Case: State of Haryana Vs. State of Punjab &amp; Another

in OS 6 of 1996, it was admitted that the issues referred to in paragraphs 9.1 and 9.2 of the Punjab settlement were referred to the Ravi-Beas Tribunal by Government notification dated 2nd April 1986 and the affirmation of the continued availability of water from the Ravi-Beas system as on 1.7.85 referred to in the notification was relied upon. The notification dated 2nd April, 1986 was issued under Section 14 of the Inter-States Water Disputes Act. As far as the report of the Tribunal is concerned, paragraph 8 of the written statement says that it could not be relied upon because it had not become final and that Punjab did not accept the correctness of most of its findings. There was no dispute raised as to the constitutionality of Section 14 at any stage. Even in the course of arguments, when Section 14 was specifically to in elaborate written notes on the scope, purport and effect of Section 14, it was submitted that the effect of Section 14 is four-hold. (a) To overcome procedural hurdles that no dispute had been raised and to by pass the mandatory requirement of negotiations. (b) To deem matters referred under Section 14 to be a water dispute and place this beyond challenge. (c) To constitute this special section 14 Tribunal under this Act and not any other provision or statute and make the other provisions applicable. (d) To oust the jurisdiction of all Courts including the Supreme Court by making Section 11 applicable to this dispute. (e) To leave all other disputes relating to the Punjab settlement to be decided under the amended Act of 1956. 81. This Court in the judgment dated 15th January, 2002 considered the arguments of the parties relating to Section 14 and negatived Punjabs submission as to the construction of section 14. Punjab could have challenged the constitutional validity of Section 14 in its written statement. It did not then. It cannot do so now being barred by the doctrine of res judicata. 82. In this suit Punjab has claimed that the section is ultra vires because:-- "i) the raison-detre for the introduction of Section 14 in the Act, 1956 was the assumption validity of Punjab Settlement i.e. Memorandum of Settlement dated 24.7.1985, which is incorrect as the said Settlement is not a valid or binding Agreement.ii) The enactment of Section 14 is beyond the competence of Parliament since on the face of it, it is against the constitution Scheme as set out in the Constitution under Article 262 read with entry 56 of 7th Schedule, List 1.iii) The special enactment has the effect of making a general legislation specific to Ravi Beas Waters. This is discriminatory to the inhabitants of Punjab living in the Ravi-Beas Valley and is therefore, constitutionally invalid.iv) There can be no legislative enactment by Parliament in respect of an invalid Agreement...v) In any event and without prejudice to the foregoing no Agreement can be executed in part of the exclusion of other obligations imposed thereunder, as each obligation is an inter-connected and dependent bargain;vi) Because in any event and without prejudice to the foregoing, the Punjab Settlement has become incapable of being performed under the changed circumstances as also for the reasons that the State of Haryana has resiled therefrom and is unwilling to abide by the letter and spirit of the said Settlement. From these reasons it also follows that Section 14 which is nothing but a statutory adjudication has no efficacy in law.vii) In any event and without prejudice to the foregoing the purposes for which Section 14 was incorporated in the Act, 1956 have become redundant in the light of the facts and circumstances set out above and as the said provision is no longer capable of meeting the objectives for which it was purportedly enacted: 83. The challenge to Section 14 of the 1956 Act has been made without prejudice to Punjabs pending application under Section 5(3) of the Act". Assuming such a reservation is legally possible the ground for submitting Section 14 of the 1956 Act is unsustainable is legally impermissible. It is well established that constitutional invalidity (presumably) that is what Punjab means when it used the word unsustainable) of a statutory provision can be made either on the basis of legislative incompetence or because the statute is otherwise violative of the provisions of the Constitution. Neither the reason for the particular enactment nor the fact that the reason for the legislation has become redundant, would justify the striking down of the legislation or for holding that a statute or statutory provision is ultra vires. Yet these are the grounds pleaded in sub-paragraphs (i), (iv), (v), (vi) and (vii) to declare section 14 invalid. Furthermore merely saying that a particular provision is legislative incompetent (ground (ii) or discriminatory (ground (iii) will not do. At least prima facie acceptable grounds in support have to be pleaded to sustain the challenge. In the absence of any such pleading the challenge to the constitutional validity of a statute or statutory provision is liable to be rejected in limine.84. The grounds given in support of Punjabs challenge to Article 14 are ex-facie no grounds in law and no cause of action has been disclosed to challenge the constitutional validity of Section 14 of the Inter-State Water Disputes Act, 1956. Not only does the plaint filed by Punjab in OS 1 of 2003 not disclose any cause of action, but it is also evident from the statements in the plaint and the suit is barred by law. The plaint is accordingly rejected leaving open the other issues raised by Haryana in support of its application.85. Additionally and in the ultimate analysis, it is manifest that the suit has been filed only with a view to subvert the decision of this Court with all the disingenuousness of a private litigant to resist its execution. We have, in the circumstances, no compunction whatsoever in dismissing the suit under Order XLVII Rule 6 of the Rules.