STATE OF HARYANA v. STATE OF PUNJAB AND ANR

Citation: [2002] 1 S.C.R. 227

Court: Supreme Court of India

Bench: G.B. PATTANAIK, RUMA PAL

Judgment text

STATE OF HARYANA V. ~ STATE OF PUNJAB AND ANR. JANUARY 15, 2002 [G. B. PATTANAIKAND MRS. RUMA PAL, JJ.

] Inter State Water Disputes Act, 1956/Punjab Reorganisation Act, 1966r 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 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 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 ofPunjab 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 completion of the canal within two years by the State of Punjab with the intervention by the Government ofIndia and accordingly suits withdrawn- Repudiation of the agreement by the State of Punjab-Punjab settlement entered into between the then Prime Minister and President of a political party ofthe State ofPunjab providingfor early completion ofthe construction ofthe canal-Stoppage ofconstruction by the State ofPunjab after completion of 90% of the work-Suit by Haryana State seeking mandatory injunction to the State ofPunja{> for early completion ofthe canal-Maintainability ofthe 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 ofPunjab for ''" completion ofthe canal within one year-Constitution ofIndia-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, 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 ofKashmir, State ofRajasthan and the erstwhile State of PEPSU. The share of the erstwhile State ofPunjab was 5. 90 MAF. In 1966, the erstwhile State ofPunjab 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% ofthe 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 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 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 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 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 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 by 1986. The settlement also provided for the reference of the dispute relating to sharing ofadditional 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 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 Border Roads Organization to complete the construction ofthe 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. 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 ofthe canal in a time-bound 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- 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 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 ofwater 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 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 the territory ofthe 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 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 nondetermination of future utilisation of the additional waters by the Water Tribunal, the provisions of the Punjab Reorganisation Act and the agreement 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 injunction for the completion of the canal in exercise ofits 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 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 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 provisions of the Punjab Reorganisation Act, 1966 and the agreement of STATE OF HARYANA v. STATE OF PUNJAB 231 December 1981.

Such a dispute cannot be construed to be in any way interlinked with the distribution or control of water of or in any inter-State ... river or river valley. (243-F-G-H) 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 agreement. It is thus apparent that so far as the plaintiff-State is concerned, the earlier allocation of 3. 5 MAF ofwater 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 ofcarrying the allocated waters to the plaintiff-State. (246-D-E] 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 ofadditional waters to a Water Tribunal under the Inter-State Water Disputes Act and not the dispute relating to the construction of SYL Canal. 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 ofSection 2(c) ofthe 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" 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 ofKarnataka v. State ofAndhra 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, advocated for a strong Central Government, so that there would not be any disintegration ofthe 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 ofthe neighbouring States and the country as a whole. 1254-D-EJ 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 ofgreat concern that while huge amount ofpublic exchequer has been spent in the construction 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, even though it continues to pay the defendant-State substantially, even for maintenance ofsemi-constructed canal. (264-B-C-D] 2. 3. A decree ofthe 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 attitude of irresponsible nature and when the Court finds that nothing is moving even though there has been a large-scale drainage ofpublic 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, do whatever which catches the vote-bank. They forget that the Constitution conceives of a Government to be manned by the representatives ofthe 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 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 ofthe 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 ofa consensus arrived at, which does not • 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 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 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 ofpublic 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 already been completed and major portion ofthe said canal within the territory ofdefendant-State also has been dug. The apprehension ofthe defendant-State that after digging ofthe 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 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 ifSYL canal is completed since the existing Bhakara Main Line Canal has the capacity of supplying ofonly 1. 62 MAF ofwater. The plaintiff-State has made out a case for issuance ofan order of mandatory injunction against the defendant-State 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, irreparable loss and injury to it and hence entitled to the mandatory injunction sought for.

By way ofa 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 ofthe said direction 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 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 ofthe water could be drawn through 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) 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. 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. 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, 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, 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 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, 1985 are final and binding inter alia on the State of Punjab casting an obligation on Defendant No.

1 to immediately restart and comp,lete the portion ofthe 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) 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 ofthe Sutlej-Yamuna Link 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; (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. " 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 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 1947, 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 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 11O Crores rupees) to Pakistan. In a meeting of the beneficiary States namely, the State of Punjab, ' 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 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 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 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, 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 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 ofthe 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 I4 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 had agreed upon the alignment of 30 kilometers of the SYL Canal adjoining --{ STATE OF HARYANA v. STATE OF PUNJAB [PATTANAIK, J. ] Haryana within the territory of Punjab and in fact the State of Punjab accepted -~. 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 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 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 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 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 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 • Governments applied for withdrawal ofthe suits.

