STATE OF HARYANA v. ·STATE OF PUNJAB AND ANR.

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A order on this application;

(ii) Nominate the Central Water Commission (CWC) as the agency to provide technical guidance and supervision to the construction agency; B (iii) Appoint a High Court Powered Committee consisting of the Secretaries referred to in paragraph 16-H (iii) to monitor the function of the above agencies and to submit progress reports to this Hon 'ble Court on a monthly basis.

C (b) In the event the Union fails to carry out the above directions within <. a period of four weeks, issue order nominating and appointing the agency for construction, the agency for providing technical guidance and the High Powered Committee and direct all of them to carry out their respective tasks as specified in prayer (a) above. D (c) Press such other or further order or orders or such directions as this Hon 'ble Court may deem fit and proper in the facts and circumstances of the case and to meet the ends of justice.

E The basis of the application is the failure of the State of Punjab to either continue or complete the incomplete portion of the SYL canal in the Punjab territory within the period specified in the Decree and the subsequent failure of the Union of India to take any steps to complete the canal through its own agencies.

F The State of Punjab has filed a counter affidavit in which it has asked for deferring the application for execution on the ground that OS lof2003 has been filed, that a prayer in the suit had been made for discharge from the mandatory injunction and that a letter of complaint had been filed under Section 3 of the Inter-State Water Disputes Act, 1956. Punjab has also G submitted that the application for execution was not maintainable, because Haryana had not applied for orders in terms of Clause 2(b) of the 1954 Order, that draft issues had been filed by Haryana and Punjab in Suit I of 2003 pursuant to an order passed by this Court dated 24.11.2003 in that suit, that water disputes were to be resolved on the basis of Punjab's H complaint under Section 3 of the 1956 Act, that the Decree sought to be

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executed was liable to be modified under the changed circumstances, and that the Decree was a nullity. On the merits it is denied that nothing was done by the State of Punjab to continue or com!Jlete the portion of the canal within its territory and that the Border Roads Organisation (BRO) did not have the reqttisite experience for constructing SYL canal and finally that the Haryana's prayer for appointment of a High Power Committee showed that the Decree dated 15th January, 2002 is not executable in the ordinary course.

The Union of India has also filed a counter affidavit in which it has stated that it has already taken steps to implement and comply with the C Decree within the "constitutional limitations''. It has referred to several meetings held and also the correspondence exchanged between the parties. It has however, submitted that the BRO was committed to canying out work in border areas and in Jammu and Kashmir in particular till the year 2016 and that it would not be possible to deploy BRO for the purpose of construction of the canal. It has said that it has asked for the engineering D details from the State of Punjab, who had executed the works and in whom the control of the works are vested at present. It has also submitted that the possession of the SYL canal works needs to be handed over by the State of Punjab to the agencies as may be selected by the Union of India and that Budget estimates would have to be made for completion of the canal. E According to the Union an action plan has been prepared in which provision has been made for setting up a High Powered Committee, but, it is submitted, there was no necessity for the High Power Committee to report back to this Court. As far as nomination of the Central Water Commission is concerned, it says that this might cripple the chances of F other more suitable agencies. It has finally been submitted that the State of Punjab should be directed to extend it fullest cooperation and protection for the completion of the work by the Union of India. The Union's affidavit although filed in answer to I.A No. I and 3 in O.S. No. 6 of 1996 was, at its instance, directed to be treated as its answer to I.A. No. 4 (vide this Court's order dated 17th December, 2003). G

Punjab was required to complete the canal by 15th Januaiy, 2003 by the decree. Instead of accepting the decree in good grace, every possible step has been taken to thwart the decree. The minutes of the meetings and the correspondence exchanged between the parties during this period H

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A shows that the State of Punjab did not comply with this Court's directives on the ground that :

( 1) Punjab would await the final repo1t of the Ravi-Beas Water Tribunal; B (2) the farmers of the State had tiled a review petition in this Court in which the Government was a party. The matter was subjudice and Punjab was not in a position to start the digging of the canal.

(3) the Government of Punjab intended to file another revision c petition before this Court.

(4) that the construction ofSYL canal was likely to produce strong advise reaction among the people of Punjab and may also provide an emotive issue to secessionists/militant elements and D the construction ofSYL canal would lead to drying up of9 lakh hectares land in the Punjab; and

(5) Suit No. I of 2003 had been filed.

E Incidentally, the fourth ground is almost a verbatim reproduction of Punjab's stand in the proceedings filed by it earlier. There was no stay granted by this Court at any stage of any of the various proceedings filed assailing the decree. Even when the final assault was made by the filing of Suit No. I of 2003 we did not grant any stay and it is basic law that the mere filing of proceedings does not operate as a stay. The correspondence and the record of minutes show that the Chief Minister as well as the Government officials named in the correspondence have arrogated themselves the power of sitting as a super-judicial body over this Court.