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The normal rule is that an application for modification of the decree or order is to be made before the Bench which passed the decree or order. Merely because the litigating parties are States, would not alter this position. In any event we are not for the view that any such issue has been raised which requires determination by a larger Bench. This submission of the State of Punjab, therefore, is rejected.22. It is also our opinion that Punjabs challenge to Order XXIII Rule 6(a), even if successful, would not result in dismissal of Haryanas application because the grounds made out for rejection under Order XXIII Rule 6 pertain not only to clause (a) but also to clause (b) thereof.Doubtless, a suit under Article 131 is not an ordinary suit, and the phrase cause of action is conspicuous by its absence in the Article. But the argument that by the use of the phrase in Order XXIII Rule 6(a), the burden and limitations created by judicial interpretation of the phrases in connection with ordinary suits are necessarily introduced, shackling an otherwise exclusive jurisdiction, is unacceptable. The phrase, in our opinion, as occurring in Order XXIII Rule 6(a), will have to be read and construed in the context of Article 131 unimpaired by the meaning judicially given to it in other contexts.The majority view dismissed the suit under clause (a) of Rule 6 of Order XXIII. The phrase cause of action was considered with reference to Article 131 as meaning a dispute involving a question of fact or law on which the existence or extent of a legal right depends.The cause of action under Order XXIII Rule 6(a) is that sole condition which is required to be satisfied before the jurisdiction of this Court can be invoked under Article 131. If the plaint does not ex facie show the fulfillment of that condition, it would not be maintainable. This follows from the language of Article 131 itself. Therefore merely because the phrase cause of action has been used in Order XXIII Rule 6(a) does not mean that principles enunciated in the context of Section 20 of the Code of Civil Procedure are imported. Order XXIII Rule 6(a) only gives effect to limitations implicit in Article 131 itself. It follows that it does not violate Article 131 or any other provision of thethe projects identified by the Union of India was theLink, as a result of which, according to the plaintiff, Haryana would get more water and there was no question of burdening the deficitBasin. The third ground is that an issue had been raised in the complaint filed by the plaintiff under Section 3 of theWater Disputes Act, 1956, as tot he rights of Haryana and Rajasthan to the rivers waters as non riparian States.An analysis of the averments in the plaint shows that the entire thrust of the suit filed by the State of Punjab is aimed at the decree dated 15th January, 2002 in O.S. No. 6 of 1996. One portion of the plaint relates to the discharge of the injunction granted by the decree by reason of changed circumstances. The second portion challenges the decree as beingthese provisions may not limit the powers of this Court under Article 131 nevertheless they provide valuable guidelines as to the nature of this form of equitable relief. An injunction may be permanent (perpetual) or temporary.The principles that emerge from these decisions are that (a) There is a distinction between a final peremptory injunction and a final decree which requires a continuous course of action.(a) A decree granting a preventive injunction continuously operates to prevent a course of action and(c) Such a decree may be modified prospectively if the circumstances, whether of fact or law on which the decree is based, are substantially altered and(d) such a decree cannot be impeached or reopened.52. It is only if the decree is one which grants a continuous injunction an dif conditions (b), (c), and (d) are fulfilled that proceedings for modification of the decree can be maintained.53. In the present case the decree granted a final mandatory injunction. Punjabs contention is that the injunction granted by this Court was temporary merely because in the course of the judgment of the Court said.A decree cannot reach a prima facie conclusion. The use of the phrase prima facie was clearly an accident of language and does not detract from the conclusiveness of the finding and the finality of the mandate.. It directed the construction of a canal as a final adjudication of rights.The mandate in the decree was to carry out the obligations under agreement dated 