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CASE NO.:

Original Suite 6 of 1996

PETITIONER:

STATE OF HARYANA

Vs.

RESPONDENT:

STATE OF PUNJAB AND ANR.

DATE OF JUDGMENT: 15/01/2002

BENCH:

G.B. Pattanaik & Ruma Pal

JUDGMENT:

PATTANAIK, J.

The State of Haryana has filed the present suit, under

Article 131 of the Constitution of India, impleading the State

of Punjab as defendant No. 1 and the Union of India as

defendant No.2, for the following reliefs:

"(a) pass a decree declaring that the order dated

March 24, 1976, the Agreement of

December 31, 1981 and the Settlement of

July 24, 1985 are final and binding inter alia

on the State of Punjab casting an obligation

on Defendant No. 1 to immediately restart

and 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 No. 1 (failing which

defendant No. 2 by or through any agency)

to discharge its/their obligations under the

said Notification of 1976, the Agreement of

1981 and the Settlement of 1985 and in any

case under contract established by conduct,

by immediately restarting and completing

that portion of the Sutlej-Yamuna Link

Canal Project in the State of Punjab and

otherwise making it suitable for use within

a time bound manner as may be stipulated

by this Hon'ble Court to enable the State of

Haryana to receive its share of the Ravi and

Beas waters;

(c) Award costs of the present suit to your

plaintiff and against the Defendant No.1; and

(d) pass such other or further order or orders to

such directions as this Hon'ble Court may

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deem fit and proper in the facts and

circumstances of the case and to meet the

ends of justice."

It has been averred in the plaint that Sutlej-Yamuna Link

Canal is in fact, the lifeline of the farmers of Haryana and the

livelihood of the farmers depends on the water, which is not

only a natural resource, but a valuable national asset and

completion of the aforesaid Canal, would enable the State of

Haryana to receive its share of waters of the rivers Ravi and

Beas. The plaintiff-State has averred that after the partition

of India in 1947, the emergence of two independent countries

India and Pakistan, division of the waters of rivers Indus

and its tributaries became an international issue and in the

year 1960, the Government of India signed a Treaty with

Pakistan called the Indus Water Treaty of 1960. Under the

aforesaid treaty, the waters of the three Eastern rivers,

namely the Sutlej, the Beas and the Ravi were acquired for

unrestricted use in India, to the exclusion of Pakistan and

towards consideration, the Government of India agreed to

make a fixed contribution of Pounds Sterling 62.06 million

(equivalent to about 110 Crores rupees) to Pakistan. In a

meeting of the beneficiary States namely, the State of Punjab,

as it existed then, State of Kashmir, State of Rajasthan and

State of PEPSU, which meeting had been convened by the

Govt. of India on 29th January, 1955, a workable agreement

was arrived at for development and utilization of the waters

of Rivers Ravi and Beas and under the said agreement, the

share of undivided Punjab was 5.90 M.A.F. When there was

a bifurcation of the erstwhile State of Punjab into two

separate States of Punjab and Haryana w.e.f. November 01,

1966 under Punjab Reorganisation Act of 1966, special

provisions had been made with regard to the rights and

liabilities of the successor States in relation to the water from

Bhakra Nanagal Project and Beas Project. Section 78 of the

Punjab Reorganisation Act, 1966, deals with such rights and

liabilities of the successor States. Dispute arose between the

two States of Punjab and Haryana as to their respective share

of water which had earlier been allocated to the erstwhile

State of Punjab and in the meeting called by the Government

of India, a decision was taken on ad hoc basis that 35% of

water would go to Haryana and 65% for Punjab, pending

finalisation of the dispute. The State of Haryana approached

the Government of India in October, 1969, invoking its

jurisdiction under Section 78 of the Punjab Reorganisation

Act, 1966. A Committee was appointed by the Central

Government, which reported that Haryana would be entitled

to 3.78 MAF. Even the then Deputy Chairman of the

Planning Commission had examined this question and had

recommended that Haryana would get 3.74 MAF and Punjab

would get 3.26 MAF, while Delhi would get 0.20 MAF. A

notification, ultimately was issued on 24th of March, 1976,

allocating the surplus Ravi- Beas waters between the two

states of Punjab and Haryana. Under this order, 3.5 MAF

had been allotted to the plaintiff-State. The State of Haryana,

not being a riparian State, the water allocated to it has to be

drawn by digging canal. By the existing arrangement for

carrying waters of River Sutlej through Bhakra Main Line

Canal, it is not possible to draw water allocated to the State

of Haryana under the Order of the Government of India dated

26th of March, 1976. The State of Haryana proposed that a

link canal called the Sutlej Yamuna Link Canal be

constructed in the territories of the State of Punjab and

Haryana, so that the State of Haryana could draw its allocated

share of water. The plaintiff State has averred that the

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length of Sutlej Yamuna Link Canal was 214 kilometers out

of which 122 kilometers is in the territory of Punjab and 92

kilometers is in the territory of Haryana. The alignment of

the proposed canal was alongside the Nangal Hydel Channel

and the Bhakra Main Line Canal. The Chief Minister of

Haryana had requested the Prime Minister of India by his

letter dated 23rd April, 1976 that the Sutlej Yamuna Link

Canal should be completed by June, 1978. After several

rounds of discussion, the two States had agreed upon the

alignment of 30 kilometers of the SYL Canal adjoining

Haryana within the territory of Punjab and in fact the State of

Punjab accepted money for that purpose. The State of Punjab

issued various notifications for the acquisition of the land for

the purposes of constructing the canal. The State of Haryana,

on its part started construction of the canal in its territory.

The Haryana portion of the canal stood completed in June,

1980 but the State of Punjab adopted dilatory tactics on the

construction of the canal on one pretext or the other. As the

canal within the State of Punjab had not been constructed, the

State of Haryana filed a suit in the Supreme Court in the year

1979, being Suit No. 1 of 1979. The State of Punjab filed a

suit in this Court under Article 131 of the Constitution,

challenging the validity of the Orders of Government of India

dated 24th of March, 1976 and also challenged the vires of

Section 78 of the Punjab Reorganisation Act, which was

registered as Suit No. 2 of 1979. During the pendency of the

aforesaid two suits, an agreement was entered into between

the States of Haryana, Punjab and Rajasthan in the presence

of the Prime Minister of India on 31st of December, 1981.

Under the said agreement, the net surplus of Ravi Beas

waters were estimated at 17.17 MAF and that stood allotted

as 4.22 MAF to Punjab, 3.50 MAF for Haryana, 8.60 MAF

for Rajasthan, 0.20 MAF for Delhi Water Supply and 0.65

MAF for Jammu and Kashmir. Clause (IV) of the said

agreement provided:

"Clause (IV): The Sutlej-Yamuna Canal Project

shall be implemented in a time bound manner so

far as the canal and appurtenant works in the

Punjab territory are concerned within a maximum

period of two years from the date signing of the

Agreement so that Haryana is enabled to draw its

allocated share of waters. The canal capacity for

the purpose of design of the canal shall be

mutually agreed upon between Punjab and

Haryana within 15 days, failing which it shall be

6500 cusecs, as recommended by former

Chairman, Central Water Commission."

The said clause also provided that the suits filed by the State

of Haryana and State of Punjab should be withdrawn, without

any reservations whatsoever but subject to the terms of the

agreement and accordingly both the State Governments

applied for withdrawal of the suits. This Court allowed the

suits to be withdrawn by order dated 12th of February, 1982.

The alignment of the canal within the State of Punjab was

proposed to be changed, to which the State of Haryana also

agreed. The State of Punjab started construction of canal but

the progress was rather slow. The State of Punjab also

released a white paper on 23rd of April, 1982, highly

appreciating the agreement which had resulted in an increase

of 1.32 MAF of the water to the share of Punjab. On

November 5, 1985, the Punjab Legislative Assembly passed

a resolution, repudiating the agreement of 31st December,

1981. On 24th of July, 1985, a settlement was arrived at

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between the then Prime Minister of India and Late Sant

Harchand Singh Longowal, the then President of Akali Dal,

commonly known as "Punjab Settlement", and the said

settlement also contained an express provision that the

construction of the SYL Canal would be continued and

completed by 15th of August, 1986. In accordance with the

terms of the settlement, more particularly Clause 9.1, the

issues relating to the usage, share and allocation of the Ravi-

Beas waters were referred to the adjudication of a Water

Tribunal, under the Notification dated 2nd April, 1986. The

tribunal submitted its Report to the Central Government on

30th of January, 1987 and the tribunal also indicated in its

report that the Punjab should complete its portion of SYL

Canal expeditiously. In July, 1990, the construction of the

canal within the State of Punjab was completely stopped but

by then, over 90% of the construction had stood completed.

Failure on the part of the State of Punjab to construct the

SYL Canal within its territory, has prevented the State of

Haryana from utilizing the water allocated to its share. The

plaintiff State has further averred that more than Rs. 600

Crores have been spent on the construction of the SYL Canal

in Punjab territory, which is in addition to Rs. 250 Crores

spent for the construction of the Canal within the Haryana

territory. Non-completion of the SYL Canal has debarred

over three lac hectares of irrigation potential created in the

State of Haryana and the said State is losing agricultural

production over eight lac tonnes per annum. According to

the plaintiff, if the canal would have been completed in 1983,

as envisaged, then the State of Haryana would have been in a

position to produce an additional 100 lac tonnes of food-

grains, the value of which would work out to Rs.5000 Crores.

