Supreme Court of India
STATE OF HARYANAversusSTATE OF PUNJAB AND ANR.
- Citation
- 2002 INSC 26
- Decided
- 15 January 2002
- Disposal
- Directions issued
- Bench
- G B PATTANAIK
Holding
The dispute over the SYL Canal is not a water dispute under Section 2(c) of the Inter‑State Water Disputes Act, so the Supreme Court’s jurisdiction under Article 131 is not barred and a mandatory injunction directing Punjab to complete the canal within one year is warranted.
Summary
After the bifurcation of Punjab in 1966, the Government of India allocated 3.5 MAF of Ravi‑Beas water to Haryana under a 1976 notification. Haryana could not draw its share through the existing Bhakra Main Line Canal and therefore proposed the Sutlej‑Yamuna Link (SYL) Canal, completing its portion in 1980 while Punjab stalled work on its stretch. Multiple agreements (1981 agreement, 1985 Punjab Settlement) and a Water Tribunal were later entered into, but Punjab again stopped construction. Haryana filed a suit under Article 131 of the Constitution seeking a mandatory injunction to compel Punjab (and, failing that, the Union) to complete the canal within one year. Punjab contended that the dispute was a "water dispute" under the Inter‑State Water Disputes Act, 1956 and thus barred before the Supreme Court. The Court held that the dispute concerned only the contractual obligation to build the canal, not the use, distribution or control of water, and therefore did not fall within the definition of a water dispute under Section 2(c) of the Act. Consequently, the Supreme Court’s jurisdiction under Article 131 was not ousted, the suit was maintainable, and a mandatory injunction was granted directing Punjab to finish the SYL Canal within a year, with the Union to step in if Punjab failed to do so.
Issues considered
- The dispute whether the construction of the SYL Canal constitutes a "water dispute" within the meaning of Section 2(c) of the Inter‑State Water Disputes Act, 1956, thereby invoking the bar of Article 262 and Section 11.
- Whether the Supreme Court has jurisdiction to entertain the suit under Article 131 of the Constitution.
- Whether the suit is barred by limitation or procedural objections raised by Punjab.
- Whether a mandatory injunction can be granted to compel a State (and the Union) to complete a canal.
Legislation cited
- Inter-State Water Disputes Act, 1956s. 11, s. 14, s. 2(c)
- Punjab Reorganisation Act, 1966s. 78
Subjects
inter‑state water disputeSutlej‑Yamuna Link CanalArticle 131Article 262mandatory injunctionwater allocationPunjab Reorganisation ActInter‑State Water Disputes Actfederalismpublic interest
Judgment
STATE OF HARYANA A
V.
~
STATE OF PUNJAB AND ANR.
) JANUARY 15, 2002
[G.B. PATTANAIKAND MRS. RUMA PAL, JJ.] B
Inter State Water Disputes Act, 1956/Punjab Reorganisation Act, 1966-
r Sections 2(c), 1I/Section 78-Bifurcation of erstwhile State of Punjab into
two Stales, Punjab and Haryana, in 1966-Notification in March 1976 by
the Government of India allocating water to the plaintiff-State after an
c
agreement with the State of Punjab-Haryana State unable to draw its
allocated share of water through the existing Bhakra Main Line Canal-
Proposal by the Haryana State for the construction of a new canal called
Sutlej-Yamuna Link Canal (SYL Canal) for full drawing of its allocated
water-Agreement entered in with the State of Punjab for the construction D
of the canal-Construction of the canal completed in the territory of the
Haryana State-Non-completion of the canal in the territory of the State of
Punjab-Suit filed before the Supreme Court against the State of Punjab for
early completion of the canal-Counter-suit filed by the State of Punjab
challenging the notification of the Government of India of March 1976 and
vires of the Act-Agreement in December 1981 between the States for E
completion of the canal within two years by the State of Punjab with the
intervention by the Government of India and accordingly suits withdrawn-
Repudiation of the agreement by the State of Punjab-Punjab settlement
entered into between the then Prime Minister and President of a political
party of the State of Punjab providing for early completion of the construction F
ofthe canal-Stoppage ofconstruction by the State of Punjab after completion
of 90% of the work-Suit by Haryana State seeking mandatory injunction to
the State of Punja{> for early completion of the canal-Maintainability of the
suit under the Constitution-Held, the dispute is not a water dispute under
the Act and hence the Supreme Court is not barred in exercising its
jurisdiction-Mandatory injunction granted directing the State of Punjab for G
'" completion of the canal within one year-Constitution of India-Articles 131
and 262.
After the partition of India, Government of India signed a Treaty with
Government of Pakistan called the Indus Water Treaty. Under the Treaty,
227 H
228 SUPREME COURT REPORTS [2002] I S.C.R.
A the waters of the rivers Sutlej, Beas and Ravi were acquired for exclusive
use oflndia for a fixed consideration. In 1955, an agreement was entered into
for sharing of the waters of the rivers Ravi and Beas among the erstwhile
State of Punjab, State of Kashmir, State ofRajasthan and the erstwhile State
of PEPSU. The share of the erstwhile State of Punjab was 5.90 MAF.
B In 1966, the erstwhile State of Punjab was bifurcated into two separate
States-Punjab and Haryana under the Punjab Reorganisation Act, 1966. Due
to differences between the two States regarding the sharing of water out of
the allocation to the erstwhile State of Punjab, an ad-hoc decision was taken
that the plaintiff-State and defendant-State would share 35% and 65% of the
C water respectively. On the demand by the plaintiff-~tate, a Committee was
appointed by the Government oflndia to determine the water-sharing among
the two States. The Committee recommended 3.782 MAF on water to the
plaintiff-State.
The Government of India issued a notification under Section 78 of the
D Act in March 1976 determining the share of water among the two States.
The notification allocated 3.5 MAF of water to the plaintiff-State. However,
the allocated water could not be drawn by the plaintiff-State with the existing
Bbakra Main Line Canal. Hence, the plaintiff-State suggested construction
of another link canal called the Sutlej Yamuna Link Canal (SYL Canal) in
both the States for drawing its allocated share of water. The alignment of the
E proposed canal was alongside the Nangal Hydel Channel and Bhakra Main
Line Canal. The defendant-State agreed to the proposed canal. The plaintiff-
State started the construction of the canal in its territory in 1976 and
completed the same in June 1980.
The plaintiff-State filed a suit before this Court under Article 131 of
F the Constitution against the defendant-State for non completion of the SYL
canal in its territory as per the agreement. The defendant-State also filed a
counter-suit challenging the validity of the notification of March 1976 and
the vires of Section 78 of the Act. During the pendency of the suits, an
agreement was arrived at between the two States in December 1981 on the
G intervention of the Government of India. Under the agreement, besides
allocation of water, the defendant-State agreed to complete the construction
of the canal in its territory within two years. On the basis of the agreement,
the two suits before this Court were withdrawn. In 1985, the defendant-State
repudiated the agreement of December 1981. In July 1985, a settlement called
the 'Punjab Settlement' was entered into between the then Prime Minister of
H India and the President of a political party. As per the settlement, the
STATE OF HARYANA v. STATE OF PUNJAB 229
defendant-State agreed for completion of the construction of the SYL canal A
by 1986. The settlement also provided for the reference of the dispute relating
to sharing of additional waters to a Water Tribunal. The terms and conditions
of the settlement were incorporated by introducing Section 14 to the Inter
) State Water Disputes Act, 1956. Accordingly, the Government of India, by a
notification, referred the dispute to a Water Tribunal. The tribunal, by its B
Interim Report in January 1987, observed that the defendant-State should
complete its portion of the SYL canal expeditiously so that the plaintiff-State
could utilise the full quantum of allocated water. In July 1990, the defendant-
State stopped the construction of the canal after completing nearly 90% of
the construction. The appellant-State again sought intervention of the
Government oflndia in February 1991. The Government oflndia directed the C
Border Roads Organization to complete the construction of the canal within
the minimum possible time. In July 1995, the defendant-State stopped the
construction of the canal and took a stand that the share of water of the
plaintiff-State would be delivered through the existing Bhakra Main Line
Canal.
D
The plaintiff-State filed the present suit seeking a decree declaring that
the Notification of March 1976, the agreement of December 1981 and the
Punjab Settlement of 1985 are final and binding on the defendant-State and
for issuance of a mandatory injunction to the defendant-State and/or the
Government oflndia to complete the construction of the canal in a time-bound E
manner.
The plaintiff-State contended that the defendant-State cannot act hostile
and refuse to complete the construction of the canal, which has been agreed
to and most of the work undertaken on it; that the Government oflndia has
failed to discharge its constitutional obligation in persuading th.e defendant- F
State to complete the canal; and that the non-completion of the canal would
result in deprival of the fundamental rights enunciated under Article 21 of
the Constitution.
The defendant-State raising a preliminary objection relating to the G
maintainability of the suit of the plaintiff-State under Article 131 of the
Constitution contended that the construction of the canal is linked to the
allocation and distribution of water from Ravi-Beas Project and hence a 'water
dispute' as per Section 2(c) of the Inter State Water Disputes Act; that as per
Section 11 of the Act read with Article 262 of the Constitution, the Supreme
Court is barred in exercising its jurisdiction in the adjudication of inter-State H
230 SUPREME COURT REPORTS [2002] I S.C.R.
A water disputes; and that the averments made in the suit by the plaintiff-State
indicate that there is a water dispute between the two States.
The plaintiff-State, replying to the preliminary objection raised,
contended that the dispute relating to the construction of the SYL Canal in
B the territory of the defendant-State is not a 'water dispute' under Section 2(c)
of the Act and hence the Supreme Court can exercise the jurisdiction under
Article 131 of the Constitution.
The defendant-State, with regard to the main issue, contended that the
C construction of the SYL Canal is a highly sensitive political issue which
resulted in great resentment by the farmers of the State, which was further
aggravated by the Punjab Settlement; that the resentment ultimately
culminated in serious law and order problem in the State; that the non-
determination of future utilisation of the additional waters by the Water
Tribunal, the provisions of the Punjab Reorganisation Act and the agreement
D of December 1981, being political in nature, does not confer an enforceable
legal right on the plaintiff-State; that the Punjab Settlement entered into
between the then Prime Minister and the President of a political party has no
constitutional sanctity to bind the defendant-State; and since no legal right
has accrued to the plaintiff-State, the Court should not issue a mandatory
E injunction for the completion of the canal in exercise of its discretionary power.
The defendant-Government of India submitted that the construction of
SYL Canal is solely the responsibility of the defendant-State; that it had given
all help including financial assistance to the defendant-State for early
completion of the canal; and that it will negotiate for the early settlement of
F the dispute between the two States.
Allowing the suit, the Court
...
HELD: I.I. The averments in the plaint and the relief sought for by the
G plaintiff-State is not related to the use, distribution or control of the water
from Ravi-Beas Project. A reading the plaint of the plaintiff-State as a whole
shows that the dispute relates to the obligation on the part of the defendant-
State to complete the portion of SYL Canal within its territory which became
necessary for carrying the allocated water to the plaintiff-State under the
H provisions of the Punjab Reorganisation Act, 1966 and the agreement of
l ...
STATE OF HARYANA v. STATE OF PUNJAB
December 1981. Such a dispute cannot be construed to be in any way
231
interlinked with the distribution or control of water of or in any inter-State
river or river valley. (243-F-G-H)
A
1.2. As per the agreement of December 1981 between the two States,
the notification of March, 1976 stood modified to the extent varied under the B
agreement. It is thus apparent that so far as the plaintiff-State is concerned,
the earlier allocation of 3.5 MAF of water remained the same and it became
necessary to construct an'.>ther canal, almost parallel to the main canal, as
the existing canal system was not capable of carrying the allocated waters to
the plaintiff-State. (246-D-E]
c
1.3. The contention of the defendant-State that the Punjab Settlement
has no constitutional sanctity and not enforceable is unacceptable. As per the
Punjab Settlement, the Government of India referred only the dispute relating
to sharing of additional waters to a Water Tribunal under the Inter-State Water
Disputes Act and not the dispute relating to the construction of SYL Canal. D
This indicates that the construction of the SYL Canal has absolutely no
connection with the sharing of waters between the States and as such is not
a "Water Dispute" within the meaning of Section 2(c) of the Inter-State Water
Disputes Act. Hence even giving a wide meaning to the expression "water
dispute" in Section 2(c) of the Inter-State Water Disputes Act, the dispute
relating to the construction of the canal cannot be held to be a "water dispute" E
under Section 2(c) of the Act. Thus, the suit is not barred under Article 262
of the Constitution read with Section 11 of the Inter-State Water Disputes
Act (248-F-G-H; 249-A-B-C)
State of Karnataka v. State of Andhra Pradesh & Ors., [2000) 9 SCC p
572, relied on.
