{"id":200581,"date":"2002-01-15T00:00:00","date_gmt":"2002-01-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-haryana-vs-state-of-punjab-and-anr-on-15-january-2002"},"modified":"2015-09-25T15:55:51","modified_gmt":"2015-09-25T10:25:51","slug":"state-of-haryana-vs-state-of-punjab-and-anr-on-15-january-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-haryana-vs-state-of-punjab-and-anr-on-15-january-2002","title":{"rendered":"State Of Haryana vs State Of Punjab And Anr on 15 January, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Haryana vs State Of Punjab And Anr on 15 January, 2002<\/div>\n
Author: Pattanaik<\/div>\n
Bench: G.B. Pattanaik, Ruma Pal<\/div>\n
           CASE NO.:\nOriginal Suite 6  of  1996\n\n\n\nPETITIONER:\nSTATE OF HARYANA\n\n\tVs.\n\nRESPONDENT:\nSTATE OF PUNJAB AND ANR.\n\nDATE OF JUDGMENT:\t15\/01\/2002\n\nBENCH:\nG.B. Pattanaik & Ruma Pal\n\n\n\n\nJUDGMENT:\n<\/pre>\n
PATTANAIK, J.\n<\/p>\n
\tThe State of Haryana has filed the present suit, under
\nArticle 131 of the Constitution of India,  impleading the State
\nof  Punjab as defendant No. 1 and the Union of India as
\ndefendant No.2,\t for the following reliefs:\n<\/p>\n
“(a)\tpass a decree declaring that the order dated
\nMarch 24, 1976, the Agreement of
\nDecember 31, 1981 and the Settlement of
\nJuly 24, 1985 are final and binding inter alia
\non the State of Punjab casting an obligation
\non Defendant No. 1 to immediately restart
\nand complete the portion of the Sutlej
\nYamuna Link Canal Project as also make it
\nusable in all respects, not only under the
\naforesaid order of 1976, Agreement of 1981
\nand Settlement of 1985 but also pursuant to
\na contract established by conduct from 1976
\ntill date;\n<\/p>\n
(b)\tpass a decree of mandatory injunction
\ncompelling defendant No. 1 (failing which
\ndefendant No. 2 by or through any agency)
\nto discharge its\/their obligations under the
\nsaid Notification of 1976, the Agreement of
\n1981 and the Settlement of 1985 and in any
\ncase under contract established by conduct,
\nby immediately restarting and completing
\nthat portion of the Sutlej-Yamuna Link
\nCanal Project in the State of Punjab and
\notherwise making it suitable for use  within
\na time bound manner as may be stipulated
\nby this Hon’ble Court to enable the State of
\nHaryana to receive its share of the Ravi and
\nBeas waters;\n<\/p>\n
(c)\tAward costs of the present suit to your
\nplaintiff and against the Defendant No.1;  and\n<\/p>\n
(d)\tpass such other or further order or orders to
\nsuch directions as this Hon’ble Court may
\ndeem fit and proper in the facts and
\ncircumstances of the case and to meet the
\nends of justice.”\n<\/p>\n
It has been averred in the plaint that Sutlej-Yamuna Link
\nCanal is in fact, the lifeline of the farmers of Haryana and the
\nlivelihood of the farmers depends on the water, which is not
\nonly a natural resource, but a valuable national asset and
\ncompletion of the aforesaid Canal, would enable the State of
\nHaryana to receive its share of waters of the rivers Ravi and
\nBeas.  The plaintiff-State has averred that after the partition
\nof India in 1947, the emergence of two independent countries
\n India and Pakistan,  division of the waters of rivers Indus
\nand its tributaries became an international issue and in the
\nyear 1960, the Government of India signed a Treaty with
\nPakistan called the Indus Water Treaty of 1960.\t Under the
\naforesaid  treaty, the waters of the three Eastern rivers,
\nnamely the Sutlej, the Beas and the Ravi were acquired for
\nunrestricted use in India, to the exclusion of Pakistan and
\ntowards consideration, the Government of India agreed to
\nmake a fixed contribution of  Pounds Sterling 62.06 million
\n(equivalent to about 110 Crores rupees) to Pakistan.   In a
\nmeeting of the beneficiary States namely, the State of Punjab,
\nas it existed then,  State of Kashmir,\tState of Rajasthan and
\nState of PEPSU, which meeting had been convened by the
\nGovt. of India on 29th January, 1955,  a   workable agreement
\nwas arrived at for development and utilization of the waters
\nof Rivers  Ravi and Beas and under the said agreement, the
\nshare of undivided Punjab was 5.90 M.A.F.  When there was
\na bifurcation of the erstwhile State of Punjab into two
\nseparate States of Punjab and Haryana w.e.f.  November 01,
\n1966 under Punjab Reorganisation Act of 1966, special
\nprovisions had been made with regard to the rights and
\nliabilities of\tthe successor States in relation to the water from
\nBhakra Nanagal Project and Beas Project.  Section 78 of the
\nPunjab Reorganisation Act, 1966,  deals with such rights and
\nliabilities of the successor States.  Dispute arose between the
\ntwo States of Punjab and Haryana as to their respective share
\nof water which had earlier been allocated to the erstwhile
\nState of Punjab and in the meeting called by the Government
\nof India, a decision was taken on ad hoc basis that 35% of
\nwater would go to Haryana and 65% for Punjab, pending
\nfinalisation of the dispute.  The State of Haryana approached
\nthe Government of India in October, 1969, invoking its
\njurisdiction under Section 78 of the Punjab Reorganisation
\nAct, 1966.  A Committee was appointed by the Central
\nGovernment, which  reported that Haryana would be entitled
\nto 3.78 MAF.  Even the then Deputy Chairman of the
\nPlanning Commission had examined this question and had
\nrecommended that Haryana would get 3.74 MAF and Punjab
\nwould get 3.26 MAF, while Delhi would get 0.20 MAF.   A
\nnotification, ultimately was issued on 24th of March, 1976,
\nallocating the surplus Ravi- Beas waters between the two
\nstates of Punjab and Haryana.  Under this order, 3.5 MAF
\nhad been allotted to the plaintiff-State.  The State of Haryana,
\nnot being a riparian State, the water allocated to it has to be
\ndrawn by digging canal. By the existing arrangement for
\ncarrying waters of River Sutlej through Bhakra Main Line
\nCanal, it is not possible to draw water allocated to the State
\nof Haryana under the Order of the Government of India dated
\n26th of\t March, 1976.  The State of Haryana proposed that a
\nlink canal called the Sutlej Yamuna Link Canal be
\nconstructed in the territories of the State of Punjab and
\nHaryana, so that the State of Haryana could draw its allocated
\nshare of water.\t The plaintiff State has averred that the
\nlength of Sutlej Yamuna Link Canal was 214 kilometers out
\nof which 122 kilometers is in the territory of Punjab and 92
\nkilometers is in the territory of Haryana.  The alignment of
\nthe  proposed canal was alongside the Nangal Hydel Channel
\nand  the Bhakra Main Line Canal.  The Chief Minister of
\nHaryana had requested the Prime Minister of India  by his
\nletter dated 23rd April, 1976 that the Sutlej Yamuna Link
\nCanal should be completed by June, 1978.  After several
\nrounds of discussion, the two States had agreed upon the
\nalignment of 30 kilometers of the SYL Canal adjoining
\nHaryana within the territory of Punjab and in fact the State of
\nPunjab accepted money for that purpose.\t The State of Punjab
\nissued various notifications for the acquisition of the land for
\nthe purposes of constructing the canal.\t The State of Haryana,
\non its part started construction of the canal in its territory.
\nThe Haryana portion of the canal stood\tcompleted in June,
\n1980 but the State of Punjab adopted dilatory tactics on the
\nconstruction of the canal on one pretext or the other.\tAs the
\ncanal within the State of Punjab had not been constructed, the
\nState of Haryana filed a suit in the Supreme Court in the year
\n1979, being Suit No. 1 of 1979.\t The State of Punjab filed a
\nsuit in this Court under Article 131 of the Constitution,
\nchallenging the validity of the Orders of Government of India
\ndated 24th of March, 1976 and also challenged the vires of
\nSection 78 of the Punjab Reorganisation Act, which was
\nregistered as Suit No. 2 of 1979.  During the pendency of the
\naforesaid two suits, an agreement was entered into between
\nthe States of Haryana, Punjab and Rajasthan in the presence
\nof the Prime Minister of India on 31st of December, 1981.
\nUnder the said agreement, the net surplus of Ravi Beas
\nwaters were estimated at 17.17 MAF and that stood allotted
\nas 4.22 MAF to Punjab, 3.50 MAF for Haryana, 8.60 MAF
\nfor Rajasthan,\t0.20 MAF for Delhi Water Supply and 0.65
\nMAF for Jammu and Kashmir.  Clause (IV) of the said
\nagreement provided:\n<\/p>\n
“Clause (IV):  The Sutlej-Yamuna Canal Project
\nshall be implemented in a time bound manner so
\nfar as the canal and appurtenant works in the
\nPunjab territory are concerned within a maximum
\nperiod of two years from the date signing of the
\nAgreement so that Haryana is enabled to draw its
\nallocated share of waters.  The canal capacity for
\nthe purpose of design of the canal shall be
\nmutually agreed upon between Punjab and
\nHaryana within 15 days, failing which it shall be
\n6500 cusecs, as recommended by former
\nChairman, Central Water Commission.”\n<\/p>\n
The said clause also provided that the suits filed by the State
\nof Haryana and State of Punjab should be withdrawn, without
\nany reservations whatsoever but subject to the terms of the
\nagreement and accordingly both the State Governments
\napplied for withdrawal of the suits.  This Court allowed the
\nsuits to be withdrawn by order dated 12th of February, 1982.
\nThe alignment of the canal within the State of Punjab was
\nproposed to be changed, to which the State of Haryana also
\nagreed.\t The State of Punjab started construction of canal but
\nthe progress was rather slow.  The State of Punjab also
\nreleased a white paper on 23rd of April, 1982, highly
\nappreciating the agreement which had resulted in an increase
\nof 1.32 MAF of the water to the share of  Punjab.  On
\nNovember 5, 1985, the Punjab Legislative Assembly passed
\na resolution, repudiating the agreement of 31st December,
\n1981.  On 24th of July, 1985, a settlement was arrived at
\nbetween the then Prime Minister of India and Late Sant
\nHarchand Singh Longowal, the then President of Akali Dal,
\ncommonly known as “Punjab Settlement”, and the said
\nsettlement also contained an express provision that the
\nconstruction of the SYL Canal would be continued and
\ncompleted by 15th of August, 1986.  In accordance with the
\nterms of the settlement, more particularly Clause 9.1, the
\nissues relating to the usage, share and allocation of the Ravi-
\nBeas waters were referred to the adjudication of a Water
\nTribunal, under the Notification dated 2nd April, 1986.\t The
\ntribunal submitted its Report to the Central Government on
\n30th of January, 1987 and the tribunal also indicated in its
\nreport that the Punjab should complete its portion of SYL
\nCanal expeditiously.  In July, 1990, the construction of the
\ncanal within the State of Punjab was completely stopped but
\nby then, over 90% of the construction had stood completed.
\nFailure on the part of the State of Punjab to construct the
\nSYL Canal within its territory,\t has prevented the State of
\nHaryana from utilizing the water allocated to its share.  The
\nplaintiff State has further averred that more than Rs. 600
\nCrores have been spent on the construction of the SYL Canal
\nin Punjab territory, which is in addition to Rs. 250 Crores
\nspent for the construction of the Canal within the Haryana
\nterritory.  Non-completion of the SYL Canal has debarred
\nover three lac hectares of irrigation potential created in the
\nState of Haryana and the said State is losing agricultural
\nproduction over eight lac tonnes per annum.  According to
\nthe plaintiff, if the canal would have been completed in 1983,
\nas envisaged, then the State of Haryana would have been in a
\nposition to produce an additional 100 lac tonnes of food-
\ngrains, the value of which would work out to Rs.5000 Crores.
