STATE OF HARYANA v. STATE OF PUNJAB AND ANR (2)

Citation: [2004] SUPP. 2 S.C.R. 849

Court: Supreme Court of India

Bench: RUMA PAL, P. VENKATARAMA REDDI

Case summary

STATE OF HARYANA v. STATE OF PUNJAB AND ANR (2).pdf

Judgment text

STATE OF HARYANA v. ·STATE OF PUNJAB AND ANR. JUNE 4, 2004 [RUMA PAL AND P. VENKATARAMA REDDI, JJ.

] Constitution ofIndia, 1950; Articles 131, 144, 145 and 202/Punjab Reorganisation Act, 1966; Section 78/Supreme Court Rules, 1966; Order XXIII Rule 6 and Order XL VII Rule 6 : Apportionment of river waters between Haryana and Punjab- Construction of Satluj-Yamuna Link Canal-Portion of the Canal not completed by Punjab-Suit filed byHaryana for directions to Punjab and another suit filed by Punjab challenging Section 78 ofthe Act-Supreme Court decreed the suit of Haryana and issued a mandatory injunction directing Punjab to complete construction ofthe canal within one year else Union Government to get it done-Rivew Petition-Dismissed by Supreme Court-Application for enforcement ofthe decree-Held : Supreme Court has been conferred with exclusive jurisdiction to decide any dispute between the States/States and Centre provided the dispute involves question on which the existence/extent of a legal right depends-However, the phrase 'cause of action 'as appears in Order XX/// Rule 6(a) could be construed in the context to Article 131 since it gives effect to limitation implicit in the Article itself-Hence, the Rule can not be held to be ultra vires Article 131-Neither the circumstances on the basis of which the decree was passed changed nor the grounds founded the decree have changed-Period specified in the decree has long since been over-Refusal to comply with the decree ofthe Supreme Court under Article 131 amounts not only to contempt but would also shake the very foundation of the Constitution-Union of India worked out a contingent action plan 10 complete work on the canal-Union of India to carry out the work as planned within the specified time frame-Directions issued-Code ofCivil Procedure, 1908-Sections 20 & 51(e).

Specific Relief Act, 163; Sections 36 to 42 : 'Temporary injunction' and 'Permanent injunction '-Distinction between. Civil Procedure Code, 1908 : Decree-Meaning of-Discussed. Doctrine ofres-judicata-Applicability of-Held: Applicable, since both issues pertaining to jurisdiction of the Court have been considered and decided inter-par/es by the Supreme Court and order of withdrawal was not conditional one. Inter-State Water Disputes Act, 1956; Section 14 : Section 14-Constitutionality of-Held : since grounds given in support ofchallenge ex-facie and no cause ofaction has beer disclosed to challenge constitutional validity, the challenge rejected in limine. A notification was issued by the Union of India under the provisions of Punjab Reorganisation Act inter alia providing for division of the river water between the States of Punjab and Haryana; In connection thereto, the Sutlej-Yamuna Link Canal was required fo be constructed through both the States.

State ofHaryana had completed portion of the Canal passing through its territory. However, the State of Punjab did not complete its portion of the canal. Haryana filed a suit seeking directions to Punjab for construction of the canal. Punjab in turn filed a suit challenging Section 78 of the Punjab Reorganisation Act. During pendency of the suits, an agreement was entered into between the State of Haryana, Punjab and Rajasthan, which provided that the Sutlej-Yamuna Canal Project would be implemented in a time bound manner, within a maximum period of two years from signing of the agreement and the suits were withdrawn. However, the portion of the canal in Punjab remained incomplete. Later, a settlement - the Punjab Settlement - was arrived at, whereby construction of the canal was agreed to be completed by Punjab within the stipulated period; and the issues relating to the usage, share and allocation of the Ravi- Beas water referred to the Waters Tribunal. Since Pu.

njab could not complete the construction, Haryana filed a suit seeking a decree of mandatory injunction compelling the State of Punjab to complete the STATEv. STATE 851 construction. This Court decreed the suit directing the State of Punjab to complete the construction of the canal. Instead of complying with the directions of this Court, Punjab preferred a Review Petition, which was dismissed. Later, when Haryana filed a petition for execution of the decree, Punjab filed a suit for declaring Section 78(1) of the Punjab Reorganisation Act and Section 14 of the Inter-State Water Disputes Act ultra vires the Constitution of India, and to declare the Punjab Settlement not enforceable under the changed circumstances and to discharge the State of Punjab from the obligation to construct the canal.

Haryana filed applications under Order XXIll Rule 6 r/w Order XLVll Rule 6 of the Supreme Court Rules for execution of the decree and State of Punjab filed a writ petition for declaration of Rule 6(a) ofOrder XXlll ofthe Supreme Court Rules ultra vires the Constitution. It was contended by the State of Haryana that the suit filed by the State of Punjab to set aside the decree was not maintainable; that the suit seeking to raise water disputes could not be entertained by this Court; that the State of Punjab could not challenge the vires of Section 78 of the . Punjab Reorganisation Act; that the issue raised earlier in a suit and withdrawn later could not be raised again and that Punjab's challenge to Section 14 of the Inter-State Water Disputes Act is barred by estoppel.

State of Punjab submitted that it could resist execution of the decree by reason of changed circumstances as per provisions under Article 131 of the Constitution; that the requirement of cause of action under Order XXlll Rule 6(a) of the Supreme Court Rules could not be imported into Article 131 of the Constitution; that Order XXIII Rule 6(a) of the Rule is ultra vires Article 131 of the Constitution; and that the petition should be heard by a Bench of three Judges. Allowing the application, the Court HELD: I. The normal rule is that'an application for modification of the decree or order is to be made before the Bench which passed the decree or order. Merely because the litigating parties are States, would not alter this position. In any event, no such issue has been raised which requires determination by a larger Bench. 1866-C-D) 2. It is evident that the phrase "cause of action" as occurring in Order XXIII Rule 6(a) does not appear in Article 131.

A suit under Article 131 is not an 'ordinary' suit, and the phrase "cause of action" is conspicuous by its absence in the Article. But it cannot be said that by the use of the phrase in Order XXllI Rule 6(a) of the Rules, the burden and limitations created by judicial interpretation of the phrase in connection with 'ordinary' suits are necessarily introduced, shackling an otherwise exclusive jurisdiction. The phrase as occurring in Order XXIII Rule 6(a) of the rules will have to be read and construed in the context of Article 131 unimpaired by the meaning judicially given to it in other contexts. Literally, the phrase means nothing more than the 'ground to sue'. The 'cause ofaction' under Rule 6(a) is the 'sole condition' which is required to be satisfied before the jurisdiction of this Court can be invoked. If the plaint does not ex facie show the fulfilment of that condition, it would not be maintainable. This follows from the language of Article 131 itself.

Therefore merely because the phrase "cause of action" has been used in Order XXIII Rule 6(a) does not mean that principles enunciated in the context of Section 20 of the Code of Civil Procedure are imported. Rule 6(a) only gives effect to limitations implicit in Article 131 itself. It follows that it does not violate Article 131 or any other provision of the Constitution. (867-B, E-F-G; 870-F-G-HI State of Rajasthan v. Union of India, (19771 3 SCC 592 and State ofKarnataka v. Union of India, (19771 4 SCC 608, followed. D. Ramachandran v. R. V. Janakiraman, (19991 3 SCC 267, 271, referred to. 3. Unless the plaintiffcould establish that there exists a legal right, there would be no question ofthis Court deciding any dispute regarding the extent or existence ofsuch right under Article 131 ofthe Constitution. The plaintiff in the present case claims that the legal right in question is the right to have an injunction modified by reason of changed circumstances.

The general law relating to injunctions as contained in Sections 36 to 42 of the Specific Relief Act may not limit the powers of this Court under Article 131 nevertheless they provide valuable guidelines as to the nature of this form of equitable reilief. (873-8, F-G-HJ STATE v. STATE 853 State ofRajasthan v. Union ofIndia, 11977) 3 sec 592, followed. 4. 1. An injunction may be permanent/perpetual or temporary. A permanent injunction is final and conclusive of the facts in the context of which it is granted. A temporary injunction by contrast is granted on a prima facie view of the facts and, as the word 'temporary' itself indicates, is an interim order pending a final adjudication of the rights of the parties. This distinction is not to be confused with the distinction between a prohibitory or preventive injunction on the one hand and a mandatory injunction on the other. In the first case a party is prevented from doing a particular thing or continuing with a particular action.

