Controversial plan to sell water from Sheonath river

Controversial plan to sell water from Sheonath river Ajit jogi, chief minister of Chhattisgarh, has announced an enquiry into the legality of India"s first private project to supply water to industry from the Sheonath river. Speaking at a press conference after a cabinet meeting on January 21 in Ambikapur, Sarguja district, he said the agreement signed by the Madhya Pradesh (mp) government before creation of the new state will not be allowed to compromise the interests of Chhattisgarh (cg) if the enquiry gives it an adverse report card. But non-governmental organisations (ngos) opposing the project are sceptical. "The state government favours private investment in the water sector, so there is no reason to expect much from the enquiry," says Gautam Bando-padhyay of the Nadi Ghati Sangharsh Morcha, which runs people"s campaigns in ten river basins in the region.

The project to supply water to the Borai Industrial Growth Centre in Durg district has raised a storm. Radius Water Ltd, a private company of Rajnandgaon developed and promoted by Kailash Engineering Co Ltd, has build a barrage at Rasmada on the Sheonath river under the project. A stretch of about 23 km of the river has been ceded to Radius for 22 years under a build-own-operate-transfer agreement. The company"s chief executive officer, Kailash Soni, talks about elaborate plans for a number of private water supply projects, and had made a presentation on this to none other than the chief minister.

The water stored in the Rasmada reservoir is not sold to factories directly - the company sells the water to the cg State Industrial Development Corpora-tion (csidc), which then sells it to the industries. The deal was signed in 1998 by the mp Audyogik Kendra Vikas Nigam, Raipur (akvn). After cg"s creation, csidc inherited the deal. "That"s why very little is known of the project. Even the bureaucrats are just finding out the details," says a journalist in Raipur. One thing, though, is clear: the process of drawing and executing the project wasn"t transparent and it didn"t involve the villages along the river. Especially five neighbouring villages: Rasmada, Siloda, Mohlai, Piparchadi and Mahmara.
They feel cheated "We thought the government was making the barrage for us. We were completely shocked when our access to the river was restricted. Nobody consulted the village panchayat at any stage," says Keshav Harmukh, member of the janpad panchayat and a resident of Mahmara, a village along the project site on the Sheonath. "The village panchayat used to earn Rs 75,000 each year as royalty on the sand that was lifted from the river bed in the dry season. That income is gone," he says. Rameen Bai, the sarpanch, concurs. "Before this project, we were free to roam and graze our cattle on the banks of the river. We used to cremate our dead there. Now, our access is restricted," says Kejuram Chandrakar, another resident. Harmukh says the river has eaten up 1 hectare of land due to erosion over time: "This land was ours. How could the government lease it off without consulting us?"

The worst hit are fisherfolk families. "During the rains, we would fish in the river. In the dry season, we would plant vegetables and melons on the dry riverbed. Our daily income was Rs 60-120," says Narad Nishad, deputy sarpanch of Mahmara. "Now, we work as labourers on daily wages of Rs 35. Even if they allow us to fish in the reservoir, not too many of us have the large nets required to fish in deep waters. Besides, the company"s motorboat rips the nets." Ramdulal Nishad, a fisherman from Mohlai, says about 600 people of his community face a livelihood crisis.

Irrigation is another issue. Ramkrishna Mishra, member of the Mohlai village panchayat, says the company doesn"t allow farmers to lift water from the reservoir through pumps during the lean season. "In May 2002, the sub-divisional magistrate and tehsildar came to our village and uprooted a lift irrigation motor. They loaded it on to the vehicle to confiscate it, but then left it behind, warning us that the next time they would bring the police. We have been told that we won"t be allowed to lift water from January 2003." Officials and ministers have been widely quoted in the media as saying that villagers" complaints ignore the fact that the river is dry for six months, and that the restriction is only in place during the dry months. Lalit Surjan, editor of the Hindi daily Deshbandhu in Raipur, says this is all the more reason to prioritise irrigation, especially in a drought year.

Supreme Court lawyer Rajiv Dhawan, familiar with riparian rights, says the project has simply not taken into account pre-existing rights of users. In the case of adverse effects, surrounding villages have to be compensated, he points out.