\nWhen the State of Punjab did not carry out the construction
\nof the SYL Canal, the State of Haryana sought for
\nintervention of the Union  of India and the Prime Minister of
\nIndia convened a meeting on 20th of February, 1991.  In the
\nsaid meeting, the Prime Minister directed that arrangements
\nshould be made for the Border Roads Organisation to take-
\nover the work in the minimum time possible and the work
\nshould be dealt with on an emergency footing.\tAt that point
\nof time, there was no political government in the State of
\nPunjab and it was under the Presidents Rule.  In July 1995,
\nthe State of Punjab circulated a white paper, clearly
\nexpressing its intention not to proceed with  the work of the
\nconstruction of SYL Canal and took a stand that Haryana’s
\nshare of the water should be delivered through the existing
\nBhakra Canal System, which is an absolute impossibility.
\nThe plaintiff, thereafter filed the present suit for the relief as
\nalready stated.\n<\/p>\n
\tThe Defendant No.1, State of Punjab had\t filed its
\nwritten statement, raising several preliminary objections.  It
\nis contended that the dispute clearly falls within the scope of
\nthe Inter-State Water Disputes Act, 1956 and consequently
\nthe jurisdiction of the Supreme Court is barred on a
\ncombined reading of   Section 11 of the Inter-State Water
\nDisputes Act and Article 262 of the Constitution of India.  It
\nis further contended that the validity of the order dated 24th of
\nMarch, 1976 as well as agreement dated 31.12.1981 has been
\nchallenged before the Ravi-Beas Water Tribunal and the
\nreport of the said tribunal has not become final inasmuch as
\nthe application filed by the State of Punjab under Section
\n5(3) of the Act has not yet been disposed of.  It has been
\nfurther stated that the plaintiff State has no legal right to
\ninvoke Article 131 of the Constitution and further the suit
\nmust be held to be barred by limitation.  The further stand of
\nthe Defendant No. 1 is that the earlier suit filed in the year
\n1979, having been withdrawn without leave of the Court, the
\npresent suit is barred under Order 23 Rule 1 of the Code of
\nCivil Procedure as well as under Order 2 Rule XXXII of the
\nSupreme Court Rules.  According to the Defendant No. 1, no
\nlegal right can be said to have accrued to the State of
\nHaryana under the Notification dated 24.3.1976 and further
\nthe  agreement dated 31st December, 1981 is invalid.  It is
\nalso contended that the said agreement of 1981 stands
\nsuperseded by the settlement of July 24, 1985.\t According to
\nthe Defendant No. 1, the terms and conditions contained in
\nparagraph 9.3 of the Punjab Settlement was only a unilateral
\nconcession made by Sant Harchand Singh Longowal,  and  it
\nwas  never intended to be a legal obligation, binding on the
\nState of Punjab.  The Defendant No. 1 admitted in the written
\nstatement that the issues arising from paragraphs 9.1 and 9.2
\nof the self-same Punjab Settlement were referred to the
\nadjudication of the Ravi-Beas Water Tribunal.  But
\nparagraph 9.3  had not been referred to any tribunal and it
\nwas merely a concession given by said Harchand Singh
\nLongowal.  The Defendant No. 1\tdoes not dispute the
\nobservations of the tribunal in its Report dated 30th  of
\nJanuary, 1987, relating to the aforesaid paragraph 9.3, but
\ncontends that such observations were in fact beyond the
\njurisdiction of the tribunal.  According to the Defendant No.
\n1, plaintiff’s claim to have share from Beas Project would not
\nexceed 0.9 MAF and that quantity of water would always be
\nmade available through the main Canal, which is in existence
\nand functioning.  The said Defendant No. 1 also averred that
\nthe State of Haryana is getting\t an additional water supply
\nthrough River Yamuna under the Agreement dated 12th of
\nMay, 1994,  between  the States of Uttar Pradesh, Haryana,
\nRajasthan, Delhi and Himachal Pradesh and, therefore, there
\nis no need for the SYL Canal in any event.  It has been
\nfurther averred that  Haryana is already getting 1.62 MAF of
\nwater in Ravi-Beas waters through the existing canal system
\nof Bhakra Main Line\/Narwana Branch and the present
\nsystem is fully capable of conveying the said quantity of
\nwater.\tConsequently, there is no need for SYL Canal.  The
\nDefendant No. 1 further contends that in Section 78 of the
\nPunjab Reorganisation Act, there has been no reference to
\nRiver Ravi and, therefore, question of conveying any water
\nfrom River Ravi through SYL Canal  does not arise.
\nAccording to this defendant, the claim of the State of
\nHaryana, over and above the allocations made in the Beas
\nProject were neither legal nor proper and were only for
\nextraneous considerations.  According to the State of Punjab,
\nwater of River Ravi do not find mention in any scheme
\nresulting from the Beas Project and, therefore, any order
\ncontaining allocation of Ravi water to the plaintiff State is
\ninvalid.  The Defendant No. 1 has also averred that only the
\nsupplies  from River Beas are being transferred to Bhakra
\nreservoir.    According to the Defendant No. 1, the allocation
\nof 3.5 MAF to Haryana would deprive the State of Punjab of
\nirrigation facilities to lacs of acres of land, which are being
\nirrigated in the State of Punjab.  So far as the issuance of a
\nwhite paper is concerned, the Defendant No. 1 has averred
\nthat the same was a political decision of the Chief Minister at
\nthat time and did not bind the State and at any rate, the
\nsubsequent resolution of the Punjab Legislative Assembly,
\nrepudiating the earlier agreement clinches the matter.\tSo far
\nas the construction of SYL Canal already undertaken in the
\nState of Punjab is concerned, it has been averred that the
\nState had to undertake the same under duress and the said
\nwork was stopped because of turmoil in the State and when
\nthe militants killed a Chief Engineer and Superintending
\nEngineer.  The defendant No. 1 admitted that there has been
\nan expenditure of Rs.520 Crores on the construction of SYL
\nCanal in Punjab portion and further admitted that there has
\nbeen a recurring expenditure on establishment, which money
\nthe Government of India pays to the State of Punjab.
\nAccording to the Defendant No. 1, no cause of action has
\naccrued\t to the plaintiff to file the present suit, invoking
\nArticle 131 of the Constitution and at no stage, the State of
\nPunjab committed itself to the construction of the SYL
\nCanal.\n<\/p>\n
\tThe Defendant No. 2, Union of India in its written
\nstatement, took the stand that relief claimed by the plaintiff
\ncan be only against the State of Punjab and there is no
\nobligation on the part of the Government of India to take up
\nthe construction work of SYL Canal.  According to  the
\ndefendant No. 2,   the Union of India had already discharged
\nits obligation by  pursuing and directing the Government of
\nPunjab for early completion of Punjab portion of the canal.  It
\nhas been further averred that the Union of India had
\nconstituted the Ravi and Beas Waters Tribunal, which gave
\nits interim report on 30th of January, 1987 and the final report
\nof the tribunal is awaited.    It has also been reiterated in the
\nwritten statement that the Ravi and Beas Waters Tribunal in
\nits interim report had observed that this canal is the lifeline
\nfor the farmers of Haryana and unless it is expeditiously
\ncompleted, Haryana will not be in a position to utilize the full
\nquantum of water allocated to it.  The said defendant  has
\nalso averred that the concept of a carrier for Haryana’s share
\nin surplus Ravi-Beas waters was envisaged in inter-State
\nAgreement of 1981.  Further, the Central Government
\ndetermined the rights and liabilities of the successor States in
\naccordance with Section 78 of the Punjab Reorganisation
\nAct, 1966 and allocated 3.5 MAF of surplus Ravi-Beas water
\nto Haryana as per Government of India Notification dated
\n24.3.1976.   The said defendant has stated in the written
\nstatement that the Union of India made its best efforts to
\nsettle the issue.  On the question of amount of money, the
\ndefendant No. 2 has averred that the Union of India has
\nprovided Rs. 499.12 Crores to the Government of Punjab till
\nMarch, 1994 for completion of Punjab portion of SYL Canal.
\nIt has also been stated that due to non-completion of SYL
\nCanal by Punjab, the State of Haryana is not able to utilize its
\nfull share of Ravi-Beas water.\tThe Union Government has
\nalso stated that it is essential that Punjab portion of the SYL
\nCanal is completed at the earliest.  The said defendant has
\nfurther averred that construction of SYL Canal is solely the
\nresponsibility of the Government of Punjab and the Union of
\nIndia has made all efforts including the financial assistance to
\nthe State of Punjab for early completion of the canal.\tThe
\nsaid defendant has finally stated that while Government of
\nIndia will continue to play its role for the settlement of
\ndispute between the two States, the alternative relief claimed
\nin para (b) of the plaint against the Government of India is
\nnot tenable and the same is liable to be rejected.\n<\/p>\n
\tOn the aforesaid pleadings, by Order dated 15.12.1997,
\nthe Court settled the following agreed issues:\n<\/p>\n
“1.\tWhether in the facts and circumstances of
\nthe case, defendant No. 1 (the State of Punjab)
\nand alternatively, defendant No. 2 (the Union of
\nIndia), were and are bound to construct and
\ncomplete in a time-bound manner, the Sutlej-
\nYamuna Link Canal Project, in the Punjab
\nportion\/territory and whether the plaintiff (State of
\nHaryana) is entitled to the reliefs prayed for
\nagainst the defendants ?\n<\/p>\n
2.\tIs the suit not maintainable as contended in
\nthe written statements ?\n<\/p>\n
3.\tIs the suit barred by limitation ?”\n<\/p>\n
Thereafter, parties have filed several documents which have
\nbeen exhibited without objection and interrogatories have
\nbeen served and answered.  Plaintiff’s documents Exhibits
\nP-1 to P-26 have been marked  on admission of defendant
\nNo. 1 and documents Exhibits P(D)-1 to P(D)-8 have not
\nadmitted by defendant No. 1.  The documents filed on behalf
\nof defendant No. 1 Exhibits D-1 to D-9 have been admitted
\nby the plaintiff.  Documents Exhibits D(D)-1 to D(D)-5 of
\nthe defendant No. 1,  have not been admitted by the plaintiff.