A mandatory injunction on the other hand commands an act to be done and is provided for under Section 39 of the Specific Relief Act. In the present case the decree granted a final mandatory injunction. 1874-A-B-C) Khazan Singh v. Ra/la Ram, AIR (1937) Lahore 839; Yashpal Singh v. VIII Addi. District Judge and Others, 119921 2 SCC 504; Surinder Kumar v. Ishwar Dayal, [1996) 3 SCC 103 and Municipal Board, Kishangarh v. Chand Mal, (19991 9 SCC 198, referred to. Albert H Ladner v. Clarence R. Siegel, 68 ALR 1172; United States ofAmerica v. Swift & Company, 286 US 105, 76 L. Ed. 999; Santa Rita Oil Company v. State Board of Equalization, 126 ALR 757; Coca Cola Company v. Standard Bottling Company, 138 F. 2D 788 and System Federation No. 91, Railway Employees Dept. v. 0. V Wright, 364 US 642, 5 L. Ed. 2d 349, referred to. Kerr on Injunctions 6th Edn. p. 40, referred to. 4. 2. A decree cannot reach a prima facie conclusion.

The use of the phrase 'prima facie' is clearly an accident of language and does not detract from the conclusiveness of the finding and the finality of the mandate. It directed the construction of a canal as a final adjudication of rights. The mandate in the decree was to carry out the obligations under the agreement. It did not envisage a "continuing process over which the equity court necessarily retains jurisdiction in order to do equity'. Principle relating to modification of decree is absent, since the decree was not based on the quantum of water that may be made available to Haryana, the fact that Punjab's complaint was pending under Section 3 of the inter-State Water Disputes Act or that Haryana may, in the future, be entitled to more water is immaterial. for the same reason the principle (if any) of the right to ask for a review of water allocations would not apply. The decree was not based on the Punjab Settlement.

It was noted that the parties had acted on the agreement and that despite the fact that Punjab sought to reopen the agreement in so far as it related to the quantum of water to be shared between the two States, the construction of the SYL canal remained undisputed. (880-F; 881-E-F; 882-B-C-D-E-F[ 4. 3. It is evident that the Punjab Settlement was referred to as a piece ofevidence that the parties had kept the co:istruction of the canal distinct from the disputes relating to the sharing of river waters between the two States. If the other clauses in the Punjab settlement are allegedly not being complied with by Haryana that is not a challenge of circumstance or ground for modification of the decree. The change to Section 14 of the Inter State Water Disputes Act is also inapposite to the question of modification of the decree. It has not been averred that either of the two grounds which founded the decree have in any sense of the word "changed". [883-A-B-C[ 4. 4.

Since the plaint in the present suit does not even exfacie fulfil all four conditions subject to which decree may be modified, there is no legal right to apply for modification of the decree with the meaning of Article 131. Hence, there lies no "cause of action" within the meaning of Article 131 as far as the prayers relating to the discharge of the injunction granted by the decree is concerned. (883-E-Fl 5. 1. The doctrine of res judicata and Order XXXII Rule 2 are not technical rules of procedure and the fundamental to the administration of justice in all Courts that there must be an end of litigation. Since the doctrine of res judicata is an essential part of the rule of law it follows that if the issues raised in the suit are barred by res judicata exfacie then this Court is required to reject the plaint in terms ofOrder XXIII Rules 6(b) of the Rules. There is no substance in the submission of Punjab that even when there is no dispute of fact the issue of res - STATE v.

STATE 855 judicata should be left for consideration at the trial of the suit. The same objection relates to the challenge to Section 78 of the Punjab Reorganization Act. But there is an additional ground apart from res judicata for holding that the issue as to the constitutional validity of Section 78 cannot be raised. The State of Punjab had earlier filed a suit, in this Court challenging the validity of section 78 of the Punjab Reorganisation Act. 1883-D; 887-H; 888-A-B-C-Dl Surayya v. Balagangadhar, AIR (1948) PC 3, referred to. Daryao v. State of UP. , (19621 I SCR 574 and Cauve1y Water Disputes Tribunal, 11993) Suppl. I SCC 96 (ii), relied on. 5. 2. Rule 2 Order XXXII of the Rules allows a plaintiff to file a fresh suit in respect ofthe same subject matter as in the earlier withdrawn suit subject to certain conditions. However, in the order allowing the earlier suit to be withdrawn no such conditions are present.

Consequently a fresh suit in respect of the same subject matter viz. , the validity of section 78 ofthe 1988 Act does not lie. Similarly the challenge to Section 14 of the 1956 Act is rejected at the threshold. The notification was issued under Section 14 of the Inter-States Water Disputes Act. There was no dispute raised as to the constitutionality of Section 14 at any stage. This Court in its judgment dated 15th January 2002 considered the arguments ofthe parties relating to Section 14 and negatived Punjab's submission as to the construction ofthe said Section. Punjab could have challenged the constitutional validity of Section 14 in its written statement. It did not then. It cannot do so now being barred by the doctrine of res judicata. (889-A-B-C-D-E-F-; 890-E-F-G; 891-D) 5. 3.

It is well established that constitutional invalidity of statutory provision can be made either on the basis of legislative incompetence or because the statute is otherwise violative of the provisions of the Constitution. Neither the reason for the particular enactment nor the fact that the reason for the legislation has become redundant, would justify the striking down of the legislation or for holding that a statute or statutory provision is ultra vires. At leastprima facie acceptable grounds in support have to be pleaded to sustain the challenge. In the absence of any such pleading the challenge to the constitutional \'alidity of a statute or statutory provision is liable to be rejected in limine. (892-F-G-Hl S. 4. The grounds given in support of Punjab's challenge to Article 14 are exfacie no grounds in law and no "cause of action" has been disclosed to challenge the constitutional validity of Section 14 of the I9S6 Act.

Not only does the plaint filed by Punjab disclose any cause of action, but it is also evident from the statements in the plant that the suit is barred by law. (893-B-CI S. S. Punjab, instead of accepting the decree in good grace, has taken every possible step to thwart the decree. There was no stay granted by this Court at any stage ofany ofthe vari~us proceedings filed assailing the decree. Even when the final assault was made by it in filing a S'! it, this Court did not grant any stage and it is basic law that the mere filing of proceedings does not operate as a stay. The correspondence and the record of minutes show that the Chief Minister of Punjab as well as the Government officials have arrogated themselves the power ofsitting as a super-judicial body over this Court. (89S-H; 896-E-Fl S. 6. The Constitution provides for an ordered polity within this country to promote integrity of the country. When disputes arise between States there are usually political underpinnings.

The resolution of such a dispute in favour of one party would invariably have a political impact. Article 131 of the Constitution has given this Court the exclusive jurisdiction to decide such a dispute strictly on legal considerations and in keeping with the provisions of the Constitution. To resist the execution of the decree on the ground that it would have a political fallout would result in subversion of the Constitution, an endorsement of anarchy and the disintegration of the country. Apart from rendering the provisions of Article 131 a dead letter such a stand is contrary to Article 144 of the Constitution. It is not in the circumstances expected, that Governments whether at the Centre or in the State, would not comply with the decree of this Court.

By refusing to comply with the decree of this Court under Article 131 not only is the offending party guilty of contempt but the very foundation of the Constitution which the people governing the State have sworn to uphold when assuming office and to which this country owes its STATE v. STATE 857 continued existence, is shaken. It is the Constitutional duty of those who wield power in the States to create the appropriate political climate to ensure a respect for the constitutional processes and not set such processes at naught only to gain political mileage. The vague plea relating to the possible rise of militancy by the construction of the Canal is not an acceptable defence at all. 1896-G-H; 897-A-B-C; HJ Cauve1y Wa111r Disputes Tribunal, IJ993j Supp. 1 SCC 96 (ii), followed. 5. 7. The 1954 Order has been issued by the President in exercise of powers under Article 142(1) of the Constitution.

