# [2016] 11 S.C.R. 15

- **Citation:** [2016] 11 S.C.R. 15
- **Court:** Supreme Court of India
- **Decided:** 2016-11-10
- **Case number:** Special Reference No. I of 2004
- **Bench:** Anil R. Dave, Pinaki Chandra Ghose, Shiva Kirti B Singh, Adarsh Kumar Goel, Amitava Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2016-11-s-c-r-15-31319
- **Pages:** 26

## Headnote

Conslilution of India:
Art.143 - Reference unde1; with regard to constitutional
validity of Punjab Termination of Agreements Act, 2004 - Sia/es of
Pu11jab, Haryana and Rajasthan entered into an agreement dated
31" Decembe1; 1981 in terms whereof !he said Sia/es agreed 011
reallocation of Ravi and Beas Waters - Agreement not acted upon
by the State of Punjab - Suit by Stale of Hwyana before Supreme
Court, decreed directing the State of Punjab to discharge its
obligations under the 1981 Agreement - Decree not complied with
by the State of Punjab - Execution petition by the State of Haryana
for enforcement of the decree, allowed- Howeve1; the State of Punjab
enacted the Punjab Termination of Agreements Act, 2004 terminating
the 1981 Agreement and also nullifying the aforesaid decrees of
the Supreme Court against it - Held: The Punjab Termination of
Agreements Act, 2004 cannot be considered to be legal and valid -
A party to the litigation cannot unilaterally act in a manner to nullify
the effect of the decree passed by a Court of law - A litigating
person cannot become judge in its own cause - The 1981 Agreement
was about sharing of waters of Ravi and Beas rivers and thus could
not have been unilaterally terminated by one of the parties to the
Agreement by exercising its legislative power - Such unilateral
action of the State of Punjab to terminate the I 981 Agreement or
nullify the decree of the highest Court of the country is comrwy to
the Constitution of India - Inter State Water Disputes Act, 1956 -
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s.14 - Punjab Reorganization Act, 1966 - s. 78 - Pimjab Satluj
Yamuna Link Canal Land (fransfer of Proprietary Rights) Act, 2016. . G
Art.143 - Reference under - To be on question of fact or
question of law - Held: A bare perusal of Art.143 would show that
the Presidenl of India is authorized to refer to Supreme Court a
question of law or fact, which in his/her opinion is of such a
nature and of such a public importance that it is expedient to obtain
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SUPREME COURT REPORTS
f2016l 11 S.C.R.
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the opinion of the Supreme Court upon it - The Article does not
restrict the President to obtain opinion only on a pure question of
law.
Art.143 - Reference under -
Whether Supreme Court
obligated or not to render its opinion - Held: It is within the discretion
B of Supreme Court. suNect to certain parameters, to decide whether
to refuse to answer a question on a reference.
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Answering the referred questions in the negative, the Court
HELD: 1.1 The Punjab Termination of Agreements Act,
2004 cannot be considered to be legal and valid and the State of
Punjab cannot absolve itself from its duties/liabilities arising out
of the Agreement dated 31" December, 1981. [Para 31] [34-E-F]
l.2 It was not disputed that there was a litigation between
the State of Punjab and the State of llaryana and ultimately a
decree was made whereby the arrangement with regard to sharing
of water as per the 1981 agreement was made. There was thus a
legal sanction to the said arrangement and once a binding decree
was passed by a Court of law, a party to the litigation cannot
unilaterally act in a manner to nullify the effect of the decree.
(Para 32] [34-F-G]
1.3 In the instant case, instead of a1Jproaching the
appropriate authority, namely, the Tribunal under the Inter-State
River Water Disputes Act, 1956 for appropriate relief, the State
of Punjab exercised its legislative power by enacting the 2004
Punjab Act so as to nullify the effect of the Decree. It is pertinent
to note that the water dispute, which the State of Punjab and State
of Haryana had, had been referred to the Tribunal as per the
provisions of Section 14 of the 1956 Act. After considering the
relevant provisions, the Tribunal had taken a judicial decision
and the said decision is also sought to be dist.urbed by virtue of
enactment of the 2004 Punjab Act. (Paras 33, 391 (34-G-H; 38-AB J
1.4 A litigating person cannot become judge in its own cause.
The 1981 Agreement was abou

## Text

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[2016j 11S.C.R.15
"IN RE: THE PUNJAB TERMINATION OF AGREEMENT ACT,
A
2004"
(Special Reference No. I of 2004)
NOVEMBER 10, 2016
[ANIL R. DAVE, PINAKI CHANDRA GHOSE, SHIVA KIRTI
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SINGH, ADARSH KUMAR GOEL AND AMITAVA ROY, JJ.)
