SUPREME COURT OF
State of
Vs.
State of
Application 4 of 2003 In Os 6 of 1996
(Ruma Pal and P. Venkatarama Reddi JJ.)
04.06.2004
JUDGMENT
MRS. RUMA PAL J
Consequent of the creation of the State of
A suit was
filed by the State of
The date for
completion of the canal by
"9. Sharing of River Waters
9.1 The
farmers of
9.2. The claims of
The decision of this Tribunal will be rendered within six months and would be binding on both parties. All legal and constitutional steps required in this respect be taken expeditiously.
9.3. The
construction of
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
However
Clause 9.3 of the Settlement which was kept distinct from the water disputes
under Clauses 9.1 and 9.2 continued to operate. The State of
"(a) a decree declaring that the order dated 24.3.1976, the agreement of 31.12.1981 and the settlement of 24.7.1985 are final and binding inter alia on the State of Punjab casting an obligation on Defendant No. 1 to immediately restart 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) a decree of mandatory injunction compelling Defendant 1 (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 Ravi and Beas waters". *
A written
statement was filed by the State of
It was averred that the SYL canal was unnecessary because the State of
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
After
considering the material on record, on 15th January, 2002 this Court decreed
the suit in favour of the State of
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 15th
January 2002. The writ petition was dismissed by this Court on 10th February
2004.
On 18th December 2002, an application was filed by Haryana for implementation
of the judgment and decree dated 15th January 2002. This application was
registered and numbered as I.A. No. 1 of 2002 in Suit No. 6 of 1996.
On 13th
January 2003, the State of
(a) discharge/dissolve
the obligation to construct
(b) to declare that the judgment/decree dated 15.01.2002 in OS No. 6/1996 is not binding or enforceable since the issues raised in that Suit could only have been decided by a Constitution Bench in terms of Article 145(3) of Constitution 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 plaint;
(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 of other 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, Agreements, etc. are null and void including the notification dated 24.93.1976 and the Agreement dated 31.12.1981 as non-east and void ab initio.
The State of
Haryana's application for enforcement of the decree (I.A. 1
in O.S. No. 6 of 1996) was sought to be amended in I.A. No. 3. The State of
At this stage, the State of
Therefore, out of this welter of litigation what survives for disposal is:
1) Haryana's application for enforcement of the decree dated 15th January 2002 (I.A. No. 4 in O.S.6/1996).
2)
3) Haryana's application for rejection of the plaint in
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. I.A. No. 1 in O.S. 1 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. 1 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 Court by virtue of Article 262 of the
Constitution and that the prayers (c) to (f) were barred by the doctrine of res judicata. Additionally, it
has been urged that the State of Punjab could not competently challenge the vires of Section 78 of the Punjab Reorganisation
Act, 1966, apart from the fact that under Order XXXII Rule 2 of the Rules 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
In answer, the State of
Reliance has
been placed on the decisions of this Court in State of Karnataka V. Union of
India 1977 (4) SCC 609, p. 690, 709 as well the decision in State of Karnataka
V. State of A.P. 2 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 2002 decided a water dispute and that the
decision of this Court in dismissing the review application filed by the State
of
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
It is also
our opinion that
"Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the 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 of the Constitution which has clothed this Court with exclusive original jurisdiction to decide any dispute (a) between the Government of India and one or more States or (b) between the Government 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 of such 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 XXIII Rule 6(a) does not appear in Article 131. The phrase, which occurs in Section 20 of the Code of Civil Procedure and is commonly used in connection with 'ordinary' suits, has, in that context, "acquired a judicially-settled meaning. In the 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 of the
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 conspicuous 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 in 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 of
disclosing 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
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 unable to find a cause of action 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 of this 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 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 of Part III of the Rules of this Court, applicable to the exercise of the Original Jurisdiction of this 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 XXIII. The phrase "cause of action" was 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 of
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 131. 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 131 as 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 of the Constitution should not be tested on the anvil of banal rules which are applied under the Code of Civil Procedure for determining whether a suit is maintainable.
