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REPORTABLE

IN THE SUPREME COURT OF INDIA

ADVISORY JURISDICTION

SPECIAL REFERENCE NO. 1 OF 2004

(UNDER ARTICLE 143 (1) OF THE CONSTITUTION OF INDIA)

“ IN RE: THE PUNJAB TERMINATION OF AGREEMENT ACT, 2004”

The following is the opinion of the Court:

ANIL R. DAVE, J.

1.By a Reference dated 22nd July, 2004, Hon’ble

the President of India made a request for an

advisory opinion to this Court under Article 143

(1) of the Constitution of India, in relation to

enactment of the Punjab Termination of Agreement

Act, 2004 (hereinafter referred to as “the Punjab

Act”) by the State of Punjab.

2.The text of the Reference referred to for the

consideration & opinion of this Court is as

follows:-

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“WHERAS the Indus Basin comprises

the rivers Indus, Jhelum, Chenab,

Ravi, Beas and Sutlej;

WHEREAS the Indus 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 of rivers

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 8.00 MAF

Jammu & Kashmir 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

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which could become available in

accordance with aforesaid 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 Haryana was allocated 3.5 MAF

quantity of water;

WHEREAS to give effect to the

allocation of 3.5 MAF of water to the

State of Haryana under the said 1976

notification, construction of

Satluj-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 31.12.1981, 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 : 8.60 MAF

Quantity earmarked

for Delhi water supply: 0.20 MAF

Share of J & K : 0.65 MAF

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...............

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 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 Ravi-Beas

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

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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

31.12.1981 agreement and the State of

Punjab was directed to make the SYL

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Canal functional within a period of

one year;

WHEREAS the State of Punjab filed a

Suit (O.S. No. 1 of 2003) seeking

discharge/ dissolution of the

obligation to construct the SYL Canal

as directed and Suit O.S. No. 1 of

2003 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 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 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

31.12.1981 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

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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;

NOW, THEREFORE, in exercise of powers

conferred upon me by clause (1) 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 of India;

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

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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 of

India.”

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 our opinion on the issues

referred to this Court have been duly

incorporated in the Reference and in the

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circumstances, we would not like to burden our

opinion by reiterating the facts. Suffice it to

state that by virtue of the provisions of Article

143 of the Constitution of India 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

st

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 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 31

st

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

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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 of India, seeking the following,

among other, reliefs:-

"(a) pass 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 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) pass 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

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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. 6 of 1996 vide judgment dated 15th

January, 2002, relevant portion of which is

extracted hereinbelow:-

“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 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 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. 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

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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 if the

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 of

injunction 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 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

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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 event the

tribunal, which is still considering

the case of re-allotment of the water,

grants any excess water to the State of

Haryana, then it may also 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 to 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. 6 of 1996. 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

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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. 1 of 2002.

7. On 13th January, 2003; the State of Punjab

filed suit No. 1 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 imposed by the

mandatory injunction decreed by this

Hon'ble 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. 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

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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 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 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 of Haryana by passing

inter-alia the following order:-

“96. 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

Punjab is long since over. The Union of

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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 canal by BRO and at a meeting

convened as early as on 20-2-1991, 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 :

1) The Union of India is to mobilize a

Central agency to take control of the

canal works from Punjab within a month

from today.

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;

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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.

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 12

th

July,

2004, the State of Punjab enacted the Punjab Act,

2004 with an intention to terminate the Agreement

dated 31

st

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 aforestated

Agreement dated 31

st

December, 1981 and to nullify

the decrees of the Court referred to hereinabove.

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10.The aforestated facts will give some further

idea about the facts and circumstances in which

the President of India has referred the

aforestated questions to this Court for its

opinion.

11.At this juncture, we would like to refer to

certain unwarranted developments which took place

after we started 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 of

Goverrnor 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

st

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

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(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

of 2016 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

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being made inexecutable and this Court

cannot be a silent spectator of the

said fact and therefore, we 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:

“(d)(ii) 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

of Haryana 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

of India appearing for the Union of India and

learned counsel appearing for the States of

Punjab, Haryana, Jammu and Kashmir (J & K),

Page 21 21

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, especially 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 hereinbelow.

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

Page 22 22

of India. He submitted that several issues with

regard to facts not on record are also involved

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 referred to this

Court by the President of India. 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 of

India under the provisions of Article 143(1) of

the Constitution of India.