Punjab's objection to the maintainability of Haryana's application for execution because of alleged non-compliance with paragraph 2(d) of the 1954 Order is unsustainable. The mode ofenforcement which may be specified under clause 2(b) of the 1954 Order may be similar to the methods of . execution legally provided in respect ofdecrees or orders ofany Court, Tribunal or Authority. The specification of the mode may be done in the decree itself or by a subsequent order made on an application of any party to the proceeding. The decree in the case had not specified the mode of execution. Haryana's application is expressed to be under clause 2(b) of the 1954 Order. It cannot be said that Haryana's application is not maintainable. (898-C; 899-A-B-C-DJ 5. 8. It is manifest that the suit has been filed by State of Punjab with a view to subvert the decision of this Court with all the disingenuousness ofa litigant to resist its execution.

In the circumstances, the suit is dismissed under Order XLVII Rule 6 of the Rules. (893-Dj 6. The residuary power under Section 5l(e) C. P. C. allows a Court to pass orders for enforcing a decree in a manner which would give effect to it. The period specified in the decree for completion of the canal by Punjab is long since over. The Union of India has said that it had worked out a contingent action plan during this period. The contingency, in the form of expiry of the one year period in January 2003 has occurred. It has not been told whether the contingency plan has been put into operation. Although if appears that the Cabinet Committee on Project Appraisals had approved the proposal for completion of the SYL canal by the Border Roads Organisation (BRO) and the then Prime Minister directed the BRO to take over the work for completion of the SYL Canal in the minimum time possible. After the decree the Central Water Commission Officials have inspected the canal.

The report has assessed a minimum period of about two years for removing suit deposits, clearing of trees and bushes, completing the damaged and balance works and making the canal functional. In the circumstances, Union of India is directed to carry out its proposed action plan within the specified time frame. (900-A-B-C-DI CIVIL APPELLATE JURISDICTION : LA. No. 4 In Or:ginal Suit 6 of 1996. Under Article 131 of the Constitution of India. WITH I. A. Nos. 1-2 in Original Suit No. 1 of 2003. Shanti Bhushan, V. A. Bobde, Ashok Kr. Aggarwal, A. G. ofHaryana, K. K. Lahiri, Abhimeet Sinha, Gourav Kejriwal, Ms. Minakshi Nag, Amit Patnaik, Ejaz Maqbool. Keshav Mchan and Rajesh Mittal for the Petitioner. F. S. Nariman, Harbhagwan Singh. Advocate General for State of Punjab, Arun Kathpalia, Mohan V. Katarki, Subhash Shanna, G. S. Hooda, Asst. Advocate General Punjab, Vinay K. Shailendra, R. S. Suri, Shailesh Madiyal and G. S. Sidhu for the Respondent in I. A. No. 4 in O. S. No.

6/ 96 & Petitioner in O. S. No. 1/2003. Mukul Rohtagi, Additional Solicitor General, Kailash Vasdev, S. Wasim, A. Qadri, D. S. Mahara, Ajay Sharma, Sayed, Naqvi, Ms. Sushma Suri, S. N. Terdal for Union oflndia, Ranji Thomas, Ms. Bharti Upadhyaya and V. N. Raghupathy for the State of Rajasthan. Ms Kamini Jaiswal (NP) and Ms. Naresh Bakshi for the Union Territory of Chandigarh. .. The Judgment of the Cou1i was delivered by RUMA PAL, J. : Consequent of the creation of the State ofHaryana from the erstwhile State of Punjab, the question ofappointment ofthe river waters made available to the erstwhile State of Punjab between Haryana and Punjab arose. A notification was issued by the Union of India on 24th March, 1976 under Section 78 of Punjab Reorganisation Act, 1966, inter alia dividing the river waters between the two States. The Sultej-Yamuna Link Canal Project covering about 214 KMs. was to be constructed through the States of Punjab and Haryana.

Out of the 214 KMs, 122 KMs were to run through the territory of Punjab and 92 KMs through Haryana. The cost of completion of the canal was to be met by the Central Government. Haryana's portion of the canal was completed by June 1980. The State of Punjab had not completed its share of the canal although it had been paid the amount necessary for the purpose as also for the recurring expenditure· towards maintenance of the canal. A suit was filed by the State of Haryana in 1979 being Suit No. I of 1979 in this Court under Article 131 of the Constitution seeking completion of the construction of the canal. The State of Punjab also filed a suit being Suit No. 2 of 1979 inter alia challenging Section 78 of the Punjab Reorganisation Act and the notification dated 24th March 1976 by which the river waters were directed to be shared between Haryana and Punjab.

During the pendency of the suits, an agreement was entered into between the States of Haryana, Punjab and Rajasthan in the presence of the Prime Minister of India on 13th December 1981. The agreement, in so far as it is relevant, provided that the Sutlej-Yamuna Canal Project would be implemented in a time bound. manner. The canal and appurtenant works in the Punjab territory were to be completed within a maximum period of two years from the date of the signing of the agreement. On the basis of and after recording this agreement, the suits were allowed to be withdrawn by this Court on 12th February, 1982. The date for completion of the canal by Punjab in terms of the agreement dated 13th December, 1981 expired. The Punjab portion of the Canal remained incomplete. The agreement was sought to be repudiated by the State. A settlement was then arrived at on 5th November 1985 known as the 'Punjab Settlement' which dealt with the several disputes between the State of Haryana and Punjab.

For the present, we need only note clause 9 of the settlement. It reads : "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 I. 7. 1985 waters used for consumptive purposes will also remain unaffected. Quantum of usage claimed shall be verified by the Tribunal referred to in para 9. 2. below. 9. 2. 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 ofSYL Canal shall continue. The canal shall be completed by 15. 8. 1986.

" In approval of the settlement and in terms of the first two clauses of clause 9 of the Settlement, Section 14 was added to the Inter-State Water Disputes Act, 1956 and issues relating to the usage, share and allocation of the Ravi-Beas waters were referred to the adjudication of the Waters Tribunal by the Union of India under Notification dated 2nd April 1986. The Tribunal submitted its report on 30th January 1987 inter alia allocating the Ravi-Beas Waters between Punjab and Haryana. An application was made by Punjab before the Waters Tribunal for review of its decision. That application is pending. However, Clause 9. 3. ofthe Settlement which was kept distinct from the water disputes under Clauses 9. 1. and 9. 2. continued to operate. The State of Punjab completed about 90% of the construction of the canal, but about 10% ofthe construction remained incomplete. The State ofHaryana then filed a second suit being suit No. 6 of 1996 for : (a) a decree declaring that the order dated 24.

3. 1976, the agreement of3 l. 12. l981 and the settlement of24. 7. I 985 are final and binding inter alia on the State of Punjab casting an obligation on Defendant No. I to immediately resta1t and complete the po1iion of the Sutjej-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) a decree of mandatory injunction compelling Defendant I (failing which Defendant 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 p.

ortion of the Sutlej-Yamuna Link Canal Project in the State ofPunjab 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 Ravi and Beas waters". A written statement was filed by the State of Punjab questioning the jurisdiction of this Cou1i under Article 262 of the Constitution of India. It was also contended that the suit was barred under Order XXIII Rule I of the Code of Civil Procedure and under Order XXXll Rule 2 of the Supreme Court Rules, 1966. According to the State of Punjab the agreement dated 31st December 1981 was superseded by the settlenient dated 24th July 1986 which did not bind the State. It was averred that the SYL canal was unnecessary because the State of Haryana was to get additional water supply from other rivers and that the State ofHaryana had no right to the water from the river Ravi.