31st December, 1981. It did not envisage a continuing process over which the equity court necessarily retains jurisdiction in order to do equity Principle (b) relating to modification of decrees enunciated earlier is therefore absent.The decree was not based on the quantum of water that may be made available to Haryana. Therefore the fact that Punjabs complaint is pending under Section 3 of theWater Disputes Act, 1956 or that Haryana may, in the future, be entitled to more water is immaterial. For the same reason the principle (if any) of the right to ask for a review of water allocations would not apply.It is evident that the Punjab Settlement was referred to as a piece of evidence that the parties had kept the construction of the canal distinct from the disputes relating to the sharing of river waters between the two States. If the other clauses in the Punjab settlement are allegedly not being complied with by Haryana that is not a change of circumstance or ground for modification of the decree passed on 15th January, 2002. The challenge to Section 14 of the Inter State Water Disputes Act, 1956 is also inapposite to the question of modification of the decree. The section related to and was in enforcement of paragraphs 9.1 and 9.2 of the Punjab Settlement and relates to the resolution of the water disputes between the States by the Tribunal. Paragraph 9.3 which related to the canal and referred to by the Court does not form part of Section 14. It has not been averred that either of the two grounds which founded the decree have in any sense of the word changed. Principle (c) is therefore unfulfilled.In other words since the plaint in the present suit does not even ex facie fulfill all four conditions subject to which a decree may be modified, there is no legal right to apply for modification of the decree dated 15 January, 2002 within the meaning of Article 131. We can therefore only conclude that there is no cause of action within the meaning of Article 131 as far as the prayers relating to the discharge of the injunction granted by the decree dated 12th January, 2002 isthe impugned judgment, we merely applied the interpretation of the Constitution Bench of the provisions of Articles 131 and 262 to the facts of the case. There was no further interpretation of Article 131 and 262 to be done in the case before us which required to the decision of a bench of five judges under Articlethe meanwhile a suit was filed under Article 131 by the State of Karnataka against the State of Tamil Nadu contending that the Tribunals order granting interim relief was without jurisdiction and, therefore, null and void etc. In the context of these developments, the President referred three questions to this Court for its opinion under Article 143 of the Constitution. Of the three questions , question No.3 raised the issue whether a Water Disputes Tribunal constituted under theWater Disputes Act, 1956 was competent to grant any interim relief to the parties in the dispute. This Court approached the question from two angles namely: (1) when no reference for grant of interim relief is made to the Tribunal and (2) when such reference is made tothe Court had in such earlier decision kept open the question whether the Tribunal would have the power to grant interim relief when no reference was made, it was held that the earlier decision had in terms concluded the second aspect of the question. A submission was then made on behalf of the State of Karnataka that the earlier directions in the Courts order dated 26th April, 1991 should be declared as being without jurisdiction and void.Since the doctrine of res judicata is an essential part of the rule of Law it follows that if the issues raised in the suit are barred by res judicata ex facie then this Court is required to reject the plaint in terms of Order XXIII Rule 6(b). There is no substance in the submission of Punjab that even when there is no dispute of fact the issue of res judicata should be left for consideration at the trial of the suit.As far as OS No. 2/79 is concerned it was unconditionally withdrawn in view of the agreement dated 13th December, 1981 as has been noted earlier.In the order allowing OS 2 of 1979 to be withdrawn no such conditions are present. Consequently a fresh suit in respect of the same subject matter viz., the validity of section 78 of the 1966 Act does not lie. We leave open the question as to whether it is open to the State of Punjab to question the vires of the statute by which it was created.In paragraph 51 of Punjabs Written Statement in OS 6 of 1996, it was admitted that the issues referred to in paragraphs 9.1 and 9.2 of the Punjab settlement were referred to theTribunal by Government notification dated 2nd April 1986 and the affirmation of the continued availability of water from thesystem as on 1.7.85 referred to in the notification was relied upon. The notification dated 2nd April, 1986 was issued under Section 14 of theThis Court in the judgment dated 15th January, 2002 considered the arguments of the parties relating to Section 14 and negatived Punjabs submission as to the construction of section 14. Punjab could have challenged the constitutional validity of Section 14 in its written statement. It did not then. It cannot do so now being barred by the