadi river. The Government of Odisha objected to these constructions and proposals citing devastating consequences on Odisha which is a lower riparian state. Thus began the dispute between the two states. Till date, the Government of Chhattisgarh denies any adverse impact on Odisha resulting from its proposed constructions across the Mahanadi river.
In 2016, press reports (here, here and here) stated that the Government of Chhattisgarh as well as the Union Government wanted to set up a ‘joint control board’ to resolve the Mahanadi river dispute. It may be noted that on 28 April 1983, an inter-state water sharing agreement titled “Orissa-Madhya Pradesh Inter-State Matters-Irrigation and Power Projects — Memorandum of agreement entered into between the States of Madhya Pradesh and Orissa” (MoA) was entered into between the erstwhile undivided State of Madhya Pradesh and the State of Odisha. In terms of this MoA, a joint control board could be constituted (Clause 11) “to discuss and resolve any issues” between the two States. In 2000, as Chhattisgarh was carved out of Madhya Pradesh, in terms of the Madhya Pradesh Reorganisation Act, 2000, the MoA was deemed to have been entered into between the State of Chhattisgarh and the State of Odisha. However, the MoA deals with specific projects and does not contain any residual clause whereby any water-related dispute between the two states would necessarily have to be resolved by setting up a ‘joint control board’. Interestingly, the MoA does not even speak of the manner of constitution or enforceability of a decision of a joint control board.
On 19 November 2016, in terms of section 3 of the ISRWD Act, the State of Odisha filed a complaint with the Union Government seeking reference of the Mahanadi water dispute to a tribunal for adjudication. On 19 January 2017, instead of constituting a tribunal (as per this press release), the Union Government constituted an 11-member ‘Negotiations Committee’ to examine the availability and utilisation of waters of the Mahanadi river and its tributaries and also to examine claims of various states as per applicable water sharing arrangements. The Government of Odisha rejected formation of the Negotiations Committee, stating that negotiations will not resolve the dispute, that the constitution of the Negotiations Committee is arbitrary, and that the fact-finding task assigned to the Negotiations Committee exceeds the mandate of the ISRWD Act. The Negotiations Committee was required to submit a report within 3 months of its constitution. However, as the Government of Odisha did not participate in the meetings of the Negotiations Committee, the Minister of Water Resources concluded that the dispute cannot be resolved by negotiations.
Thereafter, in November 2017, the State of Odisha filed an original suit against the State of Chhattisgarh before the Hon’ble Supreme Court of India seeking grant of injunctions, pending constitution of tribunal under the ISRWD Act, restraining the State of Chhattisgarh, “(a) from continuing with the construction and operation of the six ongoing industrial barrages namely, Samoda, Seorinarayan, Basantpur, Mirouni, Sardiha and Kalma…. (b) continuing with the construction and operation of seven ongoing projects for utilization of 2.95 MAF of water annually viz., Kelo, Arpa-Bhaisajhar Barrage, Sondhur, Rajiv Samodanisda Diversion Project Phase-II, Mongra Barrage, Ph-II, Sukhanalla barrage and Ghumariya Nalla Barrage… and © from taking up future projects…” Noting the statement of the Minister of State for Water Resources before the Rajya Sabha that the dispute between the two states cannot be resolved by negotiation, the Hon’ble Supreme Court directed the Union Government to set up a tribunal under the ISRWD Act and disposed of the suit.
Following the directions of the Hon’ble Supreme Court of India, the Union Government has finally taken steps to constitute a tribunal to resolve the Mahanadi river dispute which has been the subject-matter of media glare for the past many months. The tribunal will have three members nominated by the Chief Justice of India and who must be sitting judges of either the Supreme Court of India or the High Courts. In terms of the ISWRD Act, the tribunal has three years (can be extended further by two years) to give its decision.
At this juncture, it is difficult to assess what the decision of the tribunal might be, given that there are not many facts and developments available in the public domain. One can only wait and watch.