The Union of India in its written statement, apart from affirming the facts as noted by us earlier, also stated that it was essential that the Punjab portion of the SYL canal be completed at the earliest. After considering the material on record, on 15th January, 2002 this Cou1t decreed the suit in favour of the State of Haryana and issued a mendatory injunction directing the State of Punjab to complete the construction of the canal and make it functional within one year from the date of the judgment. If within that period the canal was not completed by the State of Punjab, the Union Government was directed to get it done through its own agency as expeditiously as possible. The State of Punjab did not comply with this Court's decree and the canal remains incomplete. On 8th January 2002, it filed an application for review of the judgment and decree of this Court which we dismissed on 5th March 2002. On 22nd March 2002, a writ petition under Article 32 was filed by Bharatiya.

Kisan Union (W. P. No. 94 of 2004) claiming to be a registered association of Indian citizens and seeking to question the decree and purporting to raise issues relating to the availability of water of the Ravi- Beas for allocation to the State of Haryana. An interlocutory application was also filed for stay of the decree dated I5th January 2002. The writ petition was dismissed by this Court on 10th Februry 2004. On I8th December 2002, an application was filed by Haryana for implementation ofthe judgment and decree dated 15th January 2002. This application was registered and numbered as I. A. No. I of2002 in Suit No. 6 of 1996. On 13th January 2003, the State of Punjab filed a suit being Suit No. I of 2003 for the following reliefs : (a) discharge/dissohe the obligation to construct SYL Canal imposed by the mandatory injunction decreed by this Hon 'ble Court in its judgment/decree dated 15. 01. 2002 in OS No.

61 1996 for the reasons set out in the plaint; (b) to declare that the judgment/decree dated 15. 01. 2002 in OS No. 611996 is not binding or enforceable since the issues raised in that Suit could only have been decided by a Constitution Bench in terms ofArticle 145(3) ofConstitution of India. (c) To declare that Section 14 of the Act, 1956 is ultra-vires the Constitution of India; (d) to declare that Section 14 of the Act 1956 is no longer enforceable for the reasons set out in the plant; (e) to declare the Punjab Settlement (Rajiv-Longowal Accord) is not enforceable under the changed circumstances as set out in the Plaint : in the alternative in case it is held by this Hon'ble Court that the Punjab Settlement dated 24. 07.

1985 is an enforceable Agreement , then direct enforceability and compliance ofother 10 issues and to keep in abeyance obligation to construct SYL canal till other conditions set out in the settlement are implemented and/or the Water Disputes arising from the reallocation of Ravi-Beas waters are resolved under the Act, 1956. (f) Declare that Section 78(1) of the Act, 1966 is ultra vires of the Constitution of India, and that all acts, deeds and things done pursuant thereto or in consequence thereof including all Notifications, Agreement, etc. are null and void including the notification dated 24. 03. 1976 and the Agreement dated 31. 12. 1981 as non-est and void ab initio. The State of Haryana then filed an application under Order XXIIJ Rule 6 read with Order XLVII Rule 6 of the Supreme Court Rules, 1966 for rejection of the plaint alternatively for summary dismissal of the suit. The application, which has been numbered as I. A. No.

1 of2003 has been opposed by Punjab inter alia contending that Order XXlll Rule 6(a) ofthe Supreme Court Rules is unconstitutional. Haryana's application for enforcement of the decree (I. A. 1 in O. S. No. 6of1996) was sought to be amended in I. A. No. 3. The State ofPunjab sought to file a counter affidavit to I. A. No. 1 in O. S. No. 1 of 1996 which was numbered as I. A. No. 2. On 13th August 2003, the State of Ha1yana filed a second application for a direction on the Union of India to carry out its obligation under the decree since the period of one year fixed by the decree had expired. This has been numbered as I. A. No 4 in OS I of 1996. In view of this last application of Haryana, I. A. Nos. I, 2 and 3 in O. S. No. I of 1996 we. re dismissed as infructuous on 17th December 2003. At this stage, the State of Punjab filed a Writ Petition No.

30/2004 for a declaration that Rule 6(a) ofOrder XXlll ofthe Supreme Court Rules, 1966 is 11/tra-vires the Constitution alternatively for a declaration that Rule 6(a) of Order XXlll cannot be invoked in suits filed under Article 131 of the Constitution of India. This writ petition was not entertained in view of the fact that the same issues had been raised by the State of Punjab in answer to the application of the State of Haryana under Order XXIII Rule 6 of the Supreme Court Rules. Therefore, out of this welter of litigation what survives for disposal is : (I) Haryana's application for enforcement of the decree dated 15th January 2002 (I. A. No. 4 in O. S. 6/1996); (2) Punjab's suit inter alia challenging the decree dated 15th January 2002 (0. S. 1/2003); and (3) Haryana's application for rejection of the plaint in Punjab's suit (I. A. I in O. S. 1/2003).

Necessarily the last proceeding is required to be disposed of at the outset because on the outcome of this application will depend the fate of the second proceeding which may in turn have an impact on the first. ! A. No. I in O. S. I of 2003. Order XXIII Rule 6 of the Supreme Court Rules, 1966 under which I. A. 1 of 2003 has been filed provides : "The plaint shall be rejected : (a) where it does not disclose a cause of action. (b) where the suit appears from the statement in the plaint to be barred by any law. '· According to Haryana, a suit to set aside a decree of this Court, as Suit No. I of 2003 purports to do, is not maintainable under Article 131 of the Constitution. It is also submitted that the suit seeks to raise water disputes which are not capable of being entertained by this Cou11 by virtue of Article 262 ofthe Constitution and that the prayer (c) to (f) were barred by the doctrine ofresjudicata.

Additionally, it has been urged that the State of Punjab could not competently challenge the vires of Section 78 of the Punjab Reorganisation Act, 1986, apart from the fact that under Order XXXll Rule 2 of the Rule the issue having been raised in OS 2 of 1979 could. not after its withdrawal, be raised again. Punjab's challenge to Section 14 of the Inter-State Water Disputes Act, 1956 is also stated to be barred by estoppel because Punjab had submitted to the jurisdiction of the Tribunal, suffered an Award and made an application under Section 5(3) of the Act before the Tribunal which was still pending. It has been submitted that the plaint did not disclose any cause of action and had been filed in abuse of process of this Court and that this Court should not countenance such frivolous and vexatious litigation and should dismiss the suit under Order XLVII Rule 6 of the Rules.

In answer, the State of Punjab has submitted that it had a legal right to resist execution ofthe decree by reason ofchanged circumstances which right could only be enforced under Article 131 by way of a suit. It is said that the constitutional remedy available to the States or Union under Article 131 was extraordinary in character and the requirement ofa cause ofaction could not be imported into Article 131. It is submitted that Order XX111 Rule 6(a) of the Supreme Court Rules which allowed the rejection of the plaint on the ground of non-disclosure of a cause of action was ultra vires Article 131. Reliance has been placed on the decisions ofthis Court in State of Karnataka v. Union ofIndia, [1977] 4 SCC 609, p. 690, 709 as well the decision in State of Karnataka v. State ofA. P. , [2000] 9 sec 572 in support of this submission. The ground that Rule 6(a) suffers from "over exclusive classification" and was otherwise violative of Article 14 was however not pressed.

It is further submitted that the judgment of this Court dated 15th January 20. Q2 decided a water dispute and that the decision of '·. this Court in dismissing the review application filed by the State of Punjab was wrong. As far as the question of res judicata is concerned. it is > submitted that that is an issue to be decided in the suit and not by way of an application under Order XXlll Rule 6 of the Rules. Punjab has also submitted that Haryana's application for rejection of the plaint should be heard by the Bench of three Judges. It may be mentioned that by an Order dated 1st Januaiy 2004, Haryana's application was directed by the learned Chief Justice to be listed before a Bench of which one of us (Ruma Pal, J. ) is member. By a subsequent order date 14th January 2004, the question whether the application for rejection ofthe plaint should be heard by Bench of three judges was left to the same Bench to decide.

There is no legal provision by which the issues raised by Haryana in its application is required to be heard by a Bench of three judges. On the other hand the suit filed by Punjab seeks modification of a decree. That decree was passed by a Bench of two judges. The nonnal rule is that an application for modification of the decree or order is to be made before the Bench which passed the decree or order. Merely because the litigating parties are States, would not alter this position. In any event we are not ofthe view that any such issue has been raised which requires detennination by a larger Bench. This submission of the State of Punjab, therefore, is rejected. It is also our opinion that Punjab's challenge to Order XXlll Rule 6(a), even if successful, would not result in dismissal of Haryana's application because the grounds made out for rejection under Order XXIII Rule 6 pertain not only to clause (a) but also to clause (b) thereof.

