{"id":230140,"date":"2004-06-04T00:00:00","date_gmt":"2004-06-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-haryana-vs-state-of-punjab-and-anr-on-4-june-2004"},"modified":"2018-11-15T22:59:48","modified_gmt":"2018-11-15T17:29:48","slug":"state-of-haryana-vs-state-of-punjab-and-anr-on-4-june-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-haryana-vs-state-of-punjab-and-anr-on-4-june-2004","title":{"rendered":"State Of Haryana vs State Of Punjab And Anr on 4 June, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Haryana vs State Of Punjab And Anr on 4 June, 2004<\/div>\n
Bench: Ruma Pal, P. Venkatarama Reddi<\/div>\n
           CASE NO.:\nOriginal Suite  6 of 1996\n\nPETITIONER:\nSTATE OF HARYANA\n\nRESPONDENT:\nSTATE OF PUNJAB AND ANR.\n\nDATE OF JUDGMENT: 04\/06\/2004\n\nBENCH:\nRUMA PAL & P. VENKATARAMA REDDI\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
2004 Supp(2) SCR 849<\/p>\n
The Judgment of the Court was delivered by<\/p>\n
RUMA PAL, J. : Consequent of the creation of the State of Haryana from the
\nerstwhile State of Punjab, the question of appointment of the river waters
\nmade available to the erstwhile State of Punjab between Haryana and Punjab
\narose. A notification was issued by the Union of India on 24th March, 1976
\nunder Section 78 of Punjab Reorganisation Act. 1966, inter alia dividing
\nthe river waters between the two States. The Sultej-Yamuna Link Canal
\nProject covering about 214 KMs. was to be constructed through the States of
\nPunjab and Haryana. Out of the 214 KMs, 122 KMs were to run through the
\nterritory of Punjab and 92 KMs through Haryana. The cost of completion of
\nthe canal was to be met by the Central Government. Haryana’s portion of the
\ncanal was completed by June 1980. The State of Punjab had not completed its
\nshare of the canal although it had been paid the amount necessary for the
\npurpose as also for the recurring expenditure towards maintenance of the
\ncanal.\n<\/p>\n
A suit was filed by the State of Haryana in 1979 being Suit No. 1 of 1979
\nin this Court under Article 131 of the Constitution seeking completion of
\nthe construction of the canal. The State of Punjab also filed a suit being
\nSuit No. 2 of 1979 inter alia challenging Section 78 of the Punjab
\nReorganisation Act and the notification dated 24th March 1976 by which the
\nriver waters were directed to be shared between Haryana and Punjab. During
\nthe pendency of the suits, an agreement was entered into between the States
\nof Haryana, Punjab and Rajasthan in the presence of the Prime Minister of
\nIndia on 13th December 1981. The agreement, in so far as it is relevant,
\nprovided that the Sutlej-Yamuna Canal Project would be implemented in a
\ntime bound manner. The canal and appurtenant works in the Punjab territory
\nwere to be completed within a maximum period of two years from the date of
\nthe signing of the agreement. On the basis of and after recording this
\nagreement, the suits were allowed to be withdrawn by this Court on 12th
\nFebruary, 1982.\n<\/p>\n
The date for completion of the canal by Punjab in terms of the agreement
\ndated 13th December, 1981 expired. The Punjab portion of the Canal remained
\nincomplete. The agreement was sought to be repudiated by the State. A
\nsettlement was then arrived at on 5th November 1985 known as the ‘Punjab
\nSettlement’ which dealt with the several disputes between the State of
\nHaryana and Punjab. For the present, we need only note clause 9 of the
\nsettlement. It reads :\n<\/p>\n
“9. Sharing of River Waters<\/p>\n
9.1. The farmers of Punjab, Haryana and Rajasthan will continue to get
\nwater not less than what they are using from the Ravi-Beas system as on
\n1.7.1985 waters used for consumptive purposes will also remain unaffected.
\nQuantum of usage claimed shall be verified by the Tribunal referred to in
\npara 9.2. below.\n<\/p>\n
9.2.  The claims of Punjab and Haryana regarding the shares in their
\nremaining waters will be referred for adjudication to a Tribunal to be
\npresided over by a Supreme Court Judge. The decision of this Tribunal will
\nbe rendered within six months and would be binding on both parties. All
\nlegal and constitutional steps required in this respect be taken
\nexpeditiously.\n<\/p>\n
9.3. The construction of SYL Canal shall continue. The canal shall be
\ncompleted by 15.8.1986.”\n<\/p>\n
In approval of the settlement and in terms of the first two clauses of
\nclause 9 of the Settlement, Section 14 was added to the Inter-State Water
\nDisputes Act, 1956 and issues relating to the usage, share and allocation
\nof the Ravi-Beas waters were referred to the adjudication of the Waters
\nTribunal by the Union of India under Notification dated 2nd April 1986. The
\nTribunal submitted its report on 30th January 1987 inter alia allocating
\nthe Ravi-Beas Waters between Punjab and Haryana. An application was made by
\nPunjab before the Waters Tribunal for review of its decision. That
\napplication is pending.\n<\/p>\n
However, Clause 9.3. of the Settlement which was kept distinct from the
\nwater disputes under Clauses 9.1. and 9.2. continued to operate. The State
\nof Punjab completed about 90% of the construction of the canal, but about
\n10% of the construction remained incomplete. The State of Haryana then
\nfiled a second suit being suit No. 6 of 1996 for :\n<\/p>\n
(a)    a decree declaring that the order dated 24.3.1976, the agreement of
\n31.12.1981 and the settlement of 24.7.1985 are final and binding inter alia
\non the State of Punjab casting an obligation on Defendant No. 1 to
\nimmediately restart and complete the portion of the Sutjej-Yamuna Link
\nCanal Project as also make it usable in all respects, not only under the
\naforesaid order of 1976, agreement of 1981 and settlement of 1985 but also
\npursuant to a contract established by conduct from 1976 till date.\n<\/p>\n
(b) a decree of mandatory injunction compelling Defendant 1 (failing which
\nDefendant 2 by or through any agency) to discharge its\/their obligations
\nunder the said notification of 1976, the agreement of 1981 and the
\nsettlement of 1985 and in any case under contract established by conduct,
\nby immediately restarting and completing that portion of the Sutlej-Yamuna
\nLink Canal Project in the State of Punjab and otherwise making it suitable
\nfor use within a time bound manner as may be stipulated by this Hon’ble
\nCourt to enable the State of Haryana to receive its share of Ravi and Beas
\nwaters”.\n<\/p>\n
A written statement was filed by the State of Punjab questioning the
\njurisdiction of this Court under Article 262 of the Constitution of India.
\nIt was also contended that the suit was barred under Order XXIII Rule 1 of
\nthe Code of Civil Procedure and under Order XXXII Rule 2 of the Supreme
\nCourt Rules, 1966. According to the State of Punjab the agreement dated
\n31st December 1981 was superseded by the settlement dated 24th July 1986
\nwhich did not bind the State. It was averred that the SYL canal was
\nunnecessary because the State of Haryana was to get additional water supply
\nfrom other rivers and that the State of Haryana had no right to the water
\nfrom the river Ravi.\n<\/p>\n
The Union of India in its written statement, apart from affirming the facts
\nas noted by us earlier, also stated that it was essential that the Punjab
\nportion of the SYL canal be completed at the earliest.\n<\/p>\n
After considering the material on record, on 15th January, 2002 this Court
\ndecreed the suit in favour of the State of Haryana and issued a mendatory
\ninjunction directing the State of Punjab to complete the construction of
\nthe canal and make it functional within one year from the date of the
\njudgment. If within that period the canal was not completed by the State of
\nPunjab, the Union Government was directed to get it done through its own
\nagency as expeditiously as possible.\n<\/p>\n
The State of Punjab did not comply with this Court’s decree and the canal
\nremains incomplete. On 8th January 2002, it filed an application for review
\nof the judgment and decree of this Court which we dismissed on 5th March
\n2002.\n<\/p>\n
On 22nd March 2002, a writ petition under Article 32 was filed by Bharatiya
\nKisan Union (W.P. No. 94 of 2004) claiming to be a registered association
\nof Indian citizens and seeking to question the decree and purporting to
\nraise issues relating to the availability of water of the Ravi-Beas for
\nallocation to the State of Haryana. An interlocutory application was also
\nfiled for stay of the decree dated 15th January 2002. The writ petition was
\ndismissed by this Court on 10th Februry 2004.\n<\/p>\n
On 18th December 2002, an application was filed by Haryana for
\nimplementation of the judgment and decree dated 15th January 2002. This
\napplication was registered and numbered as I.A. No. 1 of 2002 in Suit No. 6
\nof 1996.\n<\/p>\n
On 13th January 2003, the State of Punjab filed a suit being Suit No. 1 of
\n2003 for the following reliefs :\n<\/p>\n
(a)     discharge\/dissolve the obligation to construct SYL Canal imposed by
\nthe mandatory injunction decreed by this Hon’ble Court in its
\njudgment\/decree dated 15.01.2002 in OS No. 6\/ 1996 for the reasons set out
\nin the plaint;\n<\/p>\n
(b)    to declare that the judgment\/decree dated 15.01.2002 in OS No.
\n6\/1996 is not binding or enforceable since the issues raised in that Suit
\ncould only have been decided by a Constitution Bench in terms of Article
\n145(3) of Constitution of India.\n<\/p>\n
(c)     To declare that Section 14 of the Act, 1956 is ultra-vires the
\nConstitution of India;\n<\/p>\n
(d)    to declare that Section 14 of the Act 1956 is no longer enforceable
\nfor the reasons set out in the plant:\n<\/p>\n
(e)     to declare the Punjab Settlement (Rajiv-Longowal Accord) is not
\nenforceable under the changed circumstances as set out in the Plaint : in
\nthe alternative in case it is held by this Hon’ble Court that the Punjab
\nSettlement dated 24.07.1985 is an enforceable Agreement then direct
\nenforceability and compliance of other 10 issues and to keep in abeyance
\nobligation to construct SYL canal till other conditions set out in the
\nsettlement are implemented and\/or the Water Disputes arising from the
\nreallocation of Ravi-Beas waters are resolved under the Act, 1956.\n<\/p>\n
(f) Declare that Section 78(1) of the Act, 1966 is ultra vires of the
\nConstitution of India, and that all acts, deeds and things done pursuant
\nthereto or in consequence thereof including all Notifications, Agreement,
\netc. are null and void including the notification dated 24.03.1976 and the
\nAgreement dated 31.12.198l as non-est and void ab initio.\n<\/p>\n
The State of Haryana then filed an application under Order XXIII Rule 6
\nread with Order XLVII Rule 6 of the Supreme Court Rules, 1966 for rejection
\nof the plaint alternatively for summary dismissal of the suit. The
\napplication, which has been numbered as I.A. No. 1 of 2003 has been opposed
\nby Punjab inter alia contending that Order XXIII Rule 6(a) of the Supreme
\nCourt Rules is unconstitutional.\n<\/p>\n
Haryana’s application for enforcement of the decree (I.A. 1 in O.S. No. 6
\nof 1996) was sought to be amended in I.A. No. 3. The State of Punjab sought
\nto file a counter affidavit to I.A.No. 1 in O.S. No. 1 of 1996 which was
\nnumbered as I.A. No. 2. On 13th August 2003, the State of Haryana filed a
\nsecond application for a direction on the Union of India to carry out its
\nobligation under the decree since the period of one year fixed by the
\ndecree had expired. This has been numbered as I.A. No 4 in OS 1 of 1996. In
\nview of this last application of Haryana, I.A. Nos. 1, 2 and 3 in O.S. No.
