Lawlessness in Maharashtra’s Water Sector

Above: Increasing height of a dam which holds no water Photo: Parineeta Dandekar

Guest post by Pradeep Purandare, pradeeppurandare@gmail.com

Irrigation Laws in Maharashtra: Politics of Non-Implementation

Laws are generally enacted to implement the policy by the ruling class & its government to promote & safeguard its own class & caste interests. However, while drafting the policy & laws, politically correct concepts & terminology in fashion is used for public consumption. New things are accepted because those come as conditions for getting the loan from donor agencies. Creating a desirable image or impression at national / international level can also be the motivation. Adopting a new policy or enacting a new law does not necessarily mean that the establishment of the day sincerely believes in that policy & law. Once the purpose of getting the loan and or creating an impression is served, government conveniently forgets implementing the policy & the law. Or, implementation is done in selective & superficial manner. Clauses / sections which were included for public consumption & which can really make the difference, if implemented in letter & spirit, are generally either put in cold storage or subsequently amended to make them more “practical & workable”. This does not happen as a result of inefficiency, callousness or indifference. This happens with purpose & by well defined strategy. This is politics of non-implementation! It is done to implement the hidden agenda. Of course, it’s not something new. It has been happening since long & in most of the walks of life. This paper makes an attempt to simply describe how politics of non-implementation is being done in water sector in general & in the field of irrigation in particular in Maharashtra – a supposedly progressive, highly industrialized & a modern State of India.

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 operative part is not in place, then the Act remains on paper for all practical purposes.

PLEASE SEE ANNEXURE 1 for Detailed table.

Gist of missing operative parts & its implications are given below:

In absence of rules (yes, MIA 76 does not have rules for last 37 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 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. Since nothing is legally committed, nothing can legally be challenged. The overall situation is best suited for privatization. An un-notified 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!

MMISF Act was brought in to legally provide for Participatory Irrigation Management (PIM). World Bank insisted for the enactment & made it a compulsory condition for getting the loan under Maharashtra Water Sector Improvement Program (MWSIP). WRD, therefore, had to succumb. It however did not comply in letter & spirit. Ambiguity in rules for WUAs at higher level, non formation of sub committees, delayed or non execution of agreements with 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 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. Intentions of WRD are clear & obvious. It considers WUAs as just a stop gap arrangement before going for corporatization & contract farming. One can imagine WRD’s line of argument in near future. It could be as follows “We tried our level best but WUAs could not succeed. Government cannot now take the responsibility of water management. Privatization appears to be the only way out”. Incomplete legal processes thus help establishment & make tail enders vulnerable.

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. There was reluctance to prepare the rules. 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, it is alleged, are contradictory to the provisions of the Act. They have been challenged & the matter is sub-judice.[yesterday Maharashtra’s legislative council had to discuss the issue in the house & Minister for WRD had to stay the implementation of rules] State Water Board & State Water Council has been legally constituted way back in 2005 to respectively prepare & approve the Integrated State Water Plan (ISWP). Both the board & council have not yet started their functioning. Obviously ISWP which was to be prepared within one year from the enactment of the Act is still not in place even after 8 years. MWRRA as per its own Act is supposed to take decisions with reference to ISWP. But it is going ahead even without ISWP. Similarly, 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 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 already 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 safest path. It reduced the water tariff to avoid criticism. 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. Ever deteriorating condition of canals in Maharashtra, however, tell a different story. 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. Nothing significant has been done so far. In fact, in case of dispute over sharing Godawari Waters between upper & lower Godawari basins, MWRRA has been a silent spectator. As a quasi- judicial IRA it could have done many things. But it preferred playing politics of non-implementation..

Very structure & framework of water governance are thus missing in Maharashtra & hence, there is no Rule of Law. Water conflicts of all types are on increase at all possible levels. Misappropriation & mismanagement is the end result.

It is necessary to develop pro-people intervention strategies & peoples participation in water sector. Implementation of existing water laws could be a necessary (but of course not sufficient) beginning. There are many provisions in the existing water laws that could help initiate pro people intervention.