Haryana has also invoked this Court's powers under Order XLVII Rule 6 which provides that : "Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers ofthe Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Besides the challenge to clause (a) of Rule 6 of Order XXIII is unsustainable. Article 131 ofthe Constitution which has clothed this Court with exclusive original jurisdiction to decide any dispute (a) between the Government oflndia and one or more States or (b) between the Government STATEv. STATE [RUMA PAL, J. ] 867 of India and any State or States on one side and one or more States on the other, or (c) between two or more States, has laid down as a condition for the exercise ofsuch jurisdiction, that the dispute must involve any question (whether of any law or fact) on which the existence or extent of a legal right depends.

It is evident that the phrase "cause of action" as occurring in Order XXlll Rule 6(a) does not appear in Article 131. The phrase, which occurs in Section 20 ofthe Code ofCivil Procedure and is commonly used in connection with 'ordinary' suits, has, in that context, "acquired a judicially-settled meaning. In th. e restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously, the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment ofthe Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in cause of action"'.

Doubtless, a suit under Article 131 is not an 'ordinary' suit, and the phrase "cause of action" is conspicous by its absence in the Article. But the argument that by the use of the phrase in Order XXIII Rule 6(a), the burden and limitations created by judicial interpretation of the phrase in connection with 'ordinary' suits are necessarily introduced, shackling an otherwise exclusive jurisdiction, is unacceptable. The phrase, in our opinion, as occurring i. n Order XXIII Rule 6(a), will have to be read and construed in the context of Article 131 unimpaired by the meaning judicially given to it in other contexts. Literally, the phrase means nothing more than the 'ground to sue'. Construed in this sense can it be said that there is no requirement ofdisclosing a ground to sue in a suit under Article 131? Article 131 has been the subject matter of interpretation by this Court . in several decisions of which Punjab has sought to rely on two.

The first is the decision in State ofRajasthan V. Union ofIndia, (1977] 3 sec 592 I. Rajasrhan High Court Advocates. Association V. Union of India, [200,1) 2 sec 204. which pertained to six suits filed by the States of Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh and Orissa challenging a letter written by the Union Home Minister to the Chief Ministers of those States on the ground that the letter constituted a threat ofaction under Article 356 of the Constitution. The Union of India raised a preliminary objection that on the allegations made in the plaint, no suit would lie under At1icle 131 of the Constitution. All six suits were dismissed by a majority of six of the seven Judges constituting the Bench. Among the six, four (Beg CJ, Goswami, Untwalia, and Fazl Ali, JJ. ) upheld the preliminary objection of the Union of India. Two (Chandrachud and Bhagwati, JJ. ) held that the suit was maintainable but decided against the plaintiff on merits.

We are bound by the majority view. The reasons for holding that the suit was not maintainable given by Beg, C. J. were : ''Having considered the cases set out in the plaints and the petitions before us, from every conceivable angle, I am 1. mable to find a cause ofaction for the grant of any injunction or a writ or order in the nature of a Mandamus against any of the Defendants Opposite parties". The Learned Chief Justice went on to say : ''In my opinion, perhaps the technically more correct order, in the situation before us would have been, on the findings reached by me, one rejecting the plaints under Order XXIII Rule 6 of the Rules ofthis Court, and rejecting the writ petitions in limine. After all, we had not proceeded beyond the stage of hearing certain preliminary objections put forward by Mr. Soli Sorabji, Additional Solicitor General, to the maintainability of the suits and petitions 0 before us.

Although, we heard very full arguments on these preliminary objections, we did not even frame any issues which is done, under the provisions ofPart III ofthe Rules ofthis Court, applicable to the exercise ofthe Original Jurisdiction ofthis Court, before we generally formally dismiss a suit. However, as the form in which we have already passed our orders, dismissing the suit and petitions, which was approved by us on April 29, 1977, has substantially the same effect as the rejection of the plaints for failure to disclose a triable cause of action". The majority view dismissed the suit under clause (a) of Rule 6 of Order XX! ll. The phrase ;'cause of action" \\;as considered with reference to Article 131 as meaning a dispute involving a question of fact or law on which the existence or extent of a legal right depends. The Second decision relied upon by the State ofPunjab in this context is the State ofKarnataka v. Union ofIndia, [1977) 4 SCC 608.

The decision followed within a few months ofthe decision in State ofRajasthan v. Union ofIndia (supra). The subject matter ofcontroversy was a notification issued by the Central Government constituting a Commission of! nquiry under the Commission of Inquiry Act, 1952 to inquire into charges of corruption, nepotism, favourtism and misuse of Government power against the Chief Minister and other Ministers of the State ofKarnataka. The Union of India raised the preliminary objection that the suit was not maintainable under Article 131 because the inquiry was against the Chief Minister and other individuals and not against the State. Although the suit was dismissed on merits by a majority opinion of the Judges, there was again a division within the majority on the question whether the preliminary objection of the Union of India should be upheld. Beg, CJ, Chandrachud and Bhagwati JJ. held the suit was maintainable. Untwalia. Shinghal and Jaswant Singh JJ. held it was not.

There was a division of opinion on the question as to whether there was a dispute within the meaning of Article 13 I. But all the Judges considered the question of maintainability of the suit filed by the State of Karnataka under Order XXIII Rule 6(a) by reading ;;cause of action" in the context of Article 13 las meaning 'a dispute involving any question on which the existence or extent of a legal right depends' or as the pre-condition subject to which the suit could properly be filed under that Article. In other words, the phrase 'cause of action' in the context of Article 131 was read as nothing more than 'the ground or basis to sue'. Chandrachud, J. makes this clear when he expounded the scope of Article 131 and said : "The jurisdiction conferred on the Supreme Court by Article 131 ofthe Constitution should not be tested on the anvil ofbanal rules which are applied under the Code ofCivil Procedure for determining whether a suit is maintainable.

Article 131 undoubtedly confers 'original jurisdiction' on the Supreme Court and the commonest form ofa legal proceeding which is tried by a Court in the exercise of its original jurisdiction is a suit. But a constitutional provision, which confers exclusive jurisdiction on this Court to entertain disputes ofacertain nature in the exercise ofits original jurisdiction, cannot be equated with a provision conferring a right on a Civil Court to entertain a common suit so as to apply to an original proceeding under Article 131 the canons of a suit which is ordinarily triable under Section 15 ofthe Code of Civil Procedure by a Court of the lowest grade competent to try it. Advisedly, the Constitution does not describe the proceeding which may be brought under Article 131 as a 'suit' and significantly, Article 131 uses words and phrases not commonly employed for determining the jurisdiction of a Court of first instance to entertain and try a suit.

It does not speak of a 'cause of action', a expression of known and definite legal import in the world of witness actions. Instead, it employs the word 'dispute', which is no part of the elliptical jargon of law. But above all, Article 131 which in a manner of speaking is a self contained code on matters falling within its purview, provides expressly for the condition subject to which an action can lie under it. That condition is expressed by the clause : "'if and in so far as the dispute involves any question (whether oflaw or fact) on which the existence or extent ofa legal right depends... By the very tenns ofthe article, therefore the sole condition which is required to be satisfied for invoking the original jurisdiction of this Court is that the dispute between the parties referred to in clauses (a) to (e) must involve a question on which the existence or extent of a legal right depends,..

This "cause of action' under Order XXlll Rule 6(a) is this 'sole condition' which is required to be satisfied before the jurisdiction of this Court can be invoked under Article 131. lfthe plaint does not ex/acie show the fulfilment ofthat condition, it would not be maintainable. This follows from the language of Article 131 itself. Therefore merely because the phrase "cause of action" has been used in order XXlll Rule 6(a) does not mean that principles enunciated in the context of Section 20 of the Code of Civil Procedure are imported. Order XXlll Rule 6(a) only gives effect to limitations implicit in Article 131 itself. It follows that it does not violate Article 131 or any other provision of the Constitution. The application under Order XXIII Rule 6 of the Rules is by way of demurrer. The question whether the plaint should be rejected must therefore be decided on the basis of the allegations contained in the 2 plaint.