\nThough initially an order had been passed to decide Issue
\nNos. 2 and 3 as preliminary issues but that order stood
\nmodified by the subsequent order dated 5th of September,
\n2000, as it was found that the preliminary issues cannot be
\ndisposed of without examining the relevant records and
\nwithout going into the rival contentions in detail.\n<\/p>\n
ISSUE NO. 2:\n<\/p>\n
\tThis issue on the question of maintainability of the suit
\narises because of the stand taken by the State of Punjab in
\nthe written statement.\tAccording to the defendant No. 1,
\nArticle 262 of the Constitution is specifically designed,
\nauthorising the Parliament to provide for adjudication of any
\nwater dispute in relation to any inter-State river by making a
\nlaw in that regard and sub-Article (2) of Article 262
\nauthorises the Parliament to make law,\t ousting the
\njurisdiction of the Supreme Court or any other Court in
\nrespect of any dispute or complaint coming within Article
\n262(1).\t The Parliament having enacted the Inter-State Water
\nDisputes Act, 1956 and the said Act having ousted the
\njurisdiction of the Supreme Court and any other Court from
\nexercising jurisdiction in respect of any water dispute, which
\nmay be referred to a tribunal under the Act as provided
\nunder Section 11 of the said Act, the present dispute is not
\namenable to the jurisdiction of this Court under Article 131
\nand consequently, the suit must fail.\n<\/p>\n
\tThe stand of the State of Haryana, on the other hand is
\nthat the dispute relating to the digging of SYL Canal,
\npursuant to the earlier agreement between the parties, cannot
\nbe termed to be a dispute, relating to sharing of water of a
\nriver and, therefore, neither Article 262 of the Constitution
\nnor Section 11 of the Inter-State Water Disputes Act would
\nbe a bar for this Court to exercise jurisdiction under Article
\n131 of the Constitution.  According to Mr. Bobde, the
\nlearned counsel appearing for the plaintiff-State, the
\nexpression “water dispute” having been defined in Section
\n2(c) of the Act, the present dispute and the relief sought for
\nby the plaintiff, cannot be held to be a water dispute and as
\nsuch the jurisdiction of the Court cannot be held to be
\nousted.\n<\/p>\n
\tThe moot question that requires to be considered in
\nanswering this issue is whether the dispute in the case in
\nhand, can at all be held to be a water dispute, as defined in
\nSection 2(c) of the Inter-State Water Disputes Act ?  There
\ncannot be any dispute with the proposition that in the event
\nthe present dispute between the two states would come
\nwithin the definition of “water dispute” in Section 2(c) of the
\nAct and as such is referable to a tribunal under Section 11 of
\nthe Act, then certainly the jurisdiction of this Court would be
\nbarred, in view of Article 262 of the Constitution read with
\nSection 11 of the Act.\tSection 2(c) defines the “water
\ndispute” thus:\n<\/p>\n
“Section 2(c): “water dispute” means any dispute
\nor difference between two or more State
\nGovernments with respect to<\/p>\n
(i)\tthe use, distribution or control of the
\nwaters of, or in any inter-State river or
\nriver valley; or<\/p>\n
(ii)\tthe interpretation of the terms of any
\nagreement relating to the use, distribution
\nor control of such waters or the
\nimplementation of such agreement; or<\/p>\n
(iii)\tthe levy or any water-rate in
\ncontravention of the prohibition
\ncontained in Section 7.”\n<\/p>\n
Out of the three clauses mentioned above, we would be
\nconcerned with clauses (i) and (ii) inasmuch as clause (iii)
\ndeals with the levy of water-rate in contravention of the
\nprohibition contained in Section 7.  Clause (i) of Section 2(c)
\ndeals with a dispute concerning the use, distribution or
\ncontrol of the waters of, or in any inter-State river or river
\nvalley, whereas Clause (ii) deals with the interpretation of the
\nterms of any agreement relating to the use, distribution or
\ncontrol of such waters or the implementation of such
\nagreement.  Essentially, therefore, the dispute would be a
\nwater dispute within the meaning of Section 2(c) when the
\ndispute is in relation to the use, distribution or control of the
\nwaters of any inter-State river or interpretation of the terms
\nof an agreement, relating to the use, distribution or control of
\nsuch water or implementation of such agreement.\t The
\naverments in the plaint and the relief sought for by the State
\nof Haryana is not in any way related  to the use, distribution
\nor control of the water from Ravi-Beas Project.\t The entire
\ndispute centres round the question of  the obligation on the
\npart of the State of Punjab to dig the portion of SYL Canal
\nwithin its territory which canal became necessary for
\ncarrying water from the project to the extent the said water
\nhas already been allocated in favour of the State of Haryana
\nunder the provision of the Punjab Reorganisation Act and the
\nsubsequent agreement between the parties.    Dr. Dhawan,
\nappearing for the State of Punjab, forcefully argued that the
\nconstruction of SYL Canal is inextricably linked to allocation
\nof distribution of water from Ravi-Beas Project and that
\nbeing the position, it would be difficult to take the dispute out
\nof the purview of the definition of dispute in Section 2(c).  It
\nis in this connection, Dr. Dhawan pointed out the assertions
\nmade in the plaint, wherein it has been averred that portion of
\nSutlej Yamuna Link Canal is the lifeline for the farmers of
\nthe State of Haryana inter alia for carrying its share of Ravi-
\nBeas water and the farmers of Haryana would not be in a
\nposition to utilize the full  quantum of waters allocated to it.
\nAccording to Dr. Dhawan, the allocation of water of rivers
\nRavi and Beas is the basis which necessitate the construction
\nof SYL Canal and its completion and consequently the two
\nare inextricably inter-linked.\tDr. Dhawan also pointed out to
\nthat  part of the plaintiff’s case where the plaintiff has averred
\nthat the said canal was to receive supply from the Tail end of
\nthe Anandpur Hydel Channel and the canal must be
\ncompleted to enable Haryana to draw its share of water from
\nthe river.   He also pointed out to assertions made in
\nparagraph 61 of the plaint whereunder it had been averred
\nthat it is necessary to complete  the SYL Canal, not only for
\ncarrying this share but also to serve as an alternate carrier
\nsystem for the waters already being drawn by Haryana.  The
\nquestion whether the dispute raised and the relief sought for
\nis essentially a water dispute or not, has to be answered on an
\nanalysis of the averments in the plaint as a whole and it is not
\npossible to consider  some averments in isolation and then
\ncome to a conclusion one way or the other.  If the plaint is
\nread as a whole, it appears to us that the State of Haryana has
\nmade out a case that when the State of Haryana was carved-
\nout from the erstwhile State of Punjab under the provisions of
\nthe Punjab Reorganisation Act, the Union of India, in
\nexercise of its power under Section 78 of the said Act issued
\na Notification on 24th of March, 1976.\tUnder the said
\nnotification, taking note of the fact that the Haryana has large
\narid tract and several drought prone areas and the
\ndevelopment of irrigation in the State of Haryana is
\nsubstantially less as compared to that in the State of Punjab
\nand further the water is needed in a large quantity for
\nirrigation in the State of Haryana and there is limited
\navailability of water from other sources in the said State,   the
\nUnion Government allotted 3.5 MAF in favour of the State of
\nHaryana.  The said notification further contained a stipulation
\nthat in the event, water in the Beas at Mandi is more or less in
\na particular year, the share of the State of Haryana would be
\nincreased or decreased pro-rata.  It is nobody’s case that
\nwater in the river Beas has decreased in the meanwhile.\t The
\nexisting canal system not being capable of utilizing 3.5 MAF
\nof water allocated to the State of Haryana, the idea  of having
\nSYL Canal was mooted and ultimately  agreed to.\t     Thus
\nthe construction of SYL Canal is essentially one for the
\npurpose of utilizing the water that has already been allotted to
\nthe share of Haryana and consequently,\tcannot be construed
\nto be in any way inter-linked with the distribution or control
\nof water of, or in any inter-State river or river valley.  In the
\nConstitution Bench decision of this Court in the case of State
\nof Karnataka vs. State of Andhra Pradesh and others<\/a>,
\n2000(9) S.C.C. 572.  this Court considered the provisions of
\nArticle 262(2) of the Constitution and Section 11 and Section
\n2(c) of the Inter-State Water Disputes Act and its impact on a
\nsuit filed under Article 131 of the Constitution.  It was held
\nthat the question of maintainability has to be decided upon
\nthe averments  made by the plaintiff and the relief sought for
\nand taking the totality of the same and not by spinning up one
\nparagraph of the plaint and then deciding the matter.  What is
\nnecessary to be found out is whether the assertions made in
\nthe plaint filed by the plaintiff-State and the relief sought for,
\ncan be held to be a water dispute, which could be referred to
\nthe tribunal, so as to oust the jurisdiction of the Supreme
\nCourt under Article 131.    It must be borne in mind that after
\nallocation of the water between the two States in exercise of
\npower under sub-Section (1) of Section 78 of the Punjab
\nReorganisation Act, 1966 under the notification dated 24th of
\nMarch, 1976, it is the State of Punjab, who had sought for a
\nreview of the notification, claiming increased share of water
\nfor Punjab and\tlinked the matter of construction of SYL
\nCanal with the same.   While the request of the Punjab
\nGovernment was pending before the Union Government, the
\nState of Haryana had filed a suit in this Court for a direction
\nto the State of Punjab for expeditious\tdigging of the Sutlej-
\nYamuna Link Canal in Punjab territory and the Punjab
\nGovernment had also filed a suit, challenging the competence
\nof the Central Government to make any allocation under
\nSection 78 of the Punjab Reorganisation Act.  During the
\npendency of these two suits, an agreement was arrived at
\nbetween the two plaintiff States viz. the State of  Haryana
\nand the State of Punjab as well as the State of Rajasthan
\nunder the intervention of  the then Prime Minister of India
\nand that agreement was arrived at,  on 31st December 1981.
\nThe terms of the agreement  were signed by the Chief
\nMinisters of the three States as well as the  then Prime
\nMinister of India.  Under the said agreement, the mean
\nsupply of 17.17 MAF was allocated as under:\n<\/p>\n
Share of Punjab\t\t\t\t:  4.22 MAF\n\t\tShare of Haryana\t\t\t:  3.50 MAF\n\t\tShare of Rajasthan\t\t\t:  8.60 MAF\n\t\tQuantity earmarked for Delhi\n\t\tWater Supply\t\t\t\t:  0.20 MAF\n\t\tShare of J& K\t\t\t\t:  0.65 MAF\n\n\n<\/pre>\n
Clause (4) of the aforesaid agreement was to the effect:\n<\/p>\n
“(iv)\tThe Sutlej-Yamuna Link Canal project shall
\nbe implemented in a time bound manner so far as
\nthe canal and appurtenant works in the Punjab
\nterritory are concerned within a maximum period
\nof two years from the date of signing of the
\nagreement so that Haryana is enabled to draw its
\nallocated share of waters.  The canal capacity for
\nthe purpose of design of the canal shall be
\nmutually agreed upon between Punjab and
\nHaryana within 15 days, failing which it shall be
\n6500 cusecs, as recommended by former
\nChairman, Central Water Commission.”\n<\/p>\n
On the basis of the aforesaid agreement between the parties,
\nthe two suits that had been filed before this Court were
\nwithdrawn and under the agreement, the notification dated
\n24th of March, 1976 stood modified to the extent varied under
\nthe agreement.\tIt  would thus be apparent that so far as the
\nState of Haryana is concerned, the earlier allocation of 3.5
\nMAF of the water remained the same and it became
\nnecessary to construct another canal, almost parallel to the
\nmain canal, as the existing canal system was not capable of
\nutilizing the allocated share of water to the extent of 3.5
\nMAF  in favour of the State of Haryana.\t The order of this
\nCourt dated 12th of February 1982 in these two suits filed, so
\nfar as relevant,  is quoted herein-below:\n<\/p>\n
“…………The prayer of the plaintiffs for
\nwithdrawal of suits is allowed and the suits are
\ndismissed as withdrawn in view of the agreement
\ndated 31st December, 1981 between the parties to
\nthe suits.  There will be no order as to costs.”\n<\/p>\n
It is a well known fact that the State of Punjab, soon got
\nplunged into militancy and it has been averred in the written
\nstatement in the present suit that the work of construction of
\ncanal within Punjab was stopped, when militants killed a
\nChief Engineer and a Superintending Engineer.  According to
\nthe defendant-State of Punjab, there was severe resentment in
\nthe State, which culminated in the unfortunate\tevent leading
\nto serious law and order problem in the said State and
\nultimately on 24th of July, 1985, an accord was arrived at
\nbetween the Prime Minister of India and Sant Harcharan
\nSingh Longowal, commonly called the “Punjab Settlement”.