\n1 of 1996 were dismissed as infructuous on 17th December 2003.\n<\/p>\n
At this stage, the State of Punjab filed a Writ Petition No. 30\/2004 for a
\ndeclaration that Rule 6(a) of Order XXIII of the Supreme Court Rules, 1966
\nis ultra-vires the Constitution alternatively for a declaration that Rule
\n6(a) of Order XXIII cannot be invoked in suits filed under Article 131 of
\nthe Constitution of India. This writ petition was not entertained in view
\nof the fact that the same issues had been raised by the State of Punjab in
\nanswer to the application of the State of Haryana under Order XXIII Rule 6
\nof the Supreme Court Rules.\n<\/p>\n
Therefore, out of this welter of litigation what survives for disposal is :\n<\/p>\n
(1)     Haryana’s application for enforcement of the decree dated 15th
\nJanuary 2002 (LA. No. 4 in O.S. 6\/1996);\n<\/p>\n
(2)     Punjab’s suit inter alia challenging the decree dated 15th January
\n2002 (O.S. 1\/2003); and<\/p>\n
(3)     Haryana’s application for rejection of the plaint in Punjab’s suit
\n(I.A. 1 in O.S. 1\/2003).\n<\/p>\n
Necessarily the last proceeding is required to be disposed of at the outset
\nbecause on the outcome of this application will depend the fate of the
\nsecond proceeding which may in turn have an impact on the first.\n<\/p>\n
I.A. No. 1 in O.S. 1 of 2003.\n<\/p>\n
Order XXIII Rule 6 of the Supreme Court Rules, 1966 under which I.A. 1 of
\n2003 has been filed provides :\n<\/p>\n
“The plaint shall be rejected :\n<\/p>\n
(a)   where it does not disclose a cause of action.\n<\/p>\n
(b)   where the suit appears from the statement in the plaint to be barred
\nby any law.”\n<\/p>\n
According to Haryana, a suit to set aside a decree of this Court, as Suit
\nNo. 1 of 2003 purports to do. is not maintainable under Article 131 of the
\nConstitution. It is also submitted that the suit seeks to raise water
\ndisputes which are not capable of being entertained by this Court by virtue
\nof Article 262 of the Constitution and that the prayer (c) to (f) were
\nbarred by the doctrine of res judicata. Additionally, it has been urged
\nthat the State of Punjab could not competently challenge the vires of
\nSection 78 of the Punjab Reorganisation Act, 1986, apart from the fact that
\nunder Order XXXII Rule 2 of the Rule the issue having been raised in OS 2
\nof 1979 could not after its withdrawal, be raised again. Punjab’s challenge
\nto Section 14 of the Inter-State Water Disputes Act, 1956 is also stated to
\nbe barred by estoppel because Punjab had submitted to the jurisdiction of
\nthe Tribunal, suffered an Award and made an application under Section 5(3)
\nof the Act before the Tribunal which was still pending. It has been
\nsubmitted that the plaint did not disclose any cause of action and had been
\nfiled in abuse of process of this Court and that this Court should not
\ncountenance such frivolous and vexatious litigation and should dismiss the
\nsuit under Order XLVII Rule 6 of the Rules.\n<\/p>\n
In answer, the State of Punjab has submitted that it had a legal right to
\nresist execution of the decree by reason of changed circumstances which
\nright could only be enforced under Article 131 by way of a suit. It is said
\nthat the constitutional remedy available to the States or Union under
\nArticle 131 was extraordinary in character and the requirement of a cause
\nof action could not be imported into Article 131. It is submitted that
\nOrder XXIII Rule 6(a) of the Supreme Court Rules which allowed the
\nrejection of the plaint on the ground of non-disclosure of a cause of
\naction was ultra vires Article 131. Reliance has been placed on the
\ndecisions of this Court in State of Karnataka v. Union of India,<\/a> [1977] 4
\nSCC 609, p. 690, 709 as well the decision in State of Karnataka v. State of
\nA.P., [2000] 9 SCC 572 in support of this submission. The ground that Rule
\n6(a) suffers from “over exclusive classification” and was otherwise
\nviolative of Article 14 was however not pressed. It is further submitted
\nthat the judgment of this Court dated 15th January 2002 decided a water
\ndispute and that the decision of this Court in dismissing the review
\napplication filed by the State of Punjab was wrong. As far as the question
\nof res judicata is concerned, it is submitted that that is an issue to be
\ndecided in the suit and not by way of an application under Order XXIII Rule
\n6 of the Rules. Punjab has also submitted that Haryana’s application for
\nrejection of the plaint should be heard by the Bench of three Judges. It
\nmay be mentioned that by an Order dated 1st January 2004, Haryana’s
\napplication was directed by the learned Chief Justice to be listed before a
\nBench of which one of us (Ruma Pal, J.) is a member. By a subsequent order
\ndate 14th January 2004, the question whether the application for rejection
\nof the plaint should be heard by Bench of three judges was left to the same
\nBench to decide.\n<\/p>\n
There is no legal provision by which the issues raised by Haryana in its
\napplication is required to be heard by a Bench of three judges. On the
\nother hand the suit filed by Punjab seeks modification of a decree. That
\ndecree was passed by a Bench of two judges. The normal rule is that an
\napplication for modification of the decree or order is to be made before
\nthe Bench which passed the decree or order. Merely because the litigating
\nparties are States, would not alter this position. In any event we are not
\nof the view that any such issue has been raised which requires
\ndetermination by a larger Bench. This submission of the State of Punjab,
\ntherefore, is rejected.\n<\/p>\n
It is also our opinion that Punjab’s challenge to Order XXIII Rule 6(a),
\neven if successful, would not result in dismissal of Haryana’s application
\nbecause the grounds made out for rejection under Order XXIII Rule 6 pertain
\nnot only to clause (a) but also to clause (b) thereof. Haryana has also
\ninvoked this Court’s powers under Order XLVII Rule 6 which provides that :\n<\/p>\n
“Nothing in these rules shall be deemed to limit or otherwise affect the
\ninherent powers of the Court to make such orders as may be necessary for
\nthe ends of justice or to prevent abuse of the process of the Court.\n<\/p>\n
Besides the challenge to clause (a) of Rule 6 of Order XXIII is
\nunsustainable. Article 131 of the Constitution which has clothed this Court
\nwith exclusive original jurisdiction to decide any dispute (a) between the
\nGovernment of India and one or more States or (b) between the Government of
\nIndia and any State or States on one side and one or more States on the
\nother, or (c) between two or more States, has laid down as a condition for
\nthe exercise of such jurisdiction, that the dispute must involve any
\nquestion (whether of any law or fact) on which the existence or extent of a
\nlegal right depends. It is evident that the phrase “cause of action” as
\noccurring in Order XXIII Rule 6(a) does not appear in Article 131. The
\nphrase, which occurs in Section 20 of the Code of Civil Procedure and is
\ncommonly used in connection with ‘ordinary’ suits, has, in that context,<\/p>\n
“acquired a judicially-settled meaning. In the restricted sense cause of
\naction means the circumstances forming the infraction of the right or the
\nimmediate occasion for the action. In the wider sense, it means the
\nnecessary conditions for the maintenance of the suit, including not only
\nthe infraction of the right, but the infraction coupled with the right
\nitself. Compendiously, the expression means every fact which it would be
\nnecessary for the plaintiff to prove, if traversed, in order to support his
\nright to the judgment of the Court. Every fact which is necessary to be
\nproved, as distinguished from every piece of evidence which is necessary to
\nprove each fact, comprises in cause of action”1.\n<\/p>\n
Doubtless, a suit under Article 131 is not an ‘ordinary’ suit, and the
\nphrase “cause of action” is conspicous by its absence in the Article. But
\nthe argument that by the use of the phrase in Order XXIII Rule 6(a), the
\nburden and limitations created by judicial interpretation of the phrase in
\nconnection with ‘ordinary’ suits are necessarily introduced, shackling an
\notherwise exclusive jurisdiction, is unacceptable. The phrase, in our
\nopinion, as occurring in Order XXIII Rule 6(a), will have to be read and
\nconstrued in the context of Article 131 unimpaired by the meaning
\njudicially given to it in other contexts. Literally, the phrase means
\nnothing more than the ‘ground to sue’. Construed in this sense can it be
\nsaid that there is no requirement of disclosing a ground to sue in a suit
\nunder Article 131?\n<\/p>\n
Article 131 has been the subject matter of interpretation by this Court in
\nseveral decisions of which Punjab has sought to rely on two. The first is
\nthe decision in State of Rajasthan v. Union of India, [1977] 3 SCC 592<\/p>\n
1.    Rajasthan High Court Advocates’ Association v. Union of India.<\/a> [2001]
\n2 SCC 204. which pertained to six suits filed by the States of Rajasthan,
\nMadhya Pradesh, Punjab, Bihar, Himachal Pradesh and Orissa challenging a
\nletter written by the Union Home Minister to the Chief Ministers of those
\nStates on the ground that the letter constituted a threat of action under
\nArticle 356 of the Constitution. The Union of India raised a preliminary
\nobjection that on the allegations made in the plaint, no suit would lie
\nunder Article 131 of the Constitution. All six suits were dismissed by a
\nmajority of six of the seven Judges constituting the Bench. Among the six,
\nfour (Beg CJ, Goswami, Untwalia, and Fazl Ali, JJ.) upheld the preliminary
\nobjection of the Union of India. Two (Chandrachud and Bhagwati, JJ.) held
\nthat the suit was maintainable but decided against the plaintiff on merits.
\nWe are bound by the majority view. The reasons for holding that the suit
\nwas not maintainable given by Beg, C.J. were :\n<\/p>\n
“Having considered the cases set out in the plaints and the petitions
\nbefore us, from every conceivable angle, I am unable to find a cause of
\naction for the grant of any injunction or a writ or order in the nature of
\na Mandamus against any of the Defendants Opposite parties”.\n<\/p>\n
The Learned Chief Justice went on to say :\n<\/p>\n
“In my opinion, perhaps the technically more correct order, in the
\nsituation before us would have been, on the findings reached by me, one
\nrejecting the plaints under Order XXIII Rule 6 of the Rules of this Court,
\nand rejecting the writ petitions in limine. After all, we had not proceeded
\nbeyond the stage of hearing certain preliminary objections put forward by
\nMr. Soli Sorabji, Additional Solicitor General, to the maintainability of
\nthe suits and petitions before us. Although, we heard very full arguments
\non these preliminary objections, we did not even frame any issues which is
\ndone, under the provisions of Part III of the Rules of this Court,
\napplicable to the exercise of the Original Jurisdiction of this Court,
\nbefore we generally formally dismiss a suit. However, as the form in which
\nwe have already passed our orders, dismissing the suit and petitions, which
\nwas approved by us on April 29, 1977, has substantially the same effect as
\nthe rejection of the plaints for failure to disclose a triable cause of
\naction”. The majority view dismissed the suit under clause (a) of Rule 6 of
\nOrder XXIII. The phrase “cause of action” was considered with reference to
\nArticle 131 as meaning a dispute involving a question of fact or law on
\nwhich the existence or extent of a legal right depends.\n<\/p>\n
The Second decision relied upon by the State of Punjab in this context is
\nthe State of Karnataka v. Union of India,<\/a> [1977] 4 SCC 608. The decision
\nfollowed within a few months of the decision in State of Rajasthan v. Union
\nof India (supra). The subject matter of controversy was a notification
\nissued by the Central Government constituting a Commission of Inquiry under
\nthe Commission of Inquiry Act, 1952 to inquire into charges of corruption,
\nnepotism, favourtism and misuse of Government power against the Chief
\nMinister and other Ministers of the State of Karnataka. The Union of India
\nraised the preliminary objection that the suit was not maintainable under
\nArticle 131 because the inquiry was against the Chief Minister and other
\nindividuals and not against the State. Although the suit was dismissed on
\nmerits by a majority opinion of the Judges, there was again a division
\nwithin the majority on the question whether the preliminary objection of
\nthe Union of India should be upheld. Beg, CJ, Chandrachud and Bhagwati JJ.
