STATE OF HARYANA v. STATE OF PUNJAB AND ANR.

264 SUPREME COURT REPORTS [2002) I S.C.R.

A 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, B 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 " C 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 Punjab. 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 States of Haryana and Punjab, in which meeting certain decisions had been taken, including a decisioh 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. Whi•.e 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

STATE OF HARYANA v. STATE OF PUNJAB [PATTANAIK, J.] 265

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 C Government must be held duty 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 D 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 E 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, F 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- G 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 H

266 SUPREME COURT REPORTS [2002] I S.C.R.

A 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 B (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 C 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 D 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 E Ministers of different 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 orde1 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 F 5.11.1985. It is further contended that the said agreement is political in natnre 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

STATE OF HARYANA v. STATE OF PUNJAB [PATTANAIK, J.] 267

canal constructed, this Court will not be justified in issuing an order of A =-oo.. 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 B 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 c 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. D 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 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 H

f 268 SUPREME COURT REPORTS [2002] I S.C.R.

A 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 plaintiffs suit is decreed on the aforesaid terms. There will be no order as to costs.

B.S. Suit allowed.