Article 131 undoubtedly confers 'original jurisdiction' on the Supreme Court and the commonest form of a 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 of a certain nature in the exercise of its 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 of the 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', an 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 of law or fact) on which the existence or extent of a legal right depends". By the very terms of the 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". *
The 'cause of action' under Order XXIII 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. If the plaint does not ex facie show the fulfillment 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. Order XXIII 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 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 conclude 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
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 apportionment between the
In
paragraphs 9, 10, 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 Paragraph 18 questions the
correctness of the order dismissing the plaintiffs Review Petition. Paragraph
19 contains an assertion that the construction of the
An analysis
of the averments in the plaint shows that the entire thrust of the suit filed
by the State of
The second portion challenges the decree as being un- constitutional.
The first question to be answered is: do these disputes involve any question (whether legal or factual) on which the existence or extent of a legal right of the plaintiff depends? If it does then the next question is, whether the raising of such disputes is barred by any law? If any of these questions is answered in the affirmative then the plaint must be rejected as a whole. On the other hand, if any part of the dispute crosses both hurdles, the suit must survive because there cannot be a partial rejection of the plaint. (See D. Ramachandran v. R.V. Janakiraman ).
The primary
consideration in answering the first question is the legal right claimed by the
plaintiff. Unless the plaintiff can establish that there is such a right in
law, there would be no question of this Court deciding any dispute regarding
the extent or existence of such right under Article 131. As was said by
Bhagwati, J (as His Lordship then was) in State of
"Now, plainly there are two limitations in regard to the dispute which can be brought before the Supreme Court under Article 131. One is in regard to parties and the other is in regard to the subject matter .
The (other)
limitation as to subject matter flows from the words "if and in so far as
the dispute involves any question (whether of law or fact) on which the
existence or extent of a legal right depends". These words clearly
indicate that the dispute must be one affecting the existence or extent of a
legal right and not a dispute on the political plane not involving a legal
aspect. It was put by Chandrachud, J., very aptly in
his judgment in the State of
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.
Several decisions both Indian and of the United States
have been cited in support of this proposition. Before we consider these
authorities it must be kept in mind that as far as this country is concerned
the general law relating to injunctions is contained in Sections 36 to Section
42 of the Specific Relief Act, 1963
"Mandatory
injunctions- When, to prevent the breach of an obligation, it is necessary to
compel the performance of certain acts which the court is capable of enforcing,
the court may in its discretion grant an injunction to prevent the breach
complained of, and also to compel performance of the requisite acts". *
This command may direct the restoration of status-quo ante or may direct the
performance of a positive act altering the existing state of things. A
mandatory injunction like a preventive injunction may be temporary or final.
All the decisions cited by
Thus, in Albert H. Ladner V. Clarence R. Siegel 68 ALR 1172 at the instance of adjoining landowners, a decree had been passed preventing the defendant, Siegel, from using the building proposed to be constructed by him for garage purposes. The injunction was granted on the basis that the area was exclusively residential and that the proposed business would give rise to gases and odour affecting the neighbourhood. Subsequent to the decree, Siegel applied for modification on the ground that he did not wish to operate the garage but merely wished to use the premises to park the cars of his tenants. The lower Court modified the earlier decree. The adjacent landowners' appealed. The U.S. Supreme Court rejected the appeal and said:
"There are many equitable proceedings that illustrate the general rule, such as specific performance, bills to reform instruments, and others. A final decree in such equitable proceeding is unchangeable, except possibly through gross mistake to be corrected by a bill of review, and not then if any intervening right has appeared since entering the decree. In all such proceedings the decree calls for definite action, and the law presumes such action to follow the order.
"But though a decree may be final, as it relates to an appeal and all matters included or embodied in such a step, yet, where the proceedings are of a continuing nature, it is not final. These are exceptions to the general rule, and to determine them the nature and character of the equitable action must be considered; that is, whether the decree is final for the purpose of execution, or contemplates other and further steps in the administration of justice".
