By Dr. Rajinder Singh Bajwa
‘Riparian Rights of Punjab has been one of the major points of difference between the Sikhs and Delhi Government. It is also least understood by the people including the Sikhs themselves. We publish this paper by Dr. Bajwa of Washington DC for it will properly describe as to what is at stake Introduction.
At the time of partition in 1947, India agreed to supply water on payment, to Pakistani Canals from the headwork’s located in East Punjab. In April 1948, however, the water supply to the Dipalpur Canal and the lower reaches of the Upper Bari Doab Canal flowing into Lahore district was discontinued. The reason given was that Pakistan had failed to renew the December agreement. The issue was referred to the Inter Dominion conference in May June 1948, and the emerging agreement recognized India’s claim to develop irrigation cropland in the East Punjab areas of cis-Sutlej region where droughts frequently ‘occur. Pakistan also agreed to a progressive reduction of the supply of water in the canals flowing into Pakistan from the Indian part of Punjab. Pakistan agreed to a transition period of seven years to develop its own supply links or alternative sources. During these seven years Pakistan agreed to payment for this water supply.
The 1948 conference made it clear that India recognizes the Punjab partition award to mean that East Punjab and the then Patiala and East Punjab States Union (PEPSU) have superior claim to the rivers flowing through their territory; that is riparian rights are legal not only under the terms of Radcliff award but also in terms of equity. This agreement, which preceded the interstate agreement of 1955, supports the riparian claims to Punjab Rivers by the Punjabi people.
Already 3 million acre feet of water were flowing annually through the Gang Canal of Rajasthan. This water supply comes under the doctrine of prior appropriation, and thus cannot be disputed. Original Gang (or Ganga Nagar) Canal taking off from the Ferozepore headworks was designed to carry only (one million acre feet of water), but this flow was augmented in 1952, when the Harika Dam was constructed.
Another major transfer of water being planned for Rajasthan (9 million acre feet) completely disregards the riparian rights of Punjab, that India herself recognized in a 1948 agreement with Pakistan. Watercourses of Punjab belong to Punjabi People, and thus the major transfers of water now being planned for the Rajasthan region is a violation of the accepted laws of the civilized nations.
Punjab’s agriculture is characterized by the innovative methods of cultivation based on the semi mechanization of production practices along with the cultivation of higher water demanding crops such as rice, sugarcane, and vegetables. Traditional methods of cultivation have been replaced by improved ways of cropping practices, which require efficient utilization of land and water resources. The overall demand for irrigation water in Punjab has increased in recent decades and is expected to expand further in the future with the increasing intensity of land use.
Wiel noted (pp. 254255), that some earlier scholars felt that Roman civil law recognized the riparian doctrine, while others felt that it did not.
Arthur Maass and Hiller B. Zobalt believe that Wiel was wrong in asserting that Story introduced that riparian doctrine into the Common Law, deriving it from the Code Napoleon. In fact, Story built his famous opinion in Tyler V. Wilkinson (1827) on Anglo American precedent, using the very language of the English and American judges.
Maassand Zobel state that there are two basic principles in the common Laws of Waters. Bracton enunciated them in the thirteenth century. English water law has developed on the lines he laid down, and the American law has followed suit. First the right of riparian owners to an uninterrupted flow of water is a natural right. Second, the right to divert a stream, for the purpose of driving a mill or otherwise, can be acquired by grant or prescription 2s an easement in derogation of that natural right.
Furthermore, if the natural right of a riparian owner is to be effective, then no other landowner may use the water to which he has a right in a manner which will impair his natural right.
Angell, in his Treatise on watercourses, published three years before the Tyler vs. Wilkinson case and used by Story as a source in his opinion, put the natural riparian rights in these words.
Water flows in its natural course, and ought
always to be permitted to run there, so that all
through whose lands it pursues its natural
course may have the privilege of using it,
though not to the injury of another. Subject to
the restriction imposed by this limitation, the
water may unquestionably be appropriated to
any use, and so restrained and regulated in its
progress, that its power may be
‘advantageously applied to the operation of
mills, manufactories, etc.
Wiel found strong support for his thesis in the commentaries of Sir William Blackstone (1765) and maintains that by the end of the eighteenth century and beginning of the nineteenth, there was a judicial tendency to recognize the use of watercourses that was based upon prescription or ancient custom. From this tendency the law of prior appropriation appeared. Prior possession, whether ancient or not, became the doctrine of prior appropriation. This doctrine is also known as the doctrine of Blackstone.
By the then law of England the person who,
first appropriates any part of water flowing
through his land to his own uses has the right
to use as much water as he thus appropriates
against any other.
Wiel also argued that term “riparian” used by Chief Baron Pollack in reference to the subject of watercourses in Wood V. Waud in 1849 for the first time (so far as we have discovered) in any English authority.
