JAL SWARAJ A REPORT ON THE TECHNICAL LEGAL AND ADMINISTRATIVE ISSUES CONCERNING THE JOHAD IN LAVA KA BAAS
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- JAL SWARAJ A REPORT ON THE TECHNICAL LEGAL AND ADMINISTRATIVE ISSUES CONCERNING THE JOHAD IN LAVA KA BAAS
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By
M.S. Swaminathan
N.C. Saxena
M.C. Chaturvedi
G. Mohan Gopal
Om Thanvi
July 2001
'!
The report is prepared by a Group of Eminent Persons
convened by the Centre for Science and Environment
Centre for Science and Environment
41, Tughlakabad Institutional Area, New Delhi-110062, India
Tel: 91-11-6081110, 6081124, 6083394, 6086399
Fax: 91-11-6085879 E-mail: cse@cseindia.org
Website: www.cseindia.org
PROFILES
Dr M S Swaminathan is the chairman of M S Swaminathan Research
Foundation, which is fostering community-managed Food and
water security systems in several villages. He is well known for
introducing dwarf wheat into India and initiating the high-yielding
varieties programme. He is a former director general of the Indian
/ Council for Agricultural Research. Dr Swaminathan was also the
t acting deputy chairman of the Planning Commission in 1980.
Dr Swaminathan is a recipient of World Food Prize in 1987 and UNEP Environment
Prize in 1994.
Dr N C Saxena is in the Indian Administrative Service and is presently
secretary in the Planning Commission. Dr Saxena is the former
secretary of department of rural development, under the ministry of
rural areas and employment. He was in charge of the drinking water
scheme. Dr Saxena has done his Ph D in forestry from Oxford
University. He has written several books and articles on sustainable
development of natural resources and reforms and poverty
alleviation programmes.
Dr M C Chaturvedi did his civil engineering from University of Roorkee
in 1946. While serving the government, he designed the Rihand dam.
Later he went to the University of Iowa. Dr Chaturvedi became the
founder-head of the civil engineering department of Indian Institute
of Technology (IIT), Kanpur, and also of applied mechanical
engineering at IIT Delhi. He has been on the board of consultants of
several dams like the Tehri and Beas. He has been a visiting professor
at universities like Harvard and Houston in USA. Currently, he is also involved in the
Centre for Science and Environment's (CSE) activities as a Distinguished Fellow in the
institution.
Dr G Mohan Gopal is the director of the National Law School of India
University (NLSIU), Bangalore. Before this, he was the chief counsel.
East Asia and Pacific, in the legal department of the World Bank
(Washington DC). Dr Gopal has been an adjunct professor of law at
Georgetown University Law Centre since 1991. He served as counsel
in the office of the General Counsel of the Asian Development Bank in
Manila from 1983-86. An author of several papers on law and
development. Dr Gopal holds a doctorate in law (SJD) from Harvard Law School,
Cambridge, Massachusetts, where he also took an LLM degree.
Om Thanvi is the editor of Jansatta, a national Hindi daily. Earlier, he
was the resident editor of Jansatta in Chandigarh, and resident editor
of Rajasthan Patrika, a regional Hindi daily, and editor-in-charge of
Itwari Patrika, a Hindi weekly of Rajasthan Patrika. Mr Thanvi has
been involved with environmental issues for more than a decade.
He has extensively documented the traditional water harvesting
systems of Rajasthan under the CSE's fellowship programme. He was
an enthusiastic participant at the Rio Earth Summit in 1992.
Jal Swaraj is the only way to Gram Swaraj
n June 20, 2001, Tarun Bharat Sangh (TBS), a
non-governmental organisation (NGO) wor
king in Alwar district of Rajasthan, received a
notice from the Rajasthan irrigation department
saying that the earthen groundwater recharge
structure which it had helped to build in the village
Lava ka Baas was both technically unsafe and
illegal. TBS was given 15 days to remove the struc
ture, failing which action would be taken under the
Rajasthan Irrigation and Drainage Act, 1954.
O
The structure in question is a small earthen
embankment over a narrow, almost triangular
gorge, in a nallah. The total length is only about
225 metres. And the average height is 15.5 metres.
It is built on the community grazing lands of Lava
ka Baas. The village is a small settlement located
near Thanagazi in Alwar district. The villagers
have constructed the structure with technical
support from TBS. This NGO has constructed over
4,500 such structures in over 700 villages in the
region. The villagers of Lava ka Baas were
desperate for water — the village has only one
handpump for its entire human and animal
population — and they have invested Rs 3 lakh of
their own meagre savings in building the structure.
The rest of the funds — Rs 5 lakh — came from an
industrialist in Churu district who gave the money
in memory of his mother. The work on the
recharge structure began in March 2001 and was
completed by mid-June.
Subsequently, the department conducted a
technical study of the structure. Its report of June
29, 2001 details the technical and legal problems
with the structure. In its assessment of legal
issues, it says the structure is in violation of the
1910 agreement between the erstwhile states of
Alwar and Bharatpur. According to the technical
report, “In 1910 a dispute arose between the
erstwhile states of Alwar and Bharatpur over the
middle stretch of the Ruparel river. In settlement
of the dispute, the court ordered that during the
monsoons the water of the Ruparel river would be
divided between Alwar and Bharatpur districts of
the basis of 1:1.234 parts (45:55). To implement the
decision, a pick-up weir was constructed so that
the division of water was done in a manner that
Alwar received 45 per cent of the flow and
Bharatpur 55 per cent. This decision is being
* Jal Swaraj' Water Self-Reliance
* Gram Swaraj: Village Self-Reliance
complied with till date. The existing structure will
contravene the agreement.”1
Furthermore, as the villagers did not seek
permission from the department before
construction of the dam, it is in violation of the
Irrigation and Drainage Act under sections 55(3)
and 58(2) and thus it is a punishable offence.