"An
injunction is the form of equitable proceeding which protects civil rights from
irreparable injury, either by commanding acts to be done, or preventing their
commission, there being no adequate remedy at law. Granting an injunction rests
in the sound discretion of the court, that discretion to be exercised under
well-established principles, and there are no statutory limitations on the
power of the court in relation thereto. While the decree in such action is an
adjudication of the facts and the law applicable thereto, it is none the less executory and continuing as to the purpose or object to be
attained; in this it differs from other equitable actions. It operates until
vacated, modified, or dissolved. An injunction contemplates either a series of
continuous acts or a refraining from action. A preventive injunction constantly
prevents one party from doing that which would cause irreparable damage to his
neighbor's property rights. The final decree continues the life of such
proceedings, not only for the purpose of execution, but for such other relief
as a chancellor may in good conscience grant under the law.
The modification of a decree in a preventive injunction is inherent in the
court which granted it, and may be made, (a) if, in its discretion judicially
exercised, it believes the ends of justice would be served by a modification,
and (b) where the law, common or statutory, has changed, been modified or
extended, and (c) where there is a change in the controlling facts on which the
injunction rested" $ *
(Emphasis supplied)
The next decision cited is United States of America V. Swift & Company 286 US 105, 76 L.ed.999 where the Government had filed proceedings against five meat packers to dissolve a monopoly on, inter-alia, the ground that the defendants had not only suppressed competition but were spreading their monopoly into other fields of trade. A consent decree was passed preventing the defendants from maintaining a monopoly and entering into or continuing in combination in restraint of trade and commerce. There were further clauses which prevented the defendants from carrying out the specified type of activity severally and jointly. The decree closed with a provision whereby jurisdiction of the court was retained for the purpose of taking such other action or such other relief "as may become necessary or appropriate for the carrying out and enforcement" thereof, "and for the purpose of entertaining at any time hereafter any application which the parties may make" with reference thereto. An application was made before the lower Court by an intervenor for vacating the decree on the ground of lack of jurisdiction. The operation of the decree was suspended by an interim order. On an appeal preferred by the Government and by the wholesale grocers, the U.S. Supreme Court allowed the appeals. In the course of the judgment it was said:
"Power to modify the decree was reserved by its very terms, and so from the beginning went hand in hand with its restraints. If the reservation had been omitted, power there still would be by force of principles inherent in the jurisdiction of the chancery. A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need". [114] *
A distinction was made between restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative. The Court, however, made it clear that in proceedings for modification of a decree, the decree itself cannot be impeached and that the Court is "not at liberty to reverse under the guise of re-adjusting". Santa Rita Oil Company V. State Board of Equalization 126 ALR 757 was a case in which a decree of injunction had been granted restraining the computation, assessment, levying and collection of certain taxes on oil and gas products under a lease of trust patent Indian lands on the ground that the plaintiff was an instrumentality of the Federal Government and was, therefore immune from taxation by the State. The decision was based upon earlier decisions of the US Supreme Court. In other words, the injunction granted was a continuing one on the basis of the law as it then stood. The US Supreme Court subsequently took a contrary view and over-ruled the earlier decisions. The question was whether with the change in the legal basis of the earlier decree, the earlier decree would continue to operate. In that context it was held:
"A final or permanent injunction is a continuing process over which the equity court necessarily retains jurisdiction in order to do equity. And if the court of equity later finds that the law has changed or that equity no longer justifies the continuance of the injunction, it may and should free the defendant's hands from the fetters by which until then its activities have been prevented, thus leaving it free to perform its lawful duties." $ * (Emphasis supplied)
Similarly, the decision in Coca Cola Company V. Standard Bottling Company 138 F.2d 788 was in connection with the power of Court to modify a decree which sought to prevent the defendant from carrying on business in a certain manner.