Conslilution of India:
Art.143 - Reference unde1; with regard to constitutional
validity of Punjab Termination of Agreements Act, 2004 - Sia/es of
Pu11jab, Haryana and Rajasthan entered into an agreement dated
31" Decembe1; 1981 in terms whereof !he said Sia/es agreed 011
reallocation of Ravi and Beas Waters - Agreement not acted upon
by the State of Punjab - Suit by Stale of Hwyana before Supreme
Court, decreed directing the State of Punjab to discharge its
obligations under the 1981 Agreement - Decree not complied with
by the State of Punjab - Execution petition by the State of Haryana
for enforcement of the decree, allowed- Howeve1; the State of Punjab
enacted the Punjab Termination of Agreements Act, 2004 terminating
the 1981 Agreement and also nullifying the aforesaid decrees of
the Supreme Court against it - Held: The Punjab Termination of
Agreements Act, 2004 cannot be considered to be legal and valid -
A party to the litigation cannot unilaterally act in a manner to nullify
the effect of the decree passed by a Court of law - A litigating
person cannot become judge in its own cause - The 1981 Agreement
was about sharing of waters of Ravi and Beas rivers and thus could
not have been unilaterally terminated by one of the parties to the
Agreement by exercising its legislative power - Such unilateral
action of the State of Punjab to terminate the I 981 Agreement or
nullify the decree of the highest Court of the country is comrwy to
the Constitution of India - Inter State Water Disputes Act, 1956 -
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s.14 - Punjab Reorganization Act, 1966 - s. 78 - Pimjab Satluj
Yamuna Link Canal Land (fransfer of Proprietary Rights) Act, 2016. . G
Art.143 - Reference under - To be on question of fact or
question of law - Held: A bare perusal of Art.143 would show that
the Presidenl of India is authorized to refer to Supreme Court a
question of law or fact, which in his/her opinion is of such a
nature and of such a public importance that it is expedient to obtain
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f2016l 11 S.C.R.
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the opinion of the Supreme Court upon it - The Article does not
restrict the President to obtain opinion only on a pure question of
law.
Art.143 - Reference under -
Whether Supreme Court
obligated or not to render its opinion - Held: It is within the discretion
B of Supreme Court. suNect to certain parameters, to decide whether
to refuse to answer a question on a reference.
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Answering the referred questions in the negative, the Court
HELD: 1.1 The Punjab Termination of Agreements Act,
2004 cannot be considered to be legal and valid and the State of
Punjab cannot absolve itself from its duties/liabilities arising out
of the Agreement dated 31" December, 1981. [Para 31] [34-E-F]
l.2 It was not disputed that there was a litigation between
the State of Punjab and the State of llaryana and ultimately a
decree was made whereby the arrangement with regard to sharing
of water as per the 1981 agreement was made. There was thus a
legal sanction to the said arrangement and once a binding decree
was passed by a Court of law, a party to the litigation cannot
unilaterally act in a manner to nullify the effect of the decree.
(Para 32] [34-F-G]
1.3 In the instant case, instead of a1Jproaching the
appropriate authority, namely, the Tribunal under the Inter-State
River Water Disputes Act, 1956 for appropriate relief, the State
of Punjab exercised its legislative power by enacting the 2004
Punjab Act so as to nullify the effect of the Decree. It is pertinent
to note that the water dispute, which the State of Punjab and State
of Haryana had, had been referred to the Tribunal as per the
provisions of Section 14 of the 1956 Act. After considering the
relevant provisions, the Tribunal had taken a judicial decision
and the said decision is also sought to be dist.urbed by virtue of
enactment of the 2004 Punjab Act. (Paras 33, 391 (34-G-H; 38-AB J
1.4 A litigating person cannot become judge in its own cause.
The 1981 Agreement was about sharing of waters of Ravi and
Beas rivers. The said Agreement could not have been unilaterally
terminated by one of the parties to the Agreement by exercising
IN RE: THE PUNJAB TERMINATION OF AGREEMENT ACT,
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2004
its legislative power and if any party or any State does so, such
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unilateral action of a particular State has to be declared contrary
to the Constitution of India as well as the provisions of the 1956
Act. [Paras 36, 39] [36-F; 38-B-C]
1.5 For the afore stated reasons, the 2004 Punjab Act cannot
be said to be in accordance with the provisions of the Constitution
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oflndia and by virtue of the said Act, the State of Punjab cannot
nullify the judgment and decree referred to hereinabove and
terminate the 1981 Agreement. [Para 41] [38-E]
Re: Cauve1y Water Disputes Tribunal (1993) 1 Supp.
SCC 96 (II) : 1991 (2) Suppl. SCR 497; State of
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Tamil Nadu v. State of Kera/a and Another (2014) 12
SCC 696 : 2014 (12) SCR 875 - relied on.
Natural Resources Allocation, In Re, Special Reference
No.1of2012 2012 (10) SCC 1 : 2012 (9) SCR 311 -
referred to.