The report concludes that the johad at Lava ka
Baas in Alwar district could lead to a water
shortage and have a negative impact on
agriculture in Bharatpur district. This in turn could
lead to unrest in Bharatpur.
On July 1, 2001, the district administration decided
to take action by breaking down the structure.
Officials backed up by a police force appeared at
the site of the structure. However, the intervention
by the chief minister of Rajasthan, Shri Ashok
Gehlot, and the chief secretary, Shri Inderjit
Khanna, at the instance of the Centre for Science
for Environment, stopped the structure from being
demolished. The irrigation administration instead
directed the villagers to deepen the existing
spillway of the structure to drain out the watecollected in the reservoir in order to reduce the
water impounded and thus make the structure
safe.
The villagers deepened the spillway by digging a
channel with a further (2.6 metres) depth based
on the directions of the administration and, thus,
lowered the height of the spillway by (10.2
metres) from the maximum height of the structure
leaving an impoundment of about (3.5 metres)
depth. But the problem remained as the local
administration was convinced that the further
deepening of the spillway was inadequate
and wanted it deepened further, which would
have rendered the structure more or less
redundant. The entire dreams of the villagers who
had built the structure and who were seeing water
for the first time in their wells would have been
dashed.
In the meantime, fast moving developments in
the state were threatening to blow the issue out
of proportion. For instance, a key opposition
leader and former chief minister, Shri Bhairon
CSE'S REPORT
The Group of Eminent Persons along with the villagers at Lava ka Baas
Singh Shekhawat, condemned the efforts of
the villagers in constructing the structure without
the permission of the irrigation department.
The state irrigation minister, Shrimati Kamla
Beniwal, also made a statement to the press that
any activity relating to the storage of water
without prior permission from the irrigation
department would not be tolerated. She went on
to say that “every drop of water that is received
through rain belongs to the irrigation
department.”2
The Centre for Science and Environment,
concerned that these events could impede, if not
destroy, the growing nationwide movement for
water conservation and rainwater harvesting,
decided to intervene by requesting a group of
eminent people — well known for their work in the
field of agriculture, irrigation engineering, natural
resource management policy and law — to visit
the village and study the matter.
This report is based on the visit of this Group of
Eminent Persons to Lava ka Baas on July 19, 2001
and their meetings with local villagers, workers of
TBS and officials of the district administration,
including the district magistrate, Shri Tanmay
Kumar. The group later went to Jaipur that evening
to meet the chief minister, Shri Ashok Gehlot, and
later held a press conference to brief the media on
its findings.
The group comprised of the following:
0
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•
•
•
Dr M S Swaminathan, eminent agricultural
scientist, Chennai
Dr N C Saxena, secretary, Planning Commission,
Government of India, New Delhi
Dr M C Chaturvedi, former founder-head of
Department of Civil Engineering, Indian Institute
of Technology (I1T)-Kanpur and Applied
Mechanics Department, IIT-Delhi and visiting
professor, Harvard University
Dr G Mohan Gopal, director, National Law
School of India University, Bangalore
Mr Om Thanvi, editor, Jansatta, New Delhi
The work of the group was coordinated by the
Centre for Science and Environment
The team received inputs from Dr M S Rathore
of the Institute of Development Studies CDS) in Jaipur
and Tej Razdan of the Jheel Sanrakshana Samiti in
Udaipur. CSE is extremely grateful to IDS, Jaipur for
the facilities it provided for the press conference.
— Anil Agarwal
Sunita Narain
If the johad was broken, the entire dreams of the villagers who were seeing water for
the first time would have been dashed
2
REPORT OF THE GROUP OF EMINENT PERSONS
Rainwater harvesting, livelihood security and the structure at
Lava ka Baas
It is vital to recognise that food security depends
on four issues: food availability, access to food,
absorption of food by the body, and sustainability
of food production. But for all this, water is critical
and, therefore, the availability of water is a critical
determinant of food security. The World Food
Programme and the M.S.Swaminathan Research
Foundation have just published the Food Insecurity
Atlas of Rural India. Out of the 16 states studied,
the villages of Rajasthan stand 13th in food
insecurity and the state’s rural areas are
classified as ‘severely insecure’.3
With very limited surface water and groundwater
resources, Rajasthan faces a serious problem of
water scarcity. Overdrawal and pollution will
become increasingly severe as population
increases and economic development takes place.
Groundwater tables are already being under
mined. According to the government’s own
estimates, out of 37 districts in the state, 27
districts have a serious problem of depletion of the
groundwater table.'1 In the districts of Alwar and
Bharatpur, groundwater levels have shown an
alarming decline. The only districts where
groundwater tables have improved are in the areas
along the Rajasthan canal, which, in fact, are facing
a serious problem of waterlogging. Rajasthan also
Children enjoy the benefit of their parents' hard work
faces problems of groundwater quality due to
inherent geohydrological characteristics, which
will get exacerbated as development takes place.
It is in this specific context of Rajasthan that it is
important to understand the potential of rainwater
harvesting. Over the last one hundred years or so,
we have seen two major paradigm shifts in water
management. One is that individuals and
communities have steadily given over their role
almost completely to the state in the management
of water resources. The second is that the simple
technology of using rainwater has declined and in
its place exploitation of rivers and groundwater
through dams and tubewells has become the key
source of water.
As water in rivers and aquifers is only a small portion
of the total rainwater availability, there is growing and,
in many cases, unbearable stress on these sources.