In System Federation No. 91, Railway Employees Dept. V. O.V. Wright, 364 US 642, 5 L.ed.2d 349, 81 S Ct.368, a decree was passed at the instance of non-union rail employees against the railroad and railroad labour union from discriminating against them by reason of the plaintiffs' refusal to join or retain membership in any labour organisation. Here again, a decree was passed against the defendants perpetually preventing a course of action in the light of a statutory prohibition. There was a subsequent change in the statute. On the basis of this change, the union made an application for modification of the decree. The application was allowed and it was said:
The source
of the power to modify is of course, the fact that an injunction often requires
continuing supervision by the issuing court and always a continuing willingness
to apply its powers and processes on behalf of the party who obtained that
equitable relief. Firmness and stability must no doubt be attributed to
continuing injunctive relief based on adjudicated facts and law, and neither
the plaintiff nor the court should be subjected to the unnecessary burden of
re-establishing what has once been decided. Nevertheless the court cannot be required
to disregard significant changes in law or facts if it is "satisfied that
what it has been doing has been turned through changing circumstances into an
instrument of wrong" United States v. Swift & Co. supra
286 US 114, 115) A balance must thus be struck between the
policies of resjudicata and the right of the court to
apply modified measures to changed circumstances". Coming to the Indian
cases cited by the respondent, the first is a decision of the Lahore High Court
in Khazan Singh V. Ralla
Ram 1937 AIR(
The final decision cited by the plaintiff is Municipal Board, Kishangarh V. Chand Mal 0. In this case a lessee had filed a suit to restrain the Municipal Board from interfering with the construction on leasehold land.
Subsequent to the suit, the lease was terminated and the land was included within the municipality. This Court was of the view that in such circumstances, the original decree permanently injuncting the Board from interfering with the construction to be made by the lessee could be considered.
The principles that emerge from these decisions are that
(a) There is a distinction between a final peremptory injunction and a final decree which requires a continuous course of action.
(b) A decree granting a preventive injunction continuously operates to prevent a course of action and
(c) Such a decree may be modified prospectively if the circumstances, whether of fact or law on which the decree is based, are substantially altered and
(d) Such a decree cannot be impeached or reopened.
It is only if the decree is one which grants a continuous injunction and if conditions (b), (c), and (d) are fulfilled that proceedings for modification of the decree can be maintained. In the present case the decree granted a final mandatory injunction. Punjab's contention is that the injunction granted by this Court was temporary merely because in the course of the judgment the Court said "We have examined the materials from the standpoint 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". *
A decree
cannot reach a prima facie conclusion. The use of the phrase 'prima facie' was
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. This is apparent from the following
passage :-
"...we unhesitatingly hold that the plaintiff-State of Haryana has made
out a case of issuance of an order of injunction in the mandatory from 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." *
The operative portion of the judgment resolves any doubt as to the 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 within 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 of Haryana 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
"The State Governments having entered into agreements among themselves on
the intervention of the Prime Minister of the country, resulting in withdrawal
of the pending suits in the Court, cannot be permitted to take a stand contrary
to the agreements arrived at between themselves. We are also of the considered
opinion that it was the solemn duty of the Central Government to see that the
terms of the agreement are complied with in to". *
The second was "The admitted fact that for construction of the Punjab portion of SYL Canal, more that 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......More than Rs.700 crores of public revenue cannot be allowed to be washed down the drain, when the entire portion of the canal within the territory of Haryana has already been completed and major portion of the said canal within the territory of Punjab 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
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 31st December, 1981 in so far as it related to the quantum of
water to be shared between the two States under Paragraph 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
"
having regard to the fact that in terms of paragraphs 9.1 and 9.2, a Tribunal
was constituted and even the provisions of the Inter-State Water Disputes Act
were amended, thereby granting parliamentary recognition to the so-called
agreement, the terms of the said agreement cannot be thrown out as a piece of
paper only". *
It is evident that the Punjab Settlement was referred to as a piece of evidence
that the parties had kept the construction of the canal distinct from the
disputes relating to the sharing of river waters between the two States. If the
other clauses in the
And finally Principle (d): the suit for modification of the 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 January, 2002 within the meaning of Article 131. We can therefore only conclude that there is 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 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:
(1) 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 of law as to the interpretation of the Constitution....".
(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 of Karnataka Vs. State of A.P. 2 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 of Karnataka Vs. State of A.P.
and O.S. No.2/1997 by the State of A.P. Vs. State of Karnataka). Two separate
judgments were delivered. The State of
Punjab's
review petition was dismissed by us on the ground that the "so-called
vital question with regard to the interpretation of Article 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 Articles 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 (3). #
The
objection as to the jurisdiction of this Court on the basis of Article 262 was
specifically negatived in the judgment dated 15th
January 2002 when it was held:
"......the construction of SYL Canal has absolutely no connection with the
sharing of water between the States and as such is not a "water
dispute" within the meaning of Section 2(c) and consequently the question
of referring such dispute to a Tribunal does not arise. In this view of the
matter, howsoever wide meaning the expression "water dispute" in
Section 2(c) of the Inter-State Water Disputes Act be given, the construction
of the canal which is the subject-matter of dispute in the present suit cannot
be held to be a "water dispute" within the meaning of Section 2(c) of
the Act and as such, such a suit is not barred under Article 262 of the
Constitution read with Section 11 of the Inter-State Water Disputes Act".