When the State of Punjab did not carry out the construction

of the SYL Canal, the State of Haryana sought for

intervention of the Union of India and the Prime Minister of

India convened a meeting on 20th of February, 1991. In the

said meeting, the Prime Minister directed that arrangements

should be made for the Border Roads Organisation to take-

over the work in the minimum time possible and the work

should be dealt with on an emergency footing. At that point

of time, there was no political government in the State of

Punjab and it was under the Presidents Rule. In July 1995,

the State of Punjab circulated a white paper, clearly

expressing its intention not to proceed with the work of the

construction of SYL Canal and took a stand that Haryana's

share of the water should be delivered through the existing

Bhakra Canal System, which is an absolute impossibility.

The plaintiff, thereafter filed the present suit for the relief as

already stated.

The Defendant No.1, State of Punjab had filed its

written statement, raising several preliminary objections. It

is contended that the dispute clearly falls within the scope of

the Inter-State Water Disputes Act, 1956 and consequently

the jurisdiction of the Supreme Court is barred on a

combined reading of Section 11 of the Inter-State Water

Disputes Act and Article 262 of the Constitution of India. It

is further contended that the validity of the order dated 24th of

March, 1976 as well as agreement dated 31.12.1981 has been

challenged before the Ravi-Beas Water Tribunal and the

report of the said tribunal has not become final inasmuch as

the application filed by the State of Punjab under Section

5(3) of the Act has not yet been disposed of. It has been

further stated that the plaintiff State has no legal right to

invoke Article 131 of the Constitution and further the suit

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must be held to be barred by limitation. The further stand of

the Defendant No. 1 is that the earlier suit filed in the year

1979, having been withdrawn without leave of the Court, the

present suit is barred under Order 23 Rule 1 of the Code of

Civil Procedure as well as under Order 2 Rule XXXII of the

Supreme Court Rules. According to the Defendant No. 1, no

legal right can be said to have accrued to the State of

Haryana under the Notification dated 24.3.1976 and further

the agreement dated 31st December, 1981 is invalid. It is

also contended that the said agreement of 1981 stands

superseded by the settlement of July 24, 1985. According to

the Defendant No. 1, the terms and conditions contained in

paragraph 9.3 of the Punjab Settlement was only a unilateral

concession made by Sant Harchand Singh Longowal, and it

was never intended to be a legal obligation, binding on the

State of Punjab. The Defendant No. 1 admitted in the written

statement that the issues arising from paragraphs 9.1 and 9.2

of the self-same Punjab Settlement were referred to the

adjudication of the Ravi-Beas Water Tribunal. But

paragraph 9.3 had not been referred to any tribunal and it

was merely a concession given by said Harchand Singh

Longowal. The Defendant No. 1 does not dispute the

observations of the tribunal in its Report dated 30th of

January, 1987, relating to the aforesaid paragraph 9.3, but

contends that such observations were in fact beyond the

jurisdiction of the tribunal. According to the Defendant No.

1, plaintiff's claim to have share from Beas Project would not

exceed 0.9 MAF and that quantity of water would always be

made available through the main Canal, which is in existence

and functioning. The said Defendant No. 1 also averred that

the State of Haryana is getting an additional water supply

through River Yamuna under the Agreement dated 12th of

May, 1994, between the States of Uttar Pradesh, Haryana,

Rajasthan, Delhi and Himachal Pradesh and, therefore, there

is no need for the SYL Canal in any event. It has been

further averred that Haryana is already getting 1.62 MAF of

water in Ravi-Beas waters through the existing canal system

of Bhakra Main Line/Narwana Branch and the present

system is fully capable of conveying the said quantity of

water. Consequently, there is no need for SYL Canal. The

Defendant No. 1 further contends that in Section 78 of the

Punjab Reorganisation Act, there has been no reference to

River Ravi and, therefore, question of conveying any water

from River Ravi through SYL Canal does not arise.

According to this defendant, the claim of the State of

Haryana, over and above the allocations made in the Beas

Project were neither legal nor proper and were only for

extraneous considerations. According to the State of Punjab,

water of River Ravi do not find mention in any scheme

resulting from the Beas Project and, therefore, any order

containing allocation of Ravi water to the plaintiff State is

invalid. The Defendant No. 1 has also averred that only the

supplies from River Beas are being transferred to Bhakra

reservoir. According to the Defendant No. 1, the allocation

of 3.5 MAF to Haryana would deprive the State of Punjab of

irrigation facilities to lacs of acres of land, which are being

irrigated in the State of Punjab. So far as the issuance of a

white paper is concerned, the Defendant No. 1 has averred

that the same was a political decision of the Chief Minister at

that time and did not bind the State and at any rate, the

subsequent resolution of the Punjab Legislative Assembly,

repudiating the earlier agreement clinches the matter. So far

as the construction of SYL Canal already undertaken in the

State of Punjab is concerned, it has been averred that the

State had to undertake the same under duress and the said

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work was stopped because of turmoil in the State and when

the militants killed a Chief Engineer and Superintending

Engineer. The defendant No. 1 admitted that there has been

an expenditure of Rs.520 Crores on the construction of SYL

Canal in Punjab portion and further admitted that there has

been a recurring expenditure on establishment, which money

the Government of India pays to the State of Punjab.

According to the Defendant No. 1, no cause of action has

accrued to the plaintiff to file the present suit, invoking

Article 131 of the Constitution and at no stage, the State of

Punjab committed itself to the construction of the SYL

Canal.

The Defendant No. 2, Union of India in its written

statement, took the stand that relief claimed by the plaintiff

can be only against the State of Punjab and there is no

obligation on the part of the Government of India to take up

the construction work of SYL Canal. According to the

defendant No. 2, the Union of India had already discharged

its obligation by pursuing and directing the Government of

Punjab for early completion of Punjab portion of the canal. It

has been further averred that the Union of India had

constituted the Ravi and Beas Waters Tribunal, which gave

its interim report on 30th of January, 1987 and the final report

of the tribunal is awaited. It has also been reiterated in the

written statement that the Ravi and Beas Waters Tribunal in

its interim report had observed that this canal is the lifeline

for the farmers of Haryana and unless it is expeditiously

completed, Haryana will not be in a position to utilize the full

quantum of water allocated to it. The said defendant has

also averred that the concept of a carrier for Haryana's share

in surplus Ravi-Beas waters was envisaged in inter-State

Agreement of 1981. Further, the Central Government

determined the rights and liabilities of the successor States in

accordance with Section 78 of the Punjab Reorganisation

Act, 1966 and allocated 3.5 MAF of surplus Ravi-Beas water

to Haryana as per Government of India Notification dated

24.3.1976. The said defendant has stated in the written

statement that the Union of India made its best efforts to

settle the issue. On the question of amount of money, the

defendant No. 2 has averred that the Union of India has

provided Rs. 499.12 Crores to the Government of Punjab till

March, 1994 for completion of Punjab portion of SYL Canal.

It has also been stated that due to non-completion of SYL

Canal by Punjab, the State of Haryana is not able to utilize its

full share of Ravi-Beas water. The Union Government has

also stated that it is essential that Punjab portion of the SYL

Canal is completed at the earliest. The said defendant has

further averred that construction of SYL Canal is solely the

responsibility of the Government of Punjab and the Union of

India has made all efforts including the financial assistance to

the State of Punjab for early completion of the canal. The

said defendant has finally stated that while Government of

India will continue to play its role for the settlement of

dispute between the two States, the alternative relief claimed

in para (b) of the plaint against the Government of India is

not tenable and the same is liable to be rejected.

On the aforesaid pleadings, by Order dated 15.12.1997,

the Court settled the following agreed issues:

"1. Whether in the facts and circumstances of

the case, defendant No. 1 (the State of Punjab)

and alternatively, defendant No. 2 (the Union of

India), were and are bound to construct and

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complete in a time-bound manner, the Sutlej-

Yamuna Link Canal Project, in the Punjab

portion/territory and whether the plaintiff (State of

Haryana) is entitled to the reliefs prayed for

against the defendants ?

2. Is the suit not maintainable as contended in

the written statements ?

3. Is the suit barred by limitation ?"

Thereafter, parties have filed several documents which have

been exhibited without objection and interrogatories have

been served and answered. Plaintiff's documents Exhibits

P-1 to P-26 have been marked on admission of defendant

No. 1 and documents Exhibits P(D)-1 to P(D)-8 have not

admitted by defendant No. 1. The documents filed on behalf

of defendant No. 1 Exhibits D-1 to D-9 have been admitted

by the plaintiff. Documents Exhibits D(D)-1 to D(D)-5 of

the defendant No. 1, have not been admitted by the plaintiff.

Though initially an order had been passed to decide Issue

Nos. 2 and 3 as preliminary issues but that order stood

modified by the subsequent order dated 5th of September,

2000, as it was found that the preliminary issues cannot be

disposed of without examining the relevant records and

without going into the rival contentions in detail.