Paragraphs 2 and 7 of the plaint record the substance and content of a complaint filed by the plaintiff on 11th January, 2003 under Section 3 of the 1956 Act relating to reallocation of the Ravi-Beas waters. Both paragraphs conclucle with the identical statement - "The Plaintiff has every chance of success in the re-allocation to reduce the share of Haryana and therefore, the question of SYL construction may not arise for consideration at all". In paragraph 3, the plaintiff has said that the obligation to construct the Canal Basin had been imposed on the plaintiffon the basis ofthe Punjab settlement but neither the State of Haryana nor the Union of India had performed any of the other obligations imposed upon them under the settlement. Paragraph 4 which has as many as 18 sub-paragraphs sets out the historical background to the facts claimed to be relevant for the purposes ofthe present suit. Similarly, paragraph 5 records the proceedings O. S. . 6196 culminating in the decree.

Paragraph 6 says that the directions in the decree dated 15. 1. 2002 were liable to be discharged by reason of changed circumstances, the changed circumstance being "the allocation of water made hithertobefore is liable to be reviewed". Up to this stage, there is no other "change of circumstance" pleaded apart from the filing of complaint under the Inter-State Water Disputes Act, 1956 and the change of success. . In paragraph 8, the plaintiff has given the grounds for seeking discharge of the injunction granted on 15. 1. 2002. These pertain to the availability of water for appointment between the Punjab and Haryana. It is stated that there is no water available for transfer through the SYL Canal. The second ground is a decision ofthis Court in writ petition No. 512/2002 on 31. 10. 2002 by which it is claimed, this court had directed completion ofthe net working ofthe rivers.

Among the projects identified by the Union of India was the Sharda-Yamuna Link, as a result of which, according to ... 2. See: D. Ramachandran v. R. V. Janakiraman. [1999] 3 SCC 267, 271. the plaintiff, Haryana would get more water and there was no question of burdening the "deficit Ravi-Beas Basin. " The third ground is that an issue had been raised in the complaint filed by the plaintiff under Section 3 of the Inter-State Water Disputes Act, 1956, as to the rights of Haryana and Rajasthan to the rivers waters as non riparian States. The next ground is that Haryana had declined to abide by the other terms of the Punjab settlement. The last ground is that water allocations were subject to review. This is followed by arguments in support of the last submission with reference to diverse authorities.

In paragraphs 9, I0 and 17 the plaintiff has challenged the decree dated 15th January, 2002 on the ground that it was violative of Articles 145(3) and 262 of the Constitution and Pragraph 18 questions the correctness ofthe order dismissing, the plaintiffs Review Petition. Paragraph 19 contains an assertion that the construction ofthe SYL Canal was a water dispute. Paragraphs 11, 12, 13 and 14 set out the grounds for challenge to Section 78(1) of the Punjab Reorganisation Act, 1966. Paragraph 15 gives grounds for claiming the invalidity of Section 14 of the ln finality of the injunction by holding : "We, therefore, 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 2 to discharge its constitutional obligation in implementation of the aforesaid direction in relation to the digging of canal and if with him a period of one year 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 be spent, will not "be wasted and the plaintiff-State ofHaryana would be able to draw the full quantity of water that has already been allotted to its share. " The mandate in the decree was to carry out the obligations under agreement dated 31st December, 1981. It did not envisage a "continuing process over which the equity court necessarily retains jurisdiction in order to do equity". Principle (b) relating to modification of decrees enunciated earlier is therefore absent.

In any event there has been no change in the circumstances on the basis of which the decree was passed. Although there is a discussion on the various issues while rejecting the submissions made by Punjab, ultimately the reasons for issuing the injunction were two. The first was the agreement dated 31st December 1981 and the order of this Court permitting the withdrawal of the two cross suits filed by Haryana and Punjab (OS I of 1979 and OS 2 of 1979). This is apparent from the following passage : "The State Government having entered into agreements among themselves on the intervention of the Prime Minister of the country, resulting in withdrawal of the pending suit in the .. _ Court, cannot be permitted to take a stand contrary to the agreements arrived at between themselves. We are· also of the . ' considered opinion that it was the solemn duty of the Central Government to see that the terms of the agreement are complied with in toto...

The second was "(T)he (a)dmitted fact that for construction of the Punjab portion of SYL Canal, more than Rs. 560 crores have already been spent, as is apparent from Ext. P-13 and the entire money has been paid by the Government of India ........... (M)ore 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 ofthe said canal within the territory ofPunjab ' also has been dug, leaving only minor patches within the said territory of Punjab to be completed". The decree was not based on the quantum of water that may be made available to Haryana. Therefore the fact that Punjab's complaint is pending under Section 3 ofthe Inter-State Water Disputes Act, 1956 or that Haryana may , in the future, be entitled to more water is immaterial. For the same reason the principle (if any of the right to ask for a review of water allocations would not apply.

Nor was the decree based on the Punjab Settlement. It was noted that the parties had acted on the agreement and that despite the fact that Punjab sought to reopen the agreement dated 3 Ist December, 1981 in so far as it related to the quantum ofwater to be shared between the two States under Paragraphs 9. 1. and 9. 2. of the Punjab Settlement, the construction of the SYL canal under paragraph 9. 3. canal remained undisputed. The Court accepted Punjab submission that the Punjab Settlement was not binding on the State but said : "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 sub-called agreement, the terms of the said agreement cannot be thrown out as a piece of paper ... only".

It is evident that the Punjab Settlement was referred to as a piece of evidence that the parties had kept the construction ofthe canal distinct from the disputes relating to the sharing of river waters between the two States. If the other clauses in the Punjab settlement are allegedly not being complied with by Haryana that is not a change of circumstance or ground for modification ofthe decree passed on 15th January, 2002. The challenge to Section 14 ofthe Inter State Water Disputes Act, 1956 is also inapposite to the question of modification of the decree. The section related to and was in enforcement of paragraphs 9. 1 and 9. 2 ofthe Punjab Settlement and relates to the resolution of the water disputes between the States by the Tribunal. Paragraph 9. 3 which is related to the canal and referred to by the Court does not form part of Section 14. It has not been averred that either ofthe two grounds which founded the decree have in any sense ofthe word "changed".

Principle (c) is therefore unfulfilled. And finally Principle (d): the suit for modification ofthe decree dated 15th January, 2002 will not lie because the decree itself has been sought to be impeached. "The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making'. In other words since the plaint in the present suit does not even ex facie fulfil all four conditions subject to which a decree may be modified, there is no legal right to apply for modification of the decree dated 15th Januarya, 2002 within the meaning of Article 131. We can therefore only conclude that there is no "cause of action" within the meaning of Article 13 las far as the prayers relating to the discharge of the injunction granted by the decree dated 12th January, 2002 is concerned. We then take up the direct challenge to the decree itself as being unconstitutional.

Two grounds have been pleaded in the plaint in this connection : (I) That it was a decision of two Judges whereas Article 145(3) of the Constitution requires a minimum of five Judges "for the purpose of deciding any case involving a substantial question oflaw as to the interpretation ofthe Constitution...... ". 6. Per Cardozo, J. United States v. Swift & Cu (supra). (2) The second ground is that the decree sought to resolve a water dispute in contravention of Article 262 of the Constitution. Both the submissions are inter related. Article 145(3) was relied on because it was said that the scope of Article 131 and 262 had to be interpreted. We had said in the judgment dated 15th January, 2002, that in the Constitution Bench decision in State ofKarnataka v. Slale ofA. P.