Tubewell irrigation requires a minimum of Rs. 6000 for installing a tubewell system, while the operating costs per acre are three times higher than the Canal irrigation. These capital requirements are exerting an economic pressure upon small farmers and they are experiencing a deterioration of their ‘economic wellbeing which undermines their productive effort. Under the drought conditions a tubewell water supply becomes ‘even more expensive, which is the heart of the present problem in Punjab. While the Punjab’s rivers are being diverted for delivering increased water supply to other regions of India, the Punjab peasantis forced to adopt expensive and inefficient ways. of water supply.
The Origins of Riparian Rights
“La prise d’eau affectuee en Vertu de Tart, 644, a lieu normalement au droit de I’heritage riverain; mais il est possible que le proprietaire Se trou en presence de’obstacles naturels, qui le privent en fait de son droxt d’usage, ou du moins en rendent Texercise tres difficile; ne peutil dans ce cas pratiquer la prise d’eau surun fonds superieur, soit qu’il obtienne, du proprietaire Yautoriaatoion necessaire, soit que le fonds Superieur lui apparitienne egalement? En general I’affirmative est enseignee et cest egalement dans ce sens que sest pronounce la Jurisprudence” Labori, Repertoire de Droit Francis, Vol 5, p. 414).
“The taking of water effectuated under article 644 pertains normally to the right of the reparian land, but it is possible that the proprietor finds himself in the presence of natural obstacles which would practically deprive him of his right use, or at least would make the exercise thereof very difficult; maybe not in this case, take the water on upper riparian land, in case he has obtained from the owner thereof the necessary authority, or in case the upper land belongs likewise to himself? In general, the affirmative is indicated and the decisions of the court have prounced equally to the same effect.””
(Article 644 of the Code Napolean)
The owners of the lands contiguous to a river have been considered by the laws of most civilized nations as the owners of the watercourses. The bordering lands are called “riparian” lands; their owners “riparian” owners; their rights “riparian” rights. Some scholars have assumed that this doctrine ‘owes its beginning to the Common Law itself.
Wiel contends that it is a civil law doctrine, owing its formulation to the Code Napolean (1804) the French Civil Code, and borrowed thence by American jurists, especially by Justice Joseph Story and Chancellor James Kent around 1827. This initial doctrine found its complete reception into English law only through the influence of these two American jurists. Article 645 of the Code of Napolean added that:
If a dispute arises between the proprietors to whom these waters may be of use, the courts in giving judgments, should reconcile the interest of agriculture with the consideration due to property rights; and in all cases special and local rules upon: the flow and use of water should be observed.
Harold Ellis asserts that the riparian doctrine came down through French civil law to the state of Louisiana and indirectly through French civil law to most other states through the influence of Story and Kent.
On the other hand Murphy argues that a considerable amount of water law appears to have been present in England before 1400, having been borrowed in part from the Roman civil law. Therefore it appears that Murphy is supporting the arguments of Arthur Maass and Zobel that riparian doctrine was well recognized in England, as testified by the Statements of Sir John Leach (1823). Maass and Zobel indicate that Story followed not only Leach’s thought and order of presentation, but his very words and sentence structure,
In some early English cases, the courts spoke of noninterference with the natural flow of streams, while some courts allowed various rights to use watercourses to be based on long, established use and prescription. Later on, especially around 1800 various courts indicated that such rights might be based merely on prior use, without regarding ancient usage or prescription.
Differences in the Riparian and the Appropriation Systems
The essential differences between the riparian and appropriate systems of water rights were these:
(A) Location: Under the riparian system the use of stream flow was limited to the owners of land contiguous to the water course, whereas place of use has been disregarded in the appropriation system.
(B) Certainty: Prior appropriation defined a system of exclusive rights; the prior appropriator has a right to fixed quantity of water to the extent of his priority and could exclude all others. The riparian system, on the other hand, was one of, correlative rights, the rights of landowners bordering upon a stream were relative to each other and no one had a right to fixed quantity of water.
(C) Equality versus priority:
the riparian system recognized no priorities in anyone, all riparian owners ha no one is allowed unreasonably to impair The appropriate system was based on equal rights to the equal use a priority: first of in time of use was first in right
(D) Nonuse: Actual use was the foundation of right by appropriation; thus nonuse caused a loss of the right Bee the niparian system the right to water depended on the ownership of bankside land, no use, per se, did not void a right .
The Riparian rights as a property
Primarily there have been four reasons advanced for a n lands exclusive rights: (1) Owner ownership of the water Primarily, signing to the owners of riparia ship of the underlying lands gives courses; (2) The right to the watercourses is a natural incident the ownership of the adjoining land; (3) Since riparians have the right to. exclude all others from access to the watercourses, they have the exclusive rights in the watercourses; (4) Limitation of riparian owners is a legal doctrine compelled by the existence of ‘limited amount of water and a theoretically unlimited demand for its use. .