ISSUE NO. 2:

This issue on the question of maintainability of the suit

arises because of the stand taken by the State of Punjab in

the written statement. According to the defendant No. 1,

Article 262 of the Constitution is specifically designed,

authorising the Parliament to provide for adjudication of any

water dispute in relation to any inter-State river by making a

law in that regard and sub-Article (2) of Article 262

authorises the Parliament to make law, ousting the

jurisdiction of the Supreme Court or any other Court in

respect of any dispute or complaint coming within Article

262(1). The Parliament having enacted the Inter-State Water

Disputes Act, 1956 and the said Act having ousted the

jurisdiction of the Supreme Court and any other Court from

exercising jurisdiction in respect of any water dispute, which

may be referred to a tribunal under the Act as provided

under Section 11 of the said Act, the present dispute is not

amenable to the jurisdiction of this Court under Article 131

and consequently, the suit must fail.

The stand of the State of Haryana, on the other hand is

that the dispute relating to the digging of SYL Canal,

pursuant to the earlier agreement between the parties, cannot

be termed to be a dispute, relating to sharing of water of a

river and, therefore, neither Article 262 of the Constitution

nor Section 11 of the Inter-State Water Disputes Act would

be a bar for this Court to exercise jurisdiction under Article

131 of the Constitution. According to Mr. Bobde, the

learned counsel appearing for the plaintiff-State, the

expression "water dispute" having been defined in Section

2(c) of the Act, the present dispute and the relief sought for

by the plaintiff, cannot be held to be a water dispute and as

such the jurisdiction of the Court cannot be held to be

ousted.

The moot question that requires to be considered in

answering this issue is whether the dispute in the case in

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hand, can at all be held to be a water dispute, as defined in

Section 2(c) of the Inter-State Water Disputes Act ? There

cannot be any dispute with the proposition that in the event

the present dispute between the two states would come

within the definition of "water dispute" in Section 2(c) of the

Act and as such is referable to a tribunal under Section 11 of

the Act, then certainly the jurisdiction of this Court would be

barred, in view of Article 262 of the Constitution read with

Section 11 of the Act. Section 2(c) defines the "water

dispute" thus:

"Section 2(c): "water dispute" means any dispute

or difference between two or more State

Governments with respect to

(i) the use, distribution or control of the

waters of, or in any inter-State river or

river valley; or

(ii) the interpretation of the terms of any

agreement relating to the use, distribution

or control of such waters or the

implementation of such agreement; or

(iii) the levy or any water-rate in

contravention of the prohibition

contained in Section 7."

Out of the three clauses mentioned above, we would be

concerned with clauses (i) and (ii) inasmuch as clause (iii)

deals with the levy of water-rate in contravention of the

prohibition contained in Section 7. Clause (i) of Section 2(c)

deals with a dispute concerning the use, distribution or

control of the waters of, or in any inter-State river or river

valley, whereas Clause (ii) deals with the interpretation of the

terms of any agreement relating to the use, distribution or

control of such waters or the implementation of such

agreement. Essentially, therefore, the dispute would be a

water dispute within the meaning of Section 2(c) when the

dispute is in relation to the use, distribution or control of the

waters of any inter-State river or interpretation of the terms

of an agreement, relating to the use, distribution or control of

such water or implementation of such agreement. The

averments in the plaint and the relief sought for by the State

of Haryana is not in any way related to the use, distribution

or control of the water from Ravi-Beas Project. The entire

dispute centres round the question of the obligation on the

part of the State of Punjab to dig the portion of SYL Canal

within its territory which canal became necessary for

carrying water from the project to the extent the said water

has already been allocated in favour of the State of Haryana

under the provision of the Punjab Reorganisation Act and the

subsequent agreement between the parties. Dr. Dhawan,

appearing for the State of Punjab, forcefully argued that the

construction of SYL Canal is inextricably linked to allocation

of distribution of water from Ravi-Beas Project and that

being the position, it would be difficult to take the dispute out

of the purview of the definition of dispute in Section 2(c). It

is in this connection, Dr. Dhawan pointed out the assertions

made in the plaint, wherein it has been averred that portion of

Sutlej Yamuna Link Canal is the lifeline for the farmers of

the State of Haryana inter alia for carrying its share of Ravi-

Beas water and the farmers of Haryana would not be in a

position to utilize the full quantum of waters allocated to it.

According to Dr. Dhawan, the allocation of water of rivers

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Ravi and Beas is the basis which necessitate the construction

of SYL Canal and its completion and consequently the two

are inextricably inter-linked. Dr. Dhawan also pointed out to

that part of the plaintiff's case where the plaintiff has averred

that the said canal was to receive supply from the Tail end of

the Anandpur Hydel Channel and the canal must be

completed to enable Haryana to draw its share of water from

the river. He also pointed out to assertions made in

paragraph 61 of the plaint whereunder it had been averred

that it is necessary to complete the SYL Canal, not only for

carrying this share but also to serve as an alternate carrier

system for the waters already being drawn by Haryana. The

question whether the dispute raised and the relief sought for

is essentially a water dispute or not, has to be answered on an

analysis of the averments in the plaint as a whole and it is not

possible to consider some averments in isolation and then

come to a conclusion one way or the other. If the plaint is

read as a whole, it appears to us that the State of Haryana has

made out a case that when the State of Haryana was carved-

out from the erstwhile State of Punjab under the provisions of

the Punjab Reorganisation Act, the Union of India, in

exercise of its power under Section 78 of the said Act issued

a Notification on 24th of March, 1976. Under the said

notification, taking note of the fact that the Haryana has large

arid tract and several drought prone areas and the

development of irrigation in the State of Haryana is

substantially less as compared to that in the State of Punjab

and further the water is needed in a large quantity for

irrigation in the State of Haryana and there is limited

availability of water from other sources in the said State, the

Union Government allotted 3.5 MAF in favour of the State of

Haryana. The said notification further contained a stipulation

that in the event, water in the Beas at Mandi is more or less in

a particular year, the share of the State of Haryana would be

increased or decreased pro-rata. It is nobody's case that

water in the river Beas has decreased in the meanwhile. The

existing canal system not being capable of utilizing 3.5 MAF

of water allocated to the State of Haryana, the idea of having

SYL Canal was mooted and ultimately agreed to. Thus

the construction of SYL Canal is essentially one for the

purpose of utilizing the water that has already been allotted to

the share of Haryana and consequently, cannot be construed

to be in any way inter-linked with the distribution or control

of water of, or in any inter-State river or river valley. In the

Constitution Bench decision of this Court in the case of State

of Karnataka vs. State of Andhra Pradesh and others,

2000(9) S.C.C. 572. this Court considered the provisions of

Article 262(2) of the Constitution and Section 11 and Section

2(c) of the Inter-State Water Disputes Act and its impact on a

suit filed under Article 131 of the Constitution. It was held

that the question of maintainability has to be decided upon

the averments made by the plaintiff and the relief sought for

and taking the totality of the same and not by spinning up one

paragraph of the plaint and then deciding the matter. What is

necessary to be found out is whether the assertions made in

the plaint filed by the plaintiff-State and the relief sought for,

can be held to be a water dispute, which could be referred to

the tribunal, so as to oust the jurisdiction of the Supreme

Court under Article 131. It must be borne in mind that after

allocation of the water between the two States in exercise of

power under sub-Section (1) of Section 78 of the Punjab

Reorganisation Act, 1966 under the notification dated 24th of

March, 1976, it is the State of Punjab, who had sought for a

review of the notification, claiming increased share of water

for Punjab and linked the matter of construction of SYL

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Canal with the same. While the request of the Punjab

Government was pending before the Union Government, the

State of Haryana had filed a suit in this Court for a direction

to the State of Punjab for expeditious digging of the Sutlej-

Yamuna Link Canal in Punjab territory and the Punjab

Government had also filed a suit, challenging the competence

of the Central Government to make any allocation under

Section 78 of the Punjab Reorganisation Act. During the

pendency of these two suits, an agreement was arrived at

between the two plaintiff States viz. the State of Haryana

and the State of Punjab as well as the State of Rajasthan

under the intervention of the then Prime Minister of India

and that agreement was arrived at, on 31st December 1981.

The terms of the agreement were signed by the Chief

Ministers of the three States as well as the then Prime

Minister of India. Under the said agreement, the mean

supply of 17.17 MAF was allocated as under:

Share of Punjab : 4.22 MAF

Share of Haryana : 3.50 MAF

Share of Rajasthan : 8.60 MAF

Quantity earmarked for Delhi

Water Supply : 0.20 MAF

Share of J& K : 0.65 MAF

Clause (4) of the aforesaid agreement was to the effect:

"(iv) The Sutlej-Yamuna Link Canal project shall

be implemented in a time bound manner so far as

the canal and appurtenant works in the Punjab

territory are concerned within a maximum period

of two years from the date of signing of the

agreement so that Haryana is enabled to draw its

allocated share of waters. The canal capacity for

the purpose of design of the canal shall be

mutually agreed upon between Punjab and

Haryana within 15 days, failing which it shall be

6500 cusecs, as recommended by former

Chairman, Central Water Commission."

On the basis of the aforesaid agreement between the parties,

the two suits that had been filed before this Court were

withdrawn and under the agreement, the notification dated

24th of March, 1976 stood modified to the extent varied under

the agreement. It would thus be apparent that so far as the

State of Haryana is concerned, the earlier allocation of 3.5

MAF of the water remained the same and it became

necessary to construct another canal, almost parallel to the

main canal, as the existing canal system was not capable of

utilizing the allocated share of water to the extent of 3.5

MAF in favour of the State of Haryana. The order of this

Court dated 12th of February 1982 in these two suits filed, so

far as relevant, is quoted herein-below:

"............The prayer of the plaintiffs for

withdrawal of suits is allowed and the suits are

dismissed as withdrawn in view of the agreement

dated 31st December, 1981 between the parties to

the suits. There will be no order as to costs."