2.1. It appears that in the controversy between the two States, the
Government oflndia is feeling embarrassed to take any positive decision, which
is not in the interest of the nation. The founding fathers of the Constitution, G
advocated for a strong Central Government, so that there would not be any
disintegration of the States and the Central power would be able to keep the
States within its limits and will be able to force the States, in the matter of
good governance of the States, which would benefit the inhabitants of the
States, the inhabitants of the neighbouring States and the country as a whole.
1254-D-EJ H
232 SUPREME COURT REPORTS (2002] I S.C.R.
A 2.2. The importance of SYL canal for the plaintiff-State cannot be
overlooked. For construction of the canal in the territory of the defendant-
State, more than Rs. 560 crores have already been spent and the entire money
has been paid by the Government of India. It is indeed a matter of great concern
that while huge amount of public exchequer has been spent in the construction
B of the canal and only a few portion of the canal within the territory of the
defendant-State has not been dug, the canal is not being put to use on the
(
mere insistence of the defendant-State. The attitude of the defendant-State is
wholly unreasonable, dogmatic and is against the national interest. It is a
matter of the great concern that the Government of India is taking an
indifferent attitude in the matter and is only trying to while away the time,
C even though it continues to pay the defendant-State substantially, even for
maintenance ofsemi-constructed canal. (264-B-C-D]
2.3. A decree of the Court in either way is not as effective as the political
will of the authorities and the will of the people. But at the same time when
the political authority becomes dogmatic, unreasonable and indicates an
D attitude of irresponsible nature and when the Court finds that nothing is
moving even though there has been a large-scale drainage of public exchequer
and that the decision to have the canal had been reached on an agreement of
all concerned, representing the will of the people, the Court must pass
appropriate orders and directions. The political parties, which assume power,
E do whatever which catches the vote-bank. They forget that the Constitution
conceives of a Government to be manned by the representatives of the people,
who get themselves elected in an election. The decisions taken at the
governmental level should not be to be so easily nullified by a change of
government and by some other political party assuming power, particularly
when such a decision affects some other State and the interest of the nation
F as a whole. It cannot be disputed that so far as policy is concerned, a political
party assuming power is entitled to engraft the political philosophy behind
the party, since that must be held to be the will of the people. But in the matter
of governance of a State or in the matter of execution of a decision taken by
a previous government, on the basis of a consensus arrived at, which does not •
G involve any political philosophy, the succeeding government must be held duty
bound to continue and carry on the unfinished job rather than putting a stop
to the same. (264-F-G-H; 265-A-B-C(
2.4. Considering the submissions of the defendant-State, there cannot
be any fetter on the power of this Court to issue appropriate directions. The
H defendant-State, having entered into an agreement with the plaintiff-State on
STATE OF HARYANA v. STATE OF PUNJAB 233
the intervention of the Prime Minister of the country and which resulted in A
withdrawal of the pending suits in the Court, cannot be permitted to take a
contrary stand. It is the solemn duty of the Government of India to see that
the terms of the agreement are complied with in toto. More than Rs. 700
crores of public revenue cannot be allowed to be washed down the drain, when
the entire portion of the canal within the territory of the plaintiff-State has B
already been completed and major portion of the said canal within the territory
of defendant-State also has been dug. The apprehension of the defendant-State
that after digging of the canal, the plaintiff-State would draw more water than
that which is allocated is thoroughly unfounded since the source for drawing
of the water is only from the reservoir, which lies within the territory of
defendant-State and a drop of water will not flow into the canal unless the C
connecting gates are open. The quantity of allocated water in favour of the
plaintiff-State must be allowed to be drawn which can be done so if SYL canal
is completed since the existing Bhakara Main Line Canal has the capacity of
supplying ofonly 1.62 MAF of water. The plaintiff-State has made out a case
for issuance of an order of mandatory injunction against the defendant-State D
to complete the portion of the SYL Canal, which remains incomplete and in
the event the defendant-State fails to complete the same, then the defendant-
Government of India must see to its completion, so that the money that has
already been spent and the money which may further be spent could at least
be utilized by the countrymen. On examination of materials, the Court is
satisfied that the plaintiff-State has established the balance of convenience, E
irreparable loss and injury to it and hence entitled to the mandatory injunction
sought for. By way of a mandatory injunction, the defendant-State is directed
to complete the construction of the SYL Canal and make the canal functional
within one year. The defendant-Government of India is also directed to
discharge its constitutional obligation in implementation of the said direction F
in relation to digging of canal and if within a period of one year, the SYL
Canal is not completed by the defendant-State, then the Government of India
should get it done through its own agencies as expeditiously as possible, so
that the huge amount of money that has already been spent and that would yet
to be spent, will not be wasted and the plaintiff-State would be able to draw the
full quantity of its allocated water. The direction to dig the SYL Canal should
G
not be construed by the plaintiff-State as a licence to permit them to draw
water in excess of the allocated water and in the event the Water Tribunal,
which is still considering the case of re-allotment of the water, grants any
excess water to the plaintiff-State of Haryana, then it may also consider issuing
appropriate directions as to how much of the water could be drawn through H
234 SUPREME COURT REPORTS [2002) 1 S.C.R.
A SYL Canal (267-D-E-F-G-H; 268-A to E]
CIVIL ORIGINAL JURISDICTION: Original Suit No. 6of1996.
(Under Article 131 of the Constitution of India)
B Harish N. Salve, Solicitor General, K.N. Rawal, Additional Solicitor
General, Dr. Rajeev Dhawan, (AC) Vinod A. Bobde, Anoop Chaudhary, Ranjit
Kumar, (AC), Raju Ramachandran, M.J.S. Sethi, N.N. Goswmi, Surya Kant
Sharma, A.G. for Haryana State, M.C. Mehta, Petitioner-in-Person, in W.P. (C)
No. 4677/85, Pradeep Agarwal, (AC), S. Wasim A. Quadri, C.V. Subba Rao, K.
C C. Kaushik, Krishna Venugopal, Krishna Mahajan, Ms. Niranjana Singh, Ajay
Sharma, Bipul Kumar, S.N. Terdol, S.K. Dwivedi, Anil Katiyar, B. Krishna
Prasad, Ms. Sushma Suri, D.N. Goburdhan, Ms. Pinky Anand, Ms. Geetha
Luthra, K.B. Rohtagi, K.K. Lahiri, Ujjwal K. Jha, Raghavenclra S. Srivastava,
Ms. Shefali Shukla, Aslam Ahmed, Ejaz Maqbool, Ajay K. Agrawal, Y.P.
Singh, Chelan Sidharth, Devwrat Tiwari, Sakesh Kumar, S.K. Agnihotri, H.K.
D Puri, S.K. Puri, Rajesh Srivastava, Ujjwal Banerjee, Anindita Gupta, Ranji
Thomas, Javed M. Rao, Sushi! Kumar Jain, R.C. Verma, Ms. Kiran Kapoor,
Mukesh Verma, Kumar Rajesh Singh, Adv. for B.B. Singh, V.B. Saharya,
Pradeep Mishra, Ms. Indu Misra, H.S. Munjral, Ms. Kanwaljit Kochhar, Rajeev
Sharma, R.S. Suri, Anis Suhrawardy, Ms. Rachna Srivastava, D.K. Sinha,
E Debasis Mohan!, Naresh K. Sharma, Ms. Hemantika Wahi, S.C. Birla, Vijay
Panjwani, Mahabir Singh, S.R. Sharma, Alka Agarwal, Dhruv Mehta for S.K,
Mehta, T. Mahipal, Sudhir Kulshreshtha, Ms. Reena Singh, Girish Chandra,
Ashok K. Srivastava, Ms. Sheil Sethi, R.K. Maheshwari, Ms. Hemantika Wahi,
Ms. Naresh Bakshi, M.L. Lahoty, M.K.D. Namboodiri, Prashant Chaudhary,
Amit Singh, Jagjit Singh Chhabra, Chandra Bhushan Prasad, Sanjay Hegde,
F S.N. Terdol, S.R. Sharma and Ajay Pal for the appearing parties.
The Judgment of the Court was delivered by
PATTANAIK, J. The State ofHaryana has filed the present suit, under
G Article 131 of the Constitution of India, impleading the State of Punjab as
defendant No. 1 and the Union of India as defendant No.2, for the following
reliefs:
"(a) pass a decree declaring that the order dated March 24, 1976, the
Agreement of December 31, 1981 and the Settlement of July 24,
H 1985 are final and binding inter alia on the State of Punjab
STATE OF HARYANA v. STATE OF PUNJAB [PATTANAIK, J.] 235
casting an obligation on Defendant No. 1 to immediately restart A
and comp,lete the portion of the Sutlej Yamuna Link Canal Project
as also make it usable in all respects, not only under the aforesaid
order of 1976, Agreement of 1981 and Settlement of 1985 but also
pursuant to a contract established by conduct from 1976 till date;
B
(b) pass a decree of mandatory injunction compelling defendant No.
1 (failing which defendant No. 2 by or through any agency) to
discharge its/their obligations under the said Notification of 1976,
the Agreement of 1981 and the Settlement of 1985 and in any
case under contract established by conduct, by immediately
restarting and completing that portion of the Sutlej-Yamuna Link C
Canal Project in the State of Punjab and otherwise making it
suitable for use within a time bound manner as may be stipulated
by this Hon 'ble Court to enable the State of Haryana to receive
its share of the Ravi and Beas waters;
D
(c) Award costs of the present suit to your plaintiff and against the
Defendant No. I; and
(d) pass such other or further order or orders to such directions as
this Hon'ble Court may deem fit and proper in the facts and
circumstances of the case and to meet the ends of justice." E
It has been averred in the plaint that Sutlej-Yamuna Link Canal is in fact,
the lifeline of the farmers of Haryana and the livelihood of the farmers
depends on the water, which is not only a natural resource, but a valuable
national asset and completion of the aforesaid Canal, would enable the State F
of Haryana to receive its share of waters of the rivers Ravi and Beas. The
plaintiff-State has averred that after the partition of India in 194 7, the emergence
of two independent countries-India and Pakistan, division of the waters of
rivers Indus and its tributaries became an international issue and in the year
1960, the Government of India signed a Treaty with Pakistan called the Indus G
Water Treaty of 1960. Under the aforesaid treaty, the waters of the three
Eastern rivers, namely the Sutlej, the Beas and the Ravi were acquired for
unrestricted use in India, to the exclusion of Pakistan and towards
consideration, the Government of India agreed to make a fixed contribution
of Pounds Sterling 62.06 million (equivalent to about 11 O Crores rupees) to
Pakistan. In a meeting of the beneficiary States namely, the State of Punjab, H
236 SUPREME COURT REPORTS [2002) I S.C.R.
' A as it existed then, State of Kashmir, State of Rajasthan and State of PEPSU,
which meeting had been convened by the Govt. of India on 29th January,
1955, a workable agreement was arrived at for development and utilization of
the waters of Rivers Ravi and Beas and under the said agreement, the share
of undivided Punjab was 5.90 M.A.F. When there was a bifurcation of the
erstwhile State of Punjab into two separate States of Punjab and Haryana
B w.e.f. November 01, 1966 under Punjab Reorganisation Act of 1966, special
provisions had been made with regard to the rights and liabilities of the
successor States in relation to the water from Bhakra Nangal Project and Beas
Project. Section 78 of the Punjab Reorganisation Act, 1966, deals with such
rights and liabilities of the successor States. Dispute arose between the two
C States of Punjab and Haryana as to their respective share of water which had
earlier been allocated to the erstwhile State of Punjab and in the meeting
called by the Government of India, a decision was taken on ad hoc basis that
35% of water would go to Haryana and 65% for Punjab, pending finalisation
of the dispute. The State of Haryana approached the Government of India in
October, 1969, invoking its jurisdiction under Section 78 of the Punjab
D Reorganisation Act, 1966. A Committee was appointed by the Central
Government, which reported that Haryana would be entitled to 3.78 MAF.