\nheld the suit was maintainable. Untwalia Shinghal and Jaswant Singh JJ.
\nheld it was not. There was a division of opinion on the question as to
\nwhether there was a dispute within the meaning of Article 131. But all the
\nJudges considered the question of maintainability of the suit filed by the
\nState of Karnataka under Order XXIII Rule 6(a) by reading “cause of action”
\nin the context of Article 131 as meaning ‘a dispute involving any question
\non which the existence or extent of a legal right depends’ or as the pre-
\ncondition subject to which the suit could properly be filed under that
\nArticle. In other words, the phrase ’cause of action” in the context of
\nArticle 131 was read as nothing more than ‘the ground or basis to sue’.
\nChandrachud, J. makes this clear when he expounded the scope of Article 131
\nand said :\n<\/p>\n
“The jurisdiction conferred on the Supreme Court by Article 131 of the
\nConstitution should not be tested on the anvil of banal rules which are
\napplied under the Code of Civil Procedure for determining whether a suit is
\nmaintainable. Article 131 undoubtedly confers “original jurisdiction’ on
\nthe Supreme Court and the commonest form of a legal proceeding which is
\ntried by a Court in the exercise of its original jurisdiction is a suit.
\nBut a constitutional provision, which confers exclusive jurisdiction on
\nthis Court to entertain disputes of a certain nature in the exercise of its
\noriginal jurisdiction, cannot be equated with a provision conferring a
\nright on a Civil Court to entertain a common suit so as to apply to an
\noriginal proceeding under Article 131 the canons of a suit which is
\nordinarily triable under Section 15 of the Code of Civil Procedure by a
\nCourt of the lowest grade competent to try it. Advisedly, the Constitution
\ndoes not describe the proceeding which may be brought under Article 131 as
\na ‘suit’ and significantly, Article 131 uses words and phrases not commonly
\nemployed for determining the jurisdiction of a Court of first instance to
\nentertain and try a suit. It does not speak of a ’cause of action’, a
\nexpression of known and definite legal import in the world of witness
\nactions. Instead, it employs the word ‘dispute’, which is no part of the
\nelliptical jargon of law. But above all, Article 131 which in a manner of
\nspeaking is a self contained code on matters falling within its purview,
\nprovides expressly for the condition subject to which an action can lie
\nunder it. That condition is expressed by the clause : “if and in so far as
\nthe dispute involves any question (whether of law or fact) on which the
\nexistence or extent of a legal right depends”. By the very terms of the
\narticle, therefore the sole condition which is required to be satisfied for
\ninvoking the original jurisdiction of this Court is that the dispute
\nbetween the parties referred to in clauses (a) to (e) must involve a
\nquestion on which the existence or extent of a legal right depends”.\n<\/p>\n
This ’cause of action’ under Order XXIII Rule 6(a) is this ‘sole condition’
\nwhich is required to be satisfied before the jurisdiction of this Court can
\nbe invoked under Article 131. If the plaint does not ex facie show the
\nfulfilment of that condition, it would not be maintainable. This follows
\nfrom the language of Article 131 itself. Therefore merely because the
\nphrase “cause of action” has been used in order XXIII Rule 6(a) does not
\nmean that principles enunciated in the context of Section 20 of the Code of
\nCivil Procedure are imported. Order XXIII Rule 6(a) only gives effect to
\nlimitations implicit in Article 131 itself. It follows that it does not
\nviolate Article 131 or any other provision of the Constitution. The
\napplication under Order XXIII Rule 6 of the Rules is by way of demurrer.
\nThe question whether the plaint should be rejected must therefore be
\ndecided on the basis of the allegations contained in the plaint.2<\/p>\n
Paragraphs 2 and 7 of the plaint record the substance and content of a
\ncomplaint filed by the plaintiff on 11th January, 2003 under Section 3 of
\nthe 1956 Act relating to reallocation of the Ravi-Beas waters. Both
\nparagraphs conclude with the identical statement –\n<\/p>\n
“The Plaintiff has every chance of success in the re-allocation to reduce
\nthe share of Haryana and therefore, the question of SYL construction may
\nnot arise for consideration at all”.\n<\/p>\n
In paragraph 3, the plaintiff has said that the obligation to construct the
\nCanal Basin had been imposed on the plaintiff on the basis of the Punjab
\nsettlement but neither the State of Haryana nor the Union of India had
\nperformed any of the other obligations imposed upon them under the
\nsettlement. Paragraph 4 which has as many as 18 sub-paragraphs sets out the
\nhistorical background to the facts claimed to be relevant for the purposes
\nof the present suit. Similarly, paragraph 5 records the proceedings O.S.
\n6\/96 culminating in the decree. Paragraph 6 says that the directions in the
\ndecree dated 15.1.2002 were liable to be discharged by reason of changed
\ncircumstances, the changed circumstance being “the allocation of water made
\nhithertobefore is liable to be reviewed”. Up to this stage, there is no
\nother “change of circumstance” pleaded apart from the filing of a complaint
\nunder the Inter-State Water Disputes Act, 1956 and the change of success.\n<\/p>\n
In paragraph 8, the plaintiff has given the grounds for seeking discharge
\nof the injunction granted on 15.1.2002. These pertain to the availability
\nof water for appointment between the Punjab and Haryana. It is stated that
\nthere is no water available for transfer through the SYL Canal. The second
\nground is a decision of this Court in writ petition No. 512\/2002 on
\n31.10.2002 by which it is claimed, this court had directed completion of
\nthe net working of the rivers. Among the projects identified by the Union
\nof India was the Sharda-Yamuna Link, as a result of which, according to<\/p>\n
2.    See: D.Ramachandran v. R.V. Janakiraman<\/a>  [1999] 3 SCC 267, 271. the
\nplaintiff, Haryana would get more water and there was no question of
\nburdening the “deficit Ravi-Beas Basin.” The third ground is that an issue
\nhad been raised in the complaint filed by the plaintiff under Section 3 of
\nthe Inter-State Water Disputes Act, 1956, as to the rights of Haryana and
\nRajasthan to the rivers waters as non riparian States. The next ground is
\nthat Haryana had declined to abide by the other terms of the Punjab
\nsettlement. The last ground is that water allocations were subject to
\nreview. This is followed by arguments in support of the last submission
\nwith reference to diverse authorities.\n<\/p>\n
In paragraphs 9, 10 and 17 the plaintiff has challenged the decree dated
\n15th January, 2002 on the ground that it was violative of Articles 145(3)
\nand 262 of the Constitution and Pragraph 18 questions the correctness of
\nthe order dismissing, the plaintiffs Review Petition. Paragraph 19 contains
\nan assertion that the construction of the SYL Canal was a water dispute.
\nParagraphs 11, 12, 13 and 14 set out the grounds for challenge to Section
\n78(1) of the Punjab Reorganisation Act, 1966. Paragraph 15 gives grounds
\nfor claiming the invalidity of Section 14 of the Inter-State Water Disputes
\nAct, 1956. Paragraph 16 refers to correspondence exchanged with the Chief
\nMinisters of the two States relating to the “changed circumstances” being
\nthe “remaining aspect” of the Punjab Settlement. Paragraph 20 contains
\narguments as to why this Court has jurisdiction to entertain the suit.