It is a well known fact that the State of Punjab, soon got

plunged into militancy and it has been averred in the written

statement in the present suit that the work of construction of

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canal within Punjab was stopped, when militants killed a

Chief Engineer and a Superintending Engineer. According to

the defendant-State of Punjab, there was severe resentment in

the State, which culminated in the unfortunate event leading

to serious law and order problem in the said State and

ultimately on 24th of July, 1985, an accord was arrived at

between the Prime Minister of India and Sant Harcharan

Singh Longowal, commonly called the "Punjab Settlement".

It is no doubt true that the aforesaid settlement cannot be said

to be a settlement on behalf of the State of Punjab, as

Longowal had no constitutional authority to enter into any

agreement. But the terms of that settlement, more

particularly, paragraph (9) thereof were given effect to, by

appointment of a tribunal to be presided over by a Judge of

the Supreme Court. Paragraph (9) of the said accord is

extracted herein below in extenso:

"9. Sharing of River Waters

9.1 The farmers of Punjab, Haryana and

Rajasthan will continue to get water not less

than what they are using from the Ravi-Beas

system as on 1.7.85 waters used for

consumptive purposes will also remain

unaffected. Quantum of usage claimed

shall be verified by the Tribunal referred to

in para 9.2 below.

9.2 The claims of Punjab and Haryana regarding

the shares in their remaining waters will be

referred for adjudication to a Tribunal to be

presided over by a Supreme Court Judge.

The decision of this Tribunal will be

rendered within six months and would be

binding on both parties. All legal and

constitutional steps required in this respect

be taken expeditiously.

9.3 The construction of the SYL canal shall

continue. The canal shall be completed by

15th August, 1986."

Paragraph (9.1) of the accord reaffirms the share which the

States were getting from the Ravi-Beas system on 1.7.1985.

Paragraph (9.2) relates to the claim of both the States

regarding their share in the remaining water which was

sought to be referred for adjudication to a tribunal to be

presided over by a Judge of the Supreme Court and

Paragraph (9.3) was in relation to the construction of SYL

Canal. The terms and conditions of the settlement contained

in paragraph 9 were recognized by the Parliament and an

amendment was inserted to the Inter-State Water Disputes

Act, 1956 by Act 20 of 1986, under which Section 14 was

added to the said Act. Section 14 with its explanation may

be extracted herein-below in extenso:

"Section 14: Constitution of Ravi and Beas

Waters Tribunal:-

(1) Notwithstanding anything contained in the

foregoing provisions of this Act, the Central

Government may, by notification in the

Official Gazette , constitute a Tribunal under

this Act, to be known as the Ravi and Beas

Waters Tribunal for the verification and

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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-

sections (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 Punjab Settlement to such Tribunal.

Explanation: For the purposes of this section,

"Punjab Settlement" means the Memorandum of

Settlement signed at New Delhi on the 24th day of

July, 1985."

The Parliament itself, therefore, under Section 14(3)

unequivocally indicated that a tribunal having been

constituted under sub-section (1) of Section 14, the matters

specified in paragraphs 9.1 and 9.2 of the Punjab Settlement

could be referred to by the Central Government suo motu or

at the request of the concerned State Government but not the

matters specified in paragraph 9.3 which relates to the

construction of SYL Canal. The expression "Punjab

Settlement" has been defined in the explanation to mean the

Memorandum of Settlement signed on 24th of July, 1985. In

the teeth of the legislation referred to above, it is difficult for

us to accept the contention of Dr. Dhawan, appearing for the

State of Punjab that the so-called Settlement of 24th of July,

1985 is nothing but a piece of paper without any sanctity and

is not enforceable. Pursuant to the provisions contained in

sub-section (1) of Section 14, a tribunal has been constituted

and the dispute in relation to the additional share of water

from the Ravi-Beas Project and its allocation between the

States of Punjab and Haryana has been referred to the

tribunal, which has passed an interim Award and no final

decision has been given. The Parliament, therefore, having

referred the matters of dispute under paragraphs 9.1 and 9.2

to a tribunal under the Inter-State Waters Disputes Act and

refraining from referring the dispute of construction of SYL

Canal contained in paragraph 9.3 of the Settlement, is

indicative of the fact that the construction of the SYL Canal

has absolutely no connection with the sharing of water

between the States and as such is not a "Water Dispute"

within the meaning of Section 2(c) and consequently the

question of referring such dispute to a tribunal does not arise.

In this view of the matter, howsoever wide meaning the

expression "water dispute" in Section 2(c) of the Inter-State

Water Disputes Act be given, the construction of the canal

which is the subject matter of dispute in the present suit

cannot be held to be a "water dispute" within the meaning of

Section 2(c) of the Act and as such, such a suit is not barred

under Article 262 of the Constitution read with Section 11 of

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the Inter-State Water Disputes Act. The aforesaid issue must

be answered against the defendant and in favour of the

plaintiff State.

ISSUE NO. 3:

Though this issue had been framed because of the stand

taken by the defendant No. 1 in the written statement, but in

course of hearing of the suit, Dr. Dhawan, appearing for the

State of Punjab did not seriously press the same. It is also

apparent from the written submissions filed on behalf of the

said defendant No. 1, wherein as many as seven submissions

have been enumerated in paragraph 1.5 of Part-A and the

question of limitation had not been raised therein.

Mr. Bobde, the learned counsel, appearing for the

plaintiff, however urged that though Article 112 of the

Limitation Act relating to suits by or on behalf of the Central

Government or any State Government is 30 years but the

suits filed before the Supreme Court are specifically excluded

from the purview of the same. According to Mr. Bobde,

Legislature, in its wisdom, left matters of limitation to be

prescribed by the Court and this Court in turn, though

provided a period of limitation in Part VIII, Order XL(2) and

also so far as applications on certificate by the High Court are

concerned under Order XV(2) but did not provide any

limitation for suits under Article 131, possibly because such

matters are usually of grave public importance. Mr. Bobde

also urged that there has been no delay or latches on the part

of Haryana in approaching this Hon'ble Court in view of the

fact that cause of action is a continuous one and even

continued till date, as averred in the plaint.

In our considered opinion, the present suit cannot be

thrown away, either on the ground of limitation or latches on

the part of the plaintiff in approaching the Court, but we are

not required to make an in-depth inquiry on the question of

limitation, since the defendant- State of Punjab did not

press the issue seriously. This issue accordingly is answered

in favour of the plaintiff and against the defendant No. 1.

ISSUE NO. 1:

This issue which in fact is the main issue and which

covers within itself all the arguments, both in favour and

against, requires a thorough scrutiny of the materials on

record and an in-depth study of the rival submissions made

on behalf of the parties. Before we embark upon an inquiry

on this issue, we think it appropriate to notice at this stage,

that when the arguments were closed on 9th August, 2001, we

passed the following order:

"This suit by the State of Haryana is for

issuance of a mandatory injunction to the State of

Punjab and/or the Union of India (UOI) to

complete construction of the unfinished SYL

canal. In the written statement filed by the Union

of India, there is a positive averment that

construction of SYL canal is solely the

responsibility of the Government of Punjab and

the Union of India has made all efforts including

financial assistance to the State of Punjab for

early completion of the canal and further the

Government of India will continue to play its role

with the settlement of the disputes between the

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two States. In course of his submissions, learned

ASG appearing for the Union of India on

instructions states, that the UOI is still willing to

negotiate for arriving at a settlement between the

two States. In view of the several agreements

between the two States, at the intervention of the

Prime Minister of India, and the SYL canal

having been substantially completed for which

more than Rs. 600 crores of tax-payers' money

has been spent and in view of offer made by the

learned ASG, we observe that notwithstanding

hearing of the suit and keeping it reserved for

judgment, the Union Government through the

Ministry of Water Resources and with the

blessings of the Prime Minister may continue the

negotiations with the Chief Ministers of the two

States, namely, Punjab and Haryana and we hope

that if the Prime Minister intervenes with right

earnest, then the dispute with regard to the

construction of canal could be amicably settled

and the Court will not be required to issue any

order either way. The so-called settlement, if any,

may be made within four weeks from today and if

any settlement is arrived at then the same may be

intimated to the Court. A copy of our order may

be handed over to the learned ASG."