Dependence on the state has meant that costs have
increased; with cost recovery being poor the financial
sustainability of water schemes has run aground;
repairs and maintenance are abysmal; and, with
people having no interest in using water carefully, the
sustainability of water resources has itself become a
question mark — problems we see across the board
today. As a result, there are serious problems with
government drinking water supply
schemes.
Despite all the government
efforts, the number of ‘problem
villages’ — government classifica
tion of villages that do not have
access to adequate or potable
drinking water — does not seem
to go down. As one senior
government official has put it “in
our
mathematics,
200.000
problem villages minus 200,000
problem villages is still 200,000
problem villages.”5
Rainwater harvesting can help to
According to the government's own estimate, out of 37 districts in the state,
27 districts Slave a serious problem of depletion of the groundwater table
3
CSE'S REPORT
address the serious problems of drought and
water scarcity in Rajasthan, as in other droughtprone areas of the country. For instance, even if
the villagers living in the Rajasthan desert were to
capture a meagre 100 mm of water in a year over
one hectare of land, they would receive as much as
one million litres of water. Not surprisingly, the
people of Rajasthan have a long-standing
tradition of rainwater harvesting.6
The key component of rainwater management is
‘storage’ especially in a country like India where
the monsoon gives us on average about one
hundred hours of rain and then nothing for the
remaining 8,660 hours in a year. This water has to
be captured in large reservoirs with large
catchments by building large dams, in small tanks
and ponds with small catchments, or by storing it
in a way that it percolates down into the ground
and gets stored as groundwater.
In this context it is important to realise that there
is no technological alternative but rainwater
harvesting for villages like Lava ka Baas. After 50
years of independence the village has virtually no
drinking water and absolutely no irrigation
sources. The current irrigation strategy of the
country which relies on large inter-basin transfers
or exploitation of existing groundwater reserves
has no answers for these people, situated as they
are in remote areas with hilly terrains. Large
irrigation projects — undoubtedly important for
many other parts of the country — will simply
never reach every village in the country.
Therefore, large irrigation projects provide
solutions to certain regions but cannot drought
proof or irrigate the entire country.
The Rajasthan government itself estimates
that while the total cultivable area of the state is
25.7 million ha and the net sown area in 1995-96
was 16.57 million hectares, the ultimate irrigation
potential is estimated to be only 5.53 million ha —
a mere 21.5 per cent of the cultivable area. In 1999,
the surface irrigation potential was only 2.83
million hectares.7 By the mid-1990s, groundwater
development was already very advanced — over
50 per cent of the ultimate potential — and
next only to Punjab, Haryana and Tripura.8
The existing groundwater use is becoming
unsustainable in many parts of the state.
Villages like Lava ka Baas will, therefore, have to
depend either on groundwater or on local water
harvesting. In fact, these two must go together
because use of groundwater can only be sustained
if there are local efforts to recharge the aquifers. It
is for this reason we would argue that not only is
rainwater harvesting critical for ‘local food
security’ and livelihoods but that it also provides
the most cost-effective and feasible technological
option today to meet water and irrigation needs of
poor and water-scarce villages.
But rainwater harvesting — building and
sustaining small and medium structures for
capturing rainwater — is just not possible without
community involvement, indeed control. We have
seen many such important efforts go waste without
local partnership and, therefore, what pleased us
most was to see the involvement of the villagers in
Lava ka Baas. These poor people have invested over
Rs 3 lakh of their own earnings into building the
structure and even more through their shramdaan
(voluntary labour). Today, governments are looking
for such models to emulate as they are coming to
understand that without people’s participation
these projects are built in one monsoon and
disappear after a few years.
It is for these reasons that we are convinced that
the work of Lava ka Baas must be supported. In our
view these water harvesting initiatives foster both
a Sarvodaya approach in providing water to all
and an Antyodaya approach in water sharing.
After 50 years of Independence, Lava ka Baas has virtually no drinking water and
absolutely no irrigation sources. Hence, rainwater harvesting is the only alternative
4
REPORT OF THE GROUP OF EMINENT PERSONS
Water harvesting initiatives like the one in Lava ka Baas foster both a Sarvodaya
approach in providing water and an Antyodaya approach in water sharing
However, we recognise that this case illustrates
that there are several issues — technical, legal
and administrative — that need to be sorted out
so that we can create the right framework for
the growth of community efforts in water
management. We recommend that a set of
guidelines be developed for the promotion of
community-based water harvesting initiatives by
a group of eminent people who have long
experience in social mobilisation, rural deve
lopment and water resources management.
We would also recommend that the department
of irrigation be renamed the department of
water so that it recognises its role in both
promoting water conservation and development
integrally.
Most importantly, we must convert this conflict
into a “win-win” situation for all — the people of
Alwar, living upstream of the river, and Bharatpur
who use the downstream flow of the river.
Bharatpur also has a growing problem of
depleting groundwater tables and salinity. It
would be important to work with these
communities to change their irrigation systems
and for them to also harvest their rainwater
endowment so that they can recharge their
groundwater reserves. We believe it is possible
to convert this current controversy into an
opportunity for the future. The central issue is
to undertake a river basin-level integrated
environmental and economic systems planning to
develop the portfolio of activities needed for
sustainable development.
Rajasthan: ahead in water harvesting
We are also very encouraged to learn that the
current government of Rajasthan has taken the
concept of rainwater harvesting on board in its
water management strategies. Rajasthan has
taught the entire world the importance of the
raindrop. The technological sophistication of the
indigenous systems of water harvesting in the
state — the millions of tankas, kundis, nadis, talabs,
kuis and johads — is now being recognised.