\nIt is no doubt true that the aforesaid settlement cannot be said
\nto be a settlement on behalf of the State of Punjab, as
\nLongowal had no constitutional authority to enter into any
\nagreement.  But the terms of that  settlement, more
\nparticularly, paragraph (9) thereof were given effect to, by
\nappointment of a tribunal to be presided over by a Judge of
\nthe Supreme Court.  Paragraph (9) of the said accord is
\nextracted herein below in extenso:\n<\/p>\n
“9. Sharing of River Waters<\/p>\n
9.1\tThe farmers of Punjab, Haryana and
\nRajasthan will continue to get water not less
\nthan what they are using from the Ravi-Beas
\nsystem as on 1.7.85 waters used for
\nconsumptive purposes will also remain
\nunaffected.   Quantum of usage claimed
\nshall be verified by the Tribunal referred to
\nin para 9.2 below.\n<\/p>\n
9.2\tThe claims of Punjab and Haryana regarding
\nthe shares in their remaining waters will be
\nreferred for adjudication to a Tribunal to be
\npresided over by a Supreme Court Judge.\n<\/p>\n
The decision of this Tribunal will be
\nrendered within six months  and would be
\nbinding on both parties.  All legal and
\nconstitutional steps required in this respect
\nbe taken expeditiously.\n<\/p>\n
9.3\tThe construction of the SYL canal shall
\ncontinue.  The canal shall be completed by
\n15th August, 1986.”\n<\/p>\n
Paragraph (9.1) of the accord reaffirms the share which the
\nStates were getting from the Ravi-Beas system on 1.7.1985.
\nParagraph (9.2) relates to the claim of both the States
\nregarding their share in the remaining water which was
\nsought to be referred for adjudication to a tribunal to be
\npresided over by a Judge of the Supreme Court and
\nParagraph (9.3) was in relation to the construction of SYL
\nCanal.\tThe terms and conditions of the settlement contained
\nin paragraph 9 were recognized by the Parliament and an
\namendment was inserted to the Inter-State Water Disputes
\nAct, 1956 by Act 20 of 1986, under which Section 14 was
\nadded to the said Act.\t Section 14 with its explanation may
\nbe extracted herein-below in extenso:\n<\/p>\n
“Section 14:  Constitution of Ravi and Beas
\nWaters Tribunal:-\n<\/p>\n
(1)\tNotwithstanding anything contained in the
\nforegoing provisions of this Act, the Central
\nGovernment may, by notification in the
\nOfficial Gazette , constitute a Tribunal under
\nthis Act, to be known as the Ravi and Beas
\nWaters Tribunal for the verification and
\nadjudication of the matters referred to in
\nparagraphs 9.1 and 9.2 respectively of the
\nPunjab Settlement.\n<\/p>\n
(2)\tWhen a Tribunal has been constituted under
\nsub-section (1), the provisions of sub-\n<\/p>\n
sections (2) and (3) of Section 4, sub-\n<\/p>\n
sections (2), (3) and (4) of Section 5 and
\nSections 5A to 13 (both inclusive)  of this
\nAct relating to the constitution, jurisdiction,
\npowers, authority and bar of jurisdiction
\nshall, so far as may be, but subject to sub-\n<\/p>\n
section (3) hereof, apply to the constitution,
\njurisdiction, powers, authority and bar of
\njurisdiction in relation to the Tribunal
\nconstituted under sub-section (1).\n<\/p>\n
(3)\tWhen a Tribunal has been constituted under
\nsub-section (1), the Central Government
\nalone may suo motu or at the request of the
\nconcerned State Government refer the
\nmatters specified in paragraphs 9.1 and 9.2
\nof the Punjab Settlement to such Tribunal.
\nExplanation:  For the purposes of this section,
\n“Punjab Settlement” means the Memorandum of
\nSettlement signed at New Delhi on the 24th day of
\nJuly, 1985.”\n<\/p>\n
The Parliament itself,\ttherefore, under Section 14(3)
\nunequivocally indicated that a tribunal having been
\nconstituted under sub-section (1) of Section 14, the matters
\nspecified in paragraphs 9.1 and 9.2 of the Punjab Settlement
\ncould be referred to by the Central Government suo motu\t or
\nat the request of the concerned\t State Government but not the
\nmatters specified in paragraph 9.3 which relates to the
\nconstruction of SYL Canal.   The expression “Punjab
\nSettlement” has been defined in the explanation to mean the
\nMemorandum  of Settlement signed on 24th of July, 1985.\t In
\nthe teeth of the legislation referred to above,\t it is difficult for
\nus to accept the contention of Dr. Dhawan, appearing for the
\nState of Punjab that the so-called Settlement of 24th of July,
\n1985 is nothing but a piece of paper without any sanctity and
\nis not enforceable.  Pursuant to the provisions contained in
\nsub-section (1) of Section 14, a tribunal has been constituted
\nand the dispute in relation to the additional share of water
\nfrom the Ravi-Beas Project and its allocation between the
\nStates of Punjab and Haryana has been referred to the
\ntribunal, which has passed an interim Award and no final
\ndecision has been given.  The Parliament, therefore, having
\nreferred the matters of dispute under paragraphs 9.1 and 9.2
\nto a tribunal under the Inter-State Waters Disputes Act and
\nrefraining from referring  the dispute of construction of SYL
\nCanal contained in paragraph 9.3 of the Settlement, is
\nindicative of the fact that the construction of the SYL Canal
\nhas absolutely no connection with the sharing of water
\nbetween the States and as such is not a “Water Dispute”
\nwithin the meaning of Section 2(c) and consequently the
\nquestion of referring such dispute to a tribunal does not arise.
\nIn this view of the matter, howsoever wide meaning the
\nexpression “water dispute” in Section 2(c) of the Inter-State
\nWater Disputes Act be given, the construction of the canal
\nwhich is the subject matter of dispute in the present suit
\ncannot be held to be a “water dispute”\twithin the meaning of
\nSection 2(c) of the Act and as such, such a suit is not barred
\nunder Article 262 of the Constitution read with Section 11 of
\nthe Inter-State Water Disputes Act.  The aforesaid issue must
\nbe answered against the defendant and in favour of the
\nplaintiff State.\n<\/p>\n
ISSUE NO. 3:\n<\/p>\n
\tThough this issue had been framed because of the stand
\ntaken by the defendant No. 1 in the written statement, but in
\ncourse of hearing of the suit, Dr. Dhawan, appearing for the
\nState of Punjab did not seriously press the same.  It is also
\napparent from the written submissions filed on behalf of the
\nsaid defendant No. 1, wherein as many as seven submissions
\nhave been enumerated in paragraph 1.5 of Part-A\t and the
\nquestion of limitation had not been raised therein.\n<\/p>\n
  Mr. Bobde, the learned counsel, appearing for the
\nplaintiff, however urged that though Article 112 of the
\nLimitation Act relating to suits by or on behalf of the Central
\nGovernment or any  State Government is 30 years but the
\nsuits filed before the Supreme Court are specifically excluded
\nfrom the purview of the same.  According to Mr. Bobde,
\nLegislature, in its wisdom, left matters of limitation to be
\nprescribed by the Court and this Court in turn,\t though
\nprovided a period of limitation in Part VIII, Order XL(2) and
\nalso so far as applications on certificate by the High Court are
\nconcerned under Order XV(2) but did not provide any
\nlimitation for suits under Article 131, possibly because such
\nmatters are usually of grave public importance.\t Mr. Bobde
\nalso urged that there has been no delay or latches on the part
\nof Haryana in approaching this Hon’ble Court in view of the
\nfact that cause of action is a continuous one and even
\ncontinued till date, as averred in the plaint.\n<\/p>\n
In our considered opinion, the present suit cannot be
\nthrown away, either on the ground of limitation or latches on
\nthe part of the plaintiff in approaching the Court, but we are
\nnot required to make an in-depth inquiry on the question of
\nlimitation,    since  the defendant- State of Punjab did not
\npress the issue seriously.  This issue accordingly is answered
\nin favour of the plaintiff and against the defendant No. 1.\n<\/p>\n
ISSUE NO. 1:\n<\/p>\n
This issue which in fact is the main issue and which
\ncovers within itself all the arguments, both in favour and
\nagainst, requires a thorough scrutiny of the materials on
\nrecord and  an in-depth study of the rival submissions made
\non behalf of the parties.  Before we embark upon an inquiry
\non this issue, we think it appropriate to notice at this stage,
\nthat when the arguments were closed on 9th August, 2001, we
\npassed the following order:\n<\/p>\n
“This suit by the State of Haryana is for
\nissuance of a mandatory injunction to the State of
\nPunjab and\/or the Union of India (UOI) to
\ncomplete construction of the unfinished SYL
\ncanal.\tIn the written statement filed by the Union
\nof India, there is a positive averment that
\nconstruction of SYL canal is solely the
\nresponsibility of the Government of Punjab and
\nthe Union of India has made all efforts including
\nfinancial assistance to the State of Punjab for
\nearly completion of the canal and further the
\nGovernment of India will continue to play its role
\nwith the settlement of the disputes between the
\ntwo States.  In course of his submissions, learned
\nASG appearing for the Union of India on
\ninstructions states, that the UOI is still willing to
\nnegotiate for arriving at a settlement between the
\ntwo States.  In view of the several agreements
\nbetween the two States, at the intervention of the
\nPrime Minister of India, and the SYL canal
\nhaving been substantially completed for which
\nmore than Rs. 600 crores of tax-payers’ money
\nhas been spent and in view of offer made by the
\nlearned ASG, we observe that notwithstanding
\nhearing of the suit and keeping it reserved for
\njudgment, the Union Government through the
\nMinistry of Water Resources and with the
\nblessings of the Prime Minister may continue the
\nnegotiations with the Chief Ministers of the two
\nStates, namely, Punjab and Haryana and we hope
\nthat if the Prime Minister intervenes with right
\nearnest, then  the dispute with regard to the
\nconstruction of canal could be amicably settled
\nand the Court will not be required to issue any
\norder either way.  The so-called settlement, if any,
\nmay be made within four weeks from today and if
\nany settlement is arrived at then the same may be
\nintimated to the Court.\t A copy of our order may
\nbe handed over to the learned ASG.”\n<\/p>\n
Having waited for the period of four weeks, when no
\nintimation was received from the Union of India, we have
\nproceeded to the judgment painfully, as in our view, it was
\nindeed for the Central Government to see that the canal is
\nexcavated and the recalcitrant State should have been
\nprevailed upon.\t   In a semi-federal system of Government,
\nwhich has been adopted under the Indian Constitution, all the
\nessential powers, both legislative and executive have been
\nconferred upon the Central Government.\tTrue Federalism
\nmeans the distribution of power between a Central Authority
\nand the Constituent Units.  Dicey’s concept of federalism is a
\nnational constitution for a body of States, which desire union
\nand do not desire unity.  According to him, a federal State is
\na political contrivance intended to reconcile national unity
\nand power with the maintenance of State rights.\t The essence
\nof a federation is, therefore, existence of a Union and its
\nStates and the division of power between the Union and the
\nStates.\t If the component parts of a State have no power of
\npolicy decision in any field, but are confined to carrying out
\nCentral Government directives through the medium of an
\ninstitutional fabric of federal form, it is not a federal but a
\nunitary State.\tPolitical integrity of the Union and each State
\nseems to be essential to the federal concept.\t Authors,
\ntherefore, described our Government to be one federal in
\nstructure but somewhat unitary in spirit.  Constitution of
\nIndia, defines the political authority, locates the sources of
\npolitical power and indicates, how the power has to be
\nexercised, setting out the limits on its own use.  Our
\nconstitution is more than fifty years old and during this half
\ncentury, several developments have taken place, which have
\nmoulded the working of the Constitution and brought out
\nseveral difficulties in its working and has provoked a number
\nof controversies.  In the pre-independence politics in this
\ncountry, the Congress Party was committed to secure more
\npowers for the provinces.  But soon after independence, the
\npolitical scenario changed and the need for power sharing
\ndevices was subordinated to the imperatives of State’s
\nsecurity and stability.\t Weakness and lack of confidence
\npropelled the thrust towards centralisation.  Unity of the
\ncountry was perceived as a paramount need.  The partition of
\nthe country and the events that followed in its aftermath,
\nwere events between commencement and completion of work
\nof the Constituent Assembly.   These events have left
\nindelible imprint in several of its provisions, including the
\nscheme of distribution of legislative power.  The second
\nReport of 5th July, 1947 of the Union Constitution Committee
\nhaving taken note of the facts then prevalent, unequivocally
\nrecorded that weak Centre would be injurious to the interests
\nof the country.\t The said Report states:\n<\/p>\n
 “We have accordingly come to the
\nconclusion  a conclusion which was also
\nreached by the Union Constitution Committee
\nthat the soundest framework for our Constitution
\nis a federation with a strong Centre.”\n<\/p>\n
It is in this context, Mr. Bobde, appearing for the plaintiff-
\nState of Haryana urged that if a State does not abide by the
\ndiscipline of the Constitution and goes to the extent of
\nflouting its basic structure, it is the duty of the Union of India
\nto set things right and where the Union fails in its duty, the
\nSupreme Court must intervene to correct the situation.