\nParagraph 21 relates to the dates on which the alleged cause of action
\narose and paragraph 22 relates to the question of limitation.\n<\/p>\n
An analysis of the averments in the plaint shows that the entire thrust of
\nthe suit filed by the State of Punjab is aimed at the decree dated 15th
\nJanuary 2002 in O.S. No. 6 of 1996. One portion of the plaint relates to
\nthe discharge of the injunction granted by the decree by reason of “changed
\ncircumstances”. The second portion challenges the decree as being
\nunconstitutional.\n<\/p>\n
The first question to be answered is: do these disputes involve any
\nquestion (whether legal or factual) on which the existence or extent of a
\nlegal right of the plaintiff depends? If it does then the next question is,
\nwhether the raising of such disputes is barred by any law? If any of these
\nquestions is answered in the affirmative then the plaint must be rejected
\nas a whole. On the other hand, if any part of the dispute crosses both
\nhurdles, the suit must survive because there cannot be a partial rejection
\nof the plaint. (See D. Ramachandran v. R.V. Janakiraman,<\/a> [1999] 3 SCC 267).\n<\/p>\n
The primary consideration in answering the first question is the legal
\nright claimed by the plaintiff. Unless the plaintiff can establish that
\nthere is such a right in law, there would be no question of this Court
\ndeciding any dispute regarding the extent or existence of such right under
\nArticle 131. As was said by Bhagwati, J. (as His Lordship then was) in
\nState of Rajasthan v. Union of India, (supra) :\n<\/p>\n
“Now, plainly there are two limitations in regard to the dispute which can
\nbe brought before the Supreme Court under Article 131. One is in regard to
\nparties and the other is in regard to the subject
\nmatter……………………The (other) limitation as to subject matter
\nflows from the words “If and in so far as the dispute involves any question
\n(whether of law or fact) on which the existence or extent of a legal right
\ndepends”. These words clearly indicate that the dispute must be one
\naffecting the existence or extent of a legal right and not a dispute on the
\npolitical plane not involving a legal aspect. It was put by Chandrachud,
\nJ., very aptly in his judgment in the State of Rajasthan v. Union of India,
\n(supra) when he said : “Mere wrangles between Governments have no place
\nunder the scheme of that article…..:. It is only when a legal, as
\ndistinguished from a mere political, issue arises touching upon the
\nexistence or extent of a legal right that the article is attracted. Hence
\nthe suit in the present case would obviously not be maintainable unless it
\ncomplies with both these limitations.”\n<\/p>\n
The plaintiff in the present case claims that the legal right in question
\nis the right to have an injunction modified by reason of changed
\ncircumstances. Several decisions both Indian and of the United States have
\nbeen cited in support of this proposition. Before we consider these
\nauthorities it must be kept in mind that as far as this country is
\nconcerned the general law relating to injunctions is contained in Sections
\n36 to Section 42 of the Specific Relief Act, 1963. Although these
\nprovisions may not limit the powers of this Court under Article 131
\nnevertheless they provide valuable guidelines as to the nature of this form
\nof equitable relief. An injunction may be permanent (perpetual) or
\ntemporary3. A permanent injunction is final and conclusive of the facts in
\nthe context of which the injunction is granted. A temporary injunction by
\ncontrast is granted on a prima facie view of the facts and, as the word
\n‘temporary’ itself indicates, is an interim order pending a final
\nadjudication of the rights of the parties. This distinction is not to be
\nconfused with the distinction between a prohibitory or preventive
\ninjunction on the one hand and a mandatory injunction on the other. In the
\nfirst case a party is prevented from doing a particular thing or continuing
\nwith a particular action4. A mandatory injunction on the other hand
\ncommands an act to be done and is provided for under Section 39 of the
\nSpecific Relief Act, 1963 which reads :\n<\/p>\n
“Mandatory injunctions – When, to prevent the breach of an obligation, it
\nis necessary to compel the performance of certain acts which the court is
\ncapable of enforcing, the court may in its discretion grant an injunction
\nto prevent the breach complained of, and also to compel performance of the
\nrequisite acts”.\n<\/p>\n
This command may direct the restoration of status-quo ante or may direct
\nthe performance of a positive act altering the existing state of things5. A
\nmandatory injunction like a preventive injunction may be temporary or
\nfinal.\n<\/p>\n
All the decisions cited by Punjab in its plaint pertain to cases where the
\ndecree sought to be modified was a perpetual or continuing preventive
\ninjunction.\n<\/p>\n
Thus, in Albert H. Ladner v. Clarence R. Siegel, 68 ALR 1172 at the
\ninstance of adjoining landowners, a decree had been passed preventing the
\ndefendant, Siegel, from using the building proposed to be constructed by
\nhim for garage purpose. The injunction was granted on the basis that the
\narea was exclusively residential and that the-proposed business would give
\nrise to gases and odour affecting the neighbourhood. Subsequent to the
\ndecree, Siegel applied for modification on the ground that he did not wish
\nto operate the garage but merely wished to use the premises to park the<\/p>\n
3.    Specific Relief Act, 1963 Section 36<\/p>\n
4.    (ibid) Section 38.\n<\/p>\n
5.    Kerr on Injunctions 6th Edn. p.40. cars of his tenants. The lower
\nCourt modified the earlier decree. The adjacent landowners’ appealed. The
\nU.S. Supreme Court rejected the appeal and said :\n<\/p>\n
“There are many equitable proceedings that illustrate the general rule,
\nsuch as specific performance, bills to reform instruments, and others. A
\nfinal decree in such equitable proceeding is unchangeable, except possibly
\nthrough gross mistake to be corrected by a bill of review, and not then if
\nany intervening right has appeared since entering the decree. In all such
\nproceedings the decree calls for definite action, and the law presumes much
\naction to follow the order.\n<\/p>\n
“But though a decree may be final, as it relates to an appeal and all
\nmatters included or embodied in such a step, yet, where the proceedings are
\nof a continuing nature, it is not final. These are exceptions to the
\ngeneral rule, and to determine them the nature and character of the
\nequitable action must be considered : that is, whether, the decree is final
\nfor the purpose of execution, or contemplates other and further steps in
\nthe administration of justice “.\n<\/p>\n
“An injunction is the form of equitable proceeding which protects civil
\nrights from irreparable injury, either by commanding acts to be done, or
\npreventing their commission, there being no adequate remedy at law.
\nGranting an injunction rests in the sound discretion of the court, that
\ndiscretion to be exercised under well-established principles, and there are
\nno statutory limitations on the power of the court in relation thereto.
\nWhile the decree in such action is an adjudication of the facts and the law
\napplicable thereto, it is none the less executory and continuing as to the
\npurpose or object to be attained; in this it differs from other equitable
\nactions. It operates until vacated, modified, or dissolved. An injunction
\ncontemplates either a series of continuous acts or a refraining from
\naction. A preventive injunction constantly prevents one party from doing
\nthat which would cause irreparable damage to his neighbour’s property
\nrights. The final decree continues the life of such proceedings, not only
\nfor the purpose of execution, but for such other relief as a chancellor may
\nin good conscience grant under the law.\n<\/p>\n
The modification of a decree in a preventive injunction is inherent in the
\ncourt which granted it, and may be made, (a) if, in its discretion
\njudicially exercised, it believes the ends of justice would be served by a
\nmodification, and (b) where the law, common or statutory, has changed, been
\nmodified or extended, and (c) where there is a change in the controlling
\nfacts on which the injunction rested”.\n<\/p>\n
(Emphasis supplied)<\/p>\n
The next decision cited is United States of America v. Swift & Company, 286
\nUS 105, 76 L.ed. 999 where the Government had filed proceedings against
\nfive meat packers to dissolve a monopoly on, inter-alia, the ground that
\nthe defendants had not only suppressed competition but were speading their
\nmonopoly into other fields of trade. A consent decree was passed preventing
\nthe defendants from maintaining a monopoly and entering into or continuing
\nin combination in restraint of trade and commerce. There were further
\nclauses which prevented the defendants from carrying out the specified type
\nof activity severally and jointly. The decree closed with a provision
\nwhereby jurisdiction of the court was retained for the purpose of taking
\nsuch other action or such other relief “as may become necessary or
\nappropriate for the carrying out and enforcement” thereof, “and for the
\npurpose of entertaining at any time hereafter any application which the
\nparties may make” with reference thereto. An application was made before
\nthe lower Court by an intervenor for vacating the decree on the ground of
\nlack of jurisdiction. The operation of the decree was suspended by an
\ninterim order. On an appeal preferred by the Government and by the
\nwholesale grocers, the U.S. Supreme Court allowed the appeals. In the
\ncourse of the judgment it was said :\n<\/p>\n
“Power to modify the decree was reserved by its very terms, and so from the
\nbeginning went hand in hand with its restraints. If the reservation had
\nbeen omitted, power there still would be by force of principles inherent in
\nthe jurisdiction of the chancery. A continuing decree of injunction
\ndirected to events to come is subject always to adaptation as events may
\nshape the need”. (114) A distinction was made between restraints that give
\nprotection to rights fully accrued upon facts so nearly permanent as to be
\nsubstantially impervious to change, and those that involve the supervision
\nof changing conduct or conditions and are thus provisional and tentative.
\nThe Court, however, made it clear that in proceedings for modification of a
\ndecree, the decree itself be impeached and that the Court is “not at
\nliberty to reverse under the guise of re-adjusting”.\n<\/p>\n
Santa Rita Oil Company v. State Board of Equalization, 126 ALR 757 was a
\ncase in which a decree of injunction had been granted restraining the
\ncomputation, assessment, levying and collection of certain taxes on oil and
\ngas products” under a lease of trust patent Indian lands on the ground that
\nthe plaintiff was an instrumentality of the Federal Government and was,
\ntherefore immune from taxation by the State. The decision was based upon
\nearlier decisions of the US Supreme Court. In other words, the injunction
\ngranted was a continuing on one the basis of the law as it then stood. The
\nUS Supreme Court subsequently took a contrary view and overruled the
\nearlier decisions. The question was whether with the change in the legal
\nbasis of the earlier decree, the earlier decree would continue to operate.
\nIn that context it was held :\n<\/p>\n
“A final or permanent injunction is a continuing process over which the
\nequity court necessarily retains jurisdiction in order to do equity. And if
\nthe court of equity later finds that the law has changed or that equity no
\nlonger justifies the continuance of the injunction, it may and should free
\nthe defendant’s hands from the fetters by which until then its activities
\nhave been prevented, thus leaving it free to perform its lawful duties.”
\n(Emphasis supplied)<\/p>\n
Similarly, the decision in Coca Cola Company v. Standard Bottling Company,
\n138 F.2d 788 was in Connection with the power of Court to modify a decree
\nwhich sought to prevent the defendant from carrying on business in a
\ncertain manner.\n<\/p>\n
In System Federation No. 91, Railway Employees Dept. v. O. V. Wright, 364
\nUS 642, 5 L.ed. 2d 349, 81 S Ct. 368, a decree was passed at the instance
\nof non-union rail employees against the railroad and railroad labour union
\nfrom discriminating against them by reason of the plaintiffs’ refusal to
\njoin or retain membership in any labour organisation. Here again, a decree
\nwas passed against the defendants perpetually preventing a course of action
\nin the light of a statutory prohibition. There was a subsequent change in
\nthe statute. On the basis of this change, the union made an application for
\nmodification of the decree. The application was allowed and it was said.\n<\/p>\n
“The source of the power to modify is of course, the fact that an
\ninjunction often requires continuing supervision by the issuing court and
\nalways a continuing willingness to apply its powers and processes on behalf
\nof the party who obtained that equitable relief. Firmness and stability
\nmust no doubt be attributed to continuing injunctive relief based on
\nadjudicated facts and law, and neither the plaintiff nor the court should
\nbe subjected to the unnecessary burden of re-establishing what has once
\nbeen decided. Nevertheless the court cannot be required to disregard
\nsignificant changes in law or facts if it is “satisfied that what it has
\nbeen doing has been turned through changing circumstances into an
\ninstrument of wrong” United States v. Swift & Co. Supra (286 US at 114,\n<\/p>\n
115). A balance must thus be struck between the policies of res judicata
\nand the right of the court to apply modified measures to changed
\ncircumstances”.\n<\/p>\n
Coming to the Indian cases cited by the respondent, the first is a decision
\nof the Lahore High Court in Khazan Singh v. Ralla Ram, AIR (1937) Lahore\n<\/p>\n
839. In that case, a decree had been passed protecting by way of injunction
\nan easement in respect of a window and a “parnala”. An easement by
\ndefinition implies continuity. The house of the plaintiff was re-built and
\nthe window was re-located. In view of this changed circumstance, it was
\nheld that the easement did not continue in respect of the window but
\ncontinued in respect of the “parnala”.\n<\/p>\n
Yashpal Singh v. VIII Addl. District Judge and Others,<\/a> [1992] 2 SCC 504,
\nwas a case arising oat of two conflicting orders of injunction. The
\nrespondent No. 3 had in that case obtained a decree injuncting the Forest
\nDepartment and the State of U.P. from interfering with the rights to cut
\ntrees on a plot of land which he claimed belong to him. The decree
\ntherefore continuously prevented the defendants from interfering with the
\nrespondent No. 3’s right. A third party filed a civil suit against the
\nrespondent No. 3 and obtained an interim injunction restraining the
\nrespondent No. 3 from cutting trees from the plot of land which she claimed
\nbelonged to her. The respondent No. 3 allegedly disobeyed the order of
\ninterim injunction. The plaintiff in the second suit obtained the help of
\nthe local police to restrain the respondent No. 3 from removing the trees.