We understand that the government is giving
priority to water harvesting structures in its
drought relief programmes. In the drought-relief
operations of 2001, over 100,000 works have been
taken up, out of which more than 50,000 are water
harvesting structures and include efforts to revive
traditional sources of water.9 Under the Rajiv
Gandhi Drinking Water Mission, over 31,000
traditional sources of water have been identified
and work is on to repair and renew these
structures. In urban areas, building byelaws have
been amended to promote rainwater harvesting
and recharge of groundwater. We understand that
the Hon’ble Governor and Chief Minister of the
state have provided a model for others to emulate
by making sure that their residences have installed
rainwater harvesting systems.
Villagers gather to voice their concern
We are delighted to hear of these initiatives.
These programmes, we believe, will go a long
way in enabling us to use drought relief as a
permanent and long-term relief against drought.
But we also know that such programmes need
political leadership and commitment at the
highest level and for this reason we would like to
place our appreciation on record for the efforts
made by the chief minister, Shri Ashok Gehlot, in
promoting these efforts for local food and water
security.
It is in this context that we would like to make the
following remarks on the water harvesting
structure in Lava ka Baas.
5
CSE'S REPORT
Ambit of the law
The Group looked at the legal issues raised by the
notice served on TBS and the related technical
report of the Rajasthan irrigation department. The
notice to TBS has been served under the sections
55(3) and 58(2) of the Rajasthan Irrigation and
Drainage Act, 1954. These sections state:
"55. Offences under Act.- Whoever, without proper
authority and voluntarily does any of the following.
that is to say—
(3) interferes with or alters the flow of water in any
river or stream, so as to endanger, damage or render
less useful any irrigation or drainage work;
[shall be liable, on conviction before a Magistrate,
to a fine not exceeding one hundred rupees, or
to imprisonment not exceeding one month, or
both, for the first offence; and to a fine not exceeding
five hundred rupees, or to imprisonment not
exceeding three months, or to both, for a subsequent
offence [.(substituted by Raj. 29 of 1991 w.e.f.
17-11-92)"
“58. Power to arrest without warrant - Any
person in charge of, or employed upon, any
irrigation or drainage work may remove from the
lands or buildings belonging thereto, or may take
into custody and take forthwith before a magistrate
or to the nearest police station, to be dealt with
according to law any person who within his view,
commits any of the following offences.—
supply or flow of water in or from any irrigation or
drainage work or in any river of stream, so as to
endanger, damage or render less useful any
irrigation or drainage work. "
The technical report states that “the construction
work on the above mentioned Laha ka Baas (read
Lava ka Baas) named dam on the Ruparel river is
contrary to the sections 55(3) and 58(2) of the
Irrigation and Drainage Act and hence illegal. ”
The report makes the following additional points:
(a)
“The construction work on the proposed Laha
ka Baas dam is being undertaken in Alwar
district which may lead to adverse impacts on
water use and agricultural management in
Bharatpur district and there is full likelihood
that this will lead to unrest in Bharatpur region. "
(b)
“If other NGOs continue to undertake illegal
work on the drains and rivers of the state in the
same manner then there will be an adverse
impact on the organised use of the state's water
resources and its planned dams and schemes
and there will be no control on them of the state
government. In many regions, there will be a
strong possibility that these activities could
increase unrest."
(c)
“The above mentioned dam constructed near
Laha ka Baas is entirely unsafe according to
technical parameters and there is a possibility
that even a small downpour could result in the
breaking of the dam which means that the
likelihood of life and property downstream
being harmed will remain. In the current
situation it is not proper to maintain such an
unsafe dam. Therefore, there is a need for
appropriate administrative
and police
arrangements to remove it because the people
of the nearby area benefiting from it will not let
it be removed easily. ’’
(d)
“In 1910 there was a dispute over the water of
the Ruparel river between the then Alwar and
Bharatpur states and for its resolution, the court
had ordered that during the monsoon the water
of the Ruparel river will be divided in the ratio of
1:1.234 (45:55) between Alwar and Ruparel
(2) without proper authority interferes with the
People trying to convince government officials
The report mentions that if NGOs continue to undertake illegal work on drains it could
have an adverse impact on the state's organised use of water resources and schemes
6
REPORT OF THE GROUP OF EMINENT PERSONS
Notice served on TBS is legally deficient because the irrigation and Drainage Act, 1954
explicitly states that it does not apply to minor irrigation structures
Should there be any other ground for invoking
this Act, this has not been spelt out in the
notice served on TBS or pointed out to us.
Under the circumstances, it appears that the
notice lacks sufficient legal basis and has
been prepared in haste without careful
consideration or framing of legal issues.
(b)
Local people admiring the water harvesting initiative
districts and for its implementation the Barah
pick-up weir was made which automatically
distributes the water between Alwar and
Bharatpur which is approximately 45 per cent
and 55 per cent. This order is being implemented
till today......... The above description makes it
clear that the above mentioned dam is
contrary to the court order on water
distribution and if people of the
downstream region get excited on this issue
and go to court then there is a possibility
that there will be a decision in their favour
as well as it will be difficult to control the
public unrest. Therefore, it is appropriate
to remove this illegal construction. ”
The above notice and technical report thus raise
both legal and technical issues. Our comments are
as follows:
(a)
Firstly, based on the material available to us,
it appears that the notice served on TBS is
legally deficient because it invokes a law
which does not apply to the johad in
question (the Irrigation and Drainage Act
1954). Whereas the Act explicitly states that it
does not apply to minor irrigation structures,
the concerned johad is a minor irrigation
structure, as confirmed to us by irrigation
officials concerned during our visit. (Section
3(ii) of the Act states that in this Act, unless
the context otherwise requires, “Irrigation
works” means a work or system of work,
natural or artificial, not being a minor
irrigation work as defined in section 2 of the
Rajasthan Minor Irrigation Works Act, 1953.)
