CHANDIGARH, JULY 14
While taking a cue from the judgment of the Constitution Bench of five Judges of Supreme Court of India delivered on May 7,2014 in a case titled ‘State of Tamil Nadu vs. State of Kerala and another, the Haryana Vidhan Sabha, which was in session, today passed a resolution based on this judgment urging the Central Government to immediately take over and ensure construction of Sutlej Yamuna Link (SYL) Canal to restore the rightful due and aspirations for SYL water to people of Haryana. The House also called upon the Government of Punjab to extend all cooperation in construction of SYL Canal in its territory.
The resolution was moved by Haryana Parliamentary Affairs Minister Mr Randeep Singh Surjewala.
The resolution reads, “SYL Canal is a testament of hope and faith for people of Haryana. Parched land and hardworking farmers of Haryana, who contribute a lion’s share to National Food pool, had patiently yet stoically harbored the hope of irrigating their fields with pristine blue water of SYL Canal for over five decades.
“Right of State of Haryana to share of water through construction of Satluj-Yamuna Link (SYL) Canal is historically, legally and constitutionally established as is borne out from the following sequence of events:-
(i) The Indus Water Treaty, 1960 was signed between the then Prime Minister, Pt. Jawaharlal Nehru and Field Marshal, Mohd. Ayub Khan, the then President of Pakistan, which finally affirmed the rights of India (including Joint Punjab) over Punjab Rivers. Post-partition, on demand of people of Haryana region of Punjab, a number of committees were constituted by the Joint Punjab Government and Government of India to provide water to the areas now comprising of State of Haryana. All these committees recommended a substantial share of water for Haryana region from Punjab rivers. Particular are “The Food Committee on Land and Water Use in Punjab’, constituted on 12.01.1965 and ‘The Haryana Development Committee’, constituted on 20.01.1965. Both these Committees recommended 4.56 million acre feet of water for Haryana areas in Joint Punjab.
(ii) Haryana was carved out of State of Punjab on Ist November, 1966. Section 78 of Punjab Reorganisation Act, 1966 made special provisions with regard to rights and liabilities of successor States including sharing of water of Bhakra, Ravi and Beas. On failure of settlement of dispute, Haryana approached Government of India on 21.10.1969 for a decision of the water dispute under Section 78 of the 1966 Act. In accordance with Section 78 of the 1966 Act, Government of India headed by then Prime Minister – Smt. Indira Gandhi took the initiative to decide allocation of water vide order/notification dated 24.03.1976, popularly known as ‘Indira Gandhi Award’. Haryana and Punjab were allocated 3.5 million acre feet each of water and it was directed that a canal be dug in Punjab territory to carry Haryana’s share of water.
(iii) Haryana paid a sum of Rs.1.00 crore to Punjab on 10.11.1976 and another sum of Rs.1.00 crore on 31.03.1979 for purposes of construction of SYL Canal. S. Prakash Singh Badal was then the Chief Minister of Akali Dal government in Punjab.
(iv) Having accepted the money for construction of SYL Canal, in terms of order/notification dated 24.03.1976 of Government of India, State of Punjab again backtracked. Haryana filed Suit No.1 of 1979 in Supreme Court of India on 30.04.1979 for implementation of order/notification dated 24.03.1976 of Government of India for construction of SYL Canal in the territory of Punjab within a period of two years. State of Punjab proceeded to file a counter Suit No. 2 of 1979 on 11.07.1979 challenging the validity of order/notification dated 24.03.1976 of Government of India allotting share of water to Haryana as also the very foundation of the Punjab Reorganisation Act,1966.
(v) This vexed issue was again settled on intervention of then Prime Minister, Smt. Indira Gandhi and it resulted into signing of a tripartite agreement between States of Punjab, Haryana and Rajasthan on 31.12.1981. Under this tripartite agreement, Haryana was allocated 3.5 million acre feet of water, while Punjab and Rajasthan were allocated 4.22 million acre feet and 8.60 million acre feet of water respectively out of the total surplus water of Ravi-Beas Rivers. Under this tripartite agreement, SYL Canal was to be completed within a period of two years. Based on this agreement, both the Suits referred to in (iv) above were withdrawn by States of Punjab and Haryana from Supreme Court of India on 12.02.1982.
(vi) On 8th April, 1982; Smt. Indira Gandhi, the then Prime Minister, once again took the initiative and started digging of Canal in Punjab territory at Kapoori.
(vii) Digging of SYL Canal in Punjab territory started after 1982 and 95 per cent of the work was completed till June, 1987 i.e. during the period of Congress government.