Having waited for the period of four weeks, when no

intimation was received from the Union of India, we have

proceeded to the judgment painfully, as in our view, it was

indeed for the Central Government to see that the canal is

excavated and the recalcitrant State should have been

prevailed upon. In a semi-federal system of Government,

which has been adopted under the Indian Constitution, all the

essential powers, both legislative and executive have been

conferred upon the Central Government. True Federalism

means the distribution of power between a Central Authority

and the Constituent Units. Dicey's concept of federalism is a

national constitution for a body of States, which desire union

and do not desire unity. According to him, a federal State is

a political contrivance intended to reconcile national unity

and power with the maintenance of State rights. The essence

of a federation is, therefore, existence of a Union and its

States and the division of power between the Union and the

States. If the component parts of a State have no power of

policy decision in any field, but are confined to carrying out

Central Government directives through the medium of an

institutional fabric of federal form, it is not a federal but a

unitary State. Political integrity of the Union and each State

seems to be essential to the federal concept. Authors,

therefore, described our Government to be one federal in

structure but somewhat unitary in spirit. Constitution of

India, defines the political authority, locates the sources of

political power and indicates, how the power has to be

exercised, setting out the limits on its own use. Our

constitution is more than fifty years old and during this half

century, several developments have taken place, which have

moulded the working of the Constitution and brought out

several difficulties in its working and has provoked a number

of controversies. In the pre-independence politics in this

country, the Congress Party was committed to secure more

powers for the provinces. But soon after independence, the

political scenario changed and the need for power sharing

devices was subordinated to the imperatives of State's

security and stability. Weakness and lack of confidence

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propelled the thrust towards centralisation. Unity of the

country was perceived as a paramount need. The partition of

the country and the events that followed in its aftermath,

were events between commencement and completion of work

of the Constituent Assembly. These events have left

indelible imprint in several of its provisions, including the

scheme of distribution of legislative power. The second

Report of 5th July, 1947 of the Union Constitution Committee

having taken note of the facts then prevalent, unequivocally

recorded that weak Centre would be injurious to the interests

of the country. The said Report states:

"We have accordingly come to the

conclusion a conclusion which was also

reached by the Union Constitution Committee

that the soundest framework for our Constitution

is a federation with a strong Centre."

It is in this context, Mr. Bobde, appearing for the plaintiff-

State of Haryana urged that if a State does not abide by the

discipline of the Constitution and goes to the extent of

flouting its basic structure, it is the duty of the Union of India

to set things right and where the Union fails in its duty, the

Supreme Court must intervene to correct the situation.

According to the learned counsel, if balance of our

federalism is upset by a recalcitrant State which proceeds to

act as if it has no obligations to other States or to the nation

as a whole and the Union remains a mute spectator either for

the lack of political will or any reason whatever, then the

Supreme Court will have to step in and preserve the basic

feature of federalism. According to the learned counsel, the

principle of "co-operative" federalism has been accepted in

all modern democracies and we in India have a strong unitary

tilt in the Constitution, where unlike the United States of

America, the constitution points to the primacy of the Union.

The learned counsel further urged that constitution has

conferred power on the parliament to alter the boundaries and

territories of all States and the Union can never allow

secession. It is further imperative that in every matter that

concerns the interests of the nation, the Union has to ensure

that the Constitution is faithfully observed in letter and spirit

by the States. Mr. Bobde urged that the Union cannot allow

any State to act in a manner that is hostile towards another

State or the Union nor would allow a State to renege on its

commitments. Mr. Bobde went a step ahead to urge that the

State represents its inhabitants. If the rights of the inhabitants

under the Constitution gets adversely affected by any action

or inaction of another State or the Union, then those rights

are enforceable. According to the learned counsel, the need

of the State of Haryana to have SYL Canal being for the

purpose of utilizing the quantity of water that has already

been allocated in its favour by the Government of India under

the provisions of the Punjab Reorganisation Act and the State

of Haryana has no other source to get water and which was a

part of the State of Punjab prior to its formation, any denial to

get the allocated quantity of water for being utilized in the

State of Haryana would be a deprivation of their rights under

Article 21 and the State has been compelled to file the suit

mainly because the mighty Union with all its power under the

constitution as well as the power derived from the citizens of

the country, has failed to discharge its constitutional

obligation either in persuading the recalcitrant State of

Punjab to get the canal dug and failing persuasion, to get it

executed otherwise.

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Dr. Dhawan, appearing for the State of Punjab in this

connection submitted that the digging of SYL Canal is highly

sensitive political issue, connected to the conditions of

turmoil and uncertainty which prevailed in the State of

Punjab as already stated in the written statement. According

to him ever-since the day of inauguration of digging of canal

by the then Prime Minister Mrs. Indira Gandhi, the farmers

of Punjab boiled with resentment and physically interfered

with the digging of canal. Such popular resentment still

prevailed in the State of Punjab which culminated in the

unfortunate event leading to serious Law and Order problem

in the State of Punjab. The simmering discontentment which

prevailed amongst the people of Punjab, got further

aggravated on account of the so-called settlement signed by

the then Prime Minister of India and Late Sardar Harchand

Singh Longowal on 24.7.1985 and even the forcible digging

of canal was ultimately stopped. This being the position, it

would not be in the interest of any concern or in the interest

of the nation to issue any direction for digging of the canal.

According to the learned counsel, India no-doubt has a strong

centralized centripetal system, which can bring recalcitrant

States into line by a combined use of Article 355 and 365, but

the Indian Federal system is also based upon certain admitted

features like territorial vulnerability; empowerment to the

union; State autonomy; A complex set of institutions and

process to resolve disputes and enable governance; and the

judiciary's inclusion and exclusion from many areas

depending on the nature of the issue. Federalism no-doubt

is the part of the basic structure of the Constitution and the

processes which are specifically designated by the

Constitution for specific purposes. According to Dr.

Dhawan, India's federal system was devised to enable a wide

range of distribution of powers, directions, schemes,

contractual and non-contractual agreements, in order to

facilitate governance. Within this scheme, the judiciary

especially the Supreme Court plays an important role in

matters for interpretation and adjudication. But not all

aspects of these arrangements were deemed to be legally

enforceable or regarded as judicially manageable.

According to the learned counsel, some areas of judicial

unmanageability are delineated in the Constitution itself.

Bearing in mind, the aforesaid principles and taking into

account the claim made by the State of Haryana, it must be

said that the entitlements of Haryana cannot be treated as

private law entitlements with private implications but only as

public entitlements with public implications, including the

social, economic, political and security implications and,

therefore, the Court would be well advised, not to issue any

direction in relation to the digging of SYL Canal.

Having regard to the submissions made by the counsel

appearing for the two neighbouring States, who are fighting

tenaciously like two adjacent owners and when the Union

government is keeping silence over the matter, as is apparent

from the fact that notwithstanding our order on the close of

the arguments, there has been no intimation to us from the

Union Government through its counsel learned Additional

Solicitor General, we will be failing in our duty if we do not

notice faithfully what transpired in course of hearing.

Initially, to our query as to the role and the stand of the

Union Government, the counsel who was appearing for the

Union Government, candidly stated that the Union has no

role to play in the dispute between the two states and such a

stand on the part of the Union Government would not be

appreciated by the Court while hearing the matter. It is only

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when the Court expressed its disapproval to the stand taken

by the Union Government, learned Additional Solicitor

General appeared and initially prayed for an adjournment of

hearing of the suit so as to enable the Union government to

play its role effectively. As we had already started hearing of

the suit and had by then heard for a considerable period,

when we found it not possible to adjourn the matter, we

heard learned Additional Solicitor General and then at the

conclusion of the hearing, passed the order, which we have

already quoted earlier. But nothing appears to have

happened and to us, it appears that in the controversy

between the two states, the Union Government is feeling

embarrassed to take any positive decision, which in our view

is not in the interest of the nation. The founding fathers of

the Constitution, advocated for a strong Central Government,

so that there would not be any disintegration of the States and

the Central power would be able to keep the States within its

limits and will be able to force the States, in the matter of

good governance of the States, which would benefit the

inhabitants of the States, the inhabitants of the neighbouring

States and the country as a whole.

Within India, the Indus basin lies in Jammu and

Kashmir, Himachal Pradesh, Punjab, Haryana and

Rajasthan. Most of the basin in Pakistan lies in North-West

Frontier Province, namely Punjab and Sind. According to the

pre-1947 political sub-divisions, the Indus basin in India

comprised the British Provinces of the Punjab, N.W.F.P. and

Sind, as well as the then princely States of Jammu and

Kashmir, Patiala, Nabha, Faridkot, Jind, Kapurthala,

Bikaner, Bahawalpur, Jaisalmer, Khairpur, Bilaspur, Mandi,

Chamba and several other small States in the Punjab hills, the

North-West Frontier States and tribal areas, together with

parts of the British Province of Baluchistan and of the Indian

States of Jodhpur and Jaipur. Approximately 46 million

people lived in this basin in 1947 with agriculture as the pivot

of their economy. The Northern and Western boundaries of

the Indus basin are clearly marked by mountains and hills;

towards the south, however the limits of the basin are

relatively obscure. The north-west mountain wall,

comprising the Himalayan ranges and Siwaliks, has a great

influence on the physiography of the Indus region and the

hydrology of the region. The partition between India and

Pakistan in 1947, which created a new political boundary in

fact cut across the Indus system of rivers and canals from

which 26 million acres of irrigated agriculture had already

been established and from which rivers many million acres of

arid lands were still waiting to be developed in turn. The

Indus basin, a geographical entity, as patent as anywhere else

in the world, was divided between two henceforth sovereign

nations. Several proposals for sharing of water had been

mooted, but ultimately the proposal for a partition with a

territorial division of rivers, giving to India the exclusive use

of the three Eastern Rivers (Sutlej, Beas and Ravi) and to

Pakistan the use of the waters of the three Western Rivers

was accepted, and an Indus Water Treaty was entered into

between India and Pakistan. Government of India had to pay

a contribution which was fixed at 62.5 million Pounds to

Pakistan. Development of river water resources for purposes

of irrigation and generation of hydro-electric power has been

progressing steadily since independence. Many multi-

purpose river valley schemes have been executed on

interstate rivers. In many of these projects the states have

cooperated in jointly developing the river concerned in an

integrated manner, thus deriving the optimum benefits out of

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a river. But notwithstanding the same the existence of