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

Page 23 23

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 vires 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.

Page 24 24

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 compliance of all earlier

orders should not be insisted upon and a fresh

decision based on the ground realities should be

taken with regard to sharing of the waters. The

sum and substance 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.

Page 25 25

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 those

supporting 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, 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 it thinks 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 Court for

opinion and Supreme Court shall, after

such hearing as it thinks fit, report to

the President its opinion thereon.”

Page 26 26

21.A bare perusal of Article 143 of the

Constitution would show that the President is

authorized to refer to this 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 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. 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 is for this Court to

decide whether to render its opinion to the

President and it is also true that such a view

has been taken by this Court and in a given case

this Court can refuse to give its opinion.

23.While considering the same issue, this Court

in the case of Natural Resources Allocation, In

Page 27 27

Re, Special Reference No.1 of 2012 2012(10) SCC 1

has observed as under:

“35.Insofar as the impact of filing and

withdrawal of the review application by

the Union of India against the decision

in 2G case on the maintainability of the

instant Reference is concerned, it is a

matter of record 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(1) 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 of review 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 terms of the reference and

scrutinising whether the same satisfies

the requirements inherent in the

language employed under Article 143(1)

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

Page 28 28

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. Looking at the facts of this Case, in

our opinion this is not a case where this Court

would like to refuse to give its opinion to the

President under the provisions of Article 143 of

the Constitution of India as there is no good

reason for the same.

25. In the circumstances, we do not agree with

the submission made by the learned counsel for

the State of Punjab to the effect that we should

not give our opinion simply because we are not

bound to give our opinion under the provisions of

Article 143 of the Constitution of India.

26. On the other hand, the learned counsel

appearing for the State of Haryana narrated the

history of the litigation of different States on

the issue of water sharing of the rivers

concerned and submitted in a nutshell that by

Page 29 29

enacting the Punjab Act, 2004, the State of

Punjab wanted to nullify the effect of the

decrees passed by this Court against the said

State. He further submitted that by a

legislative act, a party to the litigation cannot

enact a Statute which would nullify the effect of

a decree passed by a Court of law and if such a

thing is permitted, governance of our democracy

as per rule of law would be in jeopardy because

the Constitution of India provides for the manner

in which the dispute among the States has to be

adjudicated. If in a federal structure like

ours, one State against whom a decree has been

passed by this Court is permitted to enact law to

nullify the decree, it would result into very

hazardous consequences and mutilate the finality

of a judicial verdict leading to uncertainty and

that may result into legal chaos in the country.

He mainly relied upon the judgments delivered by

this Court in the case of Re: Cauvery Water

Disputes Tribunal, (1993) 1 Supp. SCC 96 (II) and

State of Tamil Nadu v. State of Kerala and

Page 30 30

Another, (2014) 12 SCC 696. He submitted that

our Constitution provides for separation of

powers and the method of adjudication of disputes

among the States. If the law incorporated in the

Constitution is not followed there would not be

rule of law in the country. He referred to some

other judgments so as to substantiate his case,

mainly to the effect that such a law would

adversely affect the functioning of different

branches of the Government. He also submitted

that it would not be within the power of a

legislature to enact law to nullify the decree of

the Supreme Court.

27. He further submitted that once an Agreement

with regard to sharing of waters had been

executed, it becomes duty of each State, which is

a party to the Agreement, to respect the

Agreement and to act accordingly. In the instant

case, there is not only an agreement but there

are decrees of this Court, which would be

nullified if such an Act is implemented. He,

therefore, submitted that this Court should opine

Page 31 31

against the constitutionality of the Punjab Act,

2004 and should also opine that it is obligatory

on the part of the State of Punjab to act as per

the Agreement entered into by it.

28.He further submitted that if for any reason

the State of Punjab has a feeling that because of

the changed circumstances, it is not possible to

share waters of the rivers in the proportion

decided under the Agreement or any decree, the

State of Punjab or any other State, which is a

party to the agreement should approach the

Tribunal for getting an appropriate order so that

the needful can be done for reviewing the

proportion on the basis whereof the water sharing

agreement had been executed. Instead of doing

so, according to him, the State of Punjab has

tried to exercise its legislative powers so as to

nullify the decree of this Court, which is

contrary to settled law.