The notice served on TBS and the technical
report of the irrigation department do not
indicate how the Lava ka Baas johad
contravenes the 1910 Bharatpur-Alwar
agreement. District authorities could not
produce a copy of the Bharatpur-Alwar
agreement on which they had purportedly
relied in issuing the notice to TBS. The only
document that could be produced by them
was a barely legible copy of an apportionment
award by a colonial official at the turn of the
century. The only relevant provision of this
award that district officials could point to is
that the waters of the Ruparel river would, at a
designated point, be divided on a 55-45 basis
between Bharatpur and Alwar. Beyond a vague
reference to the division of “unrestricted
flows”, district authorities could not point to
any provision in this award or elsewhere that
explicitly imposed on Alwar either an
agreement to guarantee a minimum flow of
water to Bharatpur, or an obligation to desist
from building any structures on the river or in
the catchment area. Restrictions on such vital
matters as the freedom of a state to tap water
resources cannot be implied, but should be
explicitly adopted. District officials referred
to a Privy Council decision on this matter,
however, none of the officials had ever had
the opportunity to see such a decision, except
one engineer who claimed to have read it
some three decades ago. Finally, the only
provision of which district officials could point
as the basis of their legal action in this regard
was a sentence in a booklet produced by TBS
entitled Phirse bahne lagi Ruparel by Professor
Mohan Shrotriya and Avinash which says that
“In those days the Bharatpur Maharaja had
been able to obtain an order from the court
that the Alwar Maharaja should not build any
dam on the Ruparel.” TBS confirmed that this
casual sentence was based on hearsay rather
7
CSE'S REPORT
extension to the catchment area of the river
would raise a number of complex issues
because agreements for sharing of river waters
generally place restrictions on the obstruction
on flows on the main stem of a river or its
tributaries. Such automatic extension to an
undefined catchment area would mean that
even the construction of roads and houses in
the area — or indeed afforestation schemes
that reduce run-off of water and top soil or
even household-level initiatives to conserve
rainwater falling on roofs — could be
construed as obstruction of water in violation
of agreements regarding river water flows or
adversely affecting irrigation structures under
the law. For instance, a little below the Lava ka
Baas johad, we saw the water of the nallah
being restricted by the foundation of a culvert
built for the road connecting Sariska with
Jaipur, if all flows in the catchment were
covered by the river water sharing agreement
between Alwar and Bharatpur, then even the
construction of this culvert, among many
other such constructions, may have to be
considered illegal. Such an approach would
create a cloud of legal doubt over thousands of
irrigation, public works, agriculture and
private structures and potentially open a legal
Pandora’s box, with uncertain consequences
for the ability of government to undertake
development activities.
Water in a degraded catchment
than on any knowledge or review of a court
order or an agreement. It appears that this
unsubstantiated and unofficial NGO statement
was what was relied upon by district
authorities in issuing the notice. In any event,
even if such an agreement — or judicial
decisions — exist, their legal effect after an
eventful century requires very careful legal
analysis before any final view may be taken.
For these reasons, our view again is that
district officials have failed to substantiate
their case that the Lava ka Baas structure
violates a turn of the century Alwar-Bharatpur
arrangement.
(c)
in any event, an arrangement pertaining to
river waters of the Ruparel river does not
apply to the johad because, as a factual matter,
it has not been built on the Ruparel river. The
johad is built in a relatively distant part of what
may be considered the catchment area of the
river (although we are not aware of any legal
demarcation of the catchment area). This is
confirmed by the government maps which
show that the johad has been built on an
unnamed nallah of the catchment of the
Ruparel river, described as the Udaynath ka
Nala by the local people. In the district revenue
records, the nallah is described as gairmumkin
nallah (literally meaning one that is impossible
to call a regular nallah and that it is only on
occasional nallahj. The notice is thus further
vitiated by the erroneous assumption that
the johad is constructed on the river. Even if
there are arrangements between Bharatpur
and Alwar applying to river waters, their
(d)
The catchment of the Lava ka Baas johad is no
longer an unrestricted catchment. TBS and
local villagers have already constructed over
ten johads in its catchment. Thus, under the
arguments made in the notice served on TBS,
all these structures will also have to be
declared illegal and removed. In addition,
some 350 johads had been built by the
villagers and TBS in the catchment of Ruparel
by September 30, 1997 because of which the
Ruparel had begun to flow round the year
according to TBS. All these structures would
also become illegal.
(e)
The district authorities claimed that there was
a provision in its notifications that impound
ments of water up to two metres.depth were
acceptable. But the district and irrigation
In the district revenue records, the nallah on which the johad has been constructed is
described as gairmumkin nallah, literally meaning that it is only an occasional nallah
8
REPORT OF THE GROUP OF EMINENT PERSONS
i he Lava ka Baas structure occupies 3,900 ha of the total 325,000 ha catchment area of
the 90 km Ruparel — just 1.2 per cent of the total catchment of the river
authorities could not produce any such order.
In any case, a blanket rule of two metres depth
is not acceptable to us as it would render
many water harvesting structures cost
ineffective.