The Constitution provides for an ordered polity within this country to promote integrity of the country. When disputes arise between States there are usually political underpinnings. The resolution of such a dispute in favour of one party will invariably have a political impact. Article 131 of the Constitution has therefore given this Court the exclusive jurisdiction to decide such a dispute strictly on legal considerations a.1d in keeping with the provisions of the Constitution. To resist the execution of the decree on f

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the ground that it would have a political fall out would result in subversion of the Constitution, an endorsement of anarchy and the disintegration of the country. Apa11 'from rendering the provisions of At1icle 131 a dead letter such a stand is contrary to Atticle 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 continued 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 nullify the order of this Court. D

"Such an act is an invitation to lawlessness and anarchy, inasmuch as the Ordinance is a manifestation of a desire on the part of the State to be a judge in its own cause and to defy the decisions of the judicial authorities. The action forebodes evil consequences to the federal structure under the Constitution and opens doors for each State to act in the way it desires disregarding not only the rights of the other States, the orders passed by instrumentalities constituted under an Act of Parliament but also the provisions of the Constitution. If the power ofa State to issue such an Ordinance is upheld it will lead to the breakdown of the constitutional mechanism and affect the unity and integrity of the nation".

These observations appositely reflect what can be said with regard to the conduct of the State of Punjab. In any event there is now no question of deferring Haryana's application for execution because the suit itself, namely, O.S. No. I of 2003 has been dismissed. The vague 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 H

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A dispute within the meaning of Section 2(c) of the 1956 Act and we have already held that the construction ofSYL 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 Punjab's opposition is its submission that the application of Haryana is not maintainable under the 1954 order.

The 1954 Order has been issued by the President in exercise of powers under Article 142( I) of the Constitution. Punjab's objection to the maintainability of Haryana's application for execution because of alleged non-compliance with paragraph 2(d) of the 1954 Order is unsustainable. We quote paragraph 2 before giving our reasons in support of this conclusion :

''Notwithstanding anything contained in any other law in force at the commencement of this Order, any decree passed or order made by the Supreme Court whether before or after such commencement, including any order as to the costs of, and incidental to, any proceedings in that Court shall be enforceable : E (a) where such decree or order was passed or made in exercise of its appellate jurisdiction - in accordance with the provisions of Jaw for the time being in force relating to the enforcement of decrees or orders of the Court or Tribunal from which the appeal to the Supreme Court was preferred F or sought to be preferred; and

(b) in any other case. - in accordance with the provisions of law for the time being in force relating to the enforcement of decrees or orders of such Court, Tribunal or authority as the G Supreme Court may specify in its decree or order or in a subsequent order made by it on the application of any party to the proceeding.

The decree passed by this Court, under Article 131 being an original H proceeding would not be covered by clause 2(a). Clause 2(b) empowers

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this Court to specify the law according to which the decree may be enforced. The phrase used is "in accordance with" and not ''under". "in accordance with" in the context similarity or harmony but not ide11tity. The mode of enforcement which may be specified under clause 2(b) may therefore be similar to the methods of execution legally provided in respect of decrees or orders of any Court, Tribunal or Authority. The specification of the mode may be done in the decree itself or by a subsequent order made on an application of any pa11y to the proceeding. The decree in this case had not specified the mode of execution. Haryana's application is expressed to be under clause 2(b) of the 1954 Order. Doubtless Haryana has suggested the passing of directi9ns to ensure implementation of the decree which may not be acceptable to,,us, but it has in prayer (c) prayed for "such other or further order or orders'' or such directions as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and to meet the of justice". That pfa'yer is sufficient to meet even the entirely technical objection of Punjab and it cannot be said that Haryana's D application is not maintainable."'As to the mode of execution section 51 of the Code of Civil Procedure provides:

"51. Power of Court to enforce execution. - Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree -

(a) by delivery of any prope11y specifically decreed;

(b) by attachment and sale or by the sale without attachment of any property;

(c) by arrest and detention in prison for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section; G

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require." H

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A The residuary power under Section 51 (e) al lows 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 th: one B year period in January 2003 has occurred. We have not been told whether the contingency plan has been put into operation. Although it appears that the Cabinet Committee on Project Appraisals had approved the proposal for completion of the SYL canal by 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 c minimum time possible, the BRO is not now available for the purpose. After the decree the Central Water Commission Officials have inspected the canal on 9th October 2002. The report has assessed a minimum period of about two years for removing silt deposits, clearing of trees and bushes, completing the damaged and balance works and making the canal functional D and has estimated an amount of about Rs. 250 crore for this purpose excluding the liabilities of Punjab. In the circumstances we direct the Union of India to carry out its proposed action plan within the following time frame:

E (I) The Union of India is to mobilize a Central agency to take control of the canal works from Punjab within a month from today.

(2) Punjab must hand over the works to the Central Agency within 2 (Two) weeks thereafter. F (3) An empowered committee should be set up to coordinate and facilitate the early Implementation of the decree within 4 (four) weeks from today. Representatives of the States of Haryana and Punjab should be included in such Committee: G (4) The construction of the remaining portion of the canal including the survey; preparation of detailed estimates and other preparatory works such as repair, desilting, clearance of vegetation etc. are to be executed and completed by the H Central Agency within such time as the High Powered

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Committee will determine. A (5) The Central and the Punjab Government should provide adequate security for the staff of the Central Agency.

We conclude this chapter with a reminder to the State of Punjab that B ''Great states have a temper superior to that of private litigants, and it is to be hoped that enough has been decided for patriotism, the fraternity of the Union, and mutual consideration to bring it to an end'"

Application 4 of2003 in OS 6of1996 is thus allowed on th~ atoresaid C terms without any order as to costs.

S.K.S. Application allowed.

9Copy pinpoint9. Commonwealth of Virginia v. State of West Virginia, 55 L.ed 353.