Even the then Deputy Chairman of the Plannin!l Commission had examined
this question and had recommended that Haryana would get 3.74 MAF and
Punjab would get 3.26 MAF, while Delhi would get 0.20 MAF. A notification,
E ultimately was issued on 24th of March, 1976, allocating the surplus Ravi-
Beas waters between the two states of Punjab and Haryana. Under this order,
3 .5 MAF had been allotted to the plaintiff-State. The State of Haryana, not
being a riparian State, the water allocated to it has to be drawn by digging
canal. By the existing arrangement for carrying waters of River Sutlej through
Bhakra Main Line Canal, it is not possible to draw water allocated to the State
F of Haryana under the Order of the Government of India dated 26th of March,
1976. The State of Haryana proposed that a link canal called the Sutlej Yamuna
Link Canal be constructed in the territories of the State of Punjab and Haryana,
so that the State of Haryana could draw its allocated share of water. The
plaintiff-State has averred that the length of Sutlej Yamuna Link Canal was 2 I 4
G kilometers out of which 122 kilometers is in the territory of Punjab and 92
kilometers is in the territory of Haryana. The alignment of the proposed canal
was alongside the Nangal Hyde! Channel and the Bhakra Main Line Canal.
The Chief Minister of Haryana had requested the Prime Minister of India by
his letter dated 23rd April, 1976 that the Sutlej Yamuna Link Canal should be
completed by June, 1978. After several rounds of discussion, the two States
H had agreed upon the alignment of 30 kilometers of the SYL Canal adjoining
--{
-
STATE OF HARYANA v. STATE OF PUNJAB [PATTANAIK, J.] 237
Haryana within the territory of Punjab and in fact the State of Punjab accepted A
~. money for that purpose. The State of Punjab issued various notifications for
the acquisition of the land for the purposes of constructing the canal. The
":i. State of Haryana, on its part started construction of the canal in its territory.
The Haryana portion of the canal stood completed in June, 1980 but the State
of Punjab adopted dilatory tactics on the construction of the canal on one
pretext or the other. As the canal within the State of Punjab had not been
B
constructed, the State of Haryana filed a suit in the Supreme Court in the year
1979, being Suit No. 1 of 1979. The State of Punjab filed a suit in this Court
,. under Article 131 of the Constitution, challenging the validity of the Orders
of Government of India dated 24th of March, 1976 and also challenged the
vires of Section 78 of the Punjab Reorganisation Act, which was registered c
as Suit No. 2 of 1979. During the pendency of the aforesaid two suits, an
agreement was entered into between the States of Haryana, Punjab and
Rajasthan in tlie presence of the Prime Minister of India on 31st of December,
1981. Under the said agreement, the net surplus of Ravi Beas waters were
estimated at 17.17 MAF and that stood allotted as 4.22 MAF to Punjab, 3.50
MAF for Haryana, 8.60 MAF for Rajasthan, 0.20 MAF for Delhi Water Supply D
and 0.65 MAF for Jammu and Kashmir. Clause (JV) of the said agreement
provided:
"Clause (IV): The Sutlej-Yamuna Canal Project shall be implemented
in a time bound manner so far as the canal and appurtenant works in E
the Punjab territory are concerned within a maximum period of two
years from the date signing of the Agreement so that Haryana is
enabled to draw its allocated share of waters. The canal capacity for
the purpose of design of the canal shall be mutually agreed upon
between Punjab and Haryana within 15 days, failing which it shall be
6500 cusecs, as recommended by former Chairman, Central Water F
Commission."
The said clause also provided that the suits filed by the State of Haryana and
State of Punjab should be withdrawn, without any reservations whatsoever
but subject to the terms of the agreement and accordingly both the State
G
• Governments applied for withdrawal of the suits. This Court allowed the suits
to be withdrawn by order dated 12th of February, 1982. The alignment of the
canal within the State of Punjab was proposed to be changed, to which the
State of Haryana also agreed. The State of Punjab started construction of
canal but the progress was rather slow. The State of Punjab also released a
white paper on 23rd of April, 1982, highly appreciating the agreement which H
238 SUPREME COURT REPORTS [2002] I S.C.R.
A had resulted in an increase of 1.32 MAF of the water to the share of Punjab.
On November 5, 1985, the Punjab Legislative Assembly passed a resolution,
repudiating the agreement of 31st December, 1981. On 24th of July, 1985, a
... --
settlement was arrived at between the then Prime Minister of India and Late z
Sant Harcharan Singh Longowal, the then President of Akali Dal, commonly
known as "Punjab Settlement", and the said settlement also contained an
B express provision that the construction of the SYL Canal would be continued
and completed by 15th of August, 1986. In accordance with the terms of the
settlement, more particularly Clause 9.1, the issues relating to the usage, share
and allocation of the Ravi-Beas waters were referred to the adjudication of a
-~
Water Tribunal, under the Notification dated 2nd April, 1986. The tribunal
c submitted its Report to the Central Government on 30th of January, 1987 and
the tribunal also indicated in its report that the Punjab should complete its
portion ofSYL Canal expeditiously. In July, 1990, the construction of the canal
within the State of Punjab was completely stopped but by then, over 90% of
the construction had stood completed. Failure on the part of the State of
Punjab to construct the SYL Ca!lal within its territory, has prevented the State
D of Haryana from utilizing the water allocated to its share. The plaintiff State
has further averred that more than Rs. 600 Crores have been spent on the
construction of the SYL Canal in Punjab territory, which is in addition to Rs.
250 Crores spent for the construction of the Canal within the Haryana territory.
Non-completion of the SYL Canal has debarred over three lac hectares of
E irrigation potential created in the State of Haryana and the said State is losing
agricultural production over eight lac tonnes per annum. According to the
plaintiff, if the canal would have been completed in 1983, as envisaged, then
the State of Haryana would have been in a position to produce an additional ·~
100 lac tonnes of food-grains, the value of which would work ou~ to Rs.5000
Crores. When the State of Punjab did not carry out the construction of the
F SYL Canal, the State ofHaryana sought for intervention of the Union of India
and the Prime Minister of India convened a meeting on 20th of February, 1991.
In the said meeting, the Prime Minister directed that arrangements should be
made for the Border RDads Organisation to take- over the work in the minimum
time possible and the work should be dealt with on an emergency footing.
G At that point of time, there was no political government in the State of Punjab
and it was under the Presidents Rule. In July 1995, the State of Punjab ...
circulated a white paper, clearly expressing its intention not to proceed with
the work of the construction of SYL Canal and took a stand that Haryana's
share of the water should be delivered through the existing Bhakra Canal
System, which is an absolute impossibility. The plaintiff, thereafter filed the
H present suit for the relief as already stated.
-(
STATE OF HARYANA v. STATE OF PUNJAB [PATTANAIK, J.] 239
The Defendant No. 1, State of Punjab had filed its written statement, A
:::i... raising several preliminary objections. It is contended that the dispute clearly
'" falls within the scope of the Inter-State Water Disputes Act, 1956 and
consequently the jurisdiction of the Supreme Court is barred on a combined
reading of Section 11 of the Inter-State Water Disputes Act and Article 262
of the Constitution of India. It is further contended that the validity of the
order dated 24th of March,. 1976 as well as agreement dated 31.12.1981 has B
been challenged before the Ravi-Beas Water Tribunal and the report of the
said Tribunal has not become final inasmuch as the application filed by the
State of Punjab under Section 5(3) of the Act has not yet been disposed of.
~- It has been further stated that the plaintiff State has no legal right to invoke
c
Article 131 of the Constitution and further the suit must be held to be barred
by limitation. The further stand of the Defendant No. I is that the earlier suit
filed in the year 1979, having been withdrawn without leave of the Court, the
present suit is barred under Order 23 Rule I of the Code of Civil Procedure
as well as under Order 2 Rule XXXII of the Supreme Court Rules. According
to the Defendant No. I, no legal right can be said to have accrued to the State
of Haryana under the Notification dated 24.3.1976 and further the agreement D
dated 3 lst December, I 981 is invalid. It is also contended that the said
,. agreement of 1981 stands superseded by the settlement of July 24, 1985.
According to the Defendant No. 1, the terms and conditions contained in
paragraph 9.3 of the Punjab Settlement was only a unilateral concession made
by Sant Harcharan Singh Longowal, and it was never intended to be a legal E
obligation, binding on the State of Punjab. The Defendant No. I admitted in
the written statement that the issues arising from paragraphs 9. I and 9 .2 of
the self-same Punjab Settlement were referred to the adjudication of the Ravi-
• Beas Water Tribunal. But paragraph 9.3 had not been referred to any tribunal
and it was merely a concession given by said Harcharan Singh Longowal. The
Defendant No. 1 does not dispute the observations of the tribunal in its F
Report dated 30th of January, 1987, relating to the aforesaid paragraph 9.3, but
contends that such observations were .in fact beyond the jurisdiction of the
Tribunal. According to the Defendant No. I, plaintiffs claim to have share
from Beas Project would not exceed 0.9 MAF and that quantity of water
would always be made available through the main Canal, which is in existence G
and functioning. The said Defendant No. I also averred that the State of
:...
Haryana is getting an additional water supply through River Yamuna under
the Agreement dated 12th of May, 1994, between the States of Uttar Pradesh,
Haryana, Rajasthan, Delhi and Himachal Pradesh and, therefore, there is no
need for the SYL Canal in any event. It has been further averred that Haryana
is already getting 1.62 MAF of water in Ravi-Beas waters through the existing H
240 SUPREME COURT REPORTS (2002) I S.C.R. •
A canal system of Bhakra Main Line/Narwana Branch and the present system
is fully capable of conveying the said quantity of water. Consequently, there
is no need for SYL Canal. The Defeqdant No. I further contends that in
Section 78 of the Punjab Reorganisation Act, there has been no reference to
River Ravi and, therefore, question of conveying any water from River Ravi
B through SYL Canal does not arise. According to this defendant, the claim of
the State of Haryana, over and above the allocations made in the Beas Project
were neither legal nor proper and were only for extraneous considerations.
According to the State of Punjab, water of River Ravi do not find mention
in any scheme resulting from the Beas Project and, therefore, any order
containing allocation of Ravi water to the plaintiff State is invalid. The Defendant
C No. I has also averred that only the supplies from River Beas are being
transferred to Bhakra reservoir. According to the Defendant No. I, the allocation
of 3 .5 MAF to Haryana would deprive the State of Punjab of irrigation
facilities to lacs of acres of land, which are being irrigated in the State of
Punjab. So far as the issuance of a white paper is concerned, the Defendant
No. 1 has averred that the same was a political decision of the Chief Minister
D at that time and did not bind the State and at any rate, the subsequent
resolution of the Punjab Legislative Assembly, repudiating the earlier agreement
.clinches the matter. So far as the construction of SYL Canal already undertaken
in the State of Punjab is concerned, it has been averred that the State had
to undertake the same under duress and the said work was stopped because
E of turmoil in the State and when the militants killed a Chief Engineer and
Superintending Engineer. The defendant No. I admitted that there has been
an expenditure of Rs. 520 Crores on the construction of SYL Canal in Punjab
portion and further admitted that there has been a recurring expenditure on
establishment, which money the Government of India pays to the State of
Punjab. According to the Defendant No. I, no cause of action has accrued
F to the plaintiff to file the present ;uit, invoking Article 131 of the Constitution
and at no stage, the State of Punjab committed itself to the construction of
the SYL Canal.
The Defendant No. 2, Union of India in its written statement, took the
G stand that relief claimed by the plaintiff can be only against the State of
Punjab and there is no obligation on the part of the Government of India to
take up the construction work of SYL Canal. According to the defendant No.
2, the Union of India had already discharged its obligation by pursuing and
directing the Government of Punjab for early completion of Punjab portion of
the canal. It has been further averred that the Union of India had constituted
,H the Ravi and Beas Waters Tribunal, which gave its interim report on 30th of
~I
STATE OF HARYANA v. STATE OF PUNJAB [PATTANAIK, J.] 241
January, 1987 and the final report of the Tribunal is awaited. It has also been A
reiterated in the written statement that the Ravi and Beas Waters Tribunal in
its interim report had observed that this canal is the lifeline for the farmers
of Haryana and unless it is expeditiously completed, Haryana will not be in
a position to utilize the full quantum of water allocated to it. The said
defendant has also averred that the concept of a carrier for Haryana's share B
in surplus Ravi-Beas waters was envisaged in inter-State Agreement of 1981.
Further, the Central Government determined the rights and liabilities of the
successor States in accordance with Section 78 of the Punjab Reorganisation
Act, 1966 and allocated 3.5 MAF of surplus Ravi-Beas water to Haryana as
per Government of India Notification dated 24.3.1976. The said defendant has
stated in the written statement that the Union of India made its best efforts C
to settle the issue. On the question of amount of money, the defendant No.