*
Can the
State of
The doctrine of res 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 was called upon in Daryao v.State of U.P. 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 of res judicata 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 of res judicata as indicated in s. 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 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 essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis ". *
This opinion
was followed in the matter of Cauvery Water Disputes
Tribunal (II) and applied to suits under Article
131. The factual background of that case was a dispute over the usage of the
waters of the river Cauvery between the States of
Tamil 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
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
"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 of the Act which were undoubtedly brought to its notice, has come to the conclusion that the Tribunal had jurisdiction 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, of the 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 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 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
The same
objection relates to the challenge to Section 78 of the Punjab Reorganization
Act, 1966. In paragraph 18 of the written statement filed by the State of
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
(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 of such waters is ultra vires the competence of Parliament and violative of Article 246(3) of the Constitution.
As far as OS No.2/79 is concerned it was unconditionally withdrawn in view of the agreement dated 13th December, 1981 as has been noted earlier. Rules 1 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 XXXII in the First Schedule to the code with
respect to the withdrawal and adjustment of suits shall apply in suits
instituted before the Court.
2. No new suit shall be brought in respect of the same subject-matter 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 of withdrawal granted leave to the plaintiff to 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 the 1966 Act does not lie. # We leave open the question as to whether it is open to the
State of
Similarly the challenge to Section 14 of the 1956 Act must be rejected 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 constituted under sub-section (1), the provisions of sub-sections (2) and (3) of Section 4, sub-section (2), (3) and (4) of Section 5 and Sections 5A to 13 (both inclusive) of this Act relating to the constitution, jurisdiction, powers, authority and bar of jurisdiction shall, so far as may be, but subject to sub-section (3) hereof, apply to the constitution, jurisdiction, powers authority and bar of jurisdiction in relation to the Tribunal constituted under sub-section (1).
(3) When a
Tribunal has been constituted under sub-section (1), 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
Explanation.-- For the purposes of this section "Punjab
Settlement" means the Memorandum of Settlement signed at '
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 of the 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
(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
This Court in
the judgement dated 15th January 2002 considered the
arguments of the parties relating to Section 14 and negatived
Punjabs' submission as to the construction of section
14.
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 of Settlement 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 Parliament since on the face of it, it is against the constitutional Scheme as set out in the Constitution under 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
iv) There can be no legislative enactment by Parliament in respect of an invalid Agreement.
v) In any event and without prejudice to the 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 meeting the objectives for which it was purportedly enacted:
The challenge to Section 14 of the 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 1956 Act is "unsustainable" is legally
impermissible. It is well established that constitutional invalidity (presumably
that is what
The grounds given in support of Punjab's challenge to Article 14 are ex-facie
no grounds in law and no "cause of action" has been disclosed to
challenge the constitutional validity of Section 14 of the Inter-State
Water Disputes Act, 1956. Not only does the plaint filed by
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 of completing and making functional the SYL canal as expeditiously as possible, and in any case within a period of one year from the date of this 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 Powered Committee consisting of the Secretaries referred to in
paragraph 16-H (iii) to monitor the functioning of the above agencies and to
submit progress reports to this
(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) Pass such other or further order or orders or such directions as this
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 1 of 2003 has
been filed, that a prayer in the suit had been made for discharge from the
mandatory injunction and that a letter of complaint had been filed under
Section 3 of the Inter-State Water Disputes Act, 1956.