It is obvious to us that the notice served on TBS
has been prepared without a proper review or
understanding of relevant documents and laws
and legal advice. Existing law has provided
adequate space for construction of a large number
of similar structures — for rainwater harvesting
and for public works. It is not clear why any publicminded group — in particular the district
administration — should now expend time and
resources to build a tenuous case that the Lava ka
Baas johad and similar structures are illegal. Given
the unplanned proliferation of laws and
regulations in our country, it would not be
impossible for the government to find some
provision (such as the Rajasthan Minor Irrigation
Act, 1953) relying on which the government could
argue that the johad is illegal. However, it would
be entirely erroneous to extend and distort laws
governing government irrigation facilities
(colonial laws intended to facilitate the
construction of irrigation schemes) to rainwater
harvesting, a related but entirely different policy
issue. The strategic consequences of this
extension would be quite disastrous — complex
and protracted litigation that could last for years
while developmental activities for water
conservation are held up. Actions intended to
harm government constructed or maintained
irrigation structures or impede them should
rightly be illegal. However, these actions should be
distinguished from efforts intended to facilitate
water conservation and water management by
communities. There is currently no legal regime
governing this latter set of actions and, in the
absence of a clear provision of the law that
prohibits them, there is no basis to consider them
illegal. If the government is not prepared to take
this view, then it must realise that many structures
and obstructions to water flows including roads
and buildings and many existing water harvesting
structures — and the chief minister’s own
programme for people’s initiatives or rainwater
harvesting — would have to be declared illegal
leading to immense litigation. The laudable efforts
of the Rajasthan government cited above and
various NGOs to promote people’s participation in
rainwater harvesting will come to a halt in a region
which is highly drought-prone.
We, therefore, strongly recommend that the
Rajasthan government desist from taking the
narrow legal view that has been taken in the
notice served on TBS. In fact, such a narrow view
would raise questions even about afforestation
and other watershed development activities in
the region because forests have the same impact
on the hydrological regime as water harvesting
structures — whose main objective is to recharge
the groundwater — both reduce monsoonal flows
but increase dry season flows.
Therefore, the only remaining issues are technical
ones. Firstly, whether the Lava ka Baas structure
will have any adverse impact on downstream flows
in the Ruparel river as implied in the technical
report prepared by the Rajasthan irrigation
department. And, secondly, whether the structure
is safe or not.
Technical issues
DOWNSTREAM IMPACTS: It is our opinion that the
Lava ka Baas structure will not have any adverse
impact on downstream flows. On the contrary,
more such structures if built in the catchment of
the river could even have a beneficial impact.
Firstly, the catchment of the Lava ka Baas
structure even though it is no longer unrestricted
is only about 3,900 hectares (ha) as compared to
the 325,000 ha catchment area of the 90 km
Ruparel river before it flows into the Sikripatti
dam. This is only about 1.2 per cent of the total
catchment area of the river. Moreover, Bharatpur
district receives not just the waters of the Ruparel
but also that of Gambhiri and Banganga.
Secondly, as the Lava ka Baas johad is not a dam
with a canal to abstract water from the nallah — it
is a water harvesting structure called johad,
traditional to the area, whose main objective is to
recharge the groundwater reserves — all that it
can do at worst is to reduce the monsoon flow by a
CSE’S REPORT
An apparent benefit of the johad
very slight amount because of its small catchment.
In this way, it would contribute to reduction in
floodwaters — Bharatpur does suffer from floods
— and at the same time it would increase dry
season flows in the river because of increased
groundwater recharge. Thus, if many more such
structures were built in the catchment of the
Ruparel, the downstream areas would receive
more water during the dry season when they need
water the most.
It is quite possible that even the monsoonal flows in
the river Ruparel will not get affected. The
Investigation, Design and Research (Irrigation) Unit
of the Rajasthan government had released a study
entitled A study of the impacts by the small water
harvesting structures in the catchment area of
Sainthal Sagar dam in June 1999. The study had tried
to assess the impact of over 200 johads and check
dams built in the neighbouring 50,300 ha watershed
of the 45 km Arvari river. The study assessed the
monsoonal flows of the Arvari river into the
downstream Sainthal Sagar for nine years before
and 11 years after the construction of the water
harvesting structures began in 1987 with the help of
TBS. The study concludes “there is no impact on the
yield of the Sainthal Sagar after the year 1987 due to
water harvesting structures in catchment areas. "l0The
changes in the year-to-year flows into the Sainthal
Sagar dam were strongly correlated with the total
quantity and distribution of rainfall in the particular
years (see table 1: Where is the impact of water
harvesting on downstream flows?).
Moreover, extensive groundwater recharge
through structures like the one at Lava ka Baas
should also have a beneficial impact on both the
quantity
and
quality
of
groundwater
downstream. The Ruparel river basin has steep
hills but the plains are extremely flat leading to
slow groundwater and surface water flows. The
extensive deforestation in the area has also
reduced groundwater recharge by allowing the
monsoon rains to run off fast. Groundwater
recharge is also naturally low because the bulk of
the rainfall occurs in a few short spells generating
a lot of runoff. The groundwater in the Bharatpur
area is known to be saline. Extensive groundwater
recharge should not only help to raise the
groundwater levels but also reduce the
groundwater salinity in this region over time.
Thus, from the point of regional water resources
development in the Ruparel river basin, rainwater
harvesting for the purpose of groundwater
recharge will have a beneficial impact both
upstream and downstream.
There is a need to develop robust models to
predict the exact impact — both in terms of time
and space — of water harvesting structures on the
hydrology of watersheds. Unfortunately, such
models do not exist at the moment.
SAFETY OF THE LAVA KA BAAS STRUCTURE: A report
on the safety of the Lava ka Baas structure
has already been submitted by Professor M C
Chaturvedi, one of the undersigned, to Shri Ashok
Gehlot, chief minister of Rajasthan, after his visit to
the site of the structure on July 12, 2001 and
discussions
with
irrigation
department
engineers.11 We reiterate a few key issues raised in
the report. We believe that the view that the
structure is technologically unsound arises from
a fundamental conceptual error. A johad is not a
large dam as conventionally understood. It is a
very small structure, which has developed
evolutionally for the storage of water by the
people using locally available materials. Its
design is as much an art as it is a science.