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Case Law Reference
2012 (9) SCR 311
relied on
Para 23
1991 (2) Suppl. SCR 497
referred to
Para 26
2014 (12) SCR 875
relied on
Para 34
ADVISORY JURISDICTION : Special Reference No. I of2004.
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Under Article 143 (I) of The Constitution of India.
Ranjit Kumar,SG., Ram Jethmalani, R.S. Suri, Jagdip Dhankhar,
Shyam Divan, J.S. Attri, C.S. Vaidyanathan, Ms. Indira Jaising, Sr. Advs.,
Anish Kumar Gupta, A nil Grover, S.S. Shamshery, AA Gs., S. Wasim A.
Qadri, Ms. Madhvi Diwan, Ajay Shanna, Zaid Ali, S.S. Rawat, Ms. Anil
Katiyar, Prabal Bagchi, Akash Jindal (For Ms. Sushma Suri, & D.S.
Mahra), Arun Kathpalia, Mohan V. Katarki, Jagjit Singh Chhabra, Vinay
K. Shailendra, Saksham Maheshwari, Ms. Pallavi Tyal Chadha, Ajay
Awasti, Vaibhav Asthana, Devashish Bharuka, Ravi Bharuka, Ms. Arpita
Bishnoi, Chandra Shekhar Suman, Ms. Dcepshikha Bhati, Ms. Priyanka
Parida, Varinder Kumar Sharma, Chandra Nand Jha, Vikramj it Banerjee,
Amit Sharma, Ms. Ruchi Kohli, Chirag M. Shroff, Ms. Meher Dev (for
Suresh Chandra Tripathy), Sunil Fernandez, Ms. Astha Sharma,
Ms. Puneeth K.G., Ms. Mithu Jain, Dinesh Kumar Garg, Advs., for the
appearing parties.
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SUPREME COURT REPORTS
r20161 11 S.C.R.
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The Judgments of the Court were delivered by
ANIL R. DAVE, .J. 1. By a Reference dated 22nd July, 2004,
Hon'ble the President oflndia made a request for an advisory opinion to
this Court under Article 143 (I) of the Constitution oflndia, in relation to
enactment of the Punjab Termination of Agreement Act, 2004 (hereinafter
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referred to as "the Punjab Act") by the State of Punjab.
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2. The text of the Reference referred to for the consideration
& opinion of this Court is as follows:-
·'WHERAS the Indus Basin comprises the rivers Indus,
Jhelum. Chenab, Ravi, Beas and Sutlej;
WHEREAS the lndus Water Treaty 1960 was entered into
between the Governments of India and Pakistan on 19th
September, 1960, under which India is entitled to the free,
unrestricted use of the waters of the Ravi, Beas and Sutlej till
they finally cross into Pakistan;
WHEREAS while at the time of signing the said treaty, the
waters of Sutlej had already been planned to be utilised for the
Bhakra-Nangal Project, the surplus flow ofrivers Ravi and Beas,
over and above the pre-partition use, was allocated by the
Agreement in 1955 between the concerned states as follows
namely:-
Punjab
7.20 MAF
(Including 1.30 MAF for Pepsu)
Rajasthan
Jammu & Kashmir
8.00MAF
0.65 MAF
15.85 MAF
WHEREAS after the afore-said allocation, there was a
reorganisation of the State of Punjab under the Punjab
Reorganisation Act, 1966 (31 of 1966) as a result of which
successor states, namely, State of Punjab and State of Haryana
were created and it became necessary to determine the
respective shares of the successor states out of the quantum of
water which could become available in accordance with aforesaid
IN RE: THE PUNJAB TERMINATION OF AGREEMENT ACT,
2004 [ANIL R. DAVE, J.]
allocation for use in the erstwhile State of Punjab and when the
successor states failed to reach an agreement, a notification dated
24th March, 1976 was issued by the Central Government under
Section 78 of the Punjab Reorganisation Act, 1966 under which
State of 1-laryana was allocated 3.5 MAF quantity of water;
WHEREAS to give effect to the allocation of3.5 MAF of water
to the State of Haryana under the said 1976 notification,
construction ofSatluj-Yamuna Link Canal (hereinafter called SYL
Canal) was started by the State of Haryana in their portion after
the 1976 notification. The construction of SYL Canal was also
started by Punjab in their portion in early eighties;
WHEREAS the States of Punjab, Haryana and Rajasthan
entered into agreement dated 3 1.12.1981, by which the States
of Punjab, Haryana and Rajasthan, in view of overall national
interest and optimum utilisation of the waters, agreed on the
reallocation of the waters among the States as follows:-
Share of Punjab
4.22 MAF
Share of Haryana
3.50 MAF
Share of Rajasthan
8.60MAF
Quantity earmarked
for Delhi water supply
0.20MAF
Share of J & K
0.65 MAF
...............
Total
17.17 MAF
...............