Politics of ‘non-implementation by ruling class’ needs to be effectively & immediately challenged by `politics of implementation by pro people forces’. That would help promote people-centered interventions which are so urgently required to fight diversion of water from irrigation to non-irrigation & privatization of water.

Annexure 1:

Implementation of Water Laws in Maharashtra: A Critical Review

Sections	Present status	Impact
MIA,76
Sec 114: Rules	Rules not prepared in 37 years	Act remains on paper
Sec11: River  notification	Incomplete in many projects	People not informed/ opportunity of being heard denied. Locus standi of WRD doubtful
Sec 3: Command  notification	Incomplete in many projects	—- do ——–
Sec 8: Appointment of Canal Officers	Done but not operative	No one takes initiative. Nobody is held responsible. Free for all situation. Water theft, vandalism & tampering with canal system are rampant. Offences go un punished. No FIR. No action.
Sec 75 to 87: Award of Compensation	Not used at all.	Irrigators don’t get compensation even if the agreed volume of water is not delivered at right time & place. No accountability for the Canal Officers.
MMISF Act, 2005
Sec 76: Rules	Prepared. Excessive use of “mutatis mutandis”	Ambiguity in rules for WUAs at higher level
Sec 20: Sub committees	Not formed in last 8 years	Purpose of participation with decentralization & expanding the circle of knowledge & skill defeated.
Sec 21,29: Agreement	Not executed in time & at all levels of WUAs Serious complaints about not having  joint inspection in true sense, non- completion of agreed repairs & rehabilitation & reluctance by officers  to hand over the system	Purpose of delegation of powers & imbibing sense of responsibility defeated. Encroachment on powers of WUAs Nexus between local Politicians & officers continues unabated. WRD loses its credibility. Poor quality of repairs & rehabilitation. In absence of real handing over of management to WUAs, power of water distribution remains with WRD officials. Only lip service to participation.
Sec 22: Joint inspection, …..handing over … and Sec 23: Measuring devices (MD)	Not executed in time & at all levels of WUAs Serious complaints about not having  joint inspection in true sense, non- completion of agreed repairs & rehabilitation & reluctance by officers  to hand over the system Providing MD is not yet complete. Credibility of  measurement records is doubtful	Volumetric supply of water to WUAs mostly remains on paper.
Sec 28: Supply of water as per entitlement	In absence of proper water budgeting at project level, irrigation scheduling of main system & MD, supply of water as per entitlement is an exception rather than a rule.	Bulk supply of water based on entitlement given volumetrically is still a distant dream. WRD is not yet fully equipped for the purpose with compatible physical system.
Sec 30: Powers to WUAs	Not spelt out	WRD officials wield the real power.
Sec 38: Competent Authority	Not operative	WUAs don’t get any technical advise
Sec 39 to 51: Lift Irrigation WUAs	Provisions not brought in force	No control over – & regulation of – lift irrigation. Act simply not made applicable to lift irrigation..
Sec 52: Powers & functions of WUAs	Only responsibilities(& not powers) have been spelt out	WUAs remain ineffective.
Sec 53: Powers & functions of Canal Officer	Emphasis on powers & not on responsibilities	In absence of accountability of any kind, WRD officials remain indifferent & callous
Sec 54: Sources of Funds of WUAs	Water tariff collected from the members of WUA is the only source of income. WRD has promised to return substantial part of tariff to WUA. However, the promise is not being kept.	Most of the WUAs are not economically self reliant. They face problems in routine maintenance & repairs of the canal system and can’t afford to maintain office & staff.
Sec 60 to 62: Offences & penalties	Not operative.	No water governance worth the name.
Sec 63 & 64: Conflict Resolutions	Not operative. MWRRA indirectly attempts to bypass the powers of upper level WUAs through regulators	WUAs not involved in conflict resolution. Purpose defeated.
Sec 68: Water budgeting at Project Level	Not operative.	WUAs not involved in water budgeting. Purpose defeated.
Sec 70:  Water supply for  non-irrigation purposes	Water entitlement issued only to select WUAs in selected projects. Unit for issuing entitlement is not project as a whole. Therefore, ineffective provision.	Water supply to non-irrigation gets priority even during periods of shortage of water. Second priority given to irrigation by amending State Water Policy is not being honoured.
