Arbitration Under the River Boards Act, and Dissolution

Clause (e) is a residuary clause of very wide words, "any other matter covered by this Act or touching or arising out of it". Almost anything a Board does is referable.

One arbitrator, not three. Compare section 4(2) of the disputes Act, which requires a Chairman and two members. A single judge is faster and was meant to be.

Assessors again. Section 22(3) mirrors section 4(3) of the disputes Act: the engineering and hydrology come in as advice to the decision maker.

And the exclusion of the 1940 Act removes the machinery of challenge. There is no application to set aside for misconduct, no remission, no filing of the award in court. The decision is final by force of section 22(4).

Sections 23 to 29

Section 23, returns and reports. The Board shall furnish the Central Government such returns, statistics, accounts and other information about its fund or activities as the Central Government may require.

Section 24, delegation. The Board may delegate its powers and functions to the Chairman, a member, a committee or an officer, subject to conditions.

Section 25. Every member and officer of a Board is a public servant within the meaning of section 21 of the Indian Penal Code, which is now to be read with the corresponding provision of the Bharatiya Nyaya Sanhita, 2023.

Section 26, protection of action taken in good faith. No suit, prosecution or other legal proceeding lies against the Board or any member or officer for anything in good faith done or intended to be done under the Act.

Section 27, dissolution and transfer. The Central Government may, by notification, dissolve a Board, and on dissolution the assets and liabilities are transferred as the notification directs.

Section 28, power to make rules. The Central Government may make rules for the form and manner of a reference to arbitration, the procedure of an arbitrator, the terms of members, and other prescribed matters.

Section 29, power to make regulations. The Board itself may, with the previous approval of the Central Government, make regulations for its own procedure and business.

Worked example

A Godavari River Board advises that a State build a barrage and share the flood cushion. The State does not build it, and the downstream State is flooded in the next monsoon.

Step one, is there a difference? Yes, and it falls squarely within section 22(1)(c), the refusal or neglect of a Government to undertake measures in pursuance of the advice.

Step two, who refers it? Any of the Governments interested, in the prescribed form.

Step three, who decides? A single arbitrator appointed by the Chief Justice of India from among sitting or former Judges of the Supreme Court or sitting Judges of a High Court, assisted by assessors.

Step four, what is the effect? Final and binding on the parties, to be given effect to by them, with no application to set aside under the 1940 Act.

Step five, and could the dispute have gone to a Tribunal instead? No. Section 8 of the Inter-State River Water Disputes Act, 1956, forbids a reference to a Tribunal of any matter referable to arbitration under this Act. The two statutes are exclusive of one another, and the arbitration route would have taken priority.

Distinctions

What it does NOT mean

It does not mean an ordinary commercial arbitration. The parties choose nothing, the Arbitration and Conciliation Act, 1996, does not apply because the 1940 Act is what section 22(5) excludes and the reference is statutory, and the arbitrator must be a judge.

It does not mean the decision cannot be questioned at all. Article 136 remains, as it does against a Tribunal, and an arbitrator acting under a statute is amenable to judicial review for jurisdictional error.

And it does not mean any of this has ever happened. No Board has ever been established, so no reference under section 22 has ever been made. Every sentence in this chapter describes a route that exists on the statute book and has never been used.

Quick revision

Section 22(1): five heads of referable difference, of which (c) is the refusal or neglect to undertake measures in pursuance of the Board's advice and (e) is a wide residuary clause.

Section 22(2): one arbitrator, appointed by the Chief Justice of India, a sitting or former Judge of the Supreme Court or a sitting Judge of a High Court.

Section 22(3): assessors. Section 22(4): final and binding. Section 22(5): the Arbitration Act, 1940, does not apply.

Section 8 of the disputes Act defers to this arbitration, so it would have taken priority over a Tribunal.

Sections 23 to 29: returns, delegation, public servants, good faith protection, dissolution, rules and regulations.

Test yourself

1. Who appoints the arbitrator, and from where? The Chief Justice of India, from among persons who are or have been Judges of the Supreme Court or are Judges of a High Court.

2. Which clause of section 22(1) allows a State to be brought before an arbitrator for doing nothing? Clause (c), a difference about the refusal or neglect of a Government interested to undertake measures in pursuance of advice tendered by the Board.

3. Why does section 22(5) exclude the Arbitration Act, 1940? Because this is a statutory reference between Governments decided by a judge, not a consensual arbitration; the 1940 Act's machinery for filing, remitting and setting aside an award is inappropriate and the decision is made final by section 22(4).

4. Would a difference referable under section 22 have gone to a Water Disputes Tribunal? No. Section 8 of the Inter-State River Water Disputes Act, 1956, bars a reference to a Tribunal of any matter that may be referred to arbitration under the River Boards Act.