WHEREAS it was also agreed under the aforesaid 1981
agreement that the SYL Canal project could be completed in a
time bound manner with a maximum period of two years from
the date of signing of the agreement so that the State of Haryana
is enabled to draw its allocated share of water. This agreement
is in use for deciding the periodical distribution of waters among
the concerned states by the Bhakra Beas Management Board;
WHEREAS an accord called the "Punjab Settlement" was signed
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(2016] 11 S.C.R.
on 24th July, 1985 to resolve the issues relating to the State of
Punjab;
WHEREAS paragraph 9.1 of the 'Punjab Settlement' provide
that the farmers of Punjab, Haryana and Rajasthan will continue
to get water not less than what they are using from the RaviBeas System as on 1.7.1985, though waters used for consumptive
purposes will also remain unaffected and that quantum of usage
claimed shall be verified by the Tribunal referred to in Paragraph
9.2 of the settlement under which the claims of Punjab and
Haryana regarding their shares in the remaining waters will be
referred for adjudication to a Tribunal;
WHEREAS to give effect to paragraphs 9.1 and 9.2 of the
'Punjab Settlement', Section 14 was inserted in the Inter-State
water Disputes Act, 1956 under which Eradi Tribunal was
constituted for verification of the quantum of usage of water
claimed by the farmers of Punjab, Haryana and Rajasthan
regarding shares in their remaining waters. The Tribunal
forwarded a report in January, 1987. References of the States
of Punjab, Haryana and Rajasthan and Central Government
seeking clarification/ guidance on certain points of the report
was made to the Tribunal in August, 1987 under relevant
provisions of the Inter-State River Water Disputes Act, 1956.
These references are under the consideration of the Tribunal at
present;
WHEREAS it was also agreed under paragraph 9.3 of the 'Punjab
Settlement' that the construction of the SYL Canal shall continue
and it shall be completed by 15th August, 1986;
WHEREAS the SYL Canal could not be completed as the works
came to a halt following the killings of Chief Engineer and a
Superintending Engineer of the project in July, 1990 and were·
not resumed by the Government of Punjab subsequently and the
State of Haryana filed Suit No. 6 of 1996 before this Hon 'ble
Court praying for early completion of the SYL Canal in Punjab
territory;
WHEREAS the said suit was decreed by this Hon'ble Court by
its order dated 15.01.2002, by relying on the 3 I . 12.1981 agreement
and the State of Punjab was directed to make the SYL C~nal
IN RE: THE PUNJAB TERMINATION OF AGREEMENT ACT,
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2004 [ANIL R. DAVE, J.)
functional within a period of one year;
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WHEREAS the State of Punjab filed a Suit (O.S. No. 1 of2003)
seeking discharge/ dissolution of the obligation to construct the
SYL Canal as directed and Suit O.S. No. I of2003 was dismissed
by this Hon 'ble Court by its judgment and order dated 4.6.2004.
The Union of India was directed in the said judgment and order
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dated 4.6.2004 to mobilise a central agency to take control of
the canal works within a period of one month and the State of
Punjab was directed to handover the works to the Central Agency
within two weeks thereafter;
WHEREAS on 12th July, 2004, the State of Punjab has enacted
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the Punjab Termination of Agreements Act, 2004 (herein after
called Punjab Act, 2004) terminating and discharging the
Government of Punjab from its obligations under the agreement
dated 3 1.12.1981 and all other agreements relating to waters of
Ravi-Beas.
WHEREAS on 15th July, 2004, the Union of India filed an
application for taking on record subsequent facts and
developments after the passing of the order of the Hon 'ble
Supreme Court dated 4.6.2004 and requesting the Hon'ble Court
to pass such other and further orders as deemed fit in the interest
of justice;
.WHEREAS doubts have been expressed with regard to the
constitutional validity of the Punjab Act, 2004 and its provisions
and also whether the agreement dated 31.12.1981 can be said to
have been validly terminated by the State of Punjab and whether
the State of Punjab has been lawfully discharged from the said
agreement;
AND whereas in view of the aforesaid, it appears that there is
likelihood of the constitutional validity of the provisions of the
Punjab Act 2004 being challenged in Courts of law involving
protracted and avoidable litigation, that the differences and doubts
have given rise to public controversy which may lead to
undesirable consequences and that a question of law has arisen
which is of such a nature and of such public importance that is
expedient to obtain the opinion of the Hon 'ble Supreme Court of
India thereon;
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[2016] ll S.C.R.
NOW, THEREFORE, in exercise of powers conferred upon me
by clause ( l) of Article 143 of the Constitution of India, I, A.P.J.