Sec 71: Recovery of water charges	Coercive measures not operative.	Recovery of water tariff is very poor.
Sec 72: Act to apply to Existing WUAs	Difference of opinion between WRD & Cooperative Department regarding how to operationalize the provision	Act not being applied to existing WUAs
MWRRA Act, 2005 Act amended in 2011 to retrospectively protect non transparent decisions of High Power Committee regarding transfer of water from irrigation to non-irrigation
Sec 3: Establishment of Authority	Retired bureaucrats are in control.	Powers of MWRRA regarding sectoral allocation withdrawn. Effective area under water entitlement drastically reduced. There is hardly any regulation as per the Act. Issue of releasing water to Jayakwadi project from up – stream projects is the glaring example.
Sec 5: Selection Committee	Serving bureaucrats are in control.	Members of selection committee select themselves as Member / Secretary of MWRRA & join the authority soon after retirement from Government.
Sec11: Powers, functions duties of authority	Selective & limited implementation. Sec 11 (f) not implemented. Project clearance even without Integrated State Water Plan [ISWP]	Adhocism, confusion & regional imbalance in water resources development may further increase
Sec 12: General policies of Authority	Not implemented even when water users have moved the court of law. Several petitions pending in Mumbai High Court	Principles of Tail to head irrigation & equitable distribution of water at river basin level not implemented leading to political agitations & increased animosity within regions of the State.
Sec 13: Dispute Resolution Officers	Appointed. Not active.	In absence of information & awareness about provisions in the Act, water users don’t insist for suitable action. Hence, it is assumed that absence of complaint means absence of dispute itself.
Sec 14: Permission of River basin Agency	River Basin Agencies though exist as per law, they have not started functioning like RBAs	Since RBAs have not issued any water entitlement & not officially permitted any water use whatsoever, every water use since enactment of the Act could be, legally speaking, unauthorised & hence, illegal.
Sec 15: State Water Board	Legally constituted but not at all functioning.	SWB (Chairperson- Chief Secretary) is supposed to prepare ISWP.  Nothing happened in last 8 years.
Sec 16: State Water Council	Legally constituted but not at all functioning.	SWC (Chairperson- Chief Minister) is supposed to approve ISWP.  And then MWRRA should function as per ISWP. Nothing happened in last 8 years. MWRRA is taking decisions violating Sec 11 (f) of its own Act.
Sec 21: Special Responsibility of Authority	Not implemented	Gravity & seriousness of issues regarding backlog in irrigation has not reduced. In fact, it has increased a lot.
Sec 22: Disputes & Appeals	Not in use by the water users. Lack of awareness.	Grievance redressal mechanism provided in the Act, if used, could reduce number of cases going directly to court of law.
Sec 23 : Directives of Government	Not given so far	Government could have used this route instead of amending the Act in haste & panic. It could have also given directions to MWRRA in case of Jayakwadi dispute.
Sec 26: Punishment for non-compliance	Not used so far.	No effective governance
Sec 30: Rules	Prepared late only after High Court’s order. Rules to certain extent are contradictory to the provisions in the Act	Discontent about Rules in Marathwada. Rules challenged in court of law. MLAs requested to challenge the rules in legislative assembly & council

References:

1. Maharashtra’s State Water Policy, July 2003

2. Maharashtra Irrigation Act, 1976 (MIA76),

3. Maharashtra Management of Irrigation by Farmers Act, 2005 (MMISF Act)

4. Maharashtra Water Resources Regulatory Act, 2005(MWRRA Act)

5. Purandare Pradeep, “Wanted – Rule of Law”, http://www.downtoearth.com

***

– Pradeep Purandare

Retd. Associate Professor, Water & Land Management Institute, Aurangabad, Maharashtra

(The above piece is based on a paper presented at the  International Conference, Dec 19-21, 2013,Organized by College of Social Work, Nirmala Niketan, Mumbai, India)

pradeeppurandare@gmail.com, http://jaagalyaa-thewhistleblower.blogspot.in/,  http://www.irrigationmainsystem.com