2 has averred that the Union of India has provided Rs. 499.12 Crores to the
Government of Punjab till March, 1994 for completion of Punjab portion of
SYL Canal. It has also been stated that due to non-completion of SYL Canal
by Punjab, the State of Haryana is not able to utilize its full share of Ravi-
Beas water. The Union Government has also stated that it is essential that D
Punjab portion of the SYL Canal is completed at the earliest. The said defendant
has further averred that construction of SYL Canal is solely the responsibility
of the Government of Punjab and the Union of India has made all efforts
including the financial assistance to the State of Punjab for early completion
of the canal. The said defendant has finally stated that while Government of E
India will continue to play its role for the settlement of dispute between the
two States, the alternative relief claimed in para (b) of the plaint against the
Government of India is not tenable and the same is liable to be rejected .
.. On the aforesaid pleadings, by Order dated 15.12.1997, the Court settled
the following agreed issues: F
"I. Whether in the facts and circumstances of the case, defendant
No. I (the State of Punjab) and alternatively, defendant No. 2 (the
Union of India), were and are bound to construct and complete in a
time-bound manner, the Sutlej-Yamuna Link Canal Project, in the Punjab
portion/territory and whether the plaintiff (State of Haryana) is entitled G
to the reliefs prayed for against the defendants ?
2. Is the suit not maintainable as contended rn the written
statements?
3. Is the suit barred by limitation ?" H
v·
242 SUPREME COURT REPORTS [2002] I S.C.R.
A Thereafter, parties have filed several documents which have been exhibited
without objection and interrogatories have been served and answered. Plaintiff's
documents Exhibits P-1 to P-26 have been marked on admission of defendant
No. I and documents Exhibits P(D)-1 to P(D)-8 have not admitted by defendant
No. I. The documents filed on behalf of defendant No. 1 Exhibits D-1 to D-
B 9 have been admitted by the plaintiff. Documents Exhibits D(D)-1 to D(D)-5
of the defendant No. I, have not been admitted by the plaintiff. Though
initially an order had been passed to decide Issue Nos. 2 and 3 as preliminary
issues but that order stood modified by the subsequent order dated 5th of
September, 2000, as it was found that the preliminary issues cannot be disposed
of without examining the relevant records and without going into the rival
C contentions in detail.
ISSUE NO. 2:
This issue on the question of maintainability of the suit arises because
of the stand taken by tlie State of Punjab in the written statement. According
D to the defendant No. I, Article 262 of the Constitution is specifically designed,
authorising the Parliament to provide for adjudication of any water dispute
in relation to any inter-State river by making a law in that regard and sub-
Article (2) of Article 262 authorises the Parliament to make law, ousting the
jurisdiction of the Supreme Court or any other Court in respect of any dispute
E or complaint coming within Article 262(1). The Parliament having enacted the
Inter-State Water Disputes Act, 1956 and the said Act having ousted the
jurisdiction of the Supreme Court and any other Court from exercising
jurisdiction in respect of any water dispute, which may be referred to a
tribunal under the Act as provided under Section 11 of the said Act, the
present dispute is not amenable to the jurisdiction of this Court under Article
F 131 and consequently, the suit must fail.
The stand of the State of Haryana, on the other hand is that the dispute
relating to the digging of SYL Canal, pursuant to the earlier agreement between
the parties, cannot be termed to be a dispute, relating to sharing of water of
G a river and, therefore, neither Article 262 of the Constitution nor Section 11
of the Inter-State Water Disputes Act would be a bar for this Court to exercise
jurisdiction under Article 131 of the Constitution. According to Mr. Bobde, ....
the learned counsel appearing for the plaintiff-State, the expression "water
dispute" having been defined in Section 2( c) of the Act, the present dispute
and the relief sought for by the plaintiff, cannot be held to be a water dispute
H and as such the jurisdiction of the Court cannot be held to be ousted.
STATE OF HARYANA v. STATE OF PUNJAB [PATTANAIK, J.] 243
The moot question that requires to be considered in answering this A
issue is whether the dispute in the case in hand, can at all be held to be a
water dispute, as defined in Section 2(c) of the Inter-State Water Disputes
Act? There cannot be any dispute with the proposition that in the event the
present dispute between the two states would come within the definition of
"water dispute" in Section 2(c) of the Act and as such is referable to a tribunal B
under Section 11 of the Act, then certainly the jurisdiction of this Court
would be barred, in view of Article 262 of the Constitution read with Section
11 of the Act. Section 2(c) defines the "water dispute" thus:
"Section 2( c): "water dispute" means any dispute or difference
between two or more State Governments with respect to - C
(i) the use, distribution or control of the waters of, or in any inter-
State river or river valley; or
(ii) the interpretation of the terms of any agreement relating to the
use, distribution or control of such waters or the implementation D
of such agreement; or
(iii) the levy or any water-rate in contravention of the prohibition
contained in Section 7."
E
Out of the three clauses mentioned above, we would be concerned with
clauses (i) and (ii) inasmuch as clause (iii) deals with the levy of water-rate
in contravention of the prohibition contained in Section 7. Clause (i) of
Section 2(c) deals with a dispute concerning the use, distiibution or control
of the waters of, or in any inter-State river or river valley, whereas Clause (ii)
deals with the interpretation of the terms of any agreement relating to the use, F
distribution or control of such waters or the implementation of such agreement.
Essentially, therefore, the dispute would be a water dispute within the meaning
of Section 2(c) when the dispute is in relation to the use, distribution or
control of the waters of any inter-State river or interpretation of the terms of
an agreement, relating to the use, distribution or control of such water or G
implementation of such agreement. The averments in the plaint and the relief
sought for by the State of Haryana is not in any way related to the use,
distribution or control of the water from Ravi-Beas Project. The entire dispute
centres round the question of the obligation on the part of the State of Punjab
to dig the portion of SYL Canal within its territory which canal became
necessary for carrying water from the project to the extent the said water has H
244 SUPREME COURT REPORTS [2002] I S.C.R.
A already been allocated in favour of the State of Haryana under the provision
of the Punjab Reorganisation Act and the subsequent agreement between the
parties. Dr. Dhawan, appearing for the State of Punjab, forcefully argued that
the construction of SYL Canal is inextricably linked to allocation of distribution
of water from Ravi-Beas Project and that being the position, it would be
B difficult to take the dispute out of the purview of the definition of dispute in
Section 2(c). It is in this connection, Dr. Dhawan pointed out the assertions
made in the plaint, wherein it has been averred that portion of Sutlej Yamuna
Link Canal is the lifeline for the farmers of the State of Haryana inter alia for
carrying its share of Ravi-Beas water and the farmers of Haryana would not
be in a position to utilize the full quantum of waters allocated to it. According
C to Dr. Dhawan, the allocation of water of rivers Ravi and Beas is the basis
which necessitate the construction of SYL Canal and its completion and
consequently the two are inextricably inter-linked. Dr. Dhawan also pointed
out to that part of the plaintiffs case where the plaintiff has averred that the
said canal was to receive supply from the Tail end of the Anandpur Hyde!
Channel and the canal must be completed to enable Haryana to draw its share
D of water from the river. He also pointed out to assertions made in paragraph
61 of the plai~t whereunder it had been averred that it is necessary to
complete the SYL Canal, not only for carrying this share but also to serve as
an alternate carrier system for the waters already being drawn by Haryana.
The question whether the dispute raised and the relief sought for is essentially
E a water dispute or not, has to be answered on an analysis of the averments
in the plaint as a whole and it is not possible to consider some averments
in isolation and then come to a conclusion one way or the other. If the plaint
is read as a whole, it appears to us that the State of Haryana has made out
a case that when the State of Haryana was carved-out from the erstwhile State
of Punjab under the provisions of the Punjab Reorganisation Act, the Union
F of India, in exercise of its power under Section 78 of the said Act issued a
Notification on 24th of March, 1976. Under the said notification, taking note
of the fact that the Haryana has large arid tract and several drought prone
areas and the development of irrigation in the State of Haryana is substantially
less as compared to that in the State of Punjab and further the water is needed
G in a large quantity for irrigation in the State of Haryana and there is limited
availability of water from other sources in the said State, the Union Government
allotted 3.5 MAF in favour of the State of Haryana. The said notification
further contained a stipulation that in the event, water in the Beas at Mandi
is more or less in a particular year, the share of the State of Haryana would
be increased or decreased pro-rata. It is nobody's case that water in the river
H Beas has decreased in the meanwhile. The existing canal system not being
STATE OF HARYANA v. STATE OF PUNJAB (PATTANAIK, J.) 245
capable of utilizing 3.5 MAF of water allocated to the State of Haryana, the A
idea of having SYL Canal was mooted and ultimately agreed to. Thus the
construction of SYL Canal is essentially one for the purpose of utilizing the
water that has already been allotted to the share of Haryana and consequently,
cannot be construed to be in any way inter-linked with the distribution or
control of water of, or in any inter-State river or river valley. In the Constitution B
Bench decision of this Court in the case of State of Karnataka v. State of
Andhra Pradesh and Ors., [2000] 9 S.C.C. 572. this Court considered the
provisions of Article 262(2) of the Constitution and Section 11 and Section
2(c) of the Inter-State Water Disputes Act and its impact on a suit filed under
Article 131 of the Constitution. It was held that the question of maintainability
has to be decided upon the averments made by the plaintiff and the relief C
sought for and taking the totality of the same and not by spinning up one
paragraph of the plaint and then deciding the matter. What is necessary to
be found out is whether the assertions made in the plaint filed by the plaintiff-
State and the relief sought for, can be held to be a water dispute, which could
be referred to the tribunal, so as to oust the jurisdiction of the Supreme Court
under Article 131. It must be borne in mind that after allocation of the water D
between the two States in exercise of power under sub-Section (I) of Section
78 of the Punjab Reorganisation Act, 1966 under the notification dated 24th
of March, 1976, it is the State of Punjab, who had sought for a review of the
notification, claiming increased share of water for Punjab and linked the matter
of construction of SYL Canal with the same. While the request of the Punjab E
Government was pending before the Union Government, the State of Haryana
had filed a suit in this Court for a direction to the State of Punjab for
expeditious digging of the Sutlej-Yamuna Link Canal in Punjab territory and
the Punjab Government had also filed a suit, challenging the competence of
the Central Government to make any allocation under Section 78 of the Punjab
Reorganisation Act. During the pendency of these two suits, an agreement F
was arrived at between the two plaintiff States viz. the State of Haryana and
the State of Punjab as well as the State of Rajasthan under the intervention
of the then Prime Minister of India and that agreement was arrived at, on 31st
December 1981. The terms of the agreement were signed by the Chief Ministers
of the three States as well as the then Prime Minister of India. Under the said G
agreement, the mean supply of 17.17 MAF was allocated as under:
Share of Punjab : 4.22 MAF
Share of Haryana : 3.50 MAF
Share of Rajasthan : 8.60 MAF H
246 SUPREME COURT REPORTS (2002) I S.C.R.
A Quantity earmarked for Delhi
Water Supply : 0.20 MAF
Share of J& K : 0.65 MAF
B
Clause (4) of the aforesaid agreement was to the effect:
"(iv) The Sutlej-Yamuna Link Canal project shall be implemented in a
-
time bound manner so far as the canal and appurtenant ~orks in the
Punjab territory are concerned within a maximum period of two
years from the date of signing of the agreement so that Haryana is
enabled to draw its allocated share of waters. The canal capacity for
c the purpose of design of the canal shall be mutually agreed upon
between Punjab and Haryana within 15 days, failing which it shall
be 6500 cusecs, as recommended by former Chairman, Central Water
Commission."
On the basis of the aforesaid agreement between the parties, the two suits
D . that had been filed before this Court were withdrawn and under the agreement,
the notification dated 24th of March, 1976 stood modified to the extent varied
under the agreement. It would thus be appareiit that so far as the State of
Haryana is concerned, the earlier allocation of 3 .5 MAF of the water remained
the same and it became necessary to construct another canal, almost parallel
to the main canal, as the existing canal system was not capable of utilizing
E the allocated share of water to the extent of 3.5 MAF in favour of the State
of Haryana. The order of this Court dated 12th of February 1982 in these two
suits filed, so far as relevant, is quoted herein-below:
" ............ The prayer of the plaintiffs for withdrawal of suits is allowed
and the suits are dismissed as withdrawn in view of the agreement
F dated 31st December, 1981 between the parties to the suits. There will
be no order as to costs."