\nAccording to the learned counsel, if balance of our
\nfederalism is upset by a recalcitrant State which proceeds to
\nact as if it has no obligations to other States or to  the nation
\nas a whole and the Union remains a mute spectator either for
\nthe lack of political will or any reason whatever, then the
\nSupreme Court will have to step in and preserve the basic
\nfeature of federalism.\tAccording to the learned counsel, the
\nprinciple of  “co-operative” federalism has been accepted in
\nall modern democracies and we in India have a strong unitary
\ntilt in the Constitution, where unlike the United States of
\nAmerica, the constitution points to the primacy of the Union.
\nThe learned counsel further urged that constitution has
\nconferred power on the parliament to alter the boundaries and
\nterritories of all States and the Union can never allow
\nsecession.  It is further imperative that in every matter that
\nconcerns the interests of the nation, the Union has to ensure
\nthat the Constitution is faithfully observed in letter and spirit
\nby the States.\tMr. Bobde urged that the Union cannot allow
\nany State to act in a manner that is hostile towards another
\nState or the Union nor\twould allow a State to renege on its
\ncommitments.  Mr. Bobde went a step ahead to urge that the
\nState represents its inhabitants.  If the rights of the inhabitants
\nunder the Constitution gets adversely affected by any action
\nor inaction of another State or the Union, then those rights
\nare enforceable.  According to the learned counsel, the need
\nof the State of Haryana to have SYL Canal being for the
\npurpose of utilizing the quantity of water that has already
\nbeen allocated in its favour by the Government of India under
\nthe provisions of the Punjab Reorganisation Act and the State
\nof Haryana has no other source to get water and which was a
\npart of the State of Punjab prior to its formation, any denial to
\nget the allocated quantity of water for being utilized in  the
\nState of Haryana would be a deprivation of their rights under
\nArticle 21 and the State has been compelled to file the suit
\nmainly because the mighty Union with all its power under the
\nconstitution as well as the power derived from the citizens of
\nthe country, has failed to discharge its constitutional
\nobligation either in persuading the recalcitrant State of
\nPunjab to get the canal dug and failing persuasion, to get it
\nexecuted otherwise.\n<\/p>\n
\tDr. Dhawan, appearing for the State of Punjab in this
\nconnection submitted that the digging of SYL Canal is highly
\nsensitive political issue, connected to the conditions of
\nturmoil and uncertainty which prevailed in the State of
\nPunjab as already stated in the written statement.  According
\nto him ever-since the day of inauguration of digging of canal
\nby the then Prime Minister Mrs. Indira Gandhi, the farmers
\nof Punjab boiled with resentment and physically interfered
\nwith the digging of canal.  Such popular resentment still
\nprevailed in the State of Punjab which culminated in the
\nunfortunate event leading to serious Law and Order problem
\nin the State of Punjab.\t The simmering discontentment which
\nprevailed amongst the people of Punjab, got further
\naggravated on account of the so-called settlement signed by
\nthe then Prime Minister of India and Late Sardar Harchand
\nSingh Longowal on 24.7.1985 and even the forcible digging
\nof canal was ultimately stopped.   This being the position, it
\nwould not be in the interest of any concern or in the interest
\nof the nation to issue any direction for digging of the canal.
\nAccording to the learned counsel, India no-doubt has a strong
\ncentralized centripetal system, which can bring recalcitrant
\nStates into line by a combined use of Article 355 and 365, but
\nthe Indian Federal system is also based upon certain admitted
\nfeatures like territorial vulnerability;  empowerment to the
\nunion;\tState autonomy;\t A complex set of institutions and
\nprocess to resolve disputes and enable governance;  and the
\njudiciary’s inclusion and exclusion from many areas
\ndepending on the nature of the issue.\t Federalism no-doubt
\nis the part of the basic structure of the Constitution and the
\nprocesses which are specifically designated by the
\nConstitution for specific purposes.  According to Dr.
\nDhawan, India’s federal system was devised to enable a wide
\nrange of distribution of powers, directions, schemes,
\ncontractual and non-contractual agreements, in order to
\nfacilitate governance.\tWithin this scheme, the judiciary
\nespecially the Supreme Court plays an important role in
\nmatters for interpretation and adjudication.  But not all
\naspects of these arrangements were deemed to be legally
\nenforceable  or regarded as judicially manageable.
\nAccording to the learned counsel, some areas of judicial
\nunmanageability are delineated in the Constitution itself.
\nBearing in mind, the aforesaid principles and taking into
\naccount the claim made by the State of Haryana, it must be
\nsaid that the entitlements of Haryana cannot be treated as
\nprivate law entitlements with private implications but only as
\npublic entitlements with public implications, including the
\nsocial, economic, political and security implications and,
\ntherefore, the Court would be well advised, not to issue any
\ndirection in relation to the digging of SYL Canal.\n<\/p>\n
\tHaving regard to the submissions made by the counsel
\nappearing for the two neighbouring States, who are fighting
\ntenaciously like two adjacent owners and when the Union
\ngovernment is keeping silence over the matter, as is apparent
\nfrom the fact that notwithstanding our order on the close of
\nthe arguments, there has been no intimation to us from the
\nUnion Government through its counsel learned Additional
\nSolicitor General,  we will be failing in our duty if we do not
\nnotice faithfully what transpired in course of hearing.
\nInitially, to our query as to the role\tand the stand of the
\nUnion Government, the counsel who was appearing for the
\nUnion Government, candidly stated that the Union has no
\nrole to play in the dispute between the two states and such a
\nstand on the part of the Union Government would not be
\nappreciated by the Court while hearing the matter.  It is only
\nwhen the Court expressed its disapproval to the stand taken
\nby the Union Government, learned Additional Solicitor
\nGeneral appeared and initially prayed for an adjournment of
\nhearing of the suit so as to enable the Union government to
\nplay its role effectively.  As we had already started hearing of
\nthe suit and had by then heard for a considerable period,
\nwhen we found it not possible to adjourn the matter, we
\nheard learned Additional Solicitor General and then at the
\nconclusion of the hearing, passed the order, which we have
\nalready quoted earlier.\t But nothing appears to have
\nhappened and to us, it appears that in the controversy
\nbetween the two states, the Union Government is feeling
\nembarrassed to take any positive decision,  which in our view
\nis not in the interest of the nation.  The founding fathers of
\nthe Constitution, advocated for a strong Central Government,
\nso that there would not be any disintegration of the States and
\nthe Central power would\t be able to keep the States within its
\nlimits and will be able to force the States,  in the matter of
\ngood governance of the States, which would benefit the
\ninhabitants of the States, the inhabitants of the neighbouring
\nStates and the country as a whole.\n<\/p>\n
\tWithin India, the Indus basin lies in Jammu and
\nKashmir, Himachal Pradesh, Punjab, Haryana  and
\nRajasthan.  Most of the basin in Pakistan lies in North-West
\nFrontier Province, namely Punjab and Sind.  According to the
\npre-1947 political sub-divisions, the Indus basin in India
\ncomprised the British Provinces of the Punjab, N.W.F.P. and
\nSind, as well as the then princely States of Jammu and
\nKashmir, Patiala, Nabha, Faridkot,  Jind, Kapurthala,
\nBikaner, Bahawalpur, Jaisalmer, Khairpur, Bilaspur, Mandi,
\nChamba and several other small States in the Punjab hills, the
\nNorth-West Frontier States and tribal areas, together with
\nparts of the British Province of Baluchistan and of the Indian
\nStates of Jodhpur and Jaipur.  Approximately 46 million
\npeople lived in this basin in 1947 with agriculture as the pivot
\nof their economy.  The Northern and Western boundaries of
\nthe Indus basin are clearly marked by mountains and hills;
\ntowards the south, however the limits of the basin are
\nrelatively obscure.  The north-west mountain wall,
\ncomprising the Himalayan ranges and Siwaliks, has a great
\ninfluence on the physiography of the Indus region and the
\nhydrology of the region. The partition between India and
\nPakistan in 1947, which created a new political boundary in
\nfact cut across the Indus system of rivers and canals from
\nwhich 26 million acres of irrigated agriculture had already
\nbeen established and from which rivers many million acres of
\narid lands were still waiting to be developed in turn.\tThe
\nIndus basin, a geographical entity, as patent as anywhere else
\nin the world, was divided between two henceforth sovereign
\nnations. Several proposals for sharing of water had been
\nmooted, but ultimately the proposal for a partition with a
\nterritorial division of rivers, giving to India the exclusive use
\nof the three Eastern Rivers (Sutlej, Beas and Ravi) and to
\nPakistan the use of the waters of the three Western Rivers
\nwas accepted, and an  Indus Water Treaty was entered into
\nbetween India and Pakistan.  Government of India had to pay
\na contribution which was fixed at 62.5 million Pounds to
\nPakistan.  Development of river water resources for purposes
\nof irrigation and generation of hydro-electric power has been
\nprogressing steadily since independence.  Many multi-
\npurpose river valley schemes have been executed on
\ninterstate rivers. In many of these projects the states have
\ncooperated in jointly developing the river concerned in an
\nintegrated manner, thus deriving the optimum benefits out of
\na river.  But  notwithstanding the same the existence of
\nfriction amongst the  States, through which river flows
\ncontinues and such friction between two States or two or
\nmore States has been continuing on account of  lack of
\npolitical will at the central level to deal  with the problem
\nwith determination.  The lack of interstate cooperation is the
\nmain factor leading to such dispute for sharing the water of a
\nriver.\tEven as between two States Punjab and Haryana,
\nwhich at one point of time constituted only a single State, the
\ndispute for additional allocation of water from this Ravi Beas
\nbasin is still pending un-resolved before a Tribunal, which
\nhad been constituted way back in the year 1986 in pursuance
\nto the so-called ‘Longowal Agreement’.\tWe are not
\nconcerned in the present suit with regard to the Award that
\nhas been passed by the said Tribunal on 30th January, 1987;
\nbut we are certainly concerned with the continuance of such a
\nTribunal presided over by a retired Judge of this Court, who
\nis sitting idle as the other members of the Tribunal had not
\nbeen appointed or for some other reason,  and  continuance of
\nsuch a Tribunal has become a source of drainage from the
\npublic exchequer without getting any return.  It transpires,
\nafter the Tribunal passed the Award on 30th January, 1987, an
\napplication under Section 5(3) of the Interstate River Water
\nDisputes Act was filed by the State of Punjab on 19th August,
\n1987, and no final decision has been taken on that application
\nas a result of which the Central Government has not
\npublished the decision of the Tribunal in the Official Gazette,
\nas required under Section 6 of Interstate River Water
\nDisputes Act.  We really fail to understand why such a high
\npowered Tribunal supposed to decide a water dispute,
\nreferred to it, between the States of Punjab, Haryana and
\nRajasthan in relation to use, distribution or control of  extra
\nwater from the Ravi Beas system, which Tribunal in terms of
\nparagraphs 9.1 and 9.2 of Longowal Agreement dated 24th
\nJuly, 1985, would be permitted to just sit idle and why the
\nCentral Government in the appropriate Ministry has not
\nbestowed any attention for the proper functioning of such
\nTribunal.  A Judge by virtue of his training, always acts in a
\nmanner so as to avoid public criticism for  his conduct.  A
\nretired Supreme Court Judge, who has been appointed as the
\nChairman of a Water Disputes Tribunal, would certainly not
\nlike to sit idle at the cost of huge drainage from the public
\nexchequer and even otherwise, it would be beneath  his
\ndignity to continue as Chairman, without doing any work.