Therefore, applying safety principles which are
normally used for large dams to these small
traditional
structures,
is
not
correct.
Unfortunately, no design norms exist for such
small structures. The only available norms that
can be applied to these structures are those
prepared by the Central Research Institute for
Extensive groundwater recharge through the johad at Lava ka Baas should have a
beneficial impact on both the quantity and quality of groundwater downstream
10
REPORT OF THE GROUP OF EMINENT PERSONS
Table 1: Where is the impact of water harvesting on downstream flows?
Annual rainfall vs capacity of Sainthal Sagar filled up from 1998: pre and post water harvesting activities
Dam capacity filled up (million cubic metres)
Year
Annual Rainfall (mm)
1987
148 Low rainfall
5.89
1984
208 Low rainfall
4.81
1988
283 Low rainfall
10.08
1990
332 Low rainfall
2.11
1989(e)
333 Low rainfall
8.16
1991
344 Low rainfall
6.31
1982(c)
361 Low rainfall
11.72
1997(f)
366 Low rainfall
3.85
1986(d)
384 Low rainfall
6.81
1994
434 Low rainfall
7.28
1981
558
13.73
1998
603
10.62
1996
625
3.73
1993
629
13.73
1983
676
13.73
1992
764
13.73
1985
806
13.73
1995
921
13.73
a) The average annual rainfall of the area is 600 millimetres (mm).
b) The full reservoir level capacity of Sainthal Sagar is 13.73 million cubic metres (mcum).
c) The year of 1982 caused a good yield of 11.72 mcum despite a low annual rainfall of 361 mm because of two consecutive
rainstorms which gave good runoff. The first of 115 mm on dry ground lasted from July 7-18 and the second of 186 mm
on damp ground lasted from July 23-August 18.
d) The year of 1986 which received an annual rainfall of 384 mm, comparable to that of 1982, however, produced a very low
yield of 6.81 mcum as compared to 11.72 mcum in 1982. The first major storm of 103 mm from June 24-July 3 came on
totally dry ground and produced no runoff. The second one of 236 mm from July 19-29 which came on damp soil did
produce some runoff.
e) The year of 1989 gave an annual rainfall of only 333 mm but produced a good yield of 8.16 mcum. The first major storm
of 127 mm from August 11-17 came on damp ground and after five days another storm of 149 mm from August 23September 2 occurred. These two consecutive storms contributed to a high yield.
f) The year 1997 saw an annual rainfall of 366 mm and it generated a yield on only 3.85 cum. The reason for this low yield
was the poor daily rainfall pattern which resulted in poor runoff.
Thus, the above illustration for the years 1982 and 1984 prior to 1987 and for 1989 and 1997 after 1987 shows that though the
magnitude of the annual rainfalls for four years are more or less of the same range, due to varying rainfall distribution patterns they
gave different contributions to runoff. The construction of the water harvesting structure has had no role in affecting the runoff into
the dam.
Source: Government of Rajasthan 1999, A study of the Impacts by the small water harvesting structures in the catchment area of
Sainthal Sagar dam. Investigation, Design and Research (Irrigation) Unit, Jaipur, mimeo.
-
__________ XS
Notes:
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CSE'S REPORT
Dryland Areas (CRIDA) of the Indian Council of
Agricultural Research, Government of India, for
what it calls a water harvesting bandhi.}2
Our preliminary studies show that the Lava ka
Baas structure has (a) much higher capacity than
that required for the storage of maximum annual
runoff, (b) it satisfies the basic requirements for
stability, and (c) has ample capacity in the waste
weir. Any shortcomings noted will be brought to
the attention of the villagers and TBS and they will
be rectified well in time. There is thus no need to
lower the spillway further and, thus, reduce the
capacity of the structure. Moreover, during our
visit to the site on July 19, the district
administration did not raise safety as a major
concern to the group.
Government-civil society relations
It is also clear to us that Lava ka Baas illustrates
the changing nature of relations between govern
ment and civil society. Both sides will have to learn
to work together in a relationship of trust and
mutual respect. This is not the case at the moment.
The relationships will have to be built on the
changing nature of governance that we are seeing in
the country. On the one hand, the role of the state in
providing effective and credible development
assistance is on the decline. On the other hand, the
size and effectiveness of civil society, both as an
effective development agent and critic, is increasing.
The prevailing hierarchy and local power structures
will inevitably heighten the conflict, unless a special
effort is made to understand the situation and
respond to it accordingly.
In Lava ka Baas, we could see two conflicts in
action. One was the classic administrative conflict
— between two neighbouring districts — which is
quite common across the country and the other was
the government-civil society conflict. Even though
administrative conflicts between neighbouring
districts are quite common but there was one thing
unusual about the conflict in Lava ka Baas. The
district magistrate of Alwar was found defending the
interests of another district, Bharatpur. We believe
that the inter-district conflict has got subsumed by
the government-civil society conflict.
We believe that the local administration and civil
society groups should be strongly encouraged to
work together to bring together water anti
people’s participation — two critical elements for
improving food security, eradicating poverty and
encouraging decentralised governance of natural
resources in Rajasthan.
Acknowledgement
We wish to place on record our deep appreciation
of the warmth with which the Hon’ble chief
minister of Rajasthan, Shri Ashok Gehlot, received
us and assured us that he would take into
consideration our above views. □
REFERENCES
R S Dave, 0 P Higad and B P Sharma 2001, Laha ka Baas bandh nirman pargathit samiti ka prativedan (Report of the Committee on the Laha ka
Baas Dam). Government of Rajasthan, Rajasthan irrigation department, mimeo.