It is a well known fact that the State of Punjab, soon got plunged into
militancy and it has been averred in the written statement in the present suit
G that the work of construction of canal within Punjab was stopped, when
militants killed a Chief Engineer and a Superintending Engineer. According to
the defendant-State of Punjab, there was severe resentment in the Statei
which culminated in the unfortunate event leading to serious law and order
problem in the said State and ultimately on 24th of July, 1985, an accord was
arrived at between the Prime Minister of India and Sant Harcharan Singh
H Longowal, commonly called the "Punjab Settlement". It is no doubt true that
STATE OF HARYANA v. STATE OF PUNJAB [PATTANAIK, J.] 247
, the aforesaid settlement cannot be said to be a settlement on behalf of the A
-; State of Punjab, as Longowal had no constitutional authority to enter into any
agreement. But the terms of that settlement, more particularly, paragraph (9)
thereof were given effect to, by appointment of a tribunal to be presided over
by a Judge of the Supreme Court. Paragraph (9) of the said accord is extracted
herein below in extenso:
B
"9. Sharing of River Waters
9.1. The farmers of Punjab, Haryana and Rajasthan will continue to
get water not less than what they are using from the Ravi-Beas
system as on 1.7.85 waters used for consumptive purposes will
also remain unaffected. Quantum ofusage claimed shall be verified
c
by the Tribunal referred to in para 9 .2 below.
92 The claims of Punjab and Haryana regarding the shares in their
remaining waters will be referred for adjudication to a Tribunal to
be presided over by a Supreme Court Judge. The decision of this
Tribunal will be rendered within six months and would be binding
D
,. on both parties. All legal and constitutional steps required in this
respect be taken expeditiously.
9.3 The construction of the SYL canal shall continue. The canal shall
be completed by 15th August, I 986."
E
Paragraph (9.1) of the accord reaffirms the share which the States were getting
from the Ravi-Beas system on 1.7.1985. Paragraph (9.2) relates to the claim of
both the States regarding their share in the remaining water which was sought
to be referred for adjudication to a tribunal to be presided over by a Judge
of the Supreme Court and Paragraph (9.3) was in relation to the construction
F
of SYL Canal. The terms and conditions of the settlement contained in
paragraph 9 were recognized by the Parliament and an amendment was inserted
to the Inter-State Water Disputes Act, I 956 by Act 20 of 1986, under which
Section 14 was added to the said Act. Section I 4 with its explanation may be
extracted herein-below in extenso:
G
"Section 14: Constitution of Ravi and Beas Waters Tribunal:-
(1) Notwithstanding anything contained in the foregoing provisions
of this Act, the Central Government may, by notification in the
Official Gazette, constitute a Tribunal under this Act, to be
known as the Ravi and Beas Waters Tribunal for the verification H
248 SUPREME COURT REPORTS [2002] I S.C.R.
A and adjudication of the matters referred to in paragraphs 9. I and
9.2 respectively of the Punjab Settlement.
(2) When a Tribunal has been constituted under sub-section (I), the
provisions of sub-sections (2) and (3) of Section 4, sub-sections
(2), (3) and (4) of Section 5 and Sections SA to 13 (both inclusive)
B of this Act relating to the constitution; jurisdiction, powers,
authority and bar of jurisdiction shall, so far as may be, but
subject to sub-section (3) hereof, apply to the constitution,
jurisdiction, powers, authority and bar of jurisdiction in relation
to the Tribunal constituted under sub-section (I).
C (3) When a Tribunal has been constituted under sub-section (I), the
Central Government alone may suo motu or at the request of the
concerned State Government refer the matters specified in
paragraphs 9.1and9.2 of the Punjab Settlement to such Tribunal.
Explanation : For the purposes of this section, "Punjab Settlement"
D means the Memorandum of Settlement signed at New Delhi on the
24th day of July, 1985."
The Parliament itself, therefore, under Section 14(3) unequivocally indicated
that a tribunal having been constituted under sub-section (I) of Section 14,
the matters specified in paragraphs 9.1and9.2 of the Punjab Settlement could
E be referred to by the Central Government suo motu or at the request of the
concerned State Government but not the matters specified in paragraph 9.3
which relates to the construction of SYL Canal. The expression "Punjab
Settlement" has been defined in the explanation to mean the Memorandum of
Settlement signed on 24th of July, 1985. In the teeth of the legislation referred
to above, it is difficult for us to accept the contention of Dr. Dhawan,
F appearing for the State of Punjab that the so-called Settlement of 24th of July,
1985 is nothing but a piece of paper without any sanctity and is not enforceable.
Pursuant to the provisions contained in sub-section (1) of Section 14, a
tribunal has been constituted and the dispute in relation to the additional
share of water from the Ravi-Beas Project and its allocation between the
G States of Punjab and Haryana has been referred to the tribunal, which has
passed an interim Award and no final decision has been given. The Parliament,
therefore, having referred the matters of dispute under paragraphs 9.1 and 9.2
to a tribunal under the Inter-State Waters Disputes Act and refraining from
referring the dispute of construction of SYL Canal contained in paragraph
9.3 of the Settlement, is indicative of the fact that the construction of the
H SYL Canal has absolutely no connection with the sharing of water between
STATE OF HARYANA v. STATE OF PUNJAB (PATTANAIK, J.] 249
the States and as such is not a "Water Dispute" within the meaning of Section A
2(c) and consequently the question of referring such dispute to a tribunal
does not arise. In this view of the matter, howsoever wide meaning the
expression "water dispute" in Section 2(c) of the Inter-State Water Disputes
Act be given, the construction of the canal which is the subject matter of
dispute in the present suit cannot be held to be a "water dispute" within the B
meaning of Section 2(c) of the Act and as such, such a suit is not barred
under Article 262 of the Constitution read with Section 11 of the Inter-State
Water Disputes Act. The aforesaid issue must be answered against the
defendant and in favour of the plaintiff State.
ISSUE NO. 3:
c
Though this issue had been framed because of the stand taken by the
defendant No. I in the written statement, but in course of hearing of the suit,
Dr. Dhawan, appearing for the State of Punjab did not ~eriously press the
same. It is also apparent from the written submissions filed on behalf of the
said defendant No. 1, wherein as many as seven submissions have been D
enumerated in paragraph 1.5 of Part-A and the question of limitation had not
been raised therein.
Mr. Bobde, the learned counsel, appearing for the plaintiff, however
urged that though Article 112 of the Limitation Act relating to suits by or on E
behalf of the Central Government or any State Government is 30 years but the
suits filed before the Supreme Court are specifically excluded from the purview
of the same. According to Mr. Bobde, Legislature, in its wisdom, left matters
• of limitation to be prescribed by the Court and this Court in turn, though
provided a period of limitation in Part Vlll, Order XL(2) and also so far as
applications on certificate by the High Court are concerned under Order XV(2) F
but did not provide any limitation for suits under Article 131, possibly because
such matters are usually of grave public importance. Mr. Bobde also urged
that there has been no delay or )aches on the part of Haryana in approaching
this Hon'ble Court in view of the fact that cause of action is a continuous
one and even continued till date, as averred in the plaint. ·
G
In our considered opinion, the present suit cannot be thrown away,
either on the ground of limitation or laches on the part of the plaintiff in
approaching the Court, but we are not required to make an in-depth inquiry
on the question of limitation, since the defendant- State of Punjab did not
press the issue seriously. This issue accordingly is answered in favour of the H
250 SUPREME COURT REPORTS (2002] I S.C.R.
A plaintiff and against the defendant No. I.
ISSUE NO. I:
This issue which in fact is the main issue and which covers within itself
all the arguments, both in favour and against, requires a thorough scrutiny
B of the materials on record and an in-depth study of the rival submissions
made on behalf of the parties. Before we embark upon an inquiry on this
issue, we think it appropriate to notice at this stage, that when the arguments
were closed on 9th August, 2001, we passed the following order:
"This suit by the State of Haryana is for issuance of a mandatory
...
c injunction to the State of Punjab and/or the Union of India (UOI) to
complete construction of the unfinished SYL canal. In the written
statement filed by the Union of India, there is a positive averment that
construction of SYL canal is solely the responsibility of the Government
of Punjab and the Union of India has made all efforts including
financial assistance to the State of Punjab for early completion of the
D canal and further the Government of India will continue to play its role
with the settlement of the disputes between the two States. In course
of his submissions, learned ASG appearing for the Union of India _on
instructions states, that the UOI is still willing to negotiate for arriving
at a settlement between the two States. In view of the several
E agreements between the two States, at the intervention of the Prime
Minister of India, and the SYL canal having been substantially
completed for which more than Rs. 600 crores of tax-payers' money
has been spent and in view of offer made by the learned ASG, we
observe that notwithstanding hearing of the suit and keeping it ..
reserved for judgment, the Union Government through the Ministry
F of Water Resources and with the blessings of the Prime Minister may
continue the negotiations with the Chief Ministers of the two States,
namely, Punjab and Haryana and we hope that if the Prime Minister
intervenes with right earnest, then the dispute with regard to the
construction of canal could be amicably settled and the Court will not
G be required to issue any order either way. The so-called settlement,
if any, may be made within four weeks from today and if any settlement
is arrived at then the same may be intimated to the Court. A copy of
our order may be handed over to the learned ASG."
"' -
Having waited for the period of four weeks, when no intimation was received
H from the Union of India, we have proceeded to the judgment painfully, as in
STATE OF HARYANA v. STATE OF PUNJAB [PATTANAIK, J.] 251
~
our view, it was indeed for the Central Government to see that the canal is A
>j
excavated and the recalcitrant State should have been prevailed upon. In a
semi-federal system of Government, which has been adopted under the Indian
Constitution, all the essential powers, both legislative and executive, have
been conferred upon the Central Government. True Federalism means the
distribution of power between a Central Authority and the Constituent Units.
Dicey's concept of federalism is a national constitution for a body of States,
B
which desire union and do not desire unity. According to him, a federal State
is a political contrivance intended to reconcile national unity and power with
,_ the maintenance of State rights. The essence of a federation is, therefore,
existence of a Union and its States and the division of power between the
Union and the States. If the component parts of a State have no power of c
policy decision in any field, but are confined to carrying out Central Government
directives through the medium of an institutional fabric of federal form, it is
not a federal but a unitary State. Political integrity of the Union and each State
seems to be essential to the federal concept. Authors, therefore, described
our Government to be one federal in structure but somewhat unitary in spirit.
Constitution of India, defines the political authority, locates the sources of D
political power and indicates, how the power has to be exercised, setting out
the limits on its own use. Our constitution is more than fifty years old and
during this half century, several developments have taken place, which have
moulded the working of the Constitution and brought out several difficulties
in its working and has provoked a number of controversies. In the pre- E
independence politics in this country, the Congress Party was committed to
secure more powers for the provinces. But soon after independence, the
political scenario changed and the need for power sharing devices was
subordinated to the imperatives of State's security and stability. Weakness
and lack of confidence propelled the thrust towards centralisation. Unity of
the country was perceived as a paramount need. The partition of the country F
and the events that followed in its aftermath, were events between
1 commencement and completion of work of the Constituent Assembly. These
events have left indelible imprint in several of its provisions, including the
scheme of distribution of legislative power. The second Report of 5th July,
1947 of the Union Constitution Committee having taken note of the facts then
G
=- "' prevalent, unequivocally recorded that weak Centre would be injurious to the
interests of the country. The said Report states:
"We have accordingly come to the conclusion-a conclusion which
was also reached by the Union Constitution Committee-that the
soundest framework for our Constitution is a federation with a strong H
252 SUPREME COURT REPORTS [2002) I S.C.R.
A Centre."
It is in this context, Mr. Bobde, appearing for the plaintiff-State of Haryana
urged that if a State does not abide by the discipline of the Constitution and
-
goes to the extent of flouting its basic structure, it is the duty of the Union
of India to set things right and where the Union fails in its duty, the Supreme
B Court must intervene to correct the situation. According to the learned counsel,
if balance of our federalism is upset by a recalcitrant State which proceeds
to act as if it has no obligations to other States or to the nation as a whole
and the Union remains a mute spectator either for the Jack of political will or
any reason whatever, then the Supreme Court will have to step in and preserve
C the basic feature offederalism. According to the learned counsel, the principle
of "co-operative" federalism has been accepted in all modem democracies and
we in India have a strong unitary tilt in the Constitution, where unlike the
United States of America, the Constitution points to the primacy of the Union.