\nThe manner in which this tribunal headed by a retired Judge
\nof the Supreme Court has been allowed to continue,  has
\nalready been a matter of severe public criticism.    To avoid
\nany further embarrassment and criticism we expect that the
\nCentral Government would do well in filling up the vacancies
\nin the Tribunal and the Tribunal also would do well in
\nconcluding the proceeding before it, as expeditiously as
\npossible.\n<\/p>\n
\tComing to the question of construction of SYL canal, it
\nappears that way back in January 29, 1955 in a meeting
\ncalled by the Government of India of all the concerned States
\na decision had been taken, allocating 5.90 MAF in favour of
\nundivided State of Punjab.  We are not concerned with the
\nallocation made in favour of other States, like, Rajasthan,
\nKashmir and Pepsu.  Several projects had been taken like
\nMadhopur Beas Link, Madhopur Head works with the idea
\nthat the water from river Beas is diverted and is available for
\nthe utilisation to the States of  undivided Punjab and
\nRajasthan at Harike.  The government had also proposed
\nBeas Project Unit I and Unit II which comprised of Beas
\nSutlej Link and this project had started much before
\nreorganisation and division of the undivided Punjab.  Since
\nno river was flowing within the State of Haryana and the
\nState had no other water resources, even before the creation
\nof the Haryana Development Committee had been set up,
\nwhich Committee had submitted its report recommending the
\nsurplus Ravi Beas water for  Haryana region, as is apparent
\nfrom Exhibit-P\/21.  The undivided State of Punjab was
\nbifurcated into two States of Punjab and Haryana with effect
\nfrom 1.11.1966, under the Parliamentary Act, called ‘The
\nPunjab Reorganisation Act, 1966.  Under the Parliamentary
\nLegislation a provision had been engrafted providing that
\nrights and liabilities of the existing State of Punjab in relation
\nto Bhakra Nangal Project and Beas Project, shall on the
\nappointed day,\tbe the rights and liabilities of successor State
\nin such proportion, as may be fixed and subject to such
\nadjustment, as may be made by  an agreement entered into by
\nthe said States, after consultation with the Central
\nGovernment, or if no such agreement is entered into within
\ntwo years of the appointed day, as the Central Government
\nmay by order determine having regard to the purposes of the
\nprojects.  The aforesaid Section of Punjab Re-organisation
\nAct stipulated that the order so made by the Central
\nGovernment could be varied by any subsequent agreement
\nentered by the successor State after consultation with the
\nCentral Government.  In exercise of the aforesaid power, the
\nGovernment of India in the Ministry of Irrigation, determined
\nthe rights and liabilities in relation to the Beas Project as the
\ntwo States, namely, Punjab and Haryana could not reach an
\nagreement and a Notification was issued on 24th March,
\n1976.  It would be appropriate at this stage to extract a
\nportion of the aforesaid Notification for better appreciation of
\nthe controversy in issued:-\n<\/p>\n
 “NOW THEREFORE, ion exercise of the powers
\nconferred by sub-section (1) of section 78 of the
\nPunjab Re-organisation Act, 1966 (31 of 1966),
\nthe Central government hereby makes the
\nfollowing determination, namely:-\n<\/p>\n
\tTaking note of the facts that Haryana has
\nlarge arid tract and also several drought prone
\nareas and the present development of irrigation in
\nthe State of Haryana is substantially less as
\ncompares to that in the State of Punjab, and
\nfurther taking into consideration that
\ncomparatively large quantity of water is needed
\nfor irrigation in the State of Haryana and there is
\nlimited availability of water from other sources in
\nthe State, the Central Government hereby directs
\nthat out of the water which would have become
\navailable to the esrtwhile State of Punjab on
\ncompletion of the Beas Project (0.12 MAF
\nwhereof is earmarked for Delhi Water Supply),
\nthe State of Haryana will get 3.5 MAF and the
\nState of Punjab will get the remaining quantity not
\nexceeding 3.5 MAF.  When further conservation
\nworks on the Ravi are completed, Punjab will
\ngewt 3.5 of 7.2 MAF which is the share of the
\nerstwhile State of Punjab.  The remaining 0.08
\nMAF, out of 7.2 MAF is recommended as
\nadditional quantum of water for Delhi water
\nsupply for acceptance by both the Governments of
\nPunjab and Haryana.\n<\/p>\n
\tAND WHEREAS  the above allocation on
\ncompletion of the Beas Project is based on the
\n1921-45 flow series corresponding to availability
\nof 11.24 MAF in the Beas at Mandi Plain (after
\nallowing for 1.61 MAF as pre-partition uses) and
\nthe availability of 4.61 MAF in the Ravi after
\nallowing for pre-partition uses and losses in the
\nMadhopur Beas Link.\n<\/p>\n
\tAND WHEREAS the fluctuations in the
\nRavi flow have a very small effect on the
\navailability of water on completion of the Beas
\nProject;”\n<\/p>\n
\tEven prior to the aforesaid Notification issued by the
\nGovernment of India the concept of having SYL Canal had
\nalready emerged, which is apparent from Exhibit P-17, a
\ncommunication from the Government of Haryana to the
\nCentral Government dated October 21, 1969.  The relevant
\nparagraphs from the aforesaid communication, Exhibit P-17
\nare quoted hereunder :-\n<\/p>\n
“6. It is also important to point out that Haryana
\nGovernment have prepared a scheme linking
\nSutlej basin with Western Yamuna Canal basin
\nfor utilising its share of 4.8 MAF when the same
\nis harnessed after the completion of the Beas
\nSutlej Link by 1973-74. The Project estimate was
\nsubmitted to the Government of India, Ministry of
\nIrrigation and Power of scrutiny and approval.
\nThe Government of India have intimated that the
\nallocation of Ravi-Beas waters may be got
\nfinalised before the Scheme is taken up for
\nscrutiny.\n<\/p>\n
7. The Haryana State can have its share out of the
\nRavi-Beas waters only through Bhakra and it
\nwould be a pity if the State is not in a position to
\nutilise its share of waters for want of adequate
\nl;inks.\t The proposed scheme is, therefore, very
\nvital for Haryana and accordingly the entire
\nprovision for the Scheme costing Rs.27 crores has
\nbeen recommended by the State Government for
\nbeing spent during the Fourth Five Year Plan.  It
\nis accordingly very essential that the allocation of
\n7.2 MAF to erstwhile Punjab State is apportioned
\nbetween the two successor States without any loss
\nof time so that this State may be able to execute
\nthe afore-mentioned major scheme during the 4th
\nFive Year Plan.\n<\/p>\n
8.\tSince the two successor States have not
\ncome to an agreement\/decision in the matter,
\nit is requested that the matter may be
\ndecided under Section 78 of the Punjab Re-\n<\/p>\n
organisation Act, 1966 wherein the
\nGovernment of India take a decision aftwer
\nthe stipulated period of two years which
\nexpired on 1.11.1968.”\n<\/p>\n
On the demand of the State of Haryana the Central
\nGovernment appointed a high level Committee of experts in
\nApril 24, 1970, under Exhibit P-18 and the said Committee
\nsubmitted a report in February 1971 under Exhibit P(D)-3
\nrecommending 3.782 MAF to Haryana and 3.087 MAF to
\nPunjab.\t But that recommendation was referred by the
\nPlanning Commission to the Chairman, Central Water and
\nPower Commission Shri Y.K. Murthy under Exhibit P-19
\nand Shri Murthy had submitted a report introducing a concept
\nof “divisible pool” but finally the Government of India made
\nthe determination by issuing a Notification on 24th March,
\n1976, as already stated.  The State of Haryana could draw its
\nshare in the surplus Ravi-Beas waters from Bhakra Nangal
\ncomplex on the river Sutlej where the supplies of Ravi and
\nBeas are available and that is why the proposal for
\nconstruction of SYL Canal had been mooted, part of the
\ncanal being in the State of Punjab.  The State of Haryana all
\nalong has been insisting for the completion of SYL canal and
\nhas been requesting the State of Punjab and the Central
\nGovernment reiterating inter alia that the large arid tract of
\nHaryana and several drought prone areas would need water
\nbadly and, therefore unless the allocated share of water is
\nallowed to be diverted by digging an additional Link canal, as
\nthe existing main line canal will not be in a position to get the
\nwater allocated to Haryana, for being utilised through the
\nsaid canal.  Though the State of Haryana started constructing
\nthe canal within its territory in 1976 and completed the same
\nby June 1980, and a huge amount has been spent on that
\nscore  but the construction of canal within the territory of
\nPunjab was a non starter.  When the persuation on the part of
\nthe State of Haryana failed they filed a suit in this Court,
\nwhich was registered as Suit No. 1 of 1979 for
\nimplementation of the order of the Union Government dated
\n24th March, 1976 and for the construction of SYL Canal
\nwithin the territory of Punjab within a\t period of 2 years. As a
\ncounter blast to the aforesaid suit the State of Punjab also
\nfiled a suit in this Court, which was registered as Suit No. 2
\nof 1979, challenging the validity of the order of Government
\nof India dated 24th March, 1976 and also challenging the
\nvalidity  of Section 78\t of the Punjab Re-organisation Act,
\n1966.  While two suits were pending in this Court an
\nagreement was arrived at between the States of\tHaryana,
\nPunjab and Rajasthan in the presence of the Prime Minister
\nof India on 31st December, 1981, vide Exhibit  P-2 and on
\naccount of the aforesaid agreement the Suits filed by the two
\nStates stood withdrawn by order dated 12th February, 1982.