, (2000] 9 SCC 572 this Court had 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. By that decision two cross suits were disposed of(O. S. No. 1/1997 by the State ofKamataka v. State ofA. P. and O. S. No. 2/1997 by the State ofA. P. v. State ofKamataka). Two separate judgments were delivered. The State of A. P. had prayed for 14 reliefs but, the Court observed, the reliefs essentially related to the construction of the Almatti Dam on the river Krishna by the State of Karnataka to a height of 524. 056 metres. Several issues were framed (at p. 627). Issue No. 2 related to the jurisdiction of this Court to entertain and try the suit under the provisions of Article 262 of the Constitution and Sections 11 and 2(c) of the Inter-State Water disputes Act, 1956. The issue was conceded by the State of Maharashtra which had raised the issue.

Over and above that, the Court was independently of the view (p. 640) that this Court had the jurisdiction to entertain and hear the suit and answered issue 2 in the affirmative. Punjab's review petition was dismissed by us on the ground that the "so-called vital question with regard to the interpretation ofArticle 131 and Article 262 has been answered in the Constitution Bench decision and we are bound by the same. " In the impugned judgment, we merely applied the interpretation of the Constitution Bench of the provisions of Article 131 and 262 to the facts of the case. There was no further interpretation of Article 131 and 262 to be done in the case before us which required the decision of a bench of five Judges under Article 145(5). The objection as to the jurisdiction ofthis Court on the basis ofArticle 262 was specifically negatived in the judgment dated 15th January 2002 .. when it was held : "...........

the construction ofSYL 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 ofthe 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". Can the State of Punjab raise these issues again? Or is it barred by the principles of res judicata assuming that the principles of res judicata are 'law' within the meaning of Order 26 Rule 6(b)?

The doctrine ofres judicata and Order XXXII Rule 2 are not technical rules of procedure and are fundamental to the administration of justice in all Courts that there must be an end of litigation. Thus, when this Court 7 was called upon in Dmyao v. State ofUP. , to hold that res judicata could not apply in connection with proceedings before this Court under Article 32 because of the extraordinary nature of the jurisdiction, it was said : "But is the rule ofresjudicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule of law then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now, the rule ofres judicata as indicated ins.

11 of the Code of Civil Procedure has no doubt some technical aspects, for instance the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in 7. 11962] I SCR 574, 582, 583 the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Art. 32 ..........

The binding character of judgments pronounced by courts of competent jurisdiction is itself an e~sential part of the rule of law, and the rule of law obviously is the basis of the administration ofjustice on which the Constitution lays so much emphasis'. "' This opinion was followed in the matter of Cauvery Water Disputes Tribunal. [1993] 1 SCC 96 (II) and applied to suits under Article 131. The factual background of that case was a dispute over the usage of the waters ofthe river Cauvery between the States ofTamil Nadu and Karnataka. The Union Government constituted the Cauvery Water Disputes Tribunal and referred the disputes between the two States to the Tribunal. The State of Tamil Nadu filed an application for interim relief. This was rejected by the Tribunal on the ground that it did not have the jurisdiction to grant any interim relief because that dispute had not been referred to it by the Central Government.

Being aggrieved, the State of Tamil Nadu approached this Court under Article 136. The Special Leave Petitions were converted into Civil Appeals and disposed ofby Order dated 26th April, 1991 by holding that the order ofReference showed that the Central Government had in fact referred the issue relating to interim relief to the Tribunal. The Tribunal then granted interim relief on Tamil Nadu's application. Kamataka subsequently issued an Ordinance relating to the utilization ofwater ofthe Cauvery and gave it overriding effect over any interim order of any Court or Tribunal. The Ordinance was replaced by an Act. In the meanwhile a suit was filed under Article 131 by the State of Karnataka against the State ofTamil Nadu contending that the Tribunal's order granting imterim relief was without jurisdiction and, therefore, null and void etc. In the context of these developments, the President referred three questions to this Court for its opinion under Article 143 ofthe Constitution.

Ofthe three questions, question No. 3 raised the issue whether a Water Disputes Tribunal 8. ibid at p. 584. constituted under the Inter-state Water Disputes Act, 1956 was competent to grant any ;nterim relief to the pa11ies in the dispute. This Court approached the question from two angles namely: (I) when no reference of grant of interim relief is made to the Tribunal and (2) when such reference is made it. The Court held that by its earlier decision of 26th April, 1991 it had been specifically held that the Central Government had made a reference to the Tribunal for consideration of the claim for interim relief prayed for by the State of Tamil Nadu. Implicit in the said decision was the finding that the Central Government could refer the matter of granting interim relief to the Tribunal for adjudication.

Although the Court had in such earlier decision kept open the question whether the Tribunal would have the power to grant interim relief when no reference was made, it was held that the earlier decision had in terms concluded the second aspect of the question. A submission was then made on behalf of the State of Karnataka that the earlier directions in the Court's order dated 26th April, I99 I should be declared as being without jurisdiction and void. This Court's decision in A. R. Antulay v. R. S. Nayak, [1998] 2 SCC 602, was relied on to contend that this Court could rehear the issue earlier concluded. The decision was distinguished by this Court and it was held that the facts in A. R. Antulay are ·'peculiar and the decision has to be confined to those special facts". It was then held. "It cannot be said that this Court had not noticed the relevant provisions of the Inter-State Water Disputes Act.

The Court after perusing the relevant provisions ofthe Act which were undoubtedly brought to its notice, has come to the conclusion that the Tribunal and jurisddion to grant interim relief when the question of ·granting interim relief formed part of the Reference. There is further no violation of any of the principles of natural justice or of any provision of the Constitution. The decision also does not transgress the limits of the jurisdiction of this Court. We are, therefore, ofthe view that the decision being inter partes operates as res judicata on the said point and it cannot be reopened. " Since the doctrine of res judicatu is an "essential part of the rule of Law" it follows that if the issues in the suit are barred by res judicata ex facie then this Court is required to reject the plaint in terms of Order XXIII Rule 6(b).

There is no substance in the submission of Punjab that even when there is no dispute of fact the issue ofres judicata should be left for consideration at the trial of the suit. The decision cited viz. Surayya v. Balagangadhar, AIR ( 1948) PC 5 is an authority for the proposition that the issue of res judicata must be specifically pleaded and is inapposite to the questions raised in this case. Here the earlier proceedings have been referred to in the plaint and are matters of record. As we have said both issues pertaining to the Court's jurisdiction under Article 145(3) and 262 have been considered and decided by this Court. The issues have been concluded inter partes and cannot be raised again in proceedings inter partes. . -.. The same objection relates to the challenge to Section 78 of the Punjab Reorganization Act, 1966. In paragraph 18 ofthe written statement filed by the State of Punjab in O. S. No.

6/96 there is an express challenge to Section 78 of the Punjab Re-organisation Act for want of legislative competence. But there is an additional ground apart from res judicata for holding that the issue as to the constitutional validity of Section 78 cannot be raised. The State of Punjab had earlier filed a suit, being O. S. No. 2 of 1979 in this Court challenging the validity of ;ection 78 of the Punjab Reorganisation Act, l976. In paragraphs 3 to 11 of the plaint, the constitutional validity of Section 78 of the Punjab Re-organisation Act, l966 had been specifically challenged. The following prayer among other prayers was made : "(a) Declaration that the provisions of the Punjab Reorganisation Act, 1966 in so far as they purport to authorise the Central Government to make determination with respect to the waters of the river Beas Project and allocation or distribution ofsuch waters is ultra vires the competence ofParliament and violative ofArticle 24(3) of the Constitution.

As far as OS No. 2179 is concerned it was unconditionally withdrawn in view of the agreement dated 13th December, 1981 as has been noted .. earlier. ,, Rules I and 2 of Order XXXII of the Supreme Court Rules which relate to the withdrawal and adjustment of suits provide : 1. "Rules 1, 2 and 3 of Order XXXl I in the First Schedule to the Code with respect to the withdrawal and adjustment of suits shall apply in suits instituted before the Cou1t. 2. No new suit shall be brought in respect ofthe same subjectmatter until the terms or conditions, if any, imposed by the order permitting the withdrawal of a previous suit or giving leave to bring a new suit have been complied with. " Rule 2 therefore allows a plaintiff to file a fresh suit in respect of the same subject matter as the earlier withdrawn suit only if (i) the order of withdrawal imposed conditions and those conditions have been complied with; or (ii) the order ofwithdrawal granted leave to the plaintiffto bring such fresh suit.