Abdul Kalam, President of India, hereby refer the following
questions to the Supreme Court of India for consideration and
report thereon, namely:
i) Whether the Punjab Termination of Agreements Act, 2004
and the provisions thereof are in accordance with the provisions
of the Constitution oflndia;
ii) Whether the Punjab Termination of Agreements Act, 2004
and the provisions thereof are in accordance with the provisions
of Section 14 of the Inter-State Water Disputes Act, 1956, Section
78 of the Punjab Reorganisation Act, 1966 and the Notification
dated 24th March, 1976 issued there under;
iii) Whether the State of Punjab had validly terminated the
agreement dated 31.12.1981 and all other agreements relating
to the Ravi-Beas waters and is discharged from its obligation
under the said agreement(s); and
iv) Whether in view of the provisions of the Act; the State of
Punjab is discharged from its obligations from the judgment and
decree dated 15.01.2002 and the judgment and order dated
4.6.2004 of the Supreme Court oflndia.''
3. In pursuance of notice issued, the learned Attorney General for
India appeared and made introductory submissions with regard to the
Reference and thereafter, by an order dated 2nd August, 2004, this Court,
issued notices to the Union of India and States of Punjab, Haryana,
Rajasthan, Himachal Pradesh, Jammu & Kashmir and the NCT of Delhi
through their respective Chief Secretaries.
4. Virtually, all relevant facts which are necessary for rendering
ouropinion on the issues referred to this Court have been duly incorporated
in the Reference and in the circumstances, we would not like to burden
our opinion by reiterating the facts. Suffice it to state that by vi11ue of
the provisions of Article 143 of the Constitution oflndia this Court has to
examine the validity of the Punjab Act, 2004 and we have also to examine
whether the State of Punjab had validly terminated the Agreement dated
31" December, 1981 and other agreements relating to Ravi-Beas waters
so as to discharge it from the obligations which it had to discharge under
certain valid orders passed by appropriate authorities. However, for
IN RE: THE PUNJAB TERMINATION OF AGREEMENT ACT,
2004 [ANIL R. DAVE, J.]
further clarity we may incorporate facts with regard to certain litigation,
in a nutshell, which are as under:
The States of Punjab, Haryana and Rajasthan entered into an
Agreement dated 3 1" December, 1981 which has been referred to
hereinabove in the Reference, by virtue of which the States of Pubjab,
Haryana and Rajasthan, in view of overall national interest and optimum
utilization of Ravi and Beas waters had agreed on re-allocation of Ravi
and Beas waters but as the said agreement was not being acted upon by
the State of Punjab, the State of Haryana had instituted Suit No.6 of
1996 before this Court under Article 131 of the Constitution of India
impleading the State of Punjab and Union oflndia, seeking the following,
among other, reliefs:-
"( a) pass a decree declaring that the order dated 24-3-1976, the
Agreement of 3 1-12-1981 and the Settlement of 24-7-1985 are
final and binding inter alia on the State of Punjab casting an
obligation on Defendant I to immediately restmt and complete
the portion of the Sutlej-Yamuna Link Canal Project as also make
it usable in all respects, not only under the aforesaid order of
1976,Agreement of 1981 and Settlement of 1985 but also pursuant
to a contract established by conduct from 1976 till date;
(b) pass 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 portion of the 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;"
5. This Court after examining all the legal aspects and provisions,
passed a decree in the said Suit No. 6of1996 vi de judgment dated 15th
January, 2002, relevant portion of which is extracted herein below:-
"18 ......... The State Governments having entered into
agreements among themselves on the intervention of the Prime
Minister of the country, resulting in withdrawal of the pending
suits in the Court, cannot be permitted to take a stand contrary
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SUPREME COURT REPORTS
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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. That apart, more than Rs. 700 crores of pub! ic revenue
cannot be allowed to be washed down the drain, when the entire
portion of the canal within the territory ofHaryana has already
been completed and major portion of the said canal within the
territory of Punjab also has been dug, leaving only minor patches
within the said territory of Punjab to be completed. If the
apprehension of the State is that on account of digging of the
canal, the State of Haryana would draw more water than that
which has been allocated in its favour, then the said apprehension
also is thoroughly unfounded inasmuch as the source for drawing
of water is only from the reservoir, which lies within the territory
of Punjab and a drop of water will not flow in the canal unless
the connecting doors are open. But the quantity of water that
has already been allocated in favour of the State of Haryana,
must be allowed to be drawn and that can be drawn only ifthe
additional link canal is completed inasmuch as the existing Bhakra
Main Canal has the capacity of supplying only 1.62 MAF of
water. This being the position, we unhesitatingly hold that the
plaintiff-State of Haryana has made out a case for issuance of
an order ofinjunction in the mandatory form against the State of
Punjab to complete the portion of SYL Canal, which remains
incomplete and in the event the State of Punjab fails to complete
the same, then the Union Government-defendant 2 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. We have examined the materials from
the' stand point of existence of a prima facie case, balance of ·
convenience and irreparable loss and injury and we are satisfied
that the plaintiff has been able to establish each one of the
aforesaid criteria and as such is entitled to the injunction sought
for. This issue is accordingly answered in favour of the plaintiff
and against the defendants. We, therefore, by way of a mandatory
injunction, direct the defendant-State of Punjab to continue the
digging ofSutlej-Yamuna Link Canal, portion of which has not
been completed as yet and make the canal functional with in one
year from today. We also direct the Government of India -
IN RE: THE PUNJAB TERMINATION OF AGREEMENT ACT,
2004 [ANIL R. DAVE, J.]