Punjab has also submitted that the application for execution was not
maintainable, because Haryana had not applied for orders in terms of Clause
2(b) of the 1954 Order, that draft issues had been filed by Haryana and Punjab
in Suit 1 of 2003 pursuant to an order passed by this Court dated 24.11.2003 in
that suit, that water disputes were to be resolved on the basis of Punjab's
complaint under Section 3 of the 1956 Act, that the Decree sought to be
executed was liable to be modified under the changed circumstances, and that
the Decree was a nullity. On the merits it is denied that nothing was done by
the State of Punjab to continue or complete the portion of the canal within its
territory and that the Border Roads Organisation
(BRO) did not have the requisite experience for constructing SYL canal and
finally that the Haryana's prayer for appointment of
a High Powered Committee showed that the Decree dated 15th January, 2002 is not
executable in the ordinary course. The Union of India has also filed a counter
affidavit in which it has stated that it has already taken steps to implement
and comply with the Decree within the "constitutional limitations".
It has referred to several meetings held and also the correspondence exchanged
between the parties. It has however, submitted that the BRO was committed to
carrying out work in border areas and in
(1)
(2) the farmers of the State had filed a review petition in this
Court in which the Government was a party. The matter was subjudice
and
(3) the Government of
(4) that the construction of SYL canal was likely to produce strong adverse reaction among the people of Punjab and may also provide an emotive issue to secessionists/ militant elements and the construction of SYL canal would lead to drying up of 9 lakh hectares land in the Punjab; and
(5) Suit No. 1 of 2003 had been filed.
Incidentally,
the fourth ground is almost a verbatim reproduction of
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 will invariably have a political
impact. Article 131 of the Constitution has therefore 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
fall out 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
which requires all authorities, civil and judicial, in the
"Such an act is an invitation to lawlessness and anarchy, inasmuch as the Ordinance is a manifestation of a desire on the part of the State to be a judge in its own cause and to defy the decisions of the judicial authorities. The action forebodes evil consequences to the federal structure under the Constitution and opens doors for each State to act in the way it desires disregarding not only the rights of the other States, the orders passed by instrumentalities constituted under an Act of Parliament but also the provisions of the Constitution. If the power of a State to issue such an Ordinance is upheld it will lead to the breakdown of the constitutional mechanism and affect the unity and integrity of the nation". *
These
observations appositely reflect what can be said with regard to the conduct of
the State of
The 1954
Order has been issued by the President in exercise of powers under Article
142(1) of the Constitution.
Notwithstanding
anything contained in any other law in force at the commencement of this Order,
any decree passed or order made by the Supreme Court whether before or after
such commencement, including any order as to the costs of, and incidental to,
any proceedings in that Court shall be enforceable:-
(a) where such decree or order was passed or made in exercise of its appellate
jurisdiction - in accordance with the provisions of law for the time being in
force relating to the enforcement of decrees or orders of the Court or Tribunal
from which the appeal to the Supreme Court was preferred or sought to be
preferred; and
(b) in any other case, in accordance with the provisions of law for the time
being in force relating to the enforcement of decrees or orders of such Court,
Tribunal or authority as the Supreme Court may specify
in its decree or order or in a subsequent order made by it on the application
of any party to the proceeding.
The decree passed by this Court under Article 131 being an original proceeding
would not be covered by clause 2(a). Clause 2(b) empowers this Court to specify
the law according to which the decree may be enforced. The phrase used is
"in accordance with" and not "under". "In accordance
with" in the context implies similarity or harmony but not identity. The
mode of enforcement which may be specified under clause 2(b) may therefore be
similar to the methods of execution legally provided in respect of decrees or
orders of any 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 this case had not specified the mode
of execution. Haryana's application is expressed to
be under clause 2(b) of the 1954 Order. Doubtless Haryana has suggested the
passing of directions to ensure implementation of the decree which may not be
acceptable to us, but it has in prayer (c) prayed for "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". That prayer is sufficient to meet even the
entirely technical objection of
"51. Power of Court to enforce execution. - Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree –
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by the sale without attachment of any property;
(c) by
arrest and detention in prison for such period not exceeding the period
specified in section 58, where arrest and detention is permissible under that
section;
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may require." *
The
residuary power under Section 51 (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
1) The Union
of India is to mobilize a Central agency to take control of the canal works
from
2)
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
4) The construction of the remaining portion of the canal including the survey, preparation of detailed estimates 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. #
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" *
Application 4 of 2003 in OS 6 of 1996 is thus allowed on the aforesaid terms without any order as to costs.