doctrine of res judicata.The challenge to Section 14 of the 1956 Act has been made without prejudice to Punjabs pending application under Section 5(3) of the Act". Assuming such a reservation is legally possible the ground for submitting Section 14 of the 1956 Act is unsustainable is legally impermissible. It is well established that constitutional invalidity (presumably) that is what Punjab means when it used the word unsustainable) of a statutory provision can be made either on the basis of legislative incompetence or because the statute is otherwise violative of the provisions of the Constitution. Neither the reason for the particular enactment nor the fact that the reason for the legislation has become redundant, would justify the striking down of the legislation or for holding that a statute or statutory provision is ultra vires. Yet these are the grounds pleaded in(i), (iv), (v), (vi) and (vii) to declare section 14 invalid. Furthermore merely saying that a particular provision is legislative incompetent (ground (ii) or discriminatory (ground (iii) will not do. At least prima facie acceptable grounds in support have to be pleaded to sustain the challenge. In the absence of any such pleading the challenge to the constitutional validity of a statute or statutory provision is liable to be rejected in limine.84. The grounds given in support of Punjabs challenge to Article 14 areno grounds in law and no cause of action has been disclosed to challenge the constitutional validity of Section 14 of theWater Disputes Act, 1956. Not only does the plaint filed by Punjab in OS 1 of 2003 not disclose any cause of action, but it is also evident from the statements in the plaint and the suit is barred by law. The plaint is accordingly rejected leaving open the other issues raised by Haryana in support of its application.85. Additionally and in the ultimate analysis, it is manifest that the suit has been filed only with a view to subvert the decision of this Court with all the disingenuousness of a private litigant to resist its execution. We have, in the circumstances, no compunction whatsoever in dismissing the suit under Order XLVII Rule 6 of thefrom rendering the provisions of Article 131 a dated letter such a stand is contrary to Article 144 which requires all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court. It is not in the circumstances expected, that Governments whether at the Centre or in the States, will not comply with the decree of this Court. By refusing to comply with the decree of this Court under Article 131 not only is the offending party guilty of contempt but the very foundation of the Constitution which the people governing the State have sworn to uphold when assuming office and to which this country owes its continues existence is shaken. It is, we repeat, the Constitutional duty of those who wield power in the States to create the appropriate political climate to ensure a respect for the constitutional processes and not set such processes at naught only to gain political mileage. As was observed by the Constitution Bench in Cauvery Water Disputes Tribunal (supra) when an Ordinance was passed by a State seeking to nullity the order of thisvague plea relating to the possible rise of militancy by the construction of the canal is not an acceptable defence at all. The fact that a letter of complaint has been filed under Section 3 of the 1956 Act is immaterial as that pertains to a water dispute within the meaning of Section 2(c) of the 1956 Act and we have already held that the construction of SYL canal is not a water dispute within the meaning of the 1956 Act read with Article 262 of the Constitution. We have already held that the decree cannot be said to be a nullity. In any event this is not a question which can be raised while opposing an application for execution. What remains of Punjabs opposition is its submission that the application of Haryana is not maintainable under the 1954Haryana has suggested the passing of directions to ensure implementation of the decree which may not be acceptable to us, but it has in prayer (c) prayed for "such other or further order or orders or such directions as this Honble may deem fit and proper in the facts and circumstances of the case and to meet the ends of justice. That prayer is sufficient to meet even the entirely technical objection of Punjab and it cannot be said that Haryanas application is not maintainable.The residuary power under Section 51 (e) allows a Court to pass orders for enforcing a decree in a manner which would give effect to it. The period specified in the decree for completion of the canal by Punjab is long since over. The Union of India has said that it had worked out a contingent action plan during this period. The contingency, in the form of expiry of theperiod in January 2003 has occurred. We have not been told whether the contingency plan has been put into question. Although it appears that the Cabinet Committee on Project Appraisals had approved the proposal for completion of the SYL canal by the BRO and at a meeting convened as early as on 20th February 1991, the then Prime Minister directed that the BRO take over the work for completion of the SYL Canal in the minimum time possible, the BRO is not now available for the purpose.