defendant 2 to discharge its constitutional obligation in
implementation of the aforesaid direction in relation to the digging
of canal and if within a period of one year the SYL Canal is not
completed by the defendant-State of Punjab, then the Union
Government should get it done through its own agencies as
expeditiously as possible, so that the huge amount of money that
has already been spent and that would yet to be spent, will not
be wasted and the plaintiff-State of Haryana would be able to
draw the full quantity of water that has already been allotted to
its share. Needless to mention, the direction to dig SYL Canal
should not be construed by the State of Haryana as a license to
permit them to draw water in excess of the water that has already
been allotted and in the eventthe tribunal, which is still considering
the case of re-allotment of the water, grants any excess water
to the State of Haryana, then it may also consider issuing
appropriate directions as to how much of the water could be
drawn through SYL Canal.
19. The Plaintiff's suit is decreed on the aforesaid terms. There
will be no order as io costs."
[Emphasis Supplied]
6. The State of Punjab did not comply with the decree dated 15th
January, 2002 passed by this Court in Suit No. 6of1996. On 18th January,
2002, the State of Punjab filed an application for review of said judgment
dated 15th January, 2002 which was dismissed by this Court on 5th
March, 2002. On 18th December, 2002, an application was filed by the
State of Haryana for enforcement of the judgment and decree dated
15.01.2002 and the said application was registered as IA No. I of2002.
7. On 13th January, 2003; the State of Punjab filed suit No. I of
2003 under Article 131 of the Constitution of India before this Court
seeking inter-alia the following reliefs:-
( a) To discharge/dissolve the obligation to construct SYL Canal
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imposed by the mandatory injunction decreed by this Hon'ble
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Court in its judgment/decree dated 15.01.2002 in OS No.6/ 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
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[2016] 11 S.C.R.
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in terms of A11icle 145(3) of Constitution oflndia;
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(c) To declare that Section 14 of the Act, 1956 is ultra-vires the
Constitution oflndia;
(d) To declare that Section 14 of the Act, 1956 is no longer
enforceable for the reasons set out in the plaint;
(e) To declare the Punjab Settlement (Raj iv 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 with other l 0 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 the
Constitution of India, and that all acts, deeds and things done
pursuant thereto or in consequence thereof including all
Notifications, Agreements, 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.
8. By judgment and order dated June 4, 2004; this Court
dismissed the suit filed by the State of Punjab and allowed the execution
petition filed by the State ofHaryana by passing inter-alia the following
order:-
"96. The residuary power under Section 5l(e) 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. We have not been told
whether the contingency plan has been put into operation.
Although it appears that the Cabinet Committee on Project
Appraisals had approved the proposal for completion of the SYL
IN RE: THE PUNJAB TERMINATION OF AGREEMENT ACT,
2004 [ANIL R. DAVE, J.)
canal by BRO and at a meeting convened as early as on 20-21991, the then Prime Minister directed that BRO take over the
work for completion of the SYL Canal in the minimum time
possible, BRO is not now available for the purpose. After the
decree the Central Water Commission Officials have inspected
the canal on 9-10-2002. The report has assessed a minimum
period of about two years for removing silt deposits, clearing of
trees and bushes, completing the damaged and balance works
and making the canal functional and has estimated an amount of
about Rs.250 crores for this purpose excluding the liabilities of
Punjab. In the circumstances we direct the Union of India to
carry out its proposed action plan within the following time frame:
I) The Union of India is to mobilize a Central agencv to take
control of the canal works from Punjab within a month from
todav.
2) Punjab must hand over the works to the Central Agency within
2 (Two) weeks thereafter.
3) An empowered committee should be set up to coordinate and
facilitate the early implementation of the decree within 4 (four)
weeks from today. Representatives of the States of Haryana
and Punjab should be included in such Committee;
4) Il1e construction of the remaining portion of the canal including
the survey, preparation of detailed estim_ates and other preparatory
works such as repair, desilting, clearance of vegetation etc. are
to be executed and completed by the Central Agency within
such time as the High Powered Committee will determine.
5) The Central and the Punjab Governments should provide
adequate security for the staff of the Central Agency.
97. We conclude this chapter with a reminder to the State of
Punjab that "Great states have a temper superior to that of private
litigants, and it is to be hoped that enough has been decided for
patriotism, the fraternity of the Union, and mutual consideration
to bring it to an end".