\nThe respondent No. 3 filed an application for execution of the decree
\nobtained by him in his suit and in the execution proceedings an order of
\nattachment was passed in respect of the property of the local police
\nofficer under the provisions of Order XXIII Rule 32 of the Code of Civil
\nProcedure. This Court set aside the order of the Executing Court on the
\npolice officer’s appeal on two grounds, first because the police officer
\nwas no longer present in the District to obstruct or continue obstructing
\nthe legal process, and second, because the police officer could not be said
\nto be a party against whom the decree for injunction had been passed merely
\nbecause he was an employee of the State of U.P.\n<\/p>\n
The next decision cited by the plaintiff is Surinder Kumar v. Ishwar Dayal,<\/a>
\n[1996] 3 SCC 103 also pertained to a right under a decree perpetually
\ninjuncting the defendant from constructing a window on a common wall. On
\nthe finding that a new wall was constructed, it was held that the
\ninjunction did not continue to operate.\n<\/p>\n
The final decision cited by the plaintiff is Municipal Board, Kishangarh v.
\nChand Mal, [1999] 9 SCC 198. In this case a lessee had filed a suit to
\nrestrain the Municipal Board from interfering with the construction on
\nleasehold land. Subsequent to the suit, the lease was terminated and the
\nland was included within the municipality. This Court was of the view that
\nin such circumstances, the original decree permanently injuncting the Board
\nfrom interfering with the construction to be made by the lessee could be
\nconsidered.\n<\/p>\n
The principles that emerge from these decisions are that<\/p>\n
(a) There is a distinction between a final peremptory injunction and a
\nfinal decree which requires a continuous course of action.\n<\/p>\n
(b)     A decree granting a preventive injunction continuously operates to
\nprevent a course of action and<\/p>\n
(c)     Such a decree may be modified  prospectively  if the circumstances,
\nwhether of fact or law on which the decree is based, are substantially
\naltered and<\/p>\n
(d)        Such a decree cannot be impeached or reopened.\n<\/p>\n
It is only if the decree is one which grants a continuous injunction and if
\nconditions (b), (c) and (d) are fulfilled that proceedings for modification
\nof the decree can be maintained.\n<\/p>\n
In the present case the decree granted a final mandatory injunction.
\nPunjab’s contention is that the injunction granted by this Court was
\ntemporary merely because in the course of the judgment the Court said<\/p>\n
“We have examined the materials from the standpoint of existence of a prima
\nfacie case, balance of convenience and irreparable loss and injury and we
\nare satisfied that the plaintiff has been able to establish each one of the
\naforesaid criteria and as such is entitled to the injunction sought for.
\nThis issue is accordingly answered in favour of the plaintiff and against
\nthe defendants”.\n<\/p>\n
A decree cannot reach a prima facie conclusion. The use of the phrase
\n‘prima facie’ was clearly an accident of language and does not detract from
\nthe conclusiveness of the finding and the finality of the mandate. It
\ndirected the construction of a canal as a final adjudication of rights.
\nThis is apparent from the following passage :\n<\/p>\n
“……..we unhesitatingly hold that the plaintiff-State of Haryana has
\nmade out a case of issuance of an order of injunction in the mandatory from
\nagainst the State of Punjab to complete the portion of SYL Canal, which
\nremains incomplete and in the event the State of Punjab fails to complete
\nthe same, then the Union Government-Defendant 2 must see to its completion,
\nso that the money that has already been spent and the money which may
\nfurther be spent could least at be utilized by the countrymen.” The
\noperative portion of the judgment resolves any doubt as to the finality of
\nthe injunction by holding :\n<\/p>\n
“We, therefore, by way of a mandatory injunction, direct the defendant-
\nState of Punjab to continue the digging of Sutlej-Yamuna Link Canal portion
\nof which has not been completed as yet and make the canal functional within
\none year from today. We also direct the Government of India-Defendant 2 to
\ndischarge its constitutional obligation in implementation of the aforesaid
\ndirection in relation to the digging of canal and if with him a period of
\none year SYL Canal is not completed by the defendant-State of Punjab, then
\nthe Union Government should get it done through its own agencies as
\nexpeditiously as possible, so that the huge amount of money that has
\nalready been spent and that would yet be spent, will not “be wasted and the
\nplaintiff-State of Haryana would be able to draw the full quantity of water
\nthat has already been allotted to its share.”\n<\/p>\n
The mandate in the decree was to carry out the obligations under agreement
\ndated 31st December, 1981. It did not envisage a “continuing process over
\nwhich the equity court necessarily retains jurisdiction in order to do
\nequity”. Principle (b) relating to modification of decrees enunciated
\nearlier is therefore absent.\n<\/p>\n
In any event there has been no change in the circumstances on the basis of
\nwhich the decree was passed. Although there is a discussion on the various
\nissues while rejecting the submissions made by Punjab, ultimately the
\nreasons for issuing the injunction were two. The first was the agreement
\ndated 31st December 1981 and the order of this Court permitting the
\nwithdrawal of the two cross suits filed by Haryana and Punjab (OS 1 of 1979
\nand OS 2 of 1979). This is apparent from the following passage :\n<\/p>\n
“The State Government having entered into agreements among themselves on
\nthe intervention of the Prime Minister of the country, resulting in
\nwithdrawal of the pending suit in the Court, cannot be permitted to take a
\nstand contrary to the agreements arrived at between themselves. We are also
\nof the considered opinion that it was the solemn duty of the Central
\nGovernment to see that the terms of the agreement are complied with in
\ntoto.”\n<\/p>\n
The second was “(T)he (a)dmitted fact that for construction of the Punjab
\nportion of SYL Canal, more than Rs. 560 crores have already been spent, as
\nis apparent from Ext. P-13 and the entire money has been paid<\/p>\n
by the Government of India………..(M)ore than Rs. 700 crores of public<\/p>\n
revenue cannot be allowed to be washed down the drain, when the entire
\nportion of the canal within the territory of Haryana has already been
\ncompleted and major portion of the said canal within the territory of
\nPunjab also has been dug, leaving only minor patches within the said
\nterritory of Punjab to be completed”.\n<\/p>\n
The decree was not based on the quantum of water that may be made available
\nto Haryana. Therefore the fact that Punjab’s complaint is pending under
\nSection 3 of the Inter-State Water Disputes Act, 1956 or that Haryana may ,
\nin the future, be entitled to more water is immaterial. For the same reason
\nthe principle (if any of the right to ask for a review of water allocations
\nwould not apply.\n<\/p>\n
Nor was the decree based on the Punjab Settlement. It was noted that the
\nparties had acted on the agreement and that despite the fact that Punjab
\nsought to reopen the agreement dated 31st December, 1981 in so far as it
\nrelated to the quantum of water to be shared between the two States under
\nParagraphs 9.1. and 9.2. of the Punjab Settlement, the construction of the
\nSYL canal under paragraph 9.3. canal remained undisputed. The Court
\naccepted Punjab submission that the Punjab Settlement was not binding on
\nthe State but said :\n<\/p>\n
“having regard to the fact that in terms of paragraphs 9.1. and 9.2, a
\nTribunal was constituted and even the provisions of the Inter-State Water
\nDisputes Act were amended, thereby granting parliamentary recognition to
\nthe sub-called agreement, the terms of the said agreement cannot be thrown
\nout as a piece of paper only”\n<\/p>\n
It is evident that the Punjab Settlement was referred to as a piece of
\nevidence that the parties had kept the construction of the canal distinct
\nfrom the disputes relating to the sharing of river waters between the two
\nStates. If the other clauses in the Punjab settlement are allegedly not
\nbeing complied with by Haryana that is not a change of circumstance or
\nground for modification of the decree passed on 15th January, 2002. The
\nchallenge to Section 14 of the Inter State Water Disputes Act, 1956 is also
\ninapposite to the question of modification of the decree. The section
\nrelated to and was in enforcement of paragraphs 9.1 and 9.2 of the Punjab
\nSettlement and relates to the resolution of the water disputes between the
\nStates by the Tribunal. Paragraph 9.3 which is related to the canal and
\nreferred to by the Court does not form part of Section 14. It has not been
\naverred that either of the two grounds which founded the decree have in any
\nsense of the word ”changed”. Principle (c) is therefore unfulfilled.\n<\/p>\n
And finally Principle (d): the suit for modification of the decree dated
\n15th January, 2002 will not lie because the decree itself has been sought
\nto be impeached. “The injunction, whether right or wrong, is not subject to
\nimpeachment in its application to the conditions that existed at its
\nmaking’.\n<\/p>\n
In other words since the plaint in the present suit does not even ex facie
\nfulfil all four conditions subject to which a decree may be modified, there
\nis no legal right to apply for modification of the decree dated 15th
\nJanuary, 2002 within the meaning of Article 131. We can therefore only
\nconclude that there is no “cause of action” within the meaning of Article
\n131 as far as the prayers relating to the discharge of the injunction
\ngranted by the decree dated 12th January, 2002 is concerned.\n<\/p>\n
We then take up the direct challenge to the decree itself as being
\nunconstitutional. Two grounds have been pleaded in the plaint in this
\nconnection :\n<\/p>\n
(1) That it was a decision of two Judges whereas Article 145(3) of the
\nConstitution requires a minimum of five Judges “for the purpose of deciding
\nany case involving a substantial question of law as to the interpretation
\nof the Constitution……”. 6    Per Cardozo. J. United States v. Swift &
\nCo.  (supra).\n<\/p>\n
(2) The second ground is that the decree sought to resolve a water dispute
\nin contravention of Article 262 of the Constitution.\n<\/p>\n
Both the submissions are inter related. Article 145(3) was relied on
\nbecause it was said that the scope of Article 131 and 262 had to be
\ninterpreted. We had said in the judgment dated 15th January, 2002, that in
\nthe Constitution Bench decision in Stats of Karnataka v. State of A.P.,
\n[2000] 9 SCC 572 this Court had considered the provisions of Article 262(2)
\nof the Constitution and Section 11 and Section 2(c) of the Inter-State
\nWater Disputes Act and its impact on a suit filed under Article 131 of the
\nConstitution. By that decision two cross suits were disposed of (O.S. No.