The learned counsel further urged that Constitution has conferred power on
the Parliament to alter the boundaries and territories of all States and the
D Union can never allow secession. It is further imperative that in every matter
that concerns the interests of the nation, the Union has to ensure that the
Constitution is faithfully observed in letter and spirit by the States. Mr. Bobde
urged that the Union cannot allow any State to act in a manner that is hostile
towards another State or the Union nor would allow a State to renege on its
E commitments. Mr. Bobde went a step ahead to urge that the State represents
its inhabitants. If the rights of the inhabitants under the Constitution gets
adversely affected by any action or inaction of another State or the Union,
then those rights are enforceable. According to the learned counsel, the need
of the State of Haryana to have SYL Canal being for the purpose of utilizing
the quantity of water that has already been allocated in its favour by the
F Government of India under the provisions of the Punjab Reorganisation Act
and the State of Haryana has no other source to get water and which was
a part of the State of Punjab prior to its formation, any denial to get the
allocated quantity of water for being utilized in the State of Haryana would
be a deprivation of their rights under Article 21 and the State has been
G compelled to file the suit mainly because the mighty Union with all its
power under the Constitution as well as the power derived from the citizens
of the country, has failed to discharge its constitutional obligation either in
persuading the recalcitrant State of Punjab to get the canal dug and failing
persuasion, to get it executed otherwise.
H Dr. Dhawan, appearing for the State of Punjab in this connection
STATE OF HARYANA v. STATE OF PUNJAB [PATTANAIK, J.] 253
submitted that the digging of SYL Canal is highly sensitive political issue, A
connected to the conditions of turmoil and uncertainty which prevailed in the
State of Punjab as already stated in the written statement. According to him
ever-since the day of inauguration of digging of canal by the then Prime
Minister Mrs. Indira Gandhi, the farmers of Punjab boiled with resentment and
physically interfered with the digging of canal. Such popular resentment still B
prevailed in the State of Punjab which culminated in the unfortunate event
leading to serious Law and Order problem in the State of Punjab. The simmering
discontentment which prevailed amongst the people of Punjab, got further
aggravated on account of the so-called settlement signed by the then Prime
... Minister oflndia and Late Sardar Harcharan Singh Longowal on 24.7.1985 and
even the forcible digging of canal was ultimately stopped. This being the C
position, it would not be in the interest of any concern or in the interest of
the nation to issue any direction for digging of the canal. According to the
learned counsel, India no-doubt has a strong centralized centripetal system,
which can bring recalcitrant States into line by a combined use of Articles 355
and 365, but the Indian Federal system is also based upon certain admitted
features like territorial vulnerability; empowerment to the Union; State D
autonomy; A complex set of institutions and process to resolve disputes and
enable governance; and the judiciary's inclusion and exclusion from many
areas depending on the nature of the issue. Federalism no-doubt is the part
of the basic structure of the Constitution and the processes which are
specifically designated by the Constitution for specific purposes. According E
to Dr. Dhawan, India's federal system was devised to enable a wide range of
distribution of powers, directions, schemes, contractual and non-contractual
agreements, in order to facilitate governance. Within this scheme, the judiciary
especially the Supreme Court plays an important role in matters for interpretation
and adjudication. But not all aspects of these arrangements were deemed to
be legally enforceable or regarded as judicially manageable. According to the F
learned counsel, some areas of judicial unmanageability are delineated in the
Constitution itself. Bearing in mind, the aforesaid principles and taking into
account the claim made by the State of Haryana, it must be said that the
entitlements of Haryana cannot be treated as private law entitlements with
private implications but only as public entitlements with public implications, G
including the social, economic, political and security implications and, therefore,
the Court would be well advised, not to issue any direction in relation to the
digging ofSYL Canal.
Having regard to the submissions made by the counsel appearing for
the two neighbouring States, wh.<> are fighting tenaciously like two adjacent H
y
254 SUPREME COURT REPORTS [2002] I S.C.R.
A owners and when the Union Government is keeping silence over the matter,
as is apparent from the fact that notwithstanding our order on the close of
the arguments, there has been no intimation to us from the Union Government
through its counsel learned Additional Solicitor General, we will be failing in
our duty if we do not notice faithfully what transpired in course of hearing.
B Initially, to our query as to the role and the stand of the Union Government,
the counsel who was appearing for the Union Government, candidly stated
that the Union has no role to play in the dispute between the two states and
such a stand on the part of the Union Government would not be appreciated
by the Court while hearing the matter. It is only when the Court expressed
its disapproval to the stand taken by the Union Government, learned Additional ...
C Solicitor General appeared and initially prayed for an adjournment of hearing
of the suit so as to enable the Union government to play its role effectively.
As we had already started hearing of the suit and had by then heard for a
considerable period, when we found it not possible to adjourn the matter, we
heard learned Additional Solicitor General and then at the conclusion of the
D hearing, passed the order, which we have already quoted earlier. But nothing
appears to have happened, and to us, it appears that in the controversy
between the two states, the Union Government is feeling embarrassed to take
any positive decision, which in our view is not in the interest of the.nation.
The founding fathers of the Constitution, advocated for a strong Central
Government, so that there would not be any disintegration of the States and
E the Central power would be able to keep the States within its limits and will
be able to force the States, in the matter of good governance of the States,
which would benefit the inhabitants of the States, the inhabitants of the
neighbouring States and the country as a whole.
Within India, the Indus basin lies in Jammu and Kashmir, Himachal
F Pradesh, Punjab, Haryana and Rajasthan. Most of the basin in Pakistan lies
in North-West Frontier Province, namely Punjab and Sind. According to the
pre-1947 political sub-divisions, the Indus basin in India comprised the
British Provinces of the Punjab, N.W.F.P. and Sind, as well as the then
princely States of Jammu and Kashmir, Patiala, Nabha, Faridkot, Jind,
G Kapurthala, Bikaner, Bahawalpur, Jaisalmer, Khairpur, Bilaspur, Mandi,
Chamba and several other small States in the Punjab hills, the North-West
Frontier States and tribal areas, together with parts of the British Province
of Baluchistan and of the Indian States of Jodhpur and Jaipur. Approximately
46 million people lived in this basin in 1947 with agriculture as the pivot
of their economy. The Northern and Western boundaries of the Indus basin
H are clearly marked by mountains and hills; towards the south, however the
STATE OF HARYANA v. STATE OF PUNJAB [PATTANAIK, J.] 255
limits of the basin are relatively obscure. The north-west mountain wall, A
comprising the Himalayan ranges and Siwaliks, has a great influence on the
physiography of the Indus region and the hydrology of the region. The
partition between India and Pakistan in 194 7, which created a new political
boundary in fact cut across the Indus system of rivers and canals from which
26 million acres of irrigated agriculture had already been established and B
from which rivers many million acres of arid lands were still waiting to be
developed in tum. The Indus basin, a geographical entity, as patent as
anywhere else in the world, was divided between two henceforth sovereign
nations. Several proposals for sharing of water had been mooted, but
) ultimately the proposal for a partition with a territorial division of rivers,
giving to India the exclusive use of the three Eastern Rivers (Sutlej, Beas C
and Ravi) and to Pakistan the use of the waters of the three Western Rivers
was accepted, and an Indus Water Treaty was entered into between India and
Pakistan. Government of India had to pay a contribution which was fixed
at 62.5 million Pounds to Pakistan. Development of river water resources for
purposes of irrigation and generation of hydro-electric power has been
progressing steadily since independence. Many multi-purpose river valley D
schemes have been executed on interstate rivers. Jn many of these projects
the States have cooperated in jointly developing the river concerned in an
integrated manner, thus deriving the optimum benefits out of a river. But
notwithstanding the same the existence of friction amongst the States, through
which river flows continues and such friction between two States or two or E
more States has been continuing on account of lack of political will at the
central level to deal with the problem with determination. The lack of
interstate cooperation is the main factor leading to such dispute for sharing
the water of a river. Even as between two States Punjab and Haryana, which
at one point of time constituted only a single State, the dispute for additional
allocation of water from this Ravi Beas basin is still pending un-resolved F
before a Tribunal, which had been constituted way back in the year 1986
in pursuance to the so-called 'Longowal Agreement'. We are not concerned
in the present suit with regard to the Award that has been passed by the said
Tribunal on 30th January, 1987; but we are certainly concerned with the
continuance of such a Tribunal presided over by a retired Judge of this G
Court, who is sitting idle as the other members of the Tribunal had not been
appointed or for some other reason, and continuance of such a Tribunal has
become a source of drainage from the public exchequer without getting any
return. It transpires, after the Tribunal passed the Award on 30th January,
1987, an application under Section 5(3) of the Interstate River Water Disputes
Act was filed by the State of Punjab on 19th August, 1987, and no final H
256 SUPREME COURT REPORTS (2002] I S.C.R.
A decision has been taken on that application as a result of which the Central
Government has not published the decision of the Tribunal in the Official
Gazette, as required under Section 6 of Interstate River Water Disputes Act.
We really fail to understand why such a high powered Tribunal supposed to
decide a water dispute, referred to it, between the States of Punjab, Haryana
B and Rajasthan in relation to use, distribution or control of extra water from
the Ravi Beas system, which Tribunal in terms of paragraphs 9.1and9.2 of
Longowal Agreement dated 24th July, 1985, would be permitted to just sit
idle and why the Central Government in the appropriate Ministry has not
bestowed any attention for the proper functioning of such Tribunal. A Judge
by virtue of his training, always acts in a manner so as to avoid public
C criticism for his conduct. A retired Supreme Court Judge, who has been ...
appointed as the Chairman of a Water Disputes Tribunal, would certainly not
like to sit idle at the cost of huge drainage from the public exchequer and
even otherwise, it would be beneath his dignity to continue as Chairman,
without doing any work. The manner in which this Tribunal headed by a
retired Judge of the Supreme Court has been allowed to continue, has already
D been a matter of severe public criticism. To avoid any further embarrassment
and criticism we expect that the Central Government would do well in filling
up the vacancies in the Tribunal and the Tribunal also would do well in
concluding the proceeding before it, as expeditiously as possible.
E Coming to the question of construction of SYL canal, it appears that
way back in January 29, 1955 in a meeting called by the Government of India
of all the concerned States a decision had been taken, allocating 5.90 MAF
in favour of undivided State of Punjab. We are not concerned with the
allocation made in favour of other States, like, Rajasthan, Kashmir and Pepsu.
Several projects had been taken like Madhopur Beas Link, Madhopur Head
F works with the idea that the water from river Beas is diverted and is available
for the utilisation to the States of undivided Punjab and Rajasthan at Harike.
The Government had also proposed Beas Project Unit I and Unit II which
comprised of Beas Sutlej Link and this project had started much before
reorganisation and division of the undivided Punjab. Since no river was
G flowing within the State of Haryana and the State had no other water resources,
even before the creation of the Haryana Development Committee had been set
up, which Committee had submitted its report recommending the surplus Ravi
Beas water for Haryana region, as is apparent from Exhibit-P/21. The undivided
State of Punjab was bifurcated into two States of Punjab and Haryana with
effect from 1.11.1966, under the Parliamentary Act, called 'The Punjab
H Reorganisation Act, 1966. Under the Parliamentary Legislation a provision
STATE OF HARYANA v. STATE OF PUNJAB [PATTANAIK, J.) 257
had been engrafted providing that rights and liabilities of the existing State A
of Punjab in relation to Bhakra Nangal Project and Beas Project, shall on the
appointed day, be the rights and liabilities of successor State in such proportion,
as may be fixed and subject to such adjustment, as may be made by an
agreement entered into by the said States, after consultation with the Central
Government, or if no such agreement is entered into within two years of the B
appointed day, as the Central Government may by order determine having
regard to the purposes of the projects. The aforesaid Section of Punjab Re-
organisation Act stipulated that the order so made by the Central Government
could be varied by any subsequent agreement entered by the successor State
after consultation with the Central Government. In exercise of the aforesaid
power, the Government of India in the Ministry of Irrigation, determined the C
rights and liabilities in relation to the Beas Project as the two States, namely,
Punjab and Haryana could not reach an agreement and a Notification was
issued on 24th March, 1976. It would be appropriate at this stage to extract
a portion of the aforesaid Notification for better appreciation of the controversy
in issue:-
D
"NOW THEREFORE, in exercise of the powers conferred by sub-
section (I) of section 78 of the Punjab Re-organisation Act, 1966 (31
of I966), the Central Government hereby makes the following
determination, namely:-
E
Taking note of the facts that Haryana has large arid tract and also
several drought prone areas and the present development of irrigation
in the State of Haryana is substantially less as compares to that in the
State of Punjab, and further taking into consideration that
comparatively large quantity of water is needed for irrigation in the F
State of Haryana and there is limited availability of water from other
sources in the State, the Central Government hereby directs that out
of the water which would have become available to the esrtwhile State
of Punjab on completion of the Beas Project (0.12 MAF whereof is
earmarked for Delhi Water Supply), the State of Haryana will get 3.5 G
MAF and the State of Punjab will get the remaining quantity not
exceeding 3.5 MAF. When further conservation works on the Ravi are
completed, Punjab will get 3.5 of 7.2 MAF which is the share of the
erstwhile State of Punjab. The remaining 0.08 MAF, out of 7.2 MAF
is recommended as additional quantum of water for Delhi water supply
for acceptance by both the Governments of Punjab and Haryana. H
(
258 SUPREME COURT REPORTS [2002] I S.C.R.
A AND WHEREAS the above allocation on completion of the Beas
Project is based on the 1921-45 flow series corresponding to availability
of 11.24 MAF in the Beas at Mandi Plain (after allowing for 1.61 MAF
as pre-partition uses) and the availability of 4.61 MAF in the Ravi
after allowing for pre-partition uses and losses in the Madhopur Beas
Link.