\nAt this stage, it would be appropriate to extract the relevant
\nportions of the agreement Exhibit P-2 as well as the order of
\nthis Court dated 12th February, 1982.\n<\/p>\n
\tExhibit P-2  WHEREAS  the Punjab
\nGovernment  sought a review of the aforesaid
\nnotification for increasing the allocation of Punjab
\nand linked this matter to the construction of the
\nSutlej-Yamuna Link Canal for Haryana in Punjab
\nterritory and,
\nWHEREAS the Government of Haryana filed a
\nsuit in the Supreme Court praying inter-alia that a
\ndirective be issued to Punjab for expeditiously
\nundertaking construction of the Sutlej Yamuna
\nLink Canal in Punjab territory and for declaring
\nthat the notification of the Government of India
\nallocation the waters becoming available as a
\nresult of the Beas Project issued on 24th March,
\n1976, is final and binding;\n<\/p>\n
    xx\t\t  xx\t\t xx\t     xx\t\t xx<\/p>\n
    “Now, therefore, we the Chief Ministers of
\nHaryana, Rajasthan and Punjab keeping in view
\nthe overall National interest and desirous of
\nspeedy and optimum utilisation of waters of the
\nRavi and Beas Rivers and also having regard to
\nthe  imperative need to resolve speedily the
\ndifference relating to the use of these waters in a
\nspirit of give and take do hereby agree as under :-\n<\/p>\n
“iv.  The Sutlej-Yamuna Link Canal Project shall
\nbe implemented in a  time bound manner so far as
\nthe canal and appurtenant works in the Punjab
\nterritory are concerned within a maximum period
\nof two years from the date of signing of the
\nagreement so that Haryana is enabled to draw its
\nallocated share of waters.  The canal capacity for
\nthe purpose of design of the canal shall be
\nmutually agreed upon between Punjab and
\nHaryana within 15 days, failing which it shall be
\n6500 cusecs as recommended by former
\nChairman, Central Water Commission.\n<\/p>\n
Regarding the claim of Rajasthan to convey 0.51
\nMAF of water through Sutlej-Yamuna Link
\nBhakhra system, Secretary,  Ministry of Irrigation,
\nGovernment of India will hold discussion with
\nPunjab, Haryana and Rajasthan with a view to
\nreaching an acceptable solution.  These
\ndiscussions shall be concluded in a period of 15
\ndays from the date of affixing signatures herein
\nand before the work starts.  If no mutually
\nacceptable agreement is reached, the decision of
\nSecretary, Ministry of Irrigation to be given
\nwithin this period shall be binding on all the
\nparties.  In case it is found necessary to increase
\nthe capacity of Sutlej-Yamuna Link Canal beyond
\nthat decided under above sub-para in any or entire
\nreach thereof, the States concerned shall
\nimplement the link canal in a time bound manner
\nwith such increased capacity at the cost of
\nRajasthan Government.\n<\/p>\n
The differences with regard to the alignment of
\nthe Link Canal and appurtenant works in the
\nPunjab territory would be discussed by the
\nHaryana and Punjab Governments who should
\nagree to mutually acceptable canal alignment in
\nPunjab territory including appurtenant works
\nwithin a period of three months from the date of
\nsigning of this agreement.  If however, the State
\nGovernments are unable to reach complete
\nagreement within this period the matter shall be
\ndecided by the Central Government within a
\nperiod of two weeks.  Both the State Governments
\nshall cooperate fully to enable Central
\nGovernment to take timely decision in this regard.
\nThe decision of the Central Government in this
\nmatter shall be final and binding on both the
\nGovernments and the Canal and appurtenant
\nworks in Punjab territory shall be implemented in
\nfull by Punjab Government.  However, work on
\nthe already agreed reaches of the alignment would
\nstart within fifteen days of the signing of the
\nagreement and work within the other reaches
\nimmediately after the alignment has been decided
\nHaryana shall provide necessary funds to the
\nPunjab Government for surveys, investigations
\nand considerations of the Link Canal and
\nappurtenant works in Punjab territory.\/\t Whereas a
\nresult of acquisition of land, extreme hardship is
\ncaused to families the Punjab Government shall
\nforward to the Haryana Government suitable
\nproposals for relieving hardship in line with such
\nschemes in Pounjab undertaken in respect of
\nsimilar Canal works in Punjab territory.  The
\nHaryana Government shall arrange to bear the
\ncost of such proposals.\t In the event, however, of
\nany difference of opinion arising on the question
\nof sharing such cost, the parties shall abide by
\ndecision of the Secretary, Ministry of Irrigation,
\nGovernment of India.  The progress of the work
\nshall not, however, be delayed on this account.
\nThe Central Government will be requested to
\nmonitor the progress of the work being carried out
\nin Punjab territory.\n<\/p>\n
v.\tThe Agreement reached in Paras (I) to (iv)
\nabove shall be implemented in full by the
\nGovernment of Haryana, Rajasthan and
\nPunjab.\t If any signatory State feels that any
\nof the provisions of the Agreement are not
\nbeing complied with, the matter shall be
\nreferred to the Central Government whose
\ndecision shall be binding on all the States.
\nIn this respect the Central Government shall
\nbe competent to issue such directions or take
\nsuch measures as may be appropriate and
\nensure such compliance.\n<\/p>\n
vi.\tThe suits filed by the Government of
\nHaryana and Punjab in the Supreme Court
\nwould be withdrawn by the respective
\nGovernments without any reservations
\nwhatsoever but subject to the terms of this
\nagreement.\n<\/p>\n
vii.\tThe notification of the Government of India
\nallocating the waters becoming available as
\na result of the Beas Project issued on 24th
\nMarch, 1976, and published in the Gazette
\nof India, Part II, sections, the Section (ii) as
\nwell as the 1966 Agreement stand modified
\nto the extent by this Agreement and shall be
\nin force as modified herein.\n<\/p>\n
In case of any difference on interpretation of
\nthis Agreement, the matter will be referred to the
\nCentral Government whose decision shall be
\nfinal.”\n<\/p>\n
Order dated February 12, 1982:-\n<\/p>\n
\t“In these suits, the plaintiffs namely,
\nGovernment of Punjab and Haryana have filed
\npetitions for withdrawal of suits as the dispute
\nbetween the States have been settled between the
\nparties and they are permitted to withdraw the
\nsuits in view of the agreement dated 31st
\nDecember, 1981 between the plaintiffs and the
\nState of Rajasthan.  The applications for
\nwithdrawal have been made on the basis of the
\nagreement dated 31st December, 1981 reached
\nbetween the aforesaid parties.\n<\/p>\n
A number of applications to intervene and
\nimpleading parties to the suits have been made,
\nbut these applications have been made by the
\nprivate parties who have absolutely no locus to
\nappear in the suits.  This matter has now been
\nconcluded by the decision of this Court in 1978
\n(1) SCR 1 State of Rajasthan and Others etc. etc.
\nvs. Union of India etc. etc. which followed an
\nearlier decision of this Court in 1970 (2) SCR 522
\nState of Bihar vs. Union of India and another.
\nMoreover, the plain language of Article 131 of the
\nConstitution clearly shows that this Court has only
\na limited jurisdiction to hear suits filed by the
\nStates interse or suits between States and Union
\nGovernment.  Article 131, therefore, does not
\ncontemplate any other party to be heard or to
\nintervene in the matter.  For these reasons,
\ntherefore, the applications for intervention and
\nimpleading parties are rejected.  The prayer of the
\nplaintiffs for withdrawal of suits is allowed and
\nthe suits are dismissed as withdrawn in view of
\nthe agreement dated 31st   December, 1981
\nbetween the parties to the suits.  There will be no
\norder as to costs”.\n<\/p>\n
It may be stated at this stage that this agreement dated 31st
\nDecember, 1981, which resulted in increase in the share of
\nwater to Punjab, while keeping the share of Haryana
\nunchanged was very much appreciated by the Government of
\nPunajb, as is apparent from Exhibit P-14.  Between 1982 to
\n1985, the SYL  Canal within the territory of Punjab was
\nconstructed and a major portion had been completed.
\nSubsequent to the insurgency in the State of Punajb and the
\noperation ‘Blue Star’  by the Government of India, the State
\nof Punajb was in turmoil.  However under the persuasion of
\nthe then Prime Minister of India Late Rajiv Gandhi, the then
\nPresident of Shiromani Akali Dal,  Sant Harchand Singh
\nLongowal  entered into an agreement commonly known as
\n“Punjab Settlement”.  Exhibits P3 and P14 and Paragraph 9
\nof the said agreement were  in relation to sharing of river
\nwaters.\t It is significant to notice that while paragraphs 9.1
\nand 9.2 relating to the sharing of water from Ravi-Beas
\nsystem were required to be referred for adjudication to a
\ntribunal, to be presided by a Judge of the Supreme Court,
\nparagraph 9.3 unequivocally indicated that construction of
\nSYL Canal shall continue and shall be completed by 15th of
\nAugust, 1986.  It is true, as is contended by Dr. Rajiv
\nDhawan that the aforesaid agreement was entered into by
\nSant Harchand Singh Longowal, the then President of the
\nShiromani Akali Dal and as such, has no constitutional
\nsanctity to bind the State of Punjab.  But having regard to the
\nfact that in terms of paragraphs 9.1 and 9.2, a tribunal was
\nconstituted and even the provisions of the Inter-State Water
\nDisputes Act were amended, thereby granting Parliamentary
\nrecognition to the so-called agreement, the terms of the said
\nagreement cannot be  thrown out as a piece of paper only.
\nThe tribunal,  as stated earlier, submitted its report on 30th of
\nJanuary, 1987 and even though the construction of canal was
\nnot a matter of reference to the tribunal, but yet the tribunal
\ntook notice of the fact\t that the SYL Canal construction is
\ncomplete within the State of Haryana and is under
\nconstruction in the Punjab area and it also noticed the fact
\nthat this canal is the lifeline for the farmers of Haryana and
\nunless it is expeditiously completed, Haryana will not be in a
\nposition to utilize the full quantum of water allocated to it
\nhereunder.  The experession ‘hereunder’ obviously refers to
\nthe extra allocation of water under the award of the Ravi-
\nBeas tribunal, which award has not yet been notified.\tBut at
\nthe same time, the importance of the canal even for full
\nutilization of the water that has been already allocated in
\nfavour of Haryana, cannot be minimised in any way.  It is an
\nadmitted fact that for construction of Punjab portion of the
\nSYL Canal, more than Rs.560 Crores have already been
\nspent, as is apparent from Exh. P-13 and the entire money has
\nbeen paid by the Govt. of India.  It is indeed a matter of great
\nconcern that while huge amount of public exchequer has been
\nspent in the construction of the canal and only a few portion
\nof the canal within the territory of Punjab has not been dug,
\nthe canal is not being put to use on the mere insistence of the
\nState of Punajb. The attitude of the State of Punjab to say the
\nleast, is wholly unreasonable dogmatic and is against the
\nnational interest.  It is equally a matter of great concern for
\nthis Court that the Central Government is taking an
\nindifferent attitude in the matter and is only trying to while
\naway the time, even though continues to pay the State of
\nPunjab substantially, even for maintenance of the operation
\nof canal that has already been dug.  From the record,  it
\ntranspires that in February, 1991, the Prime Minister of India
\nhad convened a meeting of the concerned authorities of the
\nState of Haryana and Punjab, in which meeting certain
\ndecisions had been taken, including a decision to employ the
\nmobilisation of the officers of Border Road Organisation, but
\neven that decision could not be implemented and the Chief
\nMinister of Haryana had been reminding the Prime Minister
\nof India by writing letters, seeking intervention of the Prime
\nMinister for completion of the Punjab portion of the canal.