friction amongst the States, through which river flows

continues and such friction between two States or two or

more States has been continuing on account of lack of

political will at the central level to deal with the problem

with determination. The lack of interstate cooperation is the

main factor leading to such dispute for sharing the water of a

river. Even as between two States Punjab and Haryana,

which at one point of time constituted only a single State, the

dispute for additional allocation of water from this Ravi Beas

basin is still pending un-resolved before a Tribunal, which

had been constituted way back in the year 1986 in pursuance

to the so-called 'Longowal Agreement'. We are not

concerned in the present suit with regard to the Award that

has been passed by the said Tribunal on 30th January, 1987;

but we are certainly concerned with the continuance of such a

Tribunal presided over by a retired Judge of this Court, who

is sitting idle as the other members of the Tribunal had not

been appointed or for some other reason, and continuance of

such a Tribunal has become a source of drainage from the

public exchequer without getting any return. It transpires,

after the Tribunal passed the Award on 30th January, 1987, an

application under Section 5(3) of the Interstate River Water

Disputes Act was filed by the State of Punjab on 19th August,

1987, and no final decision has been taken on that application

as a result of which the Central Government has not

published the decision of the Tribunal in the Official Gazette,

as required under Section 6 of Interstate River Water

Disputes Act. We really fail to understand why such a high

powered Tribunal supposed to decide a water dispute,

referred to it, between the States of Punjab, Haryana and

Rajasthan in relation to use, distribution or control of extra

water from the Ravi Beas system, which Tribunal in terms of

paragraphs 9.1 and 9.2 of Longowal Agreement dated 24th

July, 1985, would be permitted to just sit idle and why the

Central Government in the appropriate Ministry has not

bestowed any attention for the proper functioning of such

Tribunal. A Judge by virtue of his training, always acts in a

manner so as to avoid public criticism for his conduct. A

retired Supreme Court Judge, who has been appointed as the

Chairman of a Water Disputes Tribunal, would certainly not

like to sit idle at the cost of huge drainage from the public

exchequer and even otherwise, it would be beneath his

dignity to continue as Chairman, without doing any work.

The manner in which this tribunal headed by a retired Judge

of the Supreme Court has been allowed to continue, has

already been a matter of severe public criticism. To avoid

any further embarrassment and criticism we expect that the

Central Government would do well in filling up the vacancies

in the Tribunal and the Tribunal also would do well in

concluding the proceeding before it, as expeditiously as

possible.

Coming to the question of construction of SYL canal, it

appears that way back in January 29, 1955 in a meeting

called by the Government of India of all the concerned States

a decision had been taken, allocating 5.90 MAF in favour of

undivided State of Punjab. We are not concerned with the

allocation made in favour of other States, like, Rajasthan,

Kashmir and Pepsu. Several projects had been taken like

Madhopur Beas Link, Madhopur Head works with the idea

that the water from river Beas is diverted and is available for

the utilisation to the States of undivided Punjab and

Rajasthan at Harike. The government had also proposed

Beas Project Unit I and Unit II which comprised of Beas

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Sutlej Link and this project had started much before

reorganisation and division of the undivided Punjab. Since

no river was flowing within the State of Haryana and the

State had no other water resources, even before the creation

of the Haryana Development Committee had been set up,

which Committee had submitted its report recommending the

surplus Ravi Beas water for Haryana region, as is apparent

from Exhibit-P/21. The undivided State of Punjab was

bifurcated into two States of Punjab and Haryana with effect

from 1.11.1966, under the Parliamentary Act, called 'The

Punjab Reorganisation Act, 1966. Under the Parliamentary

Legislation a provision had been engrafted providing that

rights and liabilities of the existing State of Punjab in relation

to Bhakra Nangal Project and Beas Project, shall on the

appointed day, be the rights and liabilities of successor State

in such proportion, as may be fixed and subject to such

adjustment, as may be made by an agreement entered into by

the said States, after consultation with the Central

Government, or if no such agreement is entered into within

two years of the appointed day, as the Central Government

may by order determine having regard to the purposes of the

projects. The aforesaid Section of Punjab Re-organisation

Act stipulated that the order so made by the Central

Government could be varied by any subsequent agreement

entered by the successor State after consultation with the

Central Government. In exercise of the aforesaid power, the

Government of India in the Ministry of Irrigation, determined

the rights and liabilities in relation to the Beas Project as the

two States, namely, Punjab and Haryana could not reach an

agreement and a Notification was issued on 24th March,

1976. It would be appropriate at this stage to extract a

portion of the aforesaid Notification for better appreciation of

the controversy in issued:-

"NOW THEREFORE, ion exercise of the powers

conferred by sub-section (1) of section 78 of the

Punjab Re-organisation Act, 1966 (31 of 1966),

the Central government hereby makes the

following determination, namely:-

Taking note of the facts that Haryana has

large arid tract and also several drought prone

areas and the present development of irrigation in

the State of Haryana is substantially less as

compares to that in the State of Punjab, and

further taking into consideration that

comparatively large quantity of water is needed

for irrigation in the State of Haryana and there is

limited availability of water from other sources in

the State, the Central Government hereby directs

that out of the water which would have become

available to the esrtwhile State of Punjab on

completion of the Beas Project (0.12 MAF

whereof is earmarked for Delhi Water Supply),

the State of Haryana will get 3.5 MAF and the

State of Punjab will get the remaining quantity not

exceeding 3.5 MAF. When further conservation

works on the Ravi are completed, Punjab will

gewt 3.5 of 7.2 MAF which is the share of the

erstwhile State of Punjab. The remaining 0.08

MAF, out of 7.2 MAF is recommended as

additional quantum of water for Delhi water

supply for acceptance by both the Governments of

Punjab and Haryana.

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AND WHEREAS the above allocation on

completion of the Beas Project is based on the

1921-45 flow series corresponding to availability

of 11.24 MAF in the Beas at Mandi Plain (after

allowing for 1.61 MAF as pre-partition uses) and

the availability of 4.61 MAF in the Ravi after

allowing for pre-partition uses and losses in the

Madhopur Beas Link.

AND WHEREAS the fluctuations in the

Ravi flow have a very small effect on the

availability of water on completion of the Beas

Project;"

Even prior to the aforesaid Notification issued by the

Government of India the concept of having SYL Canal had

already emerged, which is apparent from Exhibit P-17, a

communication from the Government of Haryana to the

Central Government dated October 21, 1969. The relevant

paragraphs from the aforesaid communication, Exhibit P-17

are quoted hereunder :-

"6. It is also important to point out that Haryana

Government have prepared a scheme linking

Sutlej basin with Western Yamuna Canal basin

for utilising its share of 4.8 MAF when the same

is harnessed after the completion of the Beas

Sutlej Link by 1973-74. The Project estimate was

submitted to the Government of India, Ministry of

Irrigation and Power of scrutiny and approval.

The Government of India have intimated that the

allocation of Ravi-Beas waters may be got

finalised before the Scheme is taken up for

scrutiny.

7. The Haryana State can have its share out of the

Ravi-Beas waters only through Bhakra and it

would be a pity if the State is not in a position to

utilise its share of waters for want of adequate

l;inks. The proposed scheme is, therefore, very

vital for Haryana and accordingly the entire

provision for the Scheme costing Rs.27 crores has

been recommended by the State Government for

being spent during the Fourth Five Year Plan. It

is accordingly very essential that the allocation of

7.2 MAF to erstwhile Punjab State is apportioned

between the two successor States without any loss

of time so that this State may be able to execute

the afore-mentioned major scheme during the 4th

Five Year Plan.

8. Since the two successor States have not

come to an agreement/decision in the matter,

it is requested that the matter may be

decided under Section 78 of the Punjab Re-

organisation Act, 1966 wherein the

Government of India take a decision aftwer

the stipulated period of two years which

expired on 1.11.1968."

On the demand of the State of Haryana the Central

Government appointed a high level Committee of experts in

April 24, 1970, under Exhibit P-18 and the said Committee

submitted a report in February 1971 under Exhibit P(D)-3

recommending 3.782 MAF to Haryana and 3.087 MAF to

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Punjab. But that recommendation was referred by the

Planning Commission to the Chairman, Central Water and

Power Commission Shri Y.K. Murthy under Exhibit P-19

and Shri Murthy had submitted a report introducing a concept

of "divisible pool" but finally the Government of India made

the determination by issuing a Notification on 24th March,

1976, as already stated. The State of Haryana could draw its

share in the surplus Ravi-Beas waters from Bhakra Nangal

complex on the river Sutlej where the supplies of Ravi and

Beas are available and that is why the proposal for

construction of SYL Canal had been mooted, part of the

canal being in the State of Punjab. The State of Haryana all

along has been insisting for the completion of SYL canal and

has been requesting the State of Punjab and the Central

Government reiterating inter alia that the large arid tract of

Haryana and several drought prone areas would need water

badly and, therefore unless the allocated share of water is

allowed to be diverted by digging an additional Link canal, as

the existing main line canal will not be in a position to get the

water allocated to Haryana, for being utilised through the

said canal. Though the State of Haryana started constructing

the canal within its territory in 1976 and completed the same

by June 1980, and a huge amount has been spent on that

score but the construction of canal within the territory of

Punjab was a non starter. When the persuation on the part of

the State of Haryana failed they filed a suit in this Court,

which was registered as Suit No. 1 of 1979 for

implementation of the order of the Union Government dated

24th March, 1976 and for the construction of SYL Canal

within the territory of Punjab within a period of 2 years. As a

counter blast to the aforesaid suit the State of Punjab also

filed a suit in this Court, which was registered as Suit No. 2

of 1979, challenging the validity of the order of Government

of India dated 24th March, 1976 and also challenging the

validity of Section 78 of the Punjab Re-organisation Act,

1966. While two suits were pending in this Court an

agreement was arrived at between the States of Haryana,

Punjab and Rajasthan in the presence of the Prime Minister

of India on 31st December, 1981, vide Exhibit P-2 and on

account of the aforesaid agreement the Suits filed by the two

States stood withdrawn by order dated 12th February, 1982.