B
AND WHEREAS the fluctuations in the Ravi flow have a very
small effect on the availability of water on completion of the Beas
Project;"
..,
C Even prior to the aforesaid Notification issued by the Government of ..
India the concept of having SYL Canal had already emerged, which is apparent
from Exhibit P-17, a communication from the Government of Haryana to the
Central Government dated October 21, 1969. The relevant paragraphs from the
aforesaid communication, Exhibit P-17 are quoted hereunder :-
D "6. It is also important to point out that Haryana Government have
prepared a scheme linking Sutlej basin with Western Yamuna Canal
basin for utilising its share of 4.8 MAF when the same is harnessed
after the completion of the Beas Sutlej Link by 1973-74. The Project
estimate was submitted to the Government of India, Ministry of
E Irrigation and Power of scrutiny and approval. The Government of
India have intimated that the allocation of Ravi-Beas waters may be
got finalised before the Scheme is taken up for scrutiny.
7. The Haryana State can have its share out of the Ravi-Beas waters
only through Bhakra and it would be a pity if the State is not in a
F position to utilise its share of waters for want of adequate links. The
proposed scheme is, therefore, very vital for Haryana and accordingly
the entire provision for the Scheme costing Rs.27 crores has been
recommended by the State Government for being spent during th-;:
Fourth Five Year Plan. It is accordingly very essential that the allocation
of 7.2 MAF to erstwhile Punjab State is apportioned between the two
G
successor States without any loss of time so that this State may be
able to execute the afore-mentioned major scheme during the 4th Five
Year Plan.
8. Since the two successor States have not come to an agreement/
H decision in the matter, it is requested that the matter may be decided
' .....
I
STATE OF HARYANA v. STATE OF PUNJAB [PATTANAIK, J.] 259
under Section 78 of the Punjab Re-organisation Act, 1966 wherein the A
Government of India take a decision after the stipulated period of two
years which expired on 1.11.1968."
On the demand of the State of Haryana the Central Government appointed a
high level Committee of experts in April 24, 1970, under Exhibit P-18 and the
said Committee submitted a report in February 1971 under Exhibit P(D)-3 B
J recommending 3.782 MAF to Haryana and 3.087 MAF to Punjab. But that
recommendation was referred by the Planning Commission to the Chairman,
Central Water and Power Commission Shri Y.K. Murthy under Exhibit P-19 and
Shri Murthy had submitted a report introducing a concept of "divisible pool"
but finally the Government of India made the determination by issuing a C
Notification on 24th March, 1976, as already stated. The State of Haryana
could draw its share in the surplus Ravi-Beas waters from Bhakra Nangal
complex on the river Sutlej where the supplies of Ravi and Beas are available
and that is why the proposal for construction of SYL Canal had been mooted,
part of the canal being in the State of Punjab. The State of Haryana all along
has been insisting for the completion of SYL canal and has been requesting D
the State of Punjab and the Central Government reiterating inter alia that the
..,.
large arid tract of Haryana and several drought prone areas would need water
badly and, therefore, unless the allocated share of water is allowed to be
diverted by digging an additional Link canal, as the existing main line canal
will not be in a position to get the water allocated to Haryana, for being E
utilised through the said canal. Though the State of Haryana started
constructing the canal within its territory in 1976 and completed the same by
June 1980, and a huge amount has been spent on that score but the construction
of canal within the territory of Punjab was a non starter. When the persuation
on the part of the State of Haryana failed they filed a suit in this Court, which
was registered as Suit No. I of I 979 for implementation of the order of the F
Union Government dated 24th March, 1976 and for the construction of SYL
Canal within the territory of Punjab within a period of 2 years. As a counter
blast to the aforesaid suit the State of Punjab also filed a suit in this Court,
which was registered as Suit No. 2 of 1979, challenging the validity of the
order of Government of India dated 24th March, 1976 and also challenging G
the validity of Section 78 of the Punjab Re-organisation Act, 1966. While two
suits were pending in this Court an agreement was arrived at between the
States of Haryana, Punjab and Rajasthan in the presence of the Prime Minister
of India on 31st December, 1981, vide Exhibit P-2 and on account of the
aforesaid agreement the Suits filed by the two States stood withdrawn by
order dated 12th February, 1982. At this stage, it would be appropriate to H
260 SUPREME COURT REPORTS [2002] I S.C.R..
A extract the relevant portions of the agreement Exhibit P-2 as well as the order
of this Court dated 12th February, 1982.
Exhibit P-2 - WHEREAS the Punjab Government sought a review of
-
the aforesaid notification for increasing the allocation of Punjab and
linked this matter to the construction of the Sutlej-Yamuna Link Canal
B for Haryana in Punjab territory and,
WHEREAS the Government of Haryana filed a suit in the Supreme
Court praying inter-alia that a directive be issued to Punjab for
expeditiously undertaking construction of the Sutlej Yamuna Link
Canal in Punjab territory and for declaring that the notification of the
c Government of India allocation of the waters becoming available as a
result of the Beas Project issued on 24th March, 1976, is final and
binding;
xxx xxx xxxxxx
D "Now, therefore, we the Chief Ministers of Haryana, Rajasthan and
Punjab keeping in view the overall National interest and desirous of
speedy and optimum utilisation of waters of the Ravi and Beas Rivers
and also having regard to the imperative need to resolve speedily the
difference relating to the use of these waters in a spirit of give and
E take do hereby agree as under :-
(iv) The Sutlej-Yamuna Link Canal Project shall be implemented in a
time bound manner so far as the canal and appurtenant works in
the Punjab territory are concerned within a maximum period of
two years from the date of signing of the agreement so that
Haryana is enabled to draw its allocated share of waters. The
F
canal capacity for the purpose of design of the canal shall be
mutually agreed upon between Punjab and Haryana within 15
days, failing which it shall be 6500 cusecs as recommended by
former Chairman, Central Water Commission.
Regarding the claim of Rajasthan to convey 0.51 MAF of water through
G Sutlej-Yamuna Link Bhakhra system, Secretary, Mil)istry oflrrigation,
Government of India will hold discussion with Punjab, Haryana and
Rajasthan with a view to reaching an acceptable solution. These
discussions shall be concluded in a period of 15 days from the date
of affixing signatures herein and before the work starts. If no mutually
H acceptable agreement is reached, the decision of Secretary, Ministry
STATE OF HARYANA v. STATE OF PUNJAB [PATTANAIK, J.] 261
of Irrigation to be given within this period shall be binding on all the A·
= parties. In case it is found necessary to increase the capacity of
Sutlej-Yamuna Link Canal beyond that decided under above sub-para
in any or entire reach thereof, the States concerned shall implement
the link canal in a time bound manner with such increased capacity
at the cost of Rajasthan Government.
B
The differences with regard to the alignment of the Link Canal and
appurtenant works in the Punjab territory would be discussed by the
Haryana and Punjab Governments who should agree to mutually
) acceptable canal alignment in Punjab territory including appurtenant
works within a period of three months from the date of signing of this C
agreement. If however, the State Governments are unable to reach
complete agreement within this period the matter shall be decided by
the Central Government within a period of two weeks. Both the State
Governments shall cooperate fully to enable Central Government to
take timely decision in this regard. The decision of the Central
Government in this matter shall be final and binding on both the D
Governments and the Canal and appurtenant works in Punjab territory
shall be implemented in full by Punjab Government. However, work on
the already agreed reaches of the alignment would start within fifteen
days of the signing of the agreement and work within the other
reaches immediately after the alignment has been decided, Haryana E
shall provide necessary funds to the Punjab Government for surveys,
investigations and considerations of the Link Canal and appurtenant
works in Punjab territory. Whereas a result of acquisition of land,
extreme hardship is caused to families the Punjab Government shall
forward to the Haryana Government suitable proposals for relieving
hardship in line with such schemes in Punjab undertaken in respect F
of similar Canal works in Punjab territory. The Haryana Government
shall arrange to bear the cost of such proposals. In the event, however,
of any difference of opinion arising on the question of sharing such
cost, the parties shall abide by decision of the Secretary, Ministry of
Irrigation, Government of India. The progress of the work shall not, G
however, be delayed on this account. The Central Government will be
requested to monitor the progress of the work being carried out in
Punjab territory.
(v) The Agreement reached in Paras (i) to (iv) above shall be
implemented in full by the Government of Haryana, Rajasthan H
f
262 SUPREME COURT REPORTS [2002] I S.C.R.
A and Punjab. If any signatory State feels that any of the provisions
of the Agr~ement are not being complied with, the matter shall
be referred to the Central Government whose decision shall be
binding on all the States. In this respect the Central Government
shall be competent to issue such directions or take such measures
as may be appropriate and ensure such compliance.
B
(vi) The suits filed by the Government of Haryana and Punjab in the
Supreme Court would be withdrawn by the respective
Governments without any reservations whatsoever but subject
to the terms of this agreement.
•
c (vii) The notification of the Government oflndia allocating the waters
becoming available as a result of the Beas Project issued on
24th March, 1976, and published in the Gazette of India, Part II,
Section (ii) as well as the 1966 Agreement stand modified to the
extent by this Agreement and shall be in force as modified herein.
D
In case of any difference on interpretation of this Agreement, the
matter will be referred to the Central Government whose decision shall
be final."
Order dated February 12, 1982:-
E
"In these suits, the plaintiffs namely, Government of Punjab and
Haryana have filed petitions for withdrawal of suits as the dispute
between the States have been settled between the parties and they
are permitted to withdraw the suits in view of the agreement dated
31st December, 1981 between the plaintiffs and the State ofRajasthan.
F The applications for withdrawal have been made on the basis of the
agreement dated 31st December, 1981 reached between the aforesaid
parties.
A number of applications to intervene and impleading parties to
the suits have been made, but these applications have been made by
G the private parties who have absolutely no locus to appear in the
suits. This matter has now been concluded by the decision of this
...
Court in (1978] 1 SCR I State of Rajasthan and Ors. etc. etc. v. Union
of India etc. etc. which followed an earlier decision of this Court in
[1970] 2 SCR 522 State of Bihar v. Union ofIndia and Anr. Moreover,
H the plain language of Article 131 of the Constitution clearly shows
STATE OF HARYANA v. STATE OF PUNJAB [PATTANAIK, J.] 263
that this Court has only a limited jurisdiction to hear suits filed by the A
States interse or suits between States and Union Government. Article
131, therefore, does not contemplate any other party to be heard or
to intervene in the matter. For these reasons, therefore, the applications
for intervention and imp leading parties are rejected. The prayer of the
plaintiffs for withdrawal of suits is allowed and the suits are dismissed B
as withdrawn in view of the agreement dated 31st December, 1981
between the parties to the suits. There will be no order as to costs".