\nWhile the matter stood thus, a news item having appeared in
\na Delhi Newspaper, indicated that the Punjab Chief Minister
\nhad rejected any move to start reconstruction of the SYL
\nCanal, the State of Haryana was compelled to file the present
\nsuit.  In a matter like this, it is true that a decree of a Court in
\neither way is not that effective, as it is the political will of the
\nauthorities and the will of the people that matters.  But at the
\nsame time when the political authority becomes dogmatic,
\nunreasonable and indicates an attitude of irresponsible nature
\nand when the court finds that nothing is moving even though
\nthere has been a large-scale drainage of public exchequer and
\nthat the decision to have the canal had been reached on an
\nagreement of  all concerned, representing the will of the
\npeople, the Court must pass appropriate orders and
\ndirections.  What really bothers us most is the functioning of
\nthe political parties, who assume power to do whatever that
\nsuits and whatever would catch the vote-bank.  They forget
\nfor a moment that the constitution conceives of a
\nGovernment to be manned by the representatives of the
\npeople, who get themselves elected in an election.  The
\ndecisions taken at the governmental level should not be so
\neasily nullified by a change of government and by some other
\npolitical party assuming power, particularly when such a
\ndecision affects some other State and the interest of the
\nnation as a whole.  It cannot be disputed that so far as policy
\nis concerned, a political party assuming power is  entitled to
\nengraft the political philosophy behind the party, since that
\nmust be held to be the will of the people.  But in the matter of
\ngovernance of a State or in the matter of execution of a
\ndecision taken by a previous government, on the basis of a
\nconsensus arrived at, which does not involve any political
\nphilosophy, the succeeding government must be held duty
\nbound to continue and carry on the unfinished job rather than
\nputting a stop to the same.\n<\/p>\n
\tDr. Rajiv Dhawan, appearing for the State of Punjab
\nreferred to the averments made on behalf of the State of
\nHaryana in its replication to the effect: –   “the existing
\nsystem through which the Haryana received Ravi Beas
\nwaters namely the Bhakra Canal can carry only about 1.62
\nMAF”  and submitted that in view of this statement made by
\nthe State of Haryana and there being no further final decision
\nof the tribunal which had been appointed by the Central
\nGovernment to determine the share of the respective States
\nfrom the waters available under Ravi-Beas basin, the so-
\ncalled agreement\/decision in relation to the construction of
\nSYL Canal, is nothing but a futility and, therefore, this Court
\nshould not issue any mandatory order in relation to the
\ndigging of the canal in the absence of any right being
\nestablished by the State of Haryana.  According to Dr.
\nDhawan, the future utilization of the water resources not yet
\nbeen determined, the Court need not embark upon an
\nadjudication relating to construction of the canal.  According
\nto Dr. Dhawan, the decision taken by the undivided State of
\nPunjab in 1955 and the utilization as proposed in various
\nproject reports and acted upon prior to reorganisation of the
\nState of Punjab in 1966, would not have been altered and
\nshould not be altered and neither the order of the Central
\nGovernment in exercise of power under Section 78 of the
\nPunjab Reorganisation Act, 1966 nor the so-called agreement
\ndated 31st December, 1981, could be construed to have
\nconferred an enforceable right on the State of Haryana to get
\na mandatory order of injunction\t against the State of Punjab
\nfor getting the unfinished portion of the canal within the
\nterritory of Punjab.   According to Dr. Dhawan, non obstante
\nclause in Section 78(1) of the Punjab Reorganisation Act as
\nwell as the scheme of Section 78 to Section 80 of the said
\nAct, unequivocally indicates that the said power is for
\ndistribution of water and power on “project-wise” and “river-
\nwise”  basis and the two projects which stood included have
\nbeen mentioned to be  Beas (Unit I and II) and Bhakra
\nNangal, and therefore, it would not be legal or equitable to
\nbring within its concept any other project or river water for
\nthe purpose of the sharing between the two States.  The
\nlearned counsel also contended that non-mention of the Thien
\n(now Ranjit Sagar) Dam\tor Madhopur Beas Link,\t is
\nsufficient to indicate that those projects are to serve different
\npurposes between different States and the same cannot be
\nbrought by implication since some aspects of it have been
\nmentioned in the Beas Project.\tDr. Dhawan concedes that in
\nthe Project Report, the expression “integrated development”
\nhas been used but a distinction must be drawn between the
\nallocation of share of water from different rivers and
\nintegrated development of the projects.\t According to the
\nlearned counsel, integrated development is distinct from
\nindependent allocation of share\t of water and this being the
\nposition, the entire basis on which the State of Haryana has
\nfiled the suit for completion of the SYL Canal falls through.
\nDr. Dhawan also went to the extent of arguing that an order
\npassed by the Central Government under Section 78 of the
\nReorgansiation Act being outside the scope of the Act itself,
\nmust be read down to make it legal and\tthe only way the
\nsame has to be read down is that the order is an Executive
\norder, not enforceable being beyond the scope of the Punjab
\nReorganisation Act, 1966.  In relation to the so-called
\nagreement entered into by the Chief Ministers of different
\nStates and the Prime Minister of India dated 31st of
\nDecember, 1981, Dr. Dhawan contends that the agreement
\nread as a whole, more particularly, Clause (7) thereof
\nunequivocally indicates that it incorporates  fresh terms
\ntreating the order of the Central Government dated 24th of
\nMarch, 1976 as an Executive order and re-works a fresh
\ndenovo agreement taking into account the agreement of 1955
\nand that agreement stood repudiated on 5.11.1985.  It is
\nfurther contended that the said agreement is political in
\nnature and thus cannot assume the characteristic of
\nconferring an enforceable right on the State of Haryana.  So
\nfar as the Punjab Accord of 1985 is concerned, it is
\ncontended that the same cannot assume the status of an
\nagreement under the constitution and on the other hand, it
\nmust be held to be a political thicket entered into between the
\nPrime Minister and  the head of the political party, who
\nneither was constitutionally entitled to sign any agreement,
\nbinding the citizens of the State, and in any event the said
\nterms of agreement were rendered inoperative by the force of
\ncircumstances and stood frustrated by the subsequent events.
\nAccording to Dr. Dhawan in the continued threat of militancy
\nand the canal itself being in a totally damaged condition and
\nno legal rights having accrued in favour of the State of
\nHaryana for getting the canal constructed, this Court will not
\nbe justified in issuing an order of mandatory injunction,
\nmandating  the State of Punjab to construct the unfinished
\nportion of the canal.  It is the submission of Dr. Dhawan that
\nrelief of mandatory injunction being discretionary, the Court
\nwhile exercising the discretion, must bear in mind all facts
\nand circumstances as well as the consequences thereof and
\ntaking into account the fact that Punjab has already passed
\nthrough one of the dark periods of militancy in the history of
\nthe country, it would not be advisable to issue any order of
\ninjunction in exercise of the discretionary power of the Court.
\nDr. Dhawan, in course of his oral arguments as well as in his
\nwritten submissions referred to those averments made in the
\nwritten statement of the State of Punjab, indicating the
\nturmoil situation through which the State has passed and on
\nthat basis tried to emphasise the fact that any order or
\ndirection from the Court to construct the canal within the
\nterritory of Punjab would again bring an uncanny situation in
\nthe State and therefore, this Court should resist from issuing
\nany such order or direction which may not be in the national
\ninterest.\n<\/p>\n
\tHaving given anxious consideration to the submissions
\nmade by Dr. Dhawan, appearing for the State of Punjab, we
\nare of the considered opinion that those submissions are of no
\nconsequence and there could not be any fetter on the power
\nof this Court to issue appropriate directions. We have already
\nindicated the genesis of the construction of SYL Canal as
\nwell as the allocation of water in favour of the State of
\nHaryana and the agreements entered into between the States
\nin the presence of the Prime Minister of India, which
\nultimately led to the withdrawal of the earlier suits filed in
\nthis Court.  The State Governments having entered into
\nagreements among themselves on the intervention of the
\nPrime Minister of the country, resulting in withdrawal of the
\npending suits in the Court, cannot be permitted to take a
\nstand contrary to the agreements arrived at between
\nthemselves.  We are also of the considered opinion that it was
\nthe solemn duty of the Central Government to see that the
\nterms of the agreement are complied with in toto. That apart,
\nmore than Rs.700 crores of public revenue cannot be allowed
\nto be washed down the drain,  when the entire portion of the
\ncanal within the territory of Haryana has already been
\ncompleted and major portion of the said canal within the
\nterritory of Punjab also has been dug, leaving only minor
\npatches within the said territory of Punjab.  If the
\napprehension of the State is that on account of digging of
\ncanal, the State of Haryana would draw more water than that
\nwhich has been allocated in its favour, then the said
\napprehension also is thoroughly unfounded inasmuch as the
\nsource for drawing of water is only from the reservoir, which
\nlies within the territory of Punjab and a drop of water will not
\nflow within the canal unless the connecting doors are open.
\nBut the quantity of water that has already been allocated in
\nfavour of the State of Haryana, must be allowed to be drawn
\nand that can be drawn only if the additional link canal is
\ncompleted inasmuch as the existing Bhakara Main Canal has
\nthe capacity of supplying of only 1.62 MAF of water.  This
\nbeing the position, we unhesitatingly hold that the plaintiff-
\nState of Haryana has made out a case for issuance of an order
\nof injunction in the mandatory form against the State of
\nPunjab to complete the portion of the SYL Canal, which
\nremains incomplete and in the event the State of Punjab fails
\nto complete the same, then the Union Government-defendant
\nNo. 2 must see to its completion, so that the money that has
\nalready been spent and the money which may further be
\nspent could at least be utilized by the countrymen.  We have
\nexamined the materials from the stand point of existence of a
\nprime facie case, balance of convenience and irreparable loss
\nand injury and we are satisfied that the plaintiff has been able
\nto establish each one of the aforesaid criteria and as such is
\nentitled to the injunction sought for.\tThis issue is
\naccordingly answered in favour of the plaintiff and against
\nthe defendants.\t We, therefore, by way of a mandatory
\ninjunction, direct the defendant-State of Punjab to continue
\nthe digging of Sutlej Yamuna Link Canal,    portion of which
\nhas not\t been completed as yet and make the canal functional
\nwithin one year from today.  We also direct the Government
\nof India  defendant No. 2 to discharge its constitutional
\nobligation in implementation of the aforesaid direction in
\nrelation to the digging of canal and if within a period of one
\nyear the SYL Canal is not completed by the defendant-State
\nof Punjab, then the Union Government should get it done
\nthrough its own agencies as expeditiously as possible, so that
\nthe huge amount of money that has already been spent and
\nthat would yet to be spent, will not be wasted and the
\nplaintiff-State of Haryana would be able to draw the full
\nquantity of water that has already been allotted to its share.
\nNeedless to mention, the direction to dig SYL Canal should
\nnot be construed by the State of Haryana  as a license to
\npermit them to draw water in excess of the water that has
\nalready been allotted and in the event the tribunal, which is
\nstill considering the case of re-allotment of the water,   grants
\nany excess water to the State of Haryana, then it may also
\nconsider issuing appropriate directions as to how much of the
\nwater could be drawn through the SYL Canal.
\n\tThe plaintiff’s suit is decreed on the aforesaid terms.
\nThere will be no order as to costs.\n<\/p>\n
\t\t   ……………………………………J.\n<\/p>\n
\t\t\t\t\t  (G.B.\t PATTANAIK)<\/p>\n
\t\t       ……………………………………J.
\n\t\t\t\t\t   (RUMA PAL)<\/p>\n
January\t  15, 2002.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Haryana vs State Of Punjab And Anr on 15 January, 2002 Author: Pattanaik Bench: G.B. Pattanaik, Ruma Pal CASE NO.: Original Suite 6 of 1996 PETITIONER: STATE OF HARYANA Vs. RESPONDENT: STATE OF PUNJAB AND ANR. DATE OF JUDGMENT: 15\/01\/2002 BENCH: G.B. Pattanaik & Ruma Pal JUDGMENT: PATTANAIK, J. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-200581","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Haryana vs State Of Punjab And Anr on 15 January, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-haryana-vs-state-of-punjab-and-anr-on-15-january-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Haryana vs State Of Punjab And Anr on 15 January, 2002 - 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