At this stage, it would be appropriate to extract the relevant

portions of the agreement Exhibit P-2 as well as the order of

this Court dated 12th February, 1982.

Exhibit P-2 WHEREAS the Punjab

Government sought a review of the aforesaid

notification for increasing the allocation of Punjab

and linked this matter to the construction of the

Sutlej-Yamuna Link Canal for Haryana in Punjab

territory and,

WHEREAS the Government of Haryana filed a

suit in the Supreme Court praying inter-alia that a

directive be issued to Punjab for expeditiously

undertaking construction of the Sutlej Yamuna

Link Canal in Punjab territory and for declaring

that the notification of the Government of India

allocation the waters becoming available as a

result of the Beas Project issued on 24th March,

1976, is final and binding;

xx xx xx xx xx

"Now, therefore, we the Chief Ministers of

Haryana, Rajasthan and Punjab keeping in view

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the overall National interest and desirous of

speedy and optimum utilisation of waters of the

Ravi and Beas Rivers and also having regard to

the imperative need to resolve speedily the

difference relating to the use of these waters in a

spirit of give and take do hereby agree as under :-

"iv. The Sutlej-Yamuna Link Canal Project shall

be implemented in a time bound manner so far as

the canal and appurtenant works in the Punjab

territory are concerned within a maximum period

of two years from the date of signing of the

agreement so that Haryana is enabled to draw its

allocated share of waters. The canal capacity for

the purpose of design of the canal shall be

mutually agreed upon between Punjab and

Haryana within 15 days, failing which it shall be

6500 cusecs as recommended by former

Chairman, Central Water Commission.

Regarding the claim of Rajasthan to convey 0.51

MAF of water through Sutlej-Yamuna Link

Bhakhra system, Secretary, Ministry of Irrigation,

Government of India will hold discussion with

Punjab, Haryana and Rajasthan with a view to

reaching an acceptable solution. These

discussions shall be concluded in a period of 15

days from the date of affixing signatures herein

and before the work starts. If no mutually

acceptable agreement is reached, the decision of

Secretary, Ministry of Irrigation to be given

within this period shall be binding on all the

parties. In case it is found necessary to increase

the capacity of Sutlej-Yamuna Link Canal beyond

that decided under above sub-para in any or entire

reach thereof, the States concerned shall

implement the link canal in a time bound manner

with such increased capacity at the cost of

Rajasthan Government.

The differences with regard to the alignment of

the Link Canal and appurtenant works in the

Punjab territory would be discussed by the

Haryana and Punjab Governments who should

agree to mutually acceptable canal alignment in

Punjab territory including appurtenant works

within a period of three months from the date of

signing of this agreement. If however, the State

Governments are unable to reach complete

agreement within this period the matter shall be

decided by the Central Government within a

period of two weeks. Both the State Governments

shall cooperate fully to enable Central

Government to take timely decision in this regard.

The decision of the Central Government in this

matter shall be final and binding on both the

Governments and the Canal and appurtenant

works in Punjab territory shall be implemented in

full by Punjab Government. However, work on

the already agreed reaches of the alignment would

start within fifteen days of the signing of the

agreement and work within the other reaches

immediately after the alignment has been decided

Haryana shall provide necessary funds to the

Punjab Government for surveys, investigations

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and considerations of the Link Canal and

appurtenant works in Punjab territory./ Whereas a

result of acquisition of land, extreme hardship is

caused to families the Punjab Government shall

forward to the Haryana Government suitable

proposals for relieving hardship in line with such

schemes in Pounjab undertaken in respect of

similar Canal works in Punjab territory. The

Haryana Government shall arrange to bear the

cost of such proposals. In the event, however, of

any difference of opinion arising on the question

of sharing such cost, the parties shall abide by

decision of the Secretary, Ministry of Irrigation,

Government of India. The progress of the work

shall not, however, be delayed on this account.

The Central Government will be requested to

monitor the progress of the work being carried out

in Punjab territory.

v. The Agreement reached in Paras (I) to (iv)

above shall be implemented in full by the

Government of Haryana, Rajasthan and

Punjab. If any signatory State feels that any

of the provisions of the Agreement are not

being complied with, the matter shall be

referred to the Central Government whose

decision shall be binding on all the States.

In this respect the Central Government shall

be competent to issue such directions or take

such measures as may be appropriate and

ensure such compliance.

vi. The suits filed by the Government of

Haryana and Punjab in the Supreme Court

would be withdrawn by the respective

Governments without any reservations

whatsoever but subject to the terms of this

agreement.

vii. The notification of the Government of India

allocating the waters becoming available as

a result of the Beas Project issued on 24th

March, 1976, and published in the Gazette

of India, Part II, sections, the Section (ii) as

well as the 1966 Agreement stand modified

to the extent by this Agreement and shall be

in force as modified herein.

In case of any difference on interpretation of

this Agreement, the matter will be referred to the

Central Government whose decision shall be

final."

Order dated February 12, 1982:-

"In these suits, the plaintiffs namely,

Government of Punjab and Haryana have filed

petitions for withdrawal of suits as the dispute

between the States have been settled between the

parties and they are permitted to withdraw the

suits in view of the agreement dated 31st

December, 1981 between the plaintiffs and the

State of Rajasthan. The applications for

withdrawal have been made on the basis of the

agreement dated 31st December, 1981 reached

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between the aforesaid parties.

A number of applications to intervene and

impleading parties to the suits have been made,

but these applications have been made by the

private parties who have absolutely no locus to

appear in the suits. This matter has now been

concluded by the decision of this Court in 1978

(1) SCR 1 State of Rajasthan and Others etc. etc.

vs. Union of India etc. etc. which followed an

earlier decision of this Court in 1970 (2) SCR 522

State of Bihar vs. Union of India and another.

Moreover, the plain language of Article 131 of the

Constitution clearly shows that this Court has only

a limited jurisdiction to hear suits filed by the

States interse or suits between States and Union

Government. Article 131, therefore, does not

contemplate any other party to be heard or to

intervene in the matter. For these reasons,

therefore, the applications for intervention and

impleading parties are rejected. The prayer of the

plaintiffs for withdrawal of suits is allowed and

the suits are dismissed as withdrawn in view of

the agreement dated 31st December, 1981

between the parties to the suits. There will be no

order as to costs".

It may be stated at this stage that this agreement dated 31st

December, 1981, which resulted in increase in the share of

water to Punjab, while keeping the share of Haryana

unchanged was very much appreciated by the Government of

Punajb, as is apparent from Exhibit P-14. Between 1982 to

1985, the SYL Canal within the territory of Punjab was

constructed and a major portion had been completed.

Subsequent to the insurgency in the State of Punajb and the

operation 'Blue Star' by the Government of India, the State

of Punajb was in turmoil. However under the persuasion of

the then Prime Minister of India Late Rajiv Gandhi, the then

President of Shiromani Akali Dal, Sant Harchand Singh

Longowal entered into an agreement commonly known as

"Punjab Settlement". Exhibits P3 and P14 and Paragraph 9

of the said agreement were in relation to sharing of river

waters. It is significant to notice that while paragraphs 9.1

and 9.2 relating to the sharing of water from Ravi-Beas

system were required to be referred for adjudication to a

tribunal, to be presided by a Judge of the Supreme Court,

paragraph 9.3 unequivocally indicated that construction of

SYL Canal shall continue and shall be completed by 15th of

August, 1986. It is true, as is contended by Dr. Rajiv

Dhawan that the aforesaid agreement was entered into by

Sant Harchand Singh Longowal, the then President of the

Shiromani Akali Dal and as such, has no constitutional

sanctity to bind the State of Punjab. But 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.