\n1\/1997 by the ‘State of Karnataka v. State of A.P. and O.S. No. 2\/1997 by
\nthe State of A.P. v. State of Karnataka). Two separate judgments were
\ndelivered. The State of A.P. had prayed for 14 reliefs but, the Court
\nobserved, the reliefs essentially related to the construction of the
\nAlmatti Darn on the river Krishna by the State of Karnataka to a height of
\n524,056 metres. Several issues were framed (at p. 627). Issue No. 2 related
\nto the jurisdiction of this Court to entertain and try the suit under the
\nprovisions of Article 262 of the Constitution and Sections 11 and 2(c) of
\nthe Inter-State Water disputes Act, 1956, The issue was conceded by the
\nState of Maharashtra which had raised the issue. Over and above that, the
\nCourt was independently of the view (p. 640) that this Court had the
\njurisdiction to entertain and hear the suit and answered issue 2 in the
\naffirmative.\n<\/p>\n
Punjab’s review petition was dismissed by us on the ground that the “so-
\ncalled vital question with regard to the interpretation of Article 131 and
\nArticle 262 has been answered in the Constitution Bench decision and we are
\nbound by the same,” In the impugned judgment, we merely applied the
\ninterpretation of the Constitution Bench of the provisions of Article 135
\nand 262 to the facts of the case. There was no further interpretation of
\nArticle 131 and 262 to be done in the case before us which required the
\ndecision of a bench of five Judges under Article 145(5).\n<\/p>\n
The objection as to the jurisdiction of this Court on the basis of Article
\n262 was specifically negatived in the judgment dated 15th January 2002 when
\nit was held :\n<\/p>\n
“………..the construction of SYL Canal has absolutely no connection with
\nthe sharing of water between the States and as such is not a ”water
\ndispute” within the meaning of Section 2(c) and consequently the question
\nof referring such dispute to a Tribunal does not arise. In this view of the
\nmatter, howsoever wide meaning the expression “water dispute” in Section
\n2(c) of the Inter-State Water Disputes Act be given, the construction of
\nthe canal which is the subject-matter of dispute in the present suit cannot
\nbe held to be a “water dispute” within the meaning of Section 2(c) of the
\nAct and as such. such a suit is not barred under Article 262 of the
\nConstitution read with Section 11 of the Inter-State Water Disputes Act”.\n<\/p>\n
Can the State of Punjab raise these issues again? Or is it barred by the
\nprinciples of res judicata assuming that the principles of res judicata are
\n‘law’ within the meaning of Order 26 Rule 6(b)?\n<\/p>\n
The doctrine of res judicata and Order XXXII Rule 2 are not technical rules
\nof procedure and are fundamental to the administration of justice in all
\nCourts that there must be an end of litigation. Thus, when this Court was
\ncalled upon in Daryao v. State of U.P.,<\/a> to hold that res judicata could not
\napply in connection with proceedings before this Court under Article 32
\nbecause of the extraordinary nature of the jurisdiction, it was said :\n<\/p>\n
“But is the rule of res judicata merely a technical rule or is it based on
\nhigh public policy? If the rule of res judicata itself embodies a principle
\nof public policy which in turn is an essential part of the rule of law then
\nthe objection that the rule cannot be invoked where fundamental rights are
\nin question may lose much of its validity. Now, the rule of res judicata as
\nindicated in s. 11 of the Code of Civil Procedure has no doubt some
\ntechnical aspects, for instance the rule of constructive res judicata may
\nbe said to be technical; but the basis on which the said rule rests is
\nfounded on considerations of public policy. It is in the interest of the
\npublic at large that a finality should attach to the binding decisions
\npronounced by Courts of competent jurisdiction, and it is also in<\/p>\n
7.   [1962] 1 SCR 574, 582, 583 the public interest that individuals should
\nnot be vexed twice over with the same kind of litigation. If these two
\nprinciples form the foundation of the general rule of res judicata they
\ncannot be treated as irrelevant or inadmissible even in dealing with
\nfundamental rights in petitions filed under Art. 32……….\n<\/p>\n
The binding character of judgments pronounced by courts of competent
\njurisdiction is itself an essential part of the rule of law, and the rule
\nof law obviously is the basis of the administration of justice on which the
\nConstitution lays so much emphasis8.”\n<\/p>\n
This opinion was followed in the matter of Cauvery Water Disputes Tribunal,
\n[1993] 1 SCC 96 (II) and applied to suits under Article 131. The factual
\nbackground of that case was a dispute over the usage of the waters of the
\nriver Cauvery between the States of Tamil Nadu and Karnataka. The Union
\nGovernment constituted the Cauvery Water Disputes Tribunal and referred the
\ndisputes between the two States to the Tribunal. The State of Tamil Nadu
\nfiled an application for interim relief. This was rejected by the Tribunal
\non the ground that it did not have the jurisdiction to grant any interim
\nrelief because that dispute had not been referred to it by the Central
\nGovernment. Being aggrieved, the State of Tamil Nadu approached this Court
\nunder Article 136. The Special Leave Petitions were converted into Civil
\nAppeals and disposed of by Order dated 26th April, 1991 by holding that the
\norder of Reference showed that the Central Government had in fact referred
\nthe issue relating to interim relief to the Tribunal. The Tribunal then
\ngranted interim relief on Tamil Nadu’s application. Karnataka subsequently
\nissued an Ordinance relating to the utilization of water of the Cauvery and
\ngave it overriding effect over any interim order of any Court or Tribunal.
\nThe Ordinance was replaced by an Act. In the meanwhile a suit was filed
\nunder Article 131 by the State of Karnataka against the State of Tamil Nadu
\ncontending that the Tribunal’s order granting imterim relief was without
\njurisdiction and, therefore, null and void etc. In the context of these
\ndevelopments, the President referred three questions to this Court for its
\nopinion under Article 143 of the Constitution. Of the three questions,
\nquestion No. 3 raised the issue whether a Water Disputes Tribunal<\/p>\n
8.   ibid at p.584. constituted under the Inter-state Water Disputes Act,
\n1956 was competent to grant any interim relief to the parties in the
\ndispute. This Court approached the question from two angles namely: (1)
\nwhen no reference of grant of interim relief is made to the Tribunal and
\n(2) when such reference is made it.\n<\/p>\n
The Court held that by its earlier decision of 26th April, 1991 it had been
\nspecifically held that the Central Government had made a reference to the
\nTribunal for consideration of the claim for interim relief prayed for by
\nthe State of Tamil Nadu. Implicit in the said decision was the finding that
\nthe Central Government could refer the matter of granting interim relief to
\nthe Tribunal for adjudication. Although the Court had in such earlier
\ndecision kept open the question whether the Tribunal would have the power
\nto grant interim relief when no reference was made, it was held that the
\nearlier decision had in terms concluded the second aspect of the question.
\nA submission was then made on behalf of the State of Karnataka that the
\nearlier directions in the Court’s order dated 26th April, 1991 should be
\ndeclared as being without jurisdiction and void. This Court’s decision in
\nA.R. Antulay v. R.S. Nayak,<\/a> [1998] 2 SCC 602, was relied on to contend that
\nthis Court could rehear the issue earlier concluded. The decision was
\ndistinguished by this Court and it was held that the facts in A.R. Antulay
\nare “peculiar and the decision has to be confined to those special facts”.
\nIt was then held.\n<\/p>\n
“It cannot be said that this Court had not noticed the relevant provisions
\nof the Inter-State Water Disputes Act. The Court after perusing the
\nrelevant provisions of the Act which were undoubtedly brought to its
\nnotice, has come to the conclusion that the Tribunal and jurisdiction to
\ngrant interim relief when the question of granting interim relief formed
\npart of the Reference. There is further no violation of any of the
\nprinciples of natural justice or of any provision of the Constitution. The
\ndecision also does not transgress the limits of the jurisdiction of this
\nCourt. We are, therefore, of the view that the decision being inter partes
\noperates as res judicata on the said point and it cannot be reopened.”\n<\/p>\n
Since the doctrine of res judicata is an “essential part of the rule of
\nLaw” it follows that if the issues in the suit are barred by res judicata
\nex facie then this Court is required to reject the plaint in terms of Order
\nXXIII Rule 6(b). There is no substance in the submission of Punjab that
\neven when there is no dispute of fact the issue of res judicata should be
\nleft for consideration at the trial of the suit. The decision cited viz.
\nSurayya v. Balagangadhar, AIR (1948) PC 5 is an authority for the
\nproposition that the issue of res judicata must be specifically pleaded and
\nis inapposite to the questions raised in this case. Here the earlier
\nproceedings have been referred to in the plaint and are matters of record.
\nAs we have said both issues pertaining to the Court’s jurisdiction under
\nArticle 145(3) and 262 have been considered and decided by this Court. The
\nissues have been concluded inter partes and cannot be raised again in
\nproceedings inter panes.\n<\/p>\n
The same objection relates to the challenge to Section 78 of the Punjab
\nReorganization Act, 1966. In paragraph 18 of the written statement filed by
\nthe State of Punjab in O.S. No. 6\/96 there is an express challenge to
\nSection 78 of the Punjab Re-organisation Act for want of legislative
\ncompetence.\n<\/p>\n
But there is an additional ground apart from res judicata for holding that
\nthe issue as to the constitutional validity of Section 78 cannot be raised.
\nThe State of Punjab had earlier filed a suit, being O.S. No. 2 of 1979 in
\nthis Court challenging the validity of section 78 of the Punjab
\nReorganisation Act, 1976. In paragraphs 3 to 11 of the plaint, the
\nconstitutional validity of Section 78 of the Punjab Re-organisation Act,
\n1966 had been specifically challenged. The following prayer among other
\nprayers was made :\n<\/p>\n
“(a) Declaration that the provisions of the Punjab Reorganisation Act, 1966
\nin so far as they purport to authorise the Central Government to make
\ndetermination with respect to the waters of the river Beas Project and
\nallocation or distribution of such waters is ultra vires the competence of
\nParliament and violative of Article 24(3) of the Constitution.\n<\/p>\n
As far as OS No. 2\/79 is concerned it was unconditionally withdrawn in view
\nof the agreement dated 13th December, 1981 as has been noted earlier. Rules
\n1 and 2 of Order XXXII of the Supreme Court Rules which relate to the
\nwithdrawal and adjustment of suits provide :\n<\/p>\n
1.      “Rules 1, 2 and 3 of Order XXXII in the First Schedule to the Code
\nwith respect to the withdrawal and adjustment of suits shall apply in suits
\ninstituted before the Court.\n<\/p>\n
2.      No new suit shall be brought in respect of the same subject-matter
\nuntil the terms or conditions, if any. imposed by the order permitting the
\nwithdrawal of a previous suit or giving leave to bring a new suit have been
\ncomplied with.”\n<\/p>\n
Rule 2 therefore allows a plaintiff to file a fresh suit in respect of the
\nsame subject matter as the earlier withdrawn suit only if<\/p>\n
(i) the order of withdrawal imposed conditions and those conditions have
\nbeen complied with; or<\/p>\n
(ii) the order of withdrawal granted leave to the plaintiff to bring such
\nfresh suit.\n<\/p>\n
In the order allowing OS 2 of 1979 to be withdrawn no such conditions are
\npresent. Consequently a fresh suit in respect of the same subject matter
\nviz., the validity of section 78 of the 1966 Act does not lie. We leave
\nopen the question as to whether it is open to the State of Punjab to
\nquestion the vires of the statute by which it was created.\n<\/p>\n
Similarly the challenge to Section 14 of the 1956 Act must be ejected at