29.He further submitted that even our federal

structure would be adversely affected if a State

Page 32 32

is permitted to act in a way which would nullify

the decree passed by a competent Court. He

strenuously submitted that such an Act would

result into lawlessness and breaking down of the

legal system.

30.The other counsel appearing for different

States have supported the learned counsel

appearing for the State of Haryana and they have

also submitted that the State of Punjab could not

have enacted the Punjab Act so as to nullify the

decree of a competent Court and to unilaterally

absolve itself from its liability under the

Agreement.

31. Upon hearing the learned counsel and going

through the record pertaining to the case and

upon perusal of the judgments cited by the

learned counsel, we are of the view that the

Punjab Act cannot be considered to be legal and

valid and the State of Punjab can not absolve

itself from its duties/liabilities arising out of

the Agreement in question.

Page 33 33

32.As stated hereinabove, it is not in dispute

that there was a litigation between the State of

Punjab and the State of Haryana and ultimately a

decree was made whereby the arrangement with

regard to sharing of water as per the agreement

dated 31

st

December, 1981 had been made. There is

thus a legal sanction to the said arrangement and

once a binding decree has been passed by a Court

of law, a party to the litigation cannot

unilaterally act in a manner which would nullify

the effect of the decree.

33.In the instant case, instead of approaching

the appropriate authority, namely, the Tribunal

for appropriate relief, the State of Punjab

exercised its legislative power by enacting the

Punjab Act so as to nullify the effect of the

Decree.

34.Dealing with a similar issue, this Court in

the case of State of Tamil Nadu (supra), has held

that a State “cannot through legislation do an

act in conflict with the judgment of the highest

Page 34 34

Court which has attained finality. If a

legislation is found to have breached the

established constitutional limitation such as

separation of powers, it has to go and cannot be

allowed to remain” (Para 146).

35.It has been further observed by this Court as

under:-

“147. It is true that the State’s

sovereign interests provide the

foundation of the public trust

doctrine but the judicial function is

also a very important sovereign

function of the State and the

foundation of the rule of law. The

legislature cannot by invoking “public

trust doctrine” or “precautionary

principle” indirectly control the

action of the courts and directly or

indirectly set aside the authoritative

and binding finding of fact by the

court, particularly, in situations

where the executive branch (Government

of the State) was a party in the

litigation and the final judgment was

delivered after hearing them.

xxx xxx xxx

149. This Court in Mullaperiyar

Environmental Protection Forum v.

Union of India [(2006) 3 SCC 643],

after hearing the State of Kerala, was

not persuaded by Kerala’s argument

that the Mullaperiyar Dam was unsafe

or storage of water in that Dam cannot

be increased. Rather, it permitted

Page 35 35

Tamil Nadu to increase the present

water level from 136 ft to 142 ft and

restrained Kerala from interfering in

Tamil Nadu’s right in increasing the

water level in the Mullaperiyar Dam to

142 ft. Thus, a judgment has been

given by this Court in contest between

the two States in respect of safety of

Mullaperiyar Dam for raising the water

level to 142 ft. The essential element

of the judicial function is the

decision of a dispute actually arising

between the parties and brought before

the court. Necessarily, such decision

must be binding upon the parties and

enforceable according to the decision.

A plain and simple judicial decision

on fact cannot be altered by a

legislative decision by employing

doctrines or principles such as

“public trust doctrine”,

“precautionary principle”, “larger

safety principle” and, “competence of

the State Legislature to override

agreements between the two States”.

The constitutional principle that the

legislature can render judicial

decision ineffective by enacting

validating law within its legislative

field fundamentally altering or

changing its character retrospectively

has no application where a judicial

decision has been rendered by

recording a finding of fact. Under the

pretence of power, the legislature,

cannot neutralise the effect of the

judgment given after ascertainment of

fact by means of evidence/materials

placed by the parties to the dispute.

A decision which disposes of the

matter by giving findings upon the

facts is not open to change by

legislature. A final judgment, once

rendered, operates and remains in

Page 36 36

force until altered by the court in

appropriate proceedings.