2 Anon 2001. Ek-ek boondpar sinchat vibhag ka adhikar - Kamla: Ruparel prakaran kijanch shuru (Right of irrigation department over each drop
of water: Kamla - Investigation be begins on the Ruparel Issue), Rajasthan Patrika, Jaipur. July 5.
3 World Food Programme and M S Swaminathan Research Foundation 2001, Food Insecurity Atlas of Rural India. M S Swaminathan Research
Foundation, Chennai
4 Alok Kumar and P.K.Batra 2000. Declining groundwater resources and need for its management in Rajasthan, in Proceedings of the National
Seminar on Groundwater Management Strategies in Arid and Semi Arid Regions, June 23-24, Jaipur, Groundwater Department, Rajasthan.
5 N C Saxena 2001, Recognising the Inevitable, in Anil Agarwal, Sunita Narain and Indira Khurana (ed), Making Water Everybody's Business. Practice
and Policy of Water Harvesting, Centre for Science and Environment. New Delhi.
6 Anil Agarwal, Sunita Narain edited, 1997, Dying Wisdom: Rise, fall and potential of India's traditional water harvesting systems, Centre for Science
and Environment, New Delhi
7 Government of Rajasthan 2001, Rajasthan me jal sangraha va sanrakshan (Water Harvesting and Protection in Rajasthan), Irrigation Department,
Government of Rajasthan, January, mimeo.
8 Government of Rajasthan 2001, Rajasthan me jal sangrey ve sanrakshan (Water harvesting). Irrigation Department, Government of Rajasthan,
January, mimeo.
9 Government of Rajasthan 2001, Conservation of Water: A theme for development of Rajasthan, July, Jaipur, mimeo.
10 Government of Rajasthan 1999, A study of the impacts by the small water harvesting structures in the catchment area of Sainthal Sagar dam,
1
11
12
Investigation, Design and Research (Irrigation) Unit, Jaipur, mimeo.
MC Chaturvedi 2001, Lava ka Baas johad - A Scientific Analysis. Centre for Science and Environment. New Delhi, mimeo.
J C Katyal et al 1995, Field Manual on Watershed Management (Revised Edition), Central Research Institute for Dryland Agriculture, Hyderabad.
12
he.Centre for Science and Environment is a public interest research and
advocacy organisation, which promotes environmentally-sound and equitable
development strategies. The Centre’s work over the past 20 years has led it to believe
and argue, both nationally and internationally, that participation, equity and
community-based natural resource management systems alone will lead the nations
of the world towards a durable peace and development.
As a public interest organisation, the Centre supports and organises
information flow in a way that the better organised sections of the world get to hear
the problems and perspectives of the less organised. Environmental issues are seen in
an anthropocentric perspective that seeks to bring about changes in the behaviour
of human societies through appropriate governance systems, human-nature
interactions, and the use of science and technology.
Though the public awareness programmes of the Centre have been its key
strength and focus of work, it has endeavoured to move into associated areas of work
like policy research and advocacy in the past years. Learning from the people and
from the innovations of the committed has helped the Centre to spread the message
regarding environment without its normal association with doom and gloom. Rather,
the effort of the Centre is to constantly search for people-based solutions and create
a climate of hope.
The Centre has always been, and will continue to be, editorially independent of
interest groups, governments, political parties, international agencies and funding
sources. CSE never accepts funding to push a donor’s viewpoint. All its outputs are
available for public dissemination.
T
Centre for Science and Environment
ON WATER
Making Water Everybody's Business: Practice and Policy of Water Harvesting
(edited by Anil Agarwal, Sunita Narain and Indira Khurana)
Published in 2001, this book brings you up-to-date with the practices and policies of rainwater harvesting
highlighting the work of different governments, non-governmental organisations and community groups in rural
and urban areas. (Price: Rs 890 hardback)
Dying Wisdom: Rise, fall and potential of India's traditional water harvesting systems
(edited by Anil Agarwal and Sunita Narain)
Published in 1997, this book provides a comprehensive overview of Indian water harvesting traditions. The book
breaks up India into 15 ecological regions and provides a survey of the traditions in water technology and
management systems in ail these different ecoregicns. it took about seven years to produce this book because of
the extremely scattered character of the knowledge thai existed In this field. The book made people to realise that
the water harvesting paradigm is relevant even today. (Price: Rs 290 paperback; Rs 490 hardback)
Wafer Links
This is a directory which presents information about water harvesters and the work they are doing in different
parts of India and abroad. First published in 1999, this publication is updated periodically. It keeps people
informed about water harvesting activities and experiences in different regions, it is a platform in print that helps
experts and activists to get in touch with each other. (Price: Rs 140)
A Water Harvesting Manual for Urban Areas: Case Studies from Delhi
Published in 2000, this manual is built out of CSE's experience in providing technical advice to schools, residential
colonies, individual households and factories to implement rainwater harvesting in the urban context. It provides
basic information on the need and potential of rainwater harvesting. (Price: Rs 90)
Drought? Try Capturing The Rain (by Anil Agarwal)
Published in 2000,this paper presents the potential of rainwater harvesting for drought-proofing India's villages.
It urges members of parliament and state legislative assemblies to ensure that the governments take up rainwater
harvesting on a large scale to improve local food security. There is enough rainwater in every village of India to
meet drinking water needs and critical needs of agriculture. This strategy would complement India's current
water management and agricultural strategy which aims at ensuring national food security rather than local food
security. (Free)
Catch Water
This is a bimonthly interactive newsletter which provides information on various activities undertaken by water
harvesters in India and abroad. It is published as part of CSE's activities as the central secretariat of the National
Water Harvesters' Network. It covers campaigns, initiatives, technology, news, policy reports and book reviews.
(Free)
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