In the order allowing OS 2 of 1979 to be withdrawn no such conditions are present. Consequently a fresh suit in respect of the same subject matter viz. , the validity of section 78 of the1966 Act does not lie. We leave open the question as to whether it is open to the State of Punjab to question the vires of the statute by which it was created. Similarly the challenge to Section 14 ofthe 1956 Act must be ejected at the threshold. The section reads : "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. 1 and. 9. 2 " respectively of the Punjab Settlement.

(2) When a Tribunal has been consituted under sub~section (1), ( the provisions ofsub-sections (2) and (3) of Section 4, sub-section (2), (3) and (4) of Section 5 and Section SA to 13 (both inclusive) of this Act relating to the constitution, jurisdiction, powers, authority and bar ofjurisdiction shall, so far as may be, but subject to sub-section (3) hereof. apply to the constitution, jurisdiction, powers authority and bar ofjurisdiction 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. 1. and 9. 2 of the Punjab Settlement to such Tribunal. Explanation - For the purpose of this section "Punjab Settlement" means the Memorandum of Settlement signed at "New Delhi on the 24th day of July, 1985.

" In paragraph 51 of Punjab's Written Statement in OS 6 of 1996, it was admitted that the issues referred to in paragraphs 9. 1 and 9. 2 of the Punjab settlement were referred to the Ravi-Beas Tribunal by Government notification dated 2nd April 1986 and the affirmation of the continued availability of water from the Ravi-Beas system as on 1. 7. 85 referred to in the notification was relied upon. The notification dated 2nd April 1986 was issued under Section 14 ofthe Inter-States Water Disputes Act. As far as the report of the Tribunal is concerned, paragraph 8 of the written statement says that it could not be relied upon because it had not become final and that Punjab did not accept the correctness of "most of its findings". There was no dispute raised as to the constitutionality ofSection 14 at any stage.

Even in the course of arguments, when Section 14 was specifically referred to in elaborate written notes on the scope, purport and effect of Section 14, it was submitted that the effect of Section 14 is fourfold : (A) To overcome procedural hurdles that no dispute had been raised and to by pass the mandatory requirement of .. negotiations. (B) To deem matters referred under Section 14 to be a 'water dispute' and place this beyond challenge. (C) To constitute this special section 14 Tribunal under this Act and not any other provision or statute and make the other provisions applicable. (D) To oust the jurisdiction of all Courts including the Supreme Court by making Section 11 applicable to this dispute. (E) To leave all other disputes relating to the Punjab settlement to be decided under the amended Act of 1958. .

This Court in the judgment dated 15th Janury 2002 considered the arguments of the parties relating to Section 14 and negatived Punjabs' submission as to the construction of section 14. Punjab could have challenged the constitutional validity of Section 14 in its written statement. It did not then. It cannot do so now being barred by the doctrine of res judicata. In this suit Punjab has claimed that the section is ultra vires because "(i) the raison-d'etre for the introduction of Section 14 in the Act, 1956 was the assumption of the validity of Punjab Settlement i. e. Memorandum ofSettlement dated 24. 07. 1985, which is incorrect as the said Settlement is not a valid or binding Agreement; (ii) The enactment of Section 14 is beyond the competence of Par! iament since on the face ofit, it is agaii,st the constitutional Scheme as set out in the Constitution undei: Article 262 read with entry 56 of 7th Schedule, List I.

(iii) The special enactment has the effect of making a general legislation specific to Ravi-Beas Waters. This is discriminatory to the inhabitants of Punjab living in the Ravi-Beas Valley • and is therefore, constitutionally invalid. (iv) There can be no legislative enactment by Parliament in respect of an invalid Agreement............. (v) In any event and without prejudice to t~e foregoing, no Agreement can be executed in part to the exclusion of other obligations imposed thereunder, as each' obligation is an inter-connected and dependant bargain; (vi) Because in any event and without prejudice to the foregoing, the Punjab Settlement has become incapable of being performed under the changed circumstances as also for the reasons that the State of Haryana has resiled therefrom and is unwilling to abide by the letter and spirit of the said Settlement. From these reasons it also follows that Section 14 which is nothing but a statutory adjudication has no efficacy in law.

(vii) In any event and without prejudice to the foregoing the purposes for which Section 14 was incorporated in the act. 1956 have become redundant in the light of the facts and circumstances set out above and as the said provision is no longer capable of meeti'lg the objectives for which it was purportedly enacted : The challenge to Section 14 ofthe 1956 Act has been made "'without prejudice to Punjab's pending application under Section 5(3) of the Act". Assuming such a reservation is legally possible, the ground for submitting Section 14 of the 1950 Act is "unsustainable" is legally impermissible. It is well established that constitutional invalidity (presumably that is what Punjab means when it uses the word "unsustainable") of a statutory provision can be made either on the basis of legislative incompetence or because the statute is otherwise violative ofthe provisions ofthe Constitution.

Neither the reason for the particular enactment nor the fact that the reason for the legislation has become redundant, would justify the striking of the legislation or for holding that a statute or statutory provision is ultra vires. Yet these are the grounds pleaded in sub-paragraphs '(i), (iv), (v), (vi) and (vii) to declare section 14 invalid. Furthermore merely saying that a particula1 provision is legislatively incompetent [ground (ii)) or discriminatory [ground (iii)] will not do. At least prima facie acceptable grounds in support have to be pleaded to sustain the challenge. In the absence of any such pleading the challenge to the constitutional validity of a statutory provisions is liable to be rejected in limine. The grounds given in suppo1t of Punjab's challenge to Article 14 are ex-facie no grounds in law and tio "cause of action" has been disclosed to challenge the constitutional validity of Section 14 of the Inter-State Water Disputes Act, 1986.

Not only does the plaint filed by Punjab in OS I of 2003 not disclose any cause of action, but it is also evident from the statements in the plaint that the suit is barred by law. The plaint is accordingly rejected leaving open the other issues raised by Haryana in support of its appliration. Additionally and in the ultimate analysis, it is manifest that the suit has been filed only with a view to subvert the decision of this Court with all the disingenuousness of a private litigant to resist its execution. We have, in the circumstances, no compunction whatsoever in dismissing the suit under Order XLVII Rule 6 of the Rules. I. A. No. I of 2003 filed by the State of Haryana in O. S. I of 2003 is accordingly allowed. The plaint is rejected and Suit I of 2003 (State of Putifab v. State of Haryana) is dismissed with costs. IA. No. 4 In O. S.

6 of 1996 Haryana has asked for enforcement of the decree dated 15th January, 2002 under Article 142 of the Constitution read with clause 2(b) of the Supreme Court (Decrees and Orders) Enforcement Order 1954 (hereinafter referred to as the 1954 Order) praying that the Court may : (a) Issue directions to the Union of India (Defendant No.

2) to carry out its obligations under the decree and for the purpose : (i) nominate Border Roads Organisation (BRO) as the construction agency charged with the task ofcompleting and making functional the SYL canal as expeditiously as possible, and in any case within a period ofone year from the date ofthis Hon'ble Court's order on this application; (ii) Nominate the Central Water Commission (CWC) as the agency to provide technical guidance and supervision to the construction agency; (iii) Appoint a High Court Powered Committee consisting of the Secretaries referred to in paragraph 16-H (iii) to monitor the function of the above agencies and to submit progress reports to this Hon'ble Court on a monthly basis. (b) In the event the Union fails to carry out the above directions within <.

a period of four weeks, issue order nominating and appointing the agency for construction, the agency for providing technical guidance and the High Powered Committee and direct all of them to carry out their respective tasks as specified in prayer (a) above. (c) Press such other or further order or orders or 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. The basis of the application is the failure of the State of Punjab to either continue or complete the incomplete portion of the SYL canal in the Punjab territory within the period specified in the Decree and the subsequent failure ofthe Union of India to take any steps to complete the canal through its own agencies. The State of Punjab has filed a counter affidavit in which it has asked for deferring the application for execution on the ground that OS lof2003 has been filed, that a prayer in the suit