150. The 2006 (Amendment) Act plainly

seeks to nullify the judgment of this

Court which is constitutionally

impermissible. Moreover, it is not

disputed by Kerala that the 2006

(Amendment) Act is not a validation

enactment. Since the impugned law is

not a validating law, it is not

required to inquire whether in making

the validation the legislature has

removed the defect which the Court has

found in existing law. The 2006

(Amendment) Act in its application to

and effect on the Mullaperiyar Dam is

a legislation other than substantially

legislative as it is aimed at

nullifying the prior and authoritative

decision of this Court. The nub of the

infringement consists in the Kerala

Legislature’s revising the final

judgment of this Court in utter

disregard of the constitutional

principle that the revision of such

final judgment must remain exclusively

within the discretion of the court.”

36.It has been further observed in the said

judgment that a litigating person cannot become

judge in its own cause. The said well known

principle has been clearly depicted in paragraph

158 of the said judgment as under:-

“158. There is yet another facet that

in federal disputes, the legislature

(Parliament and State Legislatures)

cannot be judge in their own cause in

the case of any dispute with another

Page 37 37

State. The rule of law which is the

basic feature of our Constitution

forbids the Union and the States from

deciding, by law, a dispute between

two States or between the Union and

one or more States. If this was

permitted under the Constitution, the

Union and the States which have any

dispute between them inter se would

enact law establishing its claim or

right against the other and that would

lead to contradictory and

irreconcilable laws. The Constitution

makers in order to obviate any

likelihood of contradictory and

irreconcilable laws being enacted has

provided for independent adjudication

of federal disputes. Article 131 of

the Constitution confers original

jurisdiction upon this Court in

relation to the disputes between the

Government of India and one or more

States or between the Government of

India and any State or States on one

side and one or more States on the

other or between two or more States

insofar as dispute involves any

question on which the existence or

extent of a legal right depends. The

proviso appended to Article 131 carves

out an exception to the jurisdiction

of this Court to a dispute arising out

of treaty, agreement, covenant,

engagement, sanad or other similar

instrument which have been entered

into or executed before the

commencement of the Constitution and

continues in operation after such

commencement, which are political in

nature. In relation to dispute

relating to waters of inter-State

river or river valleys, Article 262

provides for creation of tribunal or

forum for their adjudication. In

Page 38 38

federal disputes, Parliament or State

Legislatures by law, if seek to decide

a dispute between the two States or

between the Union and one or more

States directly or indirectly, the

adjudicatory mechanism provided in

Articles 131 and 262 of the

Constitution would be rendered

nugatory and, therefore, such

legislation cannot be constitutionally

countenanced being violative of

separation of powers doctrine.”

37.Finally, on the subject on hand, this Court

observed as under in paragraph 160:

“160. Where a dispute between two

States has already been adjudicated

upon by this Court, which it is

empowered to deal with, any unilateral

law enacted by one of the parties that

results in overturning the final

judgment is bad not because it is

affected by the principles of res

judicata but because it infringes the

doctrine of separation of powers and

rule of law, as by such law, the

legislature has clearly usurped the

judicial power.”

38.Looking at the aforestated legal position, in

our opinion, the State of Punjab had exceeded its

legislative power in proceeding to nullify the

decree of this Court and therefore, the Punjab

Act cannot be said to be a validly enacted

Page 39 39

legislation, as held by this Court in terms the

aforestated judgments.

39.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 Inter

State Water Disputes Act, 1956. After considering

the relevant provisions, even with regard to

Section 78 of the Punjab Reorganization Act,

1966, the Tribunal had taken a judicial decision

and the said decision is also sought to be

disturbed by virtue of enactment of the Punjab

Act. The Agreement dated 31

st

December, 1981 is

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 its legislative power

and if any party or any State does so, looking at

the law laid down by this Court in the case of

State of Tamil Nadu (supra), such unilateral

action of a particular State has to be declared

contrary to the Constitution of India as well as

Page 40 40

the provisions of the Inter State Water Disputes

Act, 1956.

40.Once a conclusion is arrived at to the effect

that one State, which is a party to the

litigation or an Agreement, cannot unilaterally

terminate the Agreement or nullify the decree of

the highest Court of the country, the State of

Punjab cannot discharge itself from its

obligation which arises from the judgment and

decree dated 15

th

January, 2002 and the judgment

and order dated 4

th

January, 2004 of the apex

Court.

41.For the aforestated reasons, in our opinion,

the Punjab Act cannot be said to be in accordance

with the provisions of the Constitution of India

and by virtue of the said Act the State of Punjab

cannot nullify the judgment and decree referred

to hereinabove and terminate the Agreement dated

31

st

December, 1981.