This Court allowed the suits to be withdrawn by order dated 12th of February, 1982. The alignment ofthe 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 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 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 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 ofthe 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 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 ofthe Canal within the Haryana territory. Non-completion of the SYL Canal has debarred over three lac hectares of 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 SYL Canal, the State ofHaryana sought for intervention ofthe 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.

At that point oftime, 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 present suit for the relief as already stated. -( The Defendant No. 1, State of Punjab had filed its written statement, ::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 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 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 ofthe 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 ofthe 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 dated 3lst December, I981 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 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 Report dated 30th ofJanuary, 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 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 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 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 ofRavi water to the plaintiffState is invalid. The Defendant 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 at that time and did not bind the State and at any rate, the subsequent resolution ofthe 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 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 to the plaintiff to file the present ;uit, invoking Article 131 ofthe 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 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 , the Ravi and Beas Waters Tribunal, which gave its interim report on 30th of ~ I January, 1987 and the final report of the Tribunal is awaited.

It has also been 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 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 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 Punjab portion ofthe 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 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: "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 time-bound manner, the Sutlej-Yamuna Link Canal Project, in the Punjab portion/territory and whether the plaintiff (State of Haryana) is entitled 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 ? " v· 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- 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 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 to the defendant No.

I, Article 262 ofthe 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 ofthe Supreme Court or any other Court in respect of any dispute 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 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 a river and, therefore, neither Article 262 of the Constitution nor Section 11 ofthe 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 and as such the jurisdiction of the Court cannot be held to be ousted.

The moot question that requires to be considered in answering this 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) ofthe Act and as such is referable to a tribunal 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 - (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 of such agreement; or (iii) the levy or any water-rate in contravention of the prohibition contained in Section 7. " 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 ofthe 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, 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 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 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 ofdistribution of water from Ravi-Beas Project and that being the position, it would be 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 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 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 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 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 in a large quantity for irrigation in the State of Haryana and there is limited availability ofwater 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 Beas has decreased in the meanwhile. The existing canal system not being capable of utilizing 3. 5 MAF of water allocated to the State of Haryana, the 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 ofwater of, or in any inter-State river or river valley. In the Constitution 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 ofthe Constitution. It was held that the question ofmaintainability has to be decided upon the averments made by the plaintiff and the relief 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 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 ofwater for Punjab and linked the matter of construction of SYL Canal with the same.

While the request of the Punjab 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 ofthe Punjab Reorganisation Act. During the pendency of these two suits, an agreement 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 ofthe agreement were signed by the Chief Ministers of the three States as well as the then Prime Minister of India. Under the said 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 Quantity earmarked for Delhi Water Supply : 0. 20 MAF Share of J& K : 0. 65 MAF 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 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 of3. 5 MAF ofthe 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 the allocated share of water to the extent of 3. 5 MAF in favour of the State of Haryana. The order ofthis 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 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 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 Longowal, commonly called the "Punjab Settlement". It is no doubt true that , the aforesaid settlement cannot be said to be a settlement on behalf of the 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 ofthe Supreme Court. Paragraph (9) ofthe said accord is extracted herein below in extenso: "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 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 ,. 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, I986. " Paragraph (9. 1) ofthe 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 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, I956 by Act 20 of 1986, under which Section 14 was added to the said Act.

Section I4 with its explanation may be extracted herein-below in extenso: "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 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) 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). (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" 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 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, appearing for the State of Punjab that the so-called Settlement of 24th of July, 1985 is nothing but a piece ofpaper 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 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 ofdispute 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 SYL Canal has absolutely no connection with the sharing of water between the States and as such is not a "Water Dispute" within the meaning of Section 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 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: 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 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 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) 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. · 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 (2002] I S. C. R. 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 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 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 ofthe 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 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 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 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 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 from the Union of India, we have proceeded to the judgment painfully, as in our view, it was indeed for the Central Government to see that the canal is ~ excavated and the recalcitrant State should have been prevailed upon. In >j semi-federal system ofGovernment, 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, 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 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 ofthe 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 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 preindependence 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 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 ofthe facts then =- 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 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 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 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 ofthe 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 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 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 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 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. Dr.

Dhawan, appearing for the State of Punjab in this connection submitted that the digging of SYL Canal is highly sensitive political issue, 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 prevailed in the State of Punjab which culminated in the unfortunate event leading to serious Law and Order problem in the State ofPunjab. 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 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 ofArticles 355 and 365, but the Indian Federal system is also based upon certain admitted features like territorial vulnerability; empowerment to the Union; State 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 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 learned counsel, some areas ofjudicial 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, 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 y 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.

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 ... 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 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 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 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, 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 are clearly marked by mountains and hills; towards the south, however the limits of the basin are relatively obscure. The north-west mountain wall, 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 1947, 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 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 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 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 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 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 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 aTribunal 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 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 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 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 ofthe Supreme Court has been allowed to continue, has already 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.

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, Kashmi