Not approved
csidc isn"t responsible for administering the river. It is the water resources department of the state government. Matters involving usage of water have to be referred to the state-level Water Utilisation Committee, which has the chief secretary as the chairperson and the water resources secretary as the member-secretary, apart from other officials. Asked if Radius was entitled to a monopoly on the use of water, Chitaranjan Khaitan, secretary to the water resources department, denies the grant of any such permission. He says only technical permission of the project drawing was granted. Radius was never permitted to use the river"s water as the matter hasn"t reached the Water Utilisation Committee, he clarifies. In fact, both akvn and Radius sought permissions after the deal was signed. On January 10, 2000, akvn wrote a letter to the department of water resources seeking clearances, and Radius sought the Water Utilisation Committee"s approval on April 29, 2000, six months before the new state was created on November 1, 2000.

The agreement has also drawn flak on financial grounds. csidc has guaranteed the payment for 4 million litres per day of water, even if the consumption is lower. Reportedly, the corporation has lost Rs 1.29 crore between December 2000 and June 2002 due to payment for water that was not drawn due to inadequate demand. csidc hasn"t affirmed or denied this, and repeated attempts to get it to answer questions regarding this issue were fruitless.

How did the project go ahead? Kailash Soni of Radius is unwilling to discuss the agreement. He is angry about the way ngos and the media have projected him and his company, and says he plans to sue some publications. Soni draws attention to the "service" he is providing the country by facilitating industrial development through an assured supply of water to industry at reasonable rates. He points to the benefits, especially the flood regulating barrier system (also known as the "Godbole Gate", a technology patented in India by P D Godbole of Nagpur). This comprises automatic barrage gates that pass out excess runoff by opening due to a correct angle of tilt. These do not require electricity to lift the barrage, as is the case with conventional structures. Other advantages include low costs of manufacturing and maintenance.

Villagers, though, complain against this system as well. They say water is released suddenly and without any warning. "Due to our proximity to the river, we don"t have any talaab or tanks. We have relied on the river for innumerable needs for generations," says Mishra. "A sudden rise in the amount of water released can be fatal. There was a close call when a pregnant woman almost got dragged due to a sudden increase in flow." Several ngos have questioned the claim that the project is providing a "service" in national interest - they say it is the other way round, that the parties in the project are making money and using a resource that the society owns collectively. Essentially, the matter is about the use of what has long been considered a common property resource (cpr) - the river.

Who owns, who benefits
As the project is based on a build-own-operate-transfer agreement, the nature of "ownership" has been widely debated. There has been a lot of talk of the government "selling away the Sheonath". But the fine print doesn"t mention the river. It is the "project" that the government has privatised. This takes the matter into the legal realm. Down To Earth sought out Videh Upadhyay of the Enviro-Legal Defence Firm, a Delhi based lawyer with a special interest in water issues: "An agreement is not merely what it says, it is also what it means. If you lease out a project, the rights to the river are also automatically leased out." The concession agreement includes the "project assets" (land worth Rs 5.02 crore in procurement costs) leased out to the company for an annual payment of Re 1. This "property" is fenced off with barbed wire and thorny bushes for "security" reasons.

A river is a cpr and the government merely controls it in public trust, Upadhyay stresses. The agreement is within the legal framework of the country, and there are adequate laws to protect the riparian owners, he insists, contradicting the claim that the laws in this area were not very clear. What is lacking, says he, is a statutory legal framework, but there are laws based on common law principles and court judgements. He pulls out a 1919 case (Jagan Nath v Chandrika; Oudh) that says: "No riparian owner should face obstruction in flow (by a dam); interference with such flow is an actionable wrong."

Feasibility is another ground on which this agreement is criticised. It mentions that after the execution of the agreement, the feasibility report is to be prepared by Radius and submitted to csidc. Both Dhawan and Upadhyay point out that the norm in such agreements is to first sign a memorandum of understanding to lay down the specific parameters of the proposed project, then do a feasibility study based on these, and then sign a legal contract. The Borai agreement has got it jumbled up; the contract was signed before the feasibility and other studies. "Once a contract has been signed, the parties have a stake in going ahead with the project no matter what. That is precisely why the feasibility studies have to be conducted beforehand," Upadhyay says.

If someone moves court against the Borai agreement, csidc and Radius will have a lot of questions to answer. At present, their silence doesn"t help clear the confusion - and their reputation.

(see also: Villagers march to revive the Meghal river)

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