\nthe threshold. The section reads :\n<\/p>\n
“Constitution of Ravi and Beas Waters Tribunal.- (1) Notwithstanding
\nanything contained in the foregoing provisions of this Act, the Central
\nGovernment may, by notification in the Official Gazette, constitute a
\nTribunal under this Act, to be known as the Ravi and Beas Waters Tribunal
\nfor the verification and adjudication of the matters referred to in
\nparagraphs 9.1 and 9.2 respectively of the Punjab Settlement.\n<\/p>\n
(2)  When a Tribunal has been consituted under sub-section (1), the
\nprovisions of sub-sections (2) and (3) of Section 4, sub-section (2), (3)
\nand (4) of Section 5 and Section 5A to 13 (both inclusive) of this Act
\nrelating to the constitution, jurisdiction, powers, authority and bar of
\njurisdiction shall, so far as may be, but subject to sub-section (3)
\nhereof, apply to the constitution, jurisdiction, powers authority and bar
\nof jurisdiction in relation to the Tribunal constituted under sub-section
\n(1).\n<\/p>\n
(3)    When a Tribunal has been constituted under sub-section (1), the
\nCentral Government alone may suo motu or at the request of the concerned
\nState Government refer the matters specified in paragraphs 9.1, and 9.2 of
\nthe Punjab Settlement to such Tribunal.\n<\/p>\n
Explanation – For the purpose of this section “Punjab Settlement” means the
\nMemorandum of Settlement signed at “New Delhi on the 24th day of July,
\n1985.”\n<\/p>\n
In paragraph 51 of Punjab’s Written Statement in OS 6 of 1996, it was
\nadmitted that the issues referred to in paragraphs 9.1 and 9.2 of the
\nPunjab settlement were referred to the Ravi-Beas Tribunal by Government
\nnotification dated 2nd April 1986 and the affirmation of the continued
\navailability of water from the Ravi-Beas system as on 1.7.85 referred to in
\nthe notification was relied upon. The notification dated 2nd April 1986 was
\nissued under Section 14 of the Inter-States Water Disputes Act. As far as
\nthe report of the Tribunal is concerned, paragraph 8 of the written
\nstatement says that it could not be relied upon because it had not become
\nfinal and that Punjab did not accept the correctness of “most of its
\nfindings”. There was no dispute raised as to the constitutionality of
\nSection 14 at any stage. Even in the course of arguments, when Section 14
\nwas specifically referred to in elaborate written notes on the scope,
\npurport and effect of Section 14, it was submitted that the effect of
\nSection 14 is four-fold :\n<\/p>\n
(A) To overcome procedural hurdles that no dispute had been raised and to
\nby pass the mandatory requirement of negotiations.\n<\/p>\n
(B)    To deem matters referred under Section 14 to be a ‘water dispute’
\nand place this beyond challenge.\n<\/p>\n
(C)    To constitute this special section 14 Tribunal under this Act and
\nnot any other provision or statute and make the other provisions
\napplicable.\n<\/p>\n
(D)    To oust the jurisdiction of all Courts including the Supreme Court
\nby making Section 11 applicable to this dispute.\n<\/p>\n
(E)    To leave all other disputes relating to the Punjab settlement to be
\ndecided under the amended Act of 1958.\n<\/p>\n
This Court in the judgment dated 15th January 2002 considered the arguments
\nof the parties relating to Section 14 and negatived Punjabs’ submission as
\nto the construction of section 14. Punjab could have challenged the
\nconstitutional validity of Section 14 in its written statement. It did not
\nthen. It cannot do so now being barred by the doctrine of res judicata.\n<\/p>\n
In this suit Punjab has claimed that the section is ultra vires because<\/p>\n
”(i) the raison-d’etre for the introduction of Section 14 in the Act, 1956
\nwas the assumption of the validity of Punjab Settlement i.e. Memorandum of
\nSettlement dated 24.07.1985, which is incorrect as the said Settlement is
\nnot a valid or binding Agreement;\n<\/p>\n
(ii) The enactment of Section 14 is beyond the competence of Parliament
\nsince on the face of it, it is against the constitutional Scheme as set out
\nin the Constitution under Article 262 read with entry 56 of 7th Schedule,
\nList I.\n<\/p>\n
(iii) The special enactment has the effect of making a general legislation
\nspecific to Ravi-Beas Waters. This is discriminatory to the inhabitants of
\nPunjab living in the Ravi-Beas Valley and is therefore, constitutionally
\ninvalid.\n<\/p>\n
(iv) There can be no legislative enactment by Parliament in respect of an
\ninvalid Agreement………….\n<\/p>\n
(v) In any event and without prejudice to the foregoing, no Agreement can
\nbe executed in part to the exclusion of other obligations imposed
\nthereunder, as each obligation is an inter-connected and dependant bargain;\n<\/p>\n
(vi) Because in any event and without prejudice to the foregoing, the
\nPunjab Settlement has become incapable of being performed under the changed
\ncircumstances as also for the reasons that the State of Haryana has resiled
\ntherefrom and is unwilling to abide by the letter and spirit of the said
\nSettlement. From these reasons it also follows that Section 14 which is
\nnothing but a statutory adjudication has no efficacy in law.\n<\/p>\n
(vii) In any event and without prejudice to the foregoing the purposes for
\nwhich Section 14 was incorporated in the act. 1956 have become redundant in
\nthe light of the facts and circumstances set out above and as the said
\nprovision is no longer capable of meeting the objectives for which it was
\npurportedly enacted :\n<\/p>\n
The challenge to Section 14 of the 1956 Act has been made “without
\nprejudice to Punjab’s pending application under Section 5(3) of the Act”.
\nAssuming such a reservation is legally possible, the ground for submitting
\nSection 14 of the 1950 Act is “unsustainable” is legally impermissible. It
\nis well established that constitutional invalidity (presumably that is what
\nPunjab means when it uses the word “unsustainable”) of a statutory
\nprovision can be made either on the basis of legislative incompetence or
\nbecause the statute is otherwise violative of the provisions of the
\nConstitution. Neither the reason for the particular enactment nor the fact
\nthat the reason for the legislation has become redundant, would justify the
\nstriking of the legislation or for holding that a statute or statutory
\nprovision is ultra vires. Yet these are the grounds pleaded in sub-
\nparagraphs (i), (iv), (v), (vi) and (vii) to declare section 14 invalid.
\nFurthermore merely saying that a particular provision is legislatively
\nincompetent [ground (ii)] or discriminatory [ground (iii)] will not do. At
\nleast prima facie acceptable grounds in support have to be pleaded to
\nsustain the challenge. In the absence of any such pleading the challenge to
\nthe constitutional validity of a statutory provisions is liable to be
\nrejected in limine.\n<\/p>\n
The grounds given in support of Punjab’s challenge to Article 14 are ex-
\nfade no grounds in law and no “cause of action'” has been disclosed to
\nchallenge the constitutional validity of Section 14 of the Inter-State
\nWater Disputes Act, 1986. Not only does the plaint filed by Punjab in OS 1
\nof 2003 not disclose any cause of action, but it is also evident from the
\nstatements in the plaint that the suit is barred by law. The plaint is
\naccordingly rejected leaving open the other issues raised by Haryana in
\nsupport of its application.\n<\/p>\n
Additionally and in the ultimate analysis, it is manifest that the suit has
\nbeen filed only with a view to subvert the decision of this Court with all
\nthe disingenuousness of a private litigant to resist its execution. We
\nhave, in the circumstances, no compunction whatsoever in dismissing the
\nsuit under Order XLVII Rule 6 of the Rules.\n<\/p>\n
I.A. No. 1 of 2003 filed by the State of Haryana in O.S. 1 of 2003 is
\naccordingly allowed. The plaint is rejected and Suit 1 of 2003 (State of
\nPunjab v. State of Haryana) is dismissed with costs.\n<\/p>\n
LA. No. 4 In O.S. 6 of 1996<\/p>\n
Haryana has asked for enforcement of the decree dated 15th January, 2002
\nunder Article 142 of the Constitution read with clause 2(b) of the Supreme
\nCourt (Decrees and Orders) Enforcement Order 1954 (hereinafter referred to
\nas the 1954 Order) praying that the Court may :\n<\/p>\n
(a)    Issue directions to the Union of India (Defendant No. 2) to carry
\nout its obligations under the decree and for the purpose :\n<\/p>\n
(i) nominate Border Roads Organisation (BRO) as the construction agency
\ncharged with the task of completing and making functional the SYL canal as
\nexpeditiously as possible, and in any case within a period of one year from
\nthe date of this Hon’ble Court’s order on this application;\n<\/p>\n
(ii) Nominate the Central Water Commission (CWC) as the agency to provide
\ntechnical guidance and supervision to the construction agency;\n<\/p>\n
(iii) Appoint a High Court Powered Committee consisting of the Secretaries
\nreferred to in paragraph 16-H (iii) to monitor the function of the above
\nagencies and to submit progress reports to this Hon’ble Court on a monthly
\nbasis.\n<\/p>\n
(b)     In the event the Union fails to carry out the above directions
\nwithin a period of four weeks, issue order nominating and appointing the
\nagency for construction, the agency for providing technical guidance and
\nthe High Powered Committee and direct all of them to carry out their
\nrespective tasks as specified in prayer (a) above.\n<\/p>\n
(c)     Press such other or further order or orders or such directions as
\nthis Hon’ble Court may deem fit and proper in the facts and circumstances
\nof the case and to meet the ends of justice.\n<\/p>\n
The basis of the application is the failure of the State of Punjab to
\neither continue or complete the incomplete portion of the SYL canal in the
\nPunjab territory within the period specified in the Decree and the
\nsubsequent failure of the Union of India to take any steps to complete the
\ncanal through its own agencies.\n<\/p>\n
The State of Punjab has filed a counter affidavit in which it has asked for
\ndeferring the application for execution on the ground that OS l of 2003 has
\nbeen filed, that a prayer in the suit had been made for discharge from the
\nmandatory injunction and that a letter of complaint had been filed under
\nSection 3 of the Inter-State Water Disputes Act, 1956. Punjab has also
\nsubmitted that the application for execution was not maintainable, because
\nHaryana had not applied for orders in terms of Clause 2(b) of the 1954
\nOrder, that draft issues had been filed by Haryana and Punjab in Suit 1 of
\n2003 pursuant to an order passed by this Court dated 24.11.2003 in that
\nsuit, that water disputes were to be resolved on the basis of Punjab’s
\ncomplaint under Section 3 of the 1956 Act, that the Decree sought to be
\nexecuted was liable to be modified under the changed circumstances, and
\nthat the Decree was a nullity. On the merits it is denied that nothing was
\ndone by the State of Punjab to continue or complete the portion of the
\ncanal within its territory and that the Border Roads Organisation (BRO) did
\nnot have the requisite experience for constructing SYL canal and finally
\nthat the Haryana’s prayer for appointment of a High Power Committee showed
\nthat the Decree dated 15th January, 2002 is not executable in the ordinary
\ncourse.\n<\/p>\n
The Union of India has also filed a counter affidavit in which it has
\nstated that it has already taken steps to implement and comply with the
\nDecree within the “constitutional limitations”. It has referred to several
\nmeetings held and also the correspondence exchanged between the parties. It
\nhas however, submitted that the BRO was committed to carrying out work in
\nborder areas and in Jammu and Kashmir in particular till the year 2016 and
\nthat it would not be possible to deploy BRO for the purpose of construction
\nof the canal. It has said that it has asked for the engineering details
\nfrom the State of Punjab, who had executed the works and in whom the
\ncontrol of the works are vested at present. It has also submitted that the
\npossession of the SYL canal works needs to be handed over by the State of
\nPunjab to the agencies as may be selected by the Union of India and that
\nBudget estimates would have to be made for completion of the canal.