The tribunal, as stated earlier, submitted its report on 30th of

January, 1987 and even though the construction of canal was

not a matter of reference to the tribunal, but yet the tribunal

took notice of the fact that the SYL Canal construction is

complete within the State of Haryana and is under

construction in the Punjab area and it also noticed the fact

that this canal is the lifeline for the farmers of Haryana and

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unless it is expeditiously completed, Haryana will not be in a

position to utilize the full quantum of water allocated to it

hereunder. The experession 'hereunder' obviously refers to

the extra allocation of water under the award of the Ravi-

Beas tribunal, which award has not yet been notified. But at

the same time, the importance of the canal even for full

utilization of the water that has been already allocated in

favour of Haryana, cannot be minimised in any way. It is an

admitted fact that for construction of Punjab portion of the

SYL Canal, more than Rs.560 Crores have already been

spent, as is apparent from Exh. P-13 and the entire money has

been paid by the Govt. of India. It is indeed a matter of great

concern that while huge amount of public exchequer has been

spent in the construction of the canal and only a few portion

of the canal within the territory of Punjab has not been dug,

the canal is not being put to use on the mere insistence of the

State of Punajb. The attitude of the State of Punjab to say the

least, is wholly unreasonable dogmatic and is against the

national interest. It is equally a matter of great concern for

this Court that the Central Government is taking an

indifferent attitude in the matter and is only trying to while

away the time, even though continues to pay the State of

Punjab substantially, even for maintenance of the operation

of canal that has already been dug. From the record, it

transpires that in February, 1991, the Prime Minister of India

had convened a meeting of the concerned authorities of the

State of Haryana and Punjab, in which meeting certain

decisions had been taken, including a decision to employ the

mobilisation of the officers of Border Road Organisation, but

even that decision could not be implemented and the Chief

Minister of Haryana had been reminding the Prime Minister

of India by writing letters, seeking intervention of the Prime

Minister for completion of the Punjab portion of the canal.

While the matter stood thus, a news item having appeared in

a Delhi Newspaper, indicated that the Punjab Chief Minister

had rejected any move to start reconstruction of the SYL

Canal, the State of Haryana was compelled to file the present

suit. In a matter like this, it is true that a decree of a Court in

either way is not that effective, as it is the political will of the

authorities and the will of the people that matters. But at the

same time when the political authority becomes dogmatic,

unreasonable and indicates an attitude of irresponsible nature

and when the court finds that nothing is moving even though

there has been a large-scale drainage of public exchequer and

that the decision to have the canal had been reached on an

agreement of all concerned, representing the will of the

people, the Court must pass appropriate orders and

directions. What really bothers us most is the functioning of

the political parties, who assume power to do whatever that

suits and whatever would catch the vote-bank. They forget

for a moment that the constitution conceives of a

Government to be manned by the representatives of the

people, who get themselves elected in an election. The

decisions taken at the governmental level should not be so

easily nullified by a change of government and by some other

political party assuming power, particularly when such a

decision affects some other State and the interest of the

nation as a whole. It cannot be disputed that so far as policy

is concerned, a political party assuming power is entitled to

engraft the political philosophy behind the party, since that

must be held to be the will of the people. But in the matter of

governance of a State or in the matter of execution of a

decision taken by a previous government, on the basis of a

consensus arrived at, which does not involve any political

philosophy, the succeeding government must be held duty

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bound to continue and carry on the unfinished job rather than

putting a stop to the same.

Dr. Rajiv Dhawan, appearing for the State of Punjab

referred to the averments made on behalf of the State of

Haryana in its replication to the effect: - "the existing

system through which the Haryana received Ravi Beas

waters namely the Bhakra Canal can carry only about 1.62

MAF" and submitted that in view of this statement made by

the State of Haryana and there being no further final decision

of the tribunal which had been appointed by the Central

Government to determine the share of the respective States

from the waters available under Ravi-Beas basin, the so-

called agreement/decision in relation to the construction of

SYL Canal, is nothing but a futility and, therefore, this Court

should not issue any mandatory order in relation to the

digging of the canal in the absence of any right being

established by the State of Haryana. According to Dr.

Dhawan, the future utilization of the water resources not yet

been determined, the Court need not embark upon an

adjudication relating to construction of the canal. According

to Dr. Dhawan, the decision taken by the undivided State of

Punjab in 1955 and the utilization as proposed in various

project reports and acted upon prior to reorganisation of the

State of Punjab in 1966, would not have been altered and

should not be altered and neither the order of the Central

Government in exercise of power under Section 78 of the

Punjab Reorganisation Act, 1966 nor the so-called agreement

dated 31st December, 1981, could be construed to have

conferred an enforceable right on the State of Haryana to get

a mandatory order of injunction against the State of Punjab

for getting the unfinished portion of the canal within the

territory of Punjab. According to Dr. Dhawan, non obstante

clause in Section 78(1) of the Punjab Reorganisation Act as

well as the scheme of Section 78 to Section 80 of the said

Act, unequivocally indicates that the said power is for

distribution of water and power on "project-wise" and "river-

wise" basis and the two projects which stood included have

been mentioned to be Beas (Unit I and II) and Bhakra

Nangal, and therefore, it would not be legal or equitable to

bring within its concept any other project or river water for

the purpose of the sharing between the two States. The

learned counsel also contended that non-mention of the Thien

(now Ranjit Sagar) Dam or Madhopur Beas Link, is

sufficient to indicate that those projects are to serve different

purposes between different States and the same cannot be

brought by implication since some aspects of it have been

mentioned in the Beas Project. Dr. Dhawan concedes that in

the Project Report, the expression "integrated development"

has been used but a distinction must be drawn between the

allocation of share of water from different rivers and

integrated development of the projects. According to the

learned counsel, integrated development is distinct from

independent allocation of share of water and this being the

position, the entire basis on which the State of Haryana has

filed the suit for completion of the SYL Canal falls through.

Dr. Dhawan also went to the extent of arguing that an order

passed by the Central Government under Section 78 of the

Reorgansiation Act being outside the scope of the Act itself,

must be read down to make it legal and the only way the

same has to be read down is that the order is an Executive

order, not enforceable being beyond the scope of the Punjab

Reorganisation Act, 1966. In relation to the so-called

agreement entered into by the Chief Ministers of different

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States and the Prime Minister of India dated 31st of

December, 1981, Dr. Dhawan contends that the agreement

read as a whole, more particularly, Clause (7) thereof

unequivocally indicates that it incorporates fresh terms

treating the order of the Central Government dated 24th of

March, 1976 as an Executive order and re-works a fresh

denovo agreement taking into account the agreement of 1955

and that agreement stood repudiated on 5.11.1985. It is

further contended that the said agreement is political in

nature and thus cannot assume the characteristic of

conferring an enforceable right on the State of Haryana. So

far as the Punjab Accord of 1985 is concerned, it is

contended that the same cannot assume the status of an

agreement under the constitution and on the other hand, it

must be held to be a political thicket entered into between the

Prime Minister and the head of the political party, who

neither was constitutionally entitled to sign any agreement,

binding the citizens of the State, and in any event the said

terms of agreement were rendered inoperative by the force of

circumstances and stood frustrated by the subsequent events.

According to Dr. Dhawan in the continued threat of militancy

and the canal itself being in a totally damaged condition and

no legal rights having accrued in favour of the State of

Haryana for getting the canal constructed, this Court will not

be justified in issuing an order of mandatory injunction,

mandating the State of Punjab to construct the unfinished

portion of the canal. It is the submission of Dr. Dhawan that

relief of mandatory injunction being discretionary, the Court

while exercising the discretion, must bear in mind all facts

and circumstances as well as the consequences thereof and

taking into account the fact that Punjab has already passed

through one of the dark periods of militancy in the history of

the country, it would not be advisable to issue any order of

injunction in exercise of the discretionary power of the Court.

Dr. Dhawan, in course of his oral arguments as well as in his

written submissions referred to those averments made in the

written statement of the State of Punjab, indicating the

turmoil situation through which the State has passed and on

that basis tried to emphasise the fact that any order or

direction from the Court to construct the canal within the

territory of Punjab would again bring an uncanny situation in

the State and therefore, this Court should resist from issuing

any such order or direction which may not be in the national

interest.

Having given anxious consideration to the submissions

made by Dr. Dhawan, appearing for the State of Punjab, we

are of the considered opinion that those submissions are of no

consequence and there could not be any fetter on the power

of this Court to issue appropriate directions. We have already

indicated the genesis of the construction of SYL Canal as

well as the allocation of water in favour of the State of

Haryana and the agreements entered into between the States

in the presence of the Prime Minister of India, which

ultimately led to the withdrawal of the earlier suits filed in

this Court. 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

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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. If the

apprehension of the State is that on account of digging of

canal, the State of Haryana would draw more water than that

which has been allocated in its favour, then the said

apprehension also is thoroughly unfounded inasmuch as the

source for drawing of water is only from the reservoir, which

lies within the territory of Punjab and a drop of water will not

flow within 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 Bhakara Main Canal has

the capacity of supplying of 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 the SYL Canal, which

remains incomplete and in the event the State of Punjab fails

to complete the same, then the Union Government-defendant

No. 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

prime 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 No. 2 to discharge its constitutional

obligation in implementation of the aforesaid direction in

relation to the digging of canal and if within a period of one

year the SYL Canal is not completed by the defendant-State

of Punjab, then the Union Government should get it done

through its own agencies as expeditiously as possible, so that

the huge amount of money that has already been spent and

that would yet to be spent, will not be wasted and the

plaintiff-State of Haryana would be able to draw the full

quantity of water that has already been allotted to its share.

Needless to mention, the direction to dig SYL Canal should

not be construed by the State of Haryana as a license to

permit them to draw water in excess of the water that has

already been allotted and in the 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 the SYL Canal.

The plaintiff's suit is decreed on the aforesaid terms.

There will be no order as to costs.

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

(G.B. PATTANAIK)

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

(RUMA PAL)

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January 15, 2002.