It may be stated at this stage that this agreement dated 31st December, 1981,
which resulted in increase in the share of water to Punjab, while keeping the
share of Haryana unchanged was very much appreciated by the Government C
of Punjab, as is apparent from Exhibit P-14. Between I 982 to 1985, the SYL
Canal within the territory of Punjab was constructed and a major portion had
been completed. Subsequent to the insurgency in the State of Punjab and the
operation 'Blue Star' by the Government of India, the State of Punjab wa~ in
turmoil. However, under the persuasion of the then Prime Minister of India
Late Raj iv Gandhi, the then President of Shiromani Akali Dal, Sant Harcharan D
Singh Longowal entered into an agreement commonly known as "Punjab
Settlement". Exhibits P3 and P14 and Paragraph 9 of the said agreement were
in relation to sharing of river waters. It is significant to notice that while
paragraphs 9.1and9.2 relating to the sharing of water from Ravi-Beas system
were required to be referred for adjudication to a tribunal, to be presided by E
a Judge of the Supreme Court, paragraph 9.3 unequivocally indicated that
construction of SYL Canal shall continue and shall be completed by 15th of
August, I 986. It is true, as is contended by Dr. Raj iv Dhawan that the
aforesaid agreement was entered into by Sant Harcharan Singh Longowal, the
then President of the Shiromani Akali Dal and as such, has no constitutional F
sanctity to bind the State of Punjab. But having regard to the fact that in
terms of paragraphs 9.1 and 9.2, a Tribunal was constituted and even the
provisions of the Inter-State Water Disputes Act were amended, thereby
granting Parliamentary recognition to the so-called agreement, the terms of
the said agreement cannot be thrown out as a piece of paper only. The
Tribunal, as stated earlier, submitted its report on 30th.of January, 1987 and G
even though the construction of canal was not a matter of reference to the
Tribunal, but yet the Tribunal took notice of the fact that the SYL Canal
construction is complete within the State of Haryana and is under construction
in the Punjab area and it also noticed the fact that this canal is the lifeline
for the farmers of Haryana and unless it is expeditiously completed, Haryana H
264 SUPREME COURT REPORTS [2002) I S.C.R.
A will not be in a position to utilize the full quantum of water allocated to it
hereunder. The experession 'hereunder' obviously refers to the extra allocation >
of water under the award of the Ravi-Beas Tribunal, which award has not yet
been notified. But at the same time, the importance of the canal even for full
utilization of the water that has been already allocated in favour of Haryana,
B cannot be minimised in any way. It is an admitted fact that for construction
of Punjab portion of the SYL Canal, more than Rs.560 Crores have already
been spent, as is apparent from Exh. P-13 and the entire money has been paid
by the Govt. of India. It is indeed a matter of great concern that while huge
amount of public exchequer has been spent in the construction of the canal "
C and only a few portion of the canal within the territory of Punjab has not been
dug, the canal is not being put to use on the mere insistence of the State of
Punjab. The attitude of the State of Punjab to say the least, is wholly
unreasonable dogmatic and is against the national interest. It is equally a
matter of great concern for this Court that the Central Government is taking
an indifferent attitude in the matter and is only trying to while away the time,
D even though continues to pay the State of Punjab substantially, even for
maintenance of the operation of canal that has already been dug. From the
record, it transpires that in February, 1991, the Prime Minister of India had
convened a meeting of the concerned authorities of the States of Haryana and
Punjab, in which meeting certain decisions had been taken, including a decisioh
E to employ the mobilisation of the officers of Border Road Organisation, but
even that decision could not be implemented and the Chief Minister of
Haryana had been reminding the Prime Minister of India by writing letters,
seeking intervention of the Prime Minister for completion of the Punjab
portion of the canal. Whi•.e the matter stood thus, a news item having appeared
F in a Delhi Newspaper, indicated that the Punjab Chief Minister had rejected
any move to start reconstruction of the SYL Canal, the State of Haryana was
compelled to file the present suit. In a matter like this, it is true that a decree
of a Court in either way is not that effective, as it is the political will of the
authorities and the will of the people that matters. But at the same time when
G the political authority becomes dogmatic, unreasonable and indicates an
attitude of irresponsible nature and when the Court finds that nothing is
moving even though there has been a large-scale drainage of public exchequer
and that the decision to have the canal had been reached on an agreement
of all concerned, representing the will of the people, the Court must pass
appropriate orders and directions. What really bothers us most is the
H functioning of the political parties, who assume power to do whatever that
STATE OF HARYANA v. STATE OF PUNJAB [PATTANAIK, J.] 265
suits and whatever would catch the vote-bank. They forget for a moment that A
the Constitution conceives of a Government to be manned by the
representatives of the people, who get themselves elected in an election. The
decisions taken at the governmental level should not be so easily nullified by
a change of Government and by some other political party assuming power,
particularly when such a decision affects some other State and the interest B
of the nation as a whole. It cannot be disputed that so far as policy is
concerned, a political party assuming power is entitled to engraft the political
philosophy behind the party, since that must be held to be the will of the
people. But in the matter of governance of a State or in the matter of execution
of a decision taken by a previous Government, on the basis of a consensus
arrived at, which does not involve any political philosophy, the succeeding C
Government must be held duty bound to continue and carry on the unfinished
job rather than putting a stop to the same.
Dr. Rajiv Dhawan, appearing for the State of Punjab referred to the
averments made on behalf of the State of Haryana in its replication to the
effect: - "the existing system through which the Haryana received Ravi Beas D
waters namely the Bhakra Canal can carry only about 1.62 MAF" and submitted
that in view of this statement made by the State of Haryana and there being
no further final decision of the Tribunal which had been appointed by the
Central Government to determine the share of the respective States from the
waters available under Ravi-Beas basin, the so-called agreement/decision in E
relation to the construction of SYL Canal, is nothing but a futility and,
therefore, this Court should not issue any mandatory order in relation to the
digging of the canal in the absence of any right being established by .the State
of Haryana. According to Dr. Dhawan, the future utilization of the water
resources not yet been determined, the Court need not embark upon an
adjudication relating to construction of the canal. According to Dr. Dhawan, F
the decision taken by the undivided State of Punjab in 1955 and the utilization
as proposed in various project reports and acted upon prior to reorganisation
of the State of Punjab in 1966, would not have been altered and should not
be altered and neither the order of the Central Government in exercise of
power under Section 78 of the Punjab Reorganisation Act, 1966 nor the so- G
called agreement dated 31st December, 1981, could be construed to have
conferred an enforceable right on the State of Haryana to get a mandatory
order of injunction against the State of Punjab for getting the unfinished
portion of the canal within the territory of Punjab. According to Dr. Dhawan,
non obstante clause in Section 78(1) of the Punjab Reorganisation Act as well
as the scheme of Section 78 to Section 80 of the said Act, unequivocally H
266 SUPREME COURT REPORTS [2002] I S.C.R.
A indicates that the said power is for distribution of water and power on
"project-wise" and "river-wise" basis and the two projects which stood included
have been mentioned to be Beas (Unit I and II) and Bhakra Nangal, and,
therefore, it would not be legal or equitable to bring within its concept any
other project or river water for the purpose of the sharing between the two
States. The learned counsel also contended that non-mention of the Thien
B (now Ranjit Sagar) Dam or Madhopur Beas Link, is sufficient to indicate that
those projects are to serve different purposes between different States and
the same cannot be brought by implication since some aspects of it have been
mentioned in the Beas Project. Dr. Dhawan concedes that in the Project
Report, the expression "integrated development" has been used but a
C distinction must be drawn between the allocation of share of water from
different rivers and integrated development of the projects. According to the
learned counsel, integrated development is distinct from independent allocation
of share of water and this being the position, the entire basis on which the
State of Haryana has filed the suit for completion of the SYL Canal falls
through. Dr. Dhawan also went to the extent of arguing that an order passed
D by the Central Government under Section 78 of the Reorgansiation Act being
outside the scope of the Act itself, must be read down to make it legal and
the only way the same has to be read down is that the order is an Executive
order, not enforceable being beyond the scope of the Punjab Reorganisation
Act, 1966. In relation to the so-called agreement entered into by the Chief
E Ministers of different States and the Prime Minister of India dated 31st of
December, 1981, Dr. Dhawan contends that the agreement read as a whole,
more particularly, Clause (7) thereof unequivocally indicates that it incorporates
fresh terms treating the orde1 of the Central Government dated 24th of March,
1976 as an Executive order and re-works a fresh denovo agreement taking into
account the agreement of 1955 and that agreement stood repudiated on
F 5.11.1985. It is further contended that the said agreement is political in natnre
and thus cannot assume the characteristic of conferring an enforceable right
on the State of Haryana. So far as the Punjab Accord of 1985 is concerned,
it is contended that the same cannot assume the status of an agreement under
the constitution and on the other hand, it must be held to be a political thicket
G entered into between the Prime Minister and the head of the political party,
who neither was constitutionally entitled to sign any agreement, binding the
citizens of the State, and in any event the said terms of agreement were
rendered inoperative by the force of circumstances and stood frustrated by
the subsequent events. According to Dr. Dhawan in the continued threat of
militancy and the canal itself being in a totally damaged condition and no
H legal rights having accrued in favour of the State of Haryana for getting the
STATE OF HARYANA v. STATE OF PUNJAB [PATTANAIK, J.] 267
canal constructed, this Court will not be justified in issuing an order of A
=-oo.. mandatory injunction, mandating the State of Punjab to construct the unfinished
, portion of the canal. It is the submission of Dr. Dhawan that relief of mandatory
injunction being discretionary, the Court while exercising the discretion, must
bear in mind all facts and circumstances as well as the consequences thereof
and taking into account the fact that Punjab has already passed through one
of the dark periods of militancy in the history of the country, it would not be
B
advisable to issue any order of injunction in exercise of the discretionary
power of the Court. Dr. Dhawan, in course of his oral arguments as well as
in his written submissions referred to those averments made in the written
;. statement of the State of Punjab, indicating the turmoil situation through
which the State has passed and on that basis tried to emphasise the fact that c
any order or direction from the Court to construct the canal within the
territory. of Punjab would again bring an uncanny situation in the State and
., therefore, this Court should resist from issuing any such order or direction
which may not be in the national interest.
Having given anxious consideration to the submissions made by Dr. D
Dhawan, appearing for the State of Punjab, we are of the considered opinion
that those submissions are of no consequence and there could not be any
fetter on the power of this Court to issue appropriate directions. We have
already indicated the genesis of the construction of SYL Canal as well as the
allocation of water in favour of the State of Haryana and the agreements E
entered into between the States in the presence of the Prime Minister of India,
which ultimately led to the withdrawal of the earlier suits filed in this Court.
The State Governments having entered into agreements among themselves on
the intervention of the Prime Minister of the country, resulting in withdrawal
of the pending suits in the Court, cannot be permitted to take a stand contrary
to the agreements arrived at between themselves. We are also of the considered F
opinion that it was the solemn duty of the Central Government to see that
the terms of the agreement are complied with in toto. That apart, more than
Rs.700 crores of public revenue cannot be allowed to be washed down the
drain, when the entire portion of the canal within the territory of Haryana has
already been completed and major portion of the said canal within the
G
territory of Punjab also has been dug, leaving only minor patches within the
~
said territory of Punjab. If the apprehension of the State is that on account
of digging of canal, the State of Haryana would draw more water than that
which has been allocated in its favour, then the said apprehension also is
thoroughly unfounded inasmuch as the source for drawing of water is only
from the reservoir, which lies within the territory of Punjab and a drop of H
f
268 SUPREME COURT REPORTS [2002] I S.C.R.
A water will not flow within the canal unless the connecting doors are open. But
the quantity of water that has already been allocated in favour of the State
of Haryana, must be allowed to be drawn and that can be drawn only if the
additional link canal is completed inasmuch as the existing Bhakara Main
Canal has the capacity of supplying of only 1.62 MAF of water. This being
B the position, we unhesitatingly hold that the plaintiff-State of Haryana has
made out a case for issuance of an order of injunction in the mandatory form
against the State of Punjab to complete the portion of the SYL Canal, which
remains incomplete and in the event the State of Punjab fails to complete the
same, then the Union Government-defendant No. 2 must see to its completion,
so that the money that has already been spent and the money which may
C further be spent could at least be utilized by the countrymen. We have
examined the materials from the stand point of existence of a prime facie case,
balance of convenience and irreparable loss and injury and we are satisfied
that the plaintiff has been able to establish each one of the aforesaid criteria
and as such is entitled to the injunction sought for. This issue is accordingly
answered in favour of the plaintiff and against the defendants. We, therefore,
D by way of a mandatory injunction, direct the defendant-State of Punjab to
continue the digging of Sutlej Yamuna Link Canal, portion of which has not
been completed as yet and make the canal functional within one year from
today. We also direct the Government of India-defendant No. 2 to discharge
its constitutional obligation in implementation of the aforesaid direction in
E relation to the digging of canal and if within a period of one year the SYL
Canal is not completed by the defendant-State of Punjab, then the Union
Government should get it done through its own agencies as expeditiously as
possible, so that the huge amount of money that has already been spent and
that would yet to be spent, will not be wasted and the plaintiff-State of
Haryana would be able to draw the full quantity of water that has already
F been allotted to its share. Needless to mention, the direction to dig SYL Canal
should not be construed by the State of Haryana as a license to permit them
to draw water in excess of the water that has already been allotted and in the
event the Tribunal, which is still considering the case of re-allotment of the
water, grants any excess water to the State of Haryana, then it may also
G consider issuing appropriate directions as to how much of the water could
be drawn through the SYL Canal.
The plaintiffs suit is decreed on the aforesaid terms. There will be no
order as to costs.
B.S. Suit allowed.
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