[Emphasis Supplied]
9. In.the aforestated background, on l 21h July, 2004, the State of
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Punjab enacted the Punjab Act, 2004 with an intention to terminate the
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Agreement dated 31st December, 1981 and all other Agreements relating
to sharing of waters of rivers Ravi and Beas. Intention behind the said
enactment was also to discharge the Government of Punjab from the
obligations arising under the aforestatedAgreement dated 31" December,
1981 and to nullify the decrees of the Court referred to hereinabove.
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I 0. The aforestated facts will give some fm1her idea about the
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facts and circumstances in which the President oflndia has referred the
aforestated questions to this Cot111 for its opinion.
11. At this juncture, we would like to refer to ce11ain unwarranted
developments which took place after we sta11ed hearing this Reference.
The legislature for the State of Punjab introduced Punjab Satluj Yamuna
Link Canal Land (Transfer of Proprietary Rights) Bill, 2016. No assent
ofGovermor till date and therefore, it is not a legislation and will remain
Bill passed by Legislative Assembly. By virtue of the aforestated
legislation, the State of Punjab proposed to act in clear violation of the
Agreement dated 31" December, 1981 which has been referred to in
the Reference.
12. The State of Punjab had an intention to de-notify the land
acquired for the purpose of construction of Sutlej Yamuna Link Canal
(hereinafter referred to as "the SYL Canal") in Punjab and in pursuance
of the said enactment, the State of Punjab had started returning
possession of the land already acquired to its landlords and earth moving
equipments had been mobilized to level, destroy and fill up the SYL
Canal which was in the process of construction.
13. In the aforestated circumstances, I.A. No.7 of2016 had been
filed by the State of Haryana praying that the operation and
implementation of Punjab Satluj Yamuna Link Canal Land (Transfer of
Proprietary Rights) Act, 2016 be suspended so that the entire proceedings
initiated in pursuance of the Reference may not be frustrated. After
hearing the concerned parties, on 17.3.2016, this Court was constrained
to pass the following order:-
" I.A. No.7/2016 - for appropriate directions. Taken on
Board. Upon perusal of the contents of the application and upon
hearing the learned counsel appearing for the parties, prima facie,
it appears that an effort has been made to see that execution of
a decree of this Court is being made inexecutable and this Com1
cannot be a silent spectator of the said fact and therefore, we
IN RE: THE PUNJAB TERMINATION OF AGREEMENT ACT,
2004 [ANIL R. DAVE, J.]
direct that status quo shall be maintained by the parties with
regard to the following properties referred to in para ( d)(ii) of
the application:
"(dXii) lands, works, property and portions of the SYL canal and
all lands within the alignment of the SYL canal within the territories
of the State of Punjab which are covered by the judgments of
this Court in State ofHaryana v State of Punjab, (2002) 2 SCC
507 (paragraphs 18 and 19) and State of Haryana v State of
Punjab, (2004) 12 SCC 712 (paragraph 96),".
In the circumstances, it is further directed that (i) The
· Secretary, Home Department, Union of India, (ii) The Chief
Secretary, State of Punjab, and (iii)The Director General of
Police, State of Punjab are appointed as Court Receivers as
prayed for in para ( d)(ii) and all the properties referred to in the
said para shall be deemed to have vested in them and they shall
also see that status quo is maintained with regard to the properties
referred to herein-above. Counter affidavits to the application
be filed on or before 28th March, 2016".
14. We have heard the learned Solicitor General oflndia appearing
for the Union of India and learned counsel appearing for the States of
Punjab, ljaryana, Jammu and Kashmir (J & K), Rajasthan, Himachal
Pradesh and the NCT of Delhi at length. Several judgments were cited
by the learned counsel so as to substantiate their arguments. We do not
propose to refer to all the judgments cited; e'specially in view of the fact
that the law laid down by this Court, which has been referred to by the
learned counsel cannot be disputed and there are some judgments which
refer to all the issues with which we are concerned. We have considered
all the submissions and substance of all the judgments referred to by
them and we are referring to the submissions made by them in a nutshell
herein below.
15. As all the questions referred to this Court are interlinked, for
the sake of convenience, we have discussed the same together instead
of dealing with them separately.
16. The learned counsel appearing on behalf of the State of Punjab
vehemently submitted that this Reference is not maintainable under the
provisions of Article 143(1) of the Constitution oflndia. He submitted
that several issues with regard to facts not on record are also involved
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and that is one of the reasons for which this Court should not render its
opinion. He further submitted that it is not obligatory on the part of this
Court to give its opinion in each and every matter which might be refeJTed
to this Court by the President oflndia. According to him, looking at the
facts of this case, especially when several other incidental facts are
involved in the issue referred to this Court, this Court should refuse to
give its opinion. He also referred to some of the judgments which lay
down law to the effect that it is not obligatory on the part of this Court to
give opinion as and when a Reference is made by the President oflndia
under the provisions of Article 143( I) of the Constitution oflndia.