\nAccording to the Union an action plan has been prepared in which provision
\nhas been made for setting up a High Powered Committee, but, it is
\nsubmitted, there was no necessity for the High Power Committee to report
\nback to this Court. As far as nomination of the Central Water Commission is
\nconcerned, it says that this might cripple the chances of other more
\nsuitable agencies. It has finally been submitted that the State of Punjab
\nshould be directed to extend it fullest cooperation and protection for the
\ncompletion of the work by the Union of India. The Union’s affidavit
\nalthough filed in answer to LA No. 1 and 3 in O.S. No. 6 of 1996 was, at
\nits instance, directed to be treated as its answer to LA. No. 4 (vide this
\nCourt’s order dated 17th December, 2003).\n<\/p>\n
Punjab was required to complete the canal by 15th January, 2003 by the
\ndecree. Instead of accepting the decree in good grace, every possible step
\nhas been taken to thwart the decree. The minutes of the meetings and the
\ncorrespondence exchanged between the parties during this period shows that
\nthe State of Punjab did not comply with this Court’s directives on the
\nground that :\n<\/p>\n
(1)     Punjab would await the final report of the Ravi-Beas Water
\nTribunal;\n<\/p>\n
(2)    the farmers of the State had filed a review petition in this Court
\nin which the Government was a party. The matter was subjudice and Punjab
\nwas not in a position to start the digging of the canal.\n<\/p>\n
(3)    the Government of Punjab intended to file another revision petition
\nbefore this Court.\n<\/p>\n
(4)    that the construction of SYL canal was likely to produce strong
\nadvise reaction among the people of Punjab and may also provide an emotive
\nissue to secessionists\/militant elements and the construction of SYL canal
\nwould lead to drying up of 9 lakh hectares land in the Punjab; and<\/p>\n
(5)     Suit No. 1 of 2003 had been filed.\n<\/p>\n
Incidentally, the fourth ground is almost a verbatim reproduction of
\nPunjab’s stand in the proceedings filed by it earlier. There was no stay
\ngranted by this Court at any stage of any of the various proceedings filed
\nassailing the decree. Even when the final assault was made by the filing of
\nSuit No. 1 of 2003 we did not grant any stay and it is basic law that the
\nmere filing of proceedings does not operate as a stay. The correspondence
\nand the record of minutes show that the Chief Minister as well as the
\nGovernment officials named in the correspondence have arrogated themselves
\nthe power of sitting as a super-judicial body over this Court.\n<\/p>\n
The Constitution provides for an ordered polity within this country to
\npromote integrity of the country. When disputes arise between States there
\nare usually political underpinnings. The resolution of such a dispute in
\nfavour of one party will invariably have a political impact. Article 131 of
\nthe Constitution has therefore given this Court the exclusive jurisdiction
\nto decide such a dispute strictly on legal considerations and in keeping
\nwith the provisions of the Constitution. To resist the execution of the
\ndecree on the ground that it would have a political fall out would result
\nin subversion of the Constitution, an endorsement of anarchy and the
\ndisintegration of the country. Apart from rendering the provisions of
\nArticle 131 a dead letter such a stand is contrary to Article 144 which
\nrequires all authorities, civil and judicial, in the territory of India
\nshall act in aid of the Supreme Court. It is not in the circumstances
\nexpected, that Governments whether at the Centre or in the States, will not
\ncomply with the decree of this Court. By refusing to comply with the decree
\nof this Court under Article 131 not only is the offending party guilty of
\ncontempt but the very foundation of the Constitution which the people
\ngoverning the State have sworn to uphold when assuming office and to which
\nthis country owes its continued existence, is shaken. It is, we repeat, the
\nConstitutional duty of those who wield power in the States to create the
\nappropriate political climate to ensure a respect for the constitutional
\nprocesses and not set such processes at naught only to gain political
\nmileage. As was observed by the Constitution Bench, in Cauvery Water
\nDisputes Tribunal (supra) when an Ordinance was passed by a State seeking
\nto nullify the order of this Court.\n<\/p>\n
“Such an act is an invitation to lawlessness and anarchy, inasmuch as the
\nOrdinance is a manifestation of a desire on the part of the State to be a
\njudge in its own cause and to defy the decisions of the judicial
\nauthorities. The action forebodes evil consequences to the federal
\nstructure under the Constitution and opens doors for each State to act in
\nthe way it desires disregarding not only the rights of the other States,
\nthe orders passed by instrumentalities constituted under an Act of
\nParliament but also the provisions of the Constitution. If the power of a
\nState to issue such an Ordinance is upheld it will lead to the breakdown of
\nthe constitutional mechanism and affect the unity and integrity of the
\nnation”.\n<\/p>\n
These observations appositely reflect what can be said with regard to the
\nconduct of the State of Punjab. In any event there is now no question of
\ndeferring Haryana’s application for execution because the suit itself,
\nnamely, O.S. No. 1 of 2003 has been dismissed. The vague plea relating to
\nthe possible rise of militancy by the construction of the canal is not an
\nacceptable defence at all. The fact that a letter of complaint has been
\nfiled under Section 3 of the 1956 Act is immaterial as that pertains to a
\nwater dispute within the meaning of Section 2(c) of the 1956 Act and we
\nhave already held that the construction of SYL canal is not a water dispute
\nwithin the meaning of the 1956 Act read with Article 262 of the
\nConstitution. We have already held that the decree cannot be said to be a
\nnullity. In any event this is not a question which can be raised while
\nopposing an application for execution. What remains of Punjab’s opposition
\nis its submission that the application of Haryana is not maintainable under
\nthe 1954 order.\n<\/p>\n
The 1954 Order has been issued by the President in exercise of powers under
\nArticle 142(1) of the Constitution. Punjab’s objection to the
\nmaintainability of Haryana’s application for execution because of alleged
\nnon-compliance with paragraph 2(d) of the 1954 Order is unsustainable. We
\nquote paragraph 2 before giving our reasons in support of this conclusion :\n<\/p>\n
“Notwithstanding anything contained in any other law in force at the
\ncommencement of this Order, any decree passed or order made by the Supreme
\nCourt whether before or after such commencement, including any order as to
\nthe costs of, and incidental to, any proceedings in that Court shall be
\nenforceable :\n<\/p>\n
(a)     where such decree or order was passed or made in exercise of its
\nappellate jurisdiction – in accordance with the provisions of law for the
\ntime being in force relating to the enforcement of decrees or orders of the
\nCourt or Tribunal from which the appeal to the Supreme Court was preferred
\nor sought to be preferred; and<\/p>\n
(b)     in any other case, – in accordance with the provisions of law for
\nthe time being in force relating to the enforcement of decrees or orders of
\nsuch Court, Tribunal or authority as the Supreme Court may specify in its
\ndecree or order or in a subsequent order made by it on the application of
\nany party to the proceeding.\n<\/p>\n
The decree passed by this Court, under Article 131 being an original
\nproceeding would not be covered by clause 2(a). Clause 2(b) empowers this
\nCourt to specify the law according to which the decree may be enforced. The
\nphrase used is “in accordance with” and not “under”, “in accordance with”
\nin the context similarity or harmony but not identity. The mode of
\nenforcement which may be specified under clause 2(b) may therefore be
\nsimilar to the methods of execution legally provided in respect of decrees
\nor orders of any Court, Tribunal or Authority. The specification of the
\nmode may be done in the decree itself or by a subsequent order made on an
\napplication of any party to the proceeding. The decree in this case had not
\nspecified the mode of execution. Haryana’s application is expressed to be
\nunder clause 2(b) of the 1954 Order. Doubtless Haryana has suggested the
\npassing of directions to ensure implementation of the decree which may not
\nbe acceptable to us, but it has in prayer (c) prayed for “such other or
\nfurther order or orders or such directions as this Hon’ble Court may deem
\nfit and proper in the facts and circumstances of the case and to meet the
\nof justice”. That prayer is sufficient to meet even the entirely technical
\nobjection of Punjab and it cannot be said that Haryana’s application is not
\nmaintainable\/As to the mode of execution section 51 of the Code of Civil
\nProcedure provides:\n<\/p>\n
“51. Power of Court to enforce execution. – Subject to such conditions and
\nlimitations as may be prescribed, the Court may, on the application of the
\ndecree-holder, order execution of the decree –\n<\/p>\n
(a)     by delivery of any property specifically decreed;\n<\/p>\n
(b)     by attachment and sale or by the sale without attachment of any
\nproperty;\n<\/p>\n
(c)     by arrest and detention  in prison  for such  period  not exceeding
\nthe period specified in section 58, where arrest and detention is
\npermissible under that section;\n<\/p>\n
(d)     by appointing a receiver; or\n\n(e)     in such other manner as the nature of the relief granted may\n<\/pre>\n
require.” The residuary power under Section 5 l(e) allows a Court to pass
\norders for enforcing a decree in a manner which would give effect to it.
\nThe period specified in the decree for completion of the canal by Punjab is
\nlong since over. The Union of India has said that it had worked out a
\ncontingent action plan during this period. The contingency, in the form of
\nexpiry of the one year period in January 2003 has occurred. We have not
\nbeen told whether the contingency plan has been put into operation.
\nAlthough it appears that the Cabinet Committee on Project Appraisals had
\napproved the proposal for completion of the SYL canal by the BRO and at a
\nmeeting convened as early as on 20th February 1991, the then Prime Minister
\ndirected that the BRO take over the work for completion of the SYL Canal in
\nthe minimum time possible, the BRO is not now available for the purpose.
\nAfter the decree the Central Water Commission Officials have inspected the
\ncanal on 9th October 2002. The report has assessed a minimum period of
\nabout two years for removing silt deposits, clearing of trees and bushes,
\ncompleting the damaged and balance works and making the canal functional
\nand has estimated an amount of about Rs. 250 crore for this purpose
\nexcluding the liabilities of Punjab. In the circumstances we direct the
\nUnion of India to carry out its proposed action plan within the following
\ntime frame:\n<\/p>\n
(1)     The Union of India is to mobilize a Central agency to take control
\nof the canal works from Punjab within a month from today.\n<\/p>\n
(2)     Punjab must hand over the works to the Central Agency within 2
\n(Two) weeks thereafter.\n<\/p>\n
(3)     An empowered committee should be set up to coordinate and
\nfacilitate the early Implementation of the decree within 4 (four) weeks
\nfrom today. Representatives of the States of Haryana and Punjab should be
\nincluded in such Committee:\n<\/p>\n
(4)     The construction of the remaining portion of the canal including
\nthe survey; preparation of detailed estimates and other preparatory works
\nsuch as repair, desilting, clearance of vegetation etc. are to be executed
\nand completed by the Central Agency within such time as the High Powered
\nCommittee will determine.\n<\/p>\n
(5)    The Central and the Punjab Government should provide adequate
\nsecurity for the staff of the Central Agency.\n<\/p>\n
We conclude this chapter with a reminder to the State of Punjab that “Great
\nstates have a temper superior to that of private litigants, and it is to be
\nhoped that enough has been decided for patriotism, the fraternity of the
\nUnion, and mutual consideration to bring it to an end9”\n<\/p>\n
Application 4 of 2003 in OS 6 of 1996 is thus allowed on the aforesaid
\nterms without any order as to costs.\n<\/p>\n
9.   Commonwealth of Virginia v. State of West Virginia, 55 L.ed 353.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Haryana vs State Of Punjab And Anr on 4 June, 2004 Bench: Ruma Pal, P. Venkatarama Reddi CASE NO.: Original Suite 6 of 1996 PETITIONER: STATE OF HARYANA RESPONDENT: STATE OF PUNJAB AND ANR. DATE OF JUDGMENT: 04\/06\/2004 BENCH: RUMA PAL & P. VENKATARAMA REDDI JUDGMENT: JUDGMENT 2004 Supp(2) […]<\/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-230140","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 4 June, 2004 - 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-4-june-2004\" \/>\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 4 June, 2004 - 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