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Of Rivers, Floods and Riparian Rights

KN SAIKIA

What may be the lawful rights that may be shown to have been violated by the respective State authorities when it comes to water disputes? Could the Roman principles of riparian rights, as exposed by Roman jurists and writers Home and Buckland, be used in modern practice in India?The frequency and intensity of floods in all the plains districts of Assam is known to all. Inundation also results from southern tributaries like Dihing, Desang, Dikhou, Jhanji, Dhansiri, Kalang, and Kaliapani flowing from the southern Patkai hills and the Naga hills. The Barak Valley is also similarly inundated by rivers like the Kushiara flowing from the Mizo hills. The lower Assam rivers flowing from the hills of Bhutan inundate districts like Goalpara, Dhubri, Kokrajhar, Udalguri, Barpeta and Baksa.Recurrence of floods, three or more times a year, has been a regular feature in all districts of Assam. When all the rivers from north and south are in spate, flood emergency is the call of the entire people of the State. The Brahmaputra valley economy is utterly ruined due to destruction of rice cultivation during the summer season, leading to the spectre of famine and starvation deaths all over the State. It is an established principle since the Roman law era that the riparian owners of public navigable rivers have equal rights of collection and use of the river waters, though not always to the river bed. The lower riparians have the same right of collection and use of the river waters as the upper riparians do. All have the right to use the waters of the river and can take water from it for one’s use. The higher riparian owners do not have the right to so collect and use such river waters as to cause to the lower riparians any detriment, loss or deprivation of collection and use of such waters. This principle has been accepted by the Damodar, Godavari and Narmada water dispute authorities, and upheld by the Supreme Court. If the appropriate authorities at the upper reaches so collect and use such waters in dams and reservoirs, and so release some of those waters without synchronizing with the prevailing water levels, or being oblivious of the lower riparian regions’ water levels, and should that result in floods and damages, the suffering lower riparians should have a remedy in law against the perpetrators as also the State government. When riparian rights are denied, it would amount to violation of such rights, and the law will protect the riparian rights. The Brahmaputra has virtually been Assam’s sorrow. Recurrence of floods, three or more times a year, has been a regular calamity in the Brahmaputra and Barak valleys of Assam. Construction of dams, dykes and reservoirs, for whatever purpose, may result in obstruction and even denial of riparian rights for the lower riparians. During the recent decades, under different hydroelectric projects, a number of dams, dykes and reservoirs have been erected across some of the tributaries of the Brahmaputra, maybe on the Brahmaputra itself, thereby affecting the rights of the lower riparians. Some of the dams and dykes are of great heights serving as reservoirs of the enormous quantities of river waters obstructing the natural flow of the river waters to which all the riparians have their rights under the law. Besides, the reservoir waters sometimes submerge vast areas and population necessitating their displacement and relocation. In case of constant rains in the catchment areas, these dams and dykes prove to be unable to contain water beyond their capacity and a serious problem arises. At such times, the lower riparian areas also reach the end of their saturation point. At such a stage, when the dam/reservoir authorities, without measuring its possible effects on the lower riparian region, without any intimation or forewarning, release the excess dam/reservoir waters, the lower riparian areas — already having been under imminent or even prevailing flooded condition — bear a tsunami effect, with enormous loss in terms of damage to life and property.In recent years, often there have been bolts from the blue. There has been tremendous rise of water levels in Assam valleys even without there being preceding copious rainwater flow, and continuation of the flood waters even after the rains have stopped for some time. This raises the curiosity to know the cause or causes of there being floods sans immediately proceeding or contemporary rains in the catchment areas. Such were the cases reported in lower Assam riparian districts of Barpeta and Baksa in 2007/2008, and of Dhemaji, Dhakuakhana, North Lakhimpur and Majuli areas after only two or three, reportedly, raining days in the catchment areas during the last week of May 2008, when the weathermen forecasted onset of monsoon in the first week of June. One, therefore, wonders if these had anything to do with unsynchronized and uninformed release of dam or reservoir waters at the upper reaches of the catchment areas. If that be so, there is some room for suggesting that there should be information and synchronization between release of dam or reservoir waters from the upper reaches’ hydel projects and the downstream authorities on contemporary water levels at the lower reaches, so as to avoid causing sudden devastating floods at lower reaches by such water releases — unmindful of the water levels prevailing at lower reaches. Production of hydel power is undoubtedly a need of the day, but only that it should be done without unduly submerging and devastating the lower riparian regions and economy thereby. This may kindly be understood only as a suggestion, and not as an accusation against anyone. Another possible reason may be, as often reported, rapid denudation and deforestation for infrastructure development of areas at the upper reaches of the Brahmaputra and its tributaries, thereby sending down heavily silt-and-run-offs-laden downstream, thereby possibly raising the beds of the Brahmaputra and its tributaries. This may also have been the result of increasing soil erosion and excess silting and consequent rising of the river beds. In such a situation, the floodwaters, needing wider flowing space, are sure to erode river banks, particularly where the river banks are sandy, loamy and/or alluvial. Indeed, it was a lesson learnt in economic geography that once you raise embankments confining river flow, the embankment levels need to be raised every year so that raising of the river bed raises the high water levels. The example cited was that of the Hoangho (known as “China’s sorrow”) and the Yangshikiyang river’ embankments which ultimately happened to be as high as standing bamboos, and the river beds were virtually higher than the ground level of the bank areas. When the flood water spreads, the silting and alluvium deposits take place over a wider area; when embankments confine the waters to the river bed only, naturally silting is likely to increase on the river bed only. An extensive hydro-geological study of the river beds concerned and dredging may be called for in this regard in the valleys of the Brahmaputra and Barak. This would need Central help and rescue. But the question remains: where would the remedy be available to the vast section of the devastated lower riparian people of the Brahmaputra valley?It may be jurisprudentially safe to proceed with the proposition that the upper and the lower riparian regions of a public river have equal rights to the use of the waters that natural flow in it. When such naturally flowing waters result in foods and inundations, the people can have no right against the other riparian people of the river. But when some of the riparian people obstruct, divert or overuse the water of the river and that results in deprivation, damage and destruction to other riparian population, there is breach of riparian rights and the law has to find a remedy against this. It is the basis of public river water disputes. source: sentinel assam