17. He further submitted that this Court must take into account
the fact that the circumstances have changed substantially in the last
few years. According to him, after this Court had decreed the suit filed
by the State of Haryana referred to hereinabove, the actual position
with regard to the supply of water in the rivers has remarkably changed
as supply of water has been substantially reduced, which has created
problems for the State of Punjab and in view of the changed
circumstances, according to him, it was necessary for the State of Punjab
to take a different stand and in the new set of circumstances, the Punjab
Act, 2004 had to be enacted and it is imperative on the part of the Statutory
Authorities and this Court to consider the said changed circumstances
and therefore, the Punjab Act, 2004 cannot be said to be invalid or ultra
vi res the Constitution of India. He further submitted that in view of the
fact that under the provisions of Section 14 of The Inter-State River
Water Disputes Act, 1956 the Tribunal has already been constituted, it
would be expedient to refer the entire matter to the Tribunal so that the
Tribunal can consider all the relevant facts and take an appropriate
decision.
18. He further submitted that the State of Punjab has already
filed a suit with a prayer to constitute a Tribunal so that the dispute can
be referred to the Tribunal and in the aforestated circumstances, the
Reference should not be answered. Moreover, he also submitted that
the law on the subject is crystal clear to the effect that whenever there
·is any decision with regard to sharing of waters, the decision should be
reviewed periodically when the circumstances get changed i.e. when
the flow of water or supply of water is changed. According to him, in
the changed circumstances comp! iance of all earlier orders should not
be insisted upon and a fresh decision based on the ground realities should
IN RE: THE PUNJAB TERMINATION OF AGREEMENT ACT,
31
2004 [ANIL R. DAVE, J.]
be taken with regard to sharing of the waters. The sum and substance
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of the submissions of the learned counsel appearing for the State of
Punjab was that this Reference is not at all maintainable as the law
enacted by the State of Punjab is within its statutory powers.
19. In reply to the main issue with regard to the validity of the
Reference the learned counsel appearing for the State of Haryana and
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those suppo11ing him submitted that the Reference is maintainable and
the submissions made by the learned counsel appearing for the State of
Punjab did not have any substance.
20. So as to examine whether such a Reference can be made, let
us consider the provisions of Article 143 of the Constitution of India,
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which reads as under:-
"Article 143: Power of President to consult Supreme
Court.---
(1) If at any time it appears to the President that a question of
law or fact has arisen, or is likely to arise, which is of such a
nature and of such public importance that it is expedient to obtain
· the opinion of the Supreme Court upon it, he may refer the question
to that Court for consideration and the Court may, after such
hearing as itthinks fit, report to the President its opinion, thereon.
(2) The President may, notwithstanding anything in the proviso
·to Article 131, refer a dispute of the kind mentioned in the said
proviso to the Supreme Cou11 for opinion and Supreme Court
shall, after such hearing as it thinks fit, report to the President its
opinion thereon."
21. A bare perusal of Article 143 of the Constitution would show
that the President is authorized to refer to this Court a question oflaw or
fact, which in his/her opinion is of such a nature and of such a public
importance that it is expedient to obtain the opinion of the Supreme Court
upon it. The Article does not restrict the President to obtain opinion only
on a pure question oflaw. The submission made by the learned counsel
appearing for the State of Punjab that several questions of fact are involved
in the Reference is thus hardly relevant, for the reason that an opinion
can be sought on question of law and even on question of fact.
22. It is true that it in for this Court to decide whether to render its
opinion to the President and it is also true that such a view has been
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taken by this Court and in a given case this Court can refuse to give its
opinion.
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23. While considering the same issue, this Court in the case of
Natural Resources Allocation, In Re, Special Reference No.1 of
20122012(10) SCC I has observed as under:
"35. Insofar as the impact of filing and withdrawal of the review
application by the Union oflndia against the decision in 2G case
on the maintainability of the instant Reference is concerned, it is
a matter ofrecord that in the review petition, certain aspects of
the grounds for review which have been stated in the recitals of
the Reference as well as in some questions, were highlighted.
However, there is a gulf of difference between the jurisdiction
exercised by this Court in a review and the discretion exercised
in answering a reference under Article 143( I) of the Constitution.
A review is basically guided by the well-settled principles for
review of a judgment and a decree or order passed inter se
parties. The Court in exercise of power ofreview may entertain
the review under the acceptable and settled parameters. But,
when an opinion .of this Court is sought by the executive taking
recourse to a constitutional power, needless to say, the same
stands on a different footing altogether. A review is lis specific
and the rights of the parties to the controversy are dealt with
therein, whereas a reference is answered keeping in view the
tenns of the reference and scrutinising whether the same satisfies
the requirements inherent in the language employed under Article
143( I) of the Constitution. In our view, therefore, merely because
a review had been filed and withdrawn and in the recital the
narration pertains to the said case, the same would not be an
embargo or impediment for exercise of discretion to answer the
reference".
24. Thus, .it is within the discretion of this Court, subject to certain
parameters to decide whether to refuse to answer a question on a
reference.