42.Thus, in our view, all the questions referred

to this Court are answered in the negative.

Page 41 41

43.This opinion shall be transmitted to the

President of India in accordance with the

procedure prescribed in Part V of the Supreme

Court Rules, 2013.

...........................J

(ANIL R. DAVE)

...........................J

(PINAKI CHANDRA GHOSE)

...........................J

(SHIVA KIRTI SINGH)

..........................J

(ADARSH KUMAR GOEL)

..........................J

(AMITAVA ROY)

New Delhi

November 10, 2016.

Page 42 42

REPORTABLE

IN THE SUPREME COURT OF INDIA

ADVISORY JURISDICTION

SPECIAL REFERENCE NO.1 OF 2004

U/A 143(1) OF THE CONSTITUTION OF INDIA

[IN RE : THE PUNJAB TERMINATION OF AGREEMENT

ACT, 2004]

O P I N I O N

SHIVA KIRTI SINGH, J.

1.Having gone through the exceedingly well formulated

judgment of Anil Dave, J., I record my respectful agreement with

the same. But at the same time I am tempted by the facts and

nature of controversy involved in this Reference to remind all the

stakeholders interested in the healthy upkeep of Indian

Constitutional set-up, and particularly the States which form

part of the Indian Federal structure, of the peculiar and essential

features of our federal set-up. Awareness of these features is

essential to keep the system healthy and transact constitutional

Page 43 43

powers – legislative, executive and judicial on proper tracks to

foster the spirit of constitutionalism.

2. It is not at all necessary to refer to a catena of judgments that

tell us in most unambiguous terms that the Indian Constitution

envisages a federal form of governance but with a pronounced

bias and obvious tilt towards the Centre. Historically, the States

were not having absolute sovereignty. The territories of States

can be altered or totally taken away and even their names can be

changed. Despite the distribution of legislative power by Article

246, leave aside the situations of emergency, even during normal

times provisions like Articles 248, 249, 251, 252, 253 and 254

run counter to the normal legislative powers of States. Over

subjects covered by the Concurrent List, in the case of any

repugnancy, the laws by Parliament have superiority and prevail

over those by State Legislature. Executive powers are

understandably co-terminus with the legislative powers.

3. Of utmost significance, in the context at hand is supremacy

of the Constitution. Even to the permissible extent, it can be

amended only by the Union Parliament. The Constitution grants

and recognizes supreme authority to the courts to not only

interpret but also to protect the Constitution and the laws.

Regardless of other features showing the Indian model to be only

a quasi-federal, the Indian Constitution is very explicit and

emphatic in creating checks and balances by providing for a

Page 44 44

strong and independent judiciary and a well defined

constitutional mechanism for resolving conflicts between the

executive and legislative authority of the Union and those of the

States. Indians have given to themselves a single Constitution

and single citizenship. Judicial power is exercisable by a single

set of courts within their territorial jurisdictions. High Courts

are final courts at State level with constitutional powers under

Articles 226 and 227. Supreme Court is undoubtedly the apex

court in the hierarchy with amalgam of ultimate powers over

decisions of all courts – civil, criminal, revenue and

quasi-judicial tribunals. Its powers and duties are enormous not

only on the appellate side but under Article 32 of the

Constitution and other original jurisdictions such as

Constitutional References and also original suits where the

disputes may be between the States or between Union and States

etc.

4. From the abovementioned set up under our Constitution,

there is no difficulty in concluding that no Government, whether

Central or State can usurp the power of adjudicating disputes

vested in the Judiciary including High Courts and the Supreme

Court. Further, as a corollary, the judgments and decrees which

are the end product of exercise of judicial power cannot be set at

naught by the process of legislative declaration in respect of facts

and circumstances. As explained already in the main judgment,

Page 45 45

the situation is somewhat different when a competent legislature

engages itself in the exercise of validating a law declared

defective or invalid for reasons which are curable.

5. An observation necessitated by the somewhat disturbing

facts: delay in execution of a final judgment or decree, more so

when it is of the Apex Court, should never be countenanced by

any authority because it would surely tend to undermine

people’s faith in the judicial system of the country, entailing in

turn avoidable harm to all the institutions and functionaries

under the Constitution, may be even to the Constitution itself.

.…………………………………….J.

[SHIVA KIRTI SINGH]

New Delhi.

November 10, 2016