Summary
The rapid growth of population and even more rapid increase in the need for water in Punjab have served to make impracticable old rules or methods for water allocation. What is needed, unquestionably, is to find the actual water requirements by Punjab farmers. There is approximately 34 million acre feet of, annual water flow in the Punjab rivers, out of which Haryana has been allocated (12 million acre feet) and an additional 3 million acre feet water flows into the Ganga Nagar District. Therefore, the remaining 19 million acre feet of water could legally remain in the Punjab for its intensive agriculture.
‘Agreed, the Thar desert of Rajasthanis in dire need of water to develop its agriculture, but Punjab farmers would have to be made scapegoats to alleviate the present lack of water in the dry regions along the old Ghaggar River. The legal argument is as follows: first there is no contiguous boundary of the Thar desert with the rivers flowing through Punjab, secondly, there is no existing prior claims for water supply by Rajasthan; and thirdly, according to the riparian doctrine, the river water supply belongs to Punjab.
The notoriously erratic electric supply for the tubewell systems is costly to maintain and it also results in lowering the water tables in the submountainous areas, a phenomenon that is increasingly rendering tubewell irrigation uneconomic.
The riparian owner’s exclusive right to use the water is based directly upon the fact that nonriparians have no access to Punjab rivers without trespassing upon the riparians lands.
References
MYRDAL GUNNAR, The Challenge of World Poverty: A World AntiPoverty: A World AntiPoverty Program in Outline, ALLEN LANE The Penguin Press, lectures given at the John Hopkins University and Stockholm University Institute for International Economic Studies, 1970, pp 518.
WIEL SAMUEL C. “Origins and Comparative Development of the Law of Watercourses in the Common Law and in the Civil Law,” CALIFORNIA LAW REVIEW, Vol. VI, May 1918, No. 4, p.p. 245267. Also continued in the same journal in Vol. VI, July, 1918, No. 5, pp. 342371. See also Wiel Samuel C., ““Waters: American Law and French Authority,” HARVARD LAW REVIEW, vol. 33, December 1919, pp 133167.
Maass, Arthur and Hiller B. Zobel, “AngloAmerican Water Law: Who Appropriated The Riparian Doctrine?” PUBLIC POLICY a tear book of the Graduate School of Public Administration, Harvard University, 1960, vol. X, p.p. 109156. Bracton, DE LEGIBUS ET CONSUETUDINIBUS ANGLIAE, f. 22 la, £232a (Twiss ed. 1880).
For American Common Law before Tyler V. Wilkinson, See Angell, Watercourse (Ist ed. 1824), passim. Angell’s first book praises Justice Story for having distinguished talents and profound knowledge of the law of water courses, which made him an ornament and a blessing to this country. By 1833 the word riparian was fully developed as a major doctrine to the following water.
Prescription is a Common Law Doctrine for acquiring title to property by long continued use.
Ellis, Harold H. Development and Elements of the Riparian Doctrine with Reference to the Eastern United States, Paper presented at the Walter Rights Conference. March 2930. 1960 at the Kellogg Center, Michigan State University, East Lansing, Michigan. Murphy Earl R., “English Water Law Doctrines Before 1400,” American Journal of Legal History, 103, (1957).
Story’s debt to Leach: In an earlier case Wright V. Howard, riparian doctrine had been applied, and Story cited this case in his judgment in Tyler V. Wilkerson.
These basic differences have been stated clearly. They have been modified by principles of “reasonable use,” “beneficial Use,” and the long standing common law doctrine of pre- scription,
Lauer, Theodore E., The Riparian Right As Property in Water Resources and The Law, of (Prepared by the Legislative Research Center) The University of Michigan Law School, Ann Arbor, Michigan, 1958. pp. 177-190 (Especially see p. 180).
BAJWA, RAJINDER S., Irrigation in Humid Regions: An Annotated Interdisciplinary Bibliography, Natural Resource Economic Division, ERS, USDS, Staff Report No. AGES 820218, March 1982, 28 pp.
- HUTCHINGS, WELLS A., Water Rights for Agriculture, Paper presented at the meeting of American Association for Advancement of Science, Berkeley, California, December 27, 1954, pp.
- RADOSEVICH, GEORGE E., Muslim Water Lawand Its Influence on Spanish Water Law and the Irrigation Sustem of Valencia, presented at the Seminario, La Legislaction y Administration de las Aquas en las Paises del Grupo Andion, Quito, Equador, Jan. 14-19, 1974, 20 pp.
Article extracted from this publication >> December 15, 1989