(viii) In the meanwhile, State of Punjab went through extreme turmoil of terrorism. Punjab once again challenged the very claim of Haryana to share of water in Punjab Rivers based on ‘Riparian principles’.
Shri Rajiv Gandhi, the then Prime Minister, once again took the initiative to settle the inter-State water dispute and other inter-State issues. On 24.07.1985, an agreement historically known as ‘Rajiv-Longowal Accord’, was signed at between the then Prime Minister, Shri Rajiv Gandhi and then President of Shiromani Akali Dal, Sant Harchand Singh Longowal. Shri Surjit Singh Barnala, the then Punjab Chief Minister, was also a party to this agreement on behalf of the Akali Dal. Government of India agreed to appoint a tribunal for adjudication of the share of water as also claims of the States of Punjab and Haryana. A judicial tribunal was accordingly constituted under the Chairmanship of Justice V.B. Eradi. This tribunal toured States of Punjab and Haryana, called for all the documents and heard extensive arguments.
On 30.01.1987, Eradi Tribunal delivered its landmark verdict and allocated 3.83 million acre feet of water to Haryana based on ‘Riparian principles’ and 5.00 million acre feet of water to Punjab, besides Rajasthan and Delhi. The then State Government of Haryana, however, took no steps for a period of nearly five years to fulfill the aspirations of people of Haryana for getting SYL Canal water.
(ix) In 1991, Congress government of Haryana instituted a suit for issuing directions to State of Punjab for completion of the Canal. On 06.09.1996, the then Haryana government instituted an amended suit for the same relief after withdrawing the earlier Suit. On 15.01.2002, Supreme Court of India allowed the Suit of Haryana government, directing the Punjab government to complete the SYL Canal within one year.
(x) On failure of Punjab government, an executory application was filed for issuing directions to Punjab for completion of Canal.
State of Punjab also filed Suit No.1 of 2003 on 13.01.2003 in Supreme Court of India for discharging itself and dissolving the obligation to construct the SYL Canal in light of mandatory judgment and decree dated 15.01.2002 of Supreme Court.
Vide its judgment dated 04-06-2004, Supreme Court proceeded to dismiss the suit of Punjab Government and directed Union of India to take control of the canal work from Punjab and undertake its construction.
Supreme Court in particular held as follows:-
“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 132 of the Constitution has therefore given this Court the exclusive jurisdiction to decide such a dispute strictly on legal considerations and in keeping with the provisions of the Constitution. To resist the execution of the degree on 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. Apart from rendering the provisions of Article 131 a dead 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 degree 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:
“Such an act is an invitation to lawlessness and anarchy, in as much 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 of a 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.”
Supreme Court then proceeded to direct Union of India to construct the canal and ended with the following remarks:-
“_ _ _ _ _ _ _. In the circumstances we direct the Union of India to carry out its proposed action plan within the following time frame:-
1) The Union of India is to mobilize a Central agency to take control of the canal works from Punjab within a month from today.
2) Punjab must hand over the works to the Central Agency within 2 (Two) weeks thereafter.
3) _ _ _ _ _ _ _ _
4) _ _ _ _ _ _ _ _
5) _ _ _ _ _ _ _ _
We conclude this chapter with a reminder to the State of Punjab that “Great states have a temper superior to that of private litigants, and it is to be hoped that enough has been decided for patriotism, the fraternity of the Union, and mutual consideration to bring it to an end.”
Punjab filed a review petition against the aforesaid judgment dated 04.06.2004. This review petition was also dismissed by Supreme Court on 02.07.2004.
(xi) On 12.07.2004, in a blatant affront to federalism and Parliamentary democracy, State of Punjab passed the ‘Punjab Termination of Agreements Act, 2004’ terminating the tripartite agreement dated 31.12.1981 between the States of Punjab, Haryana and Rajasthan as also seeking to nullify the impact/obligation under any judgment/decree of the court. It is apparent that this wholly illegal and unconstitutional exercise in enacting the Punjab Termination of Agreements Act, 2004 was aimed at nullifying the judgments dated 15-01-2002 and 04-06-2004 of Supreme Court after Punjab had lost the original suit in the High Court of Punjab & Haryana and its own suit No.1 of 2003 had been dismissed by Supreme Court besides seeking to negate the historical agreements and pronouncements from Punjab Legislative Assembly in the Joint State of Punjab to successive decisions under Section 78 of the Punjab Reorganization Act, 1966, the tripartite agreement dated 31.12.1982 and even the verdict dated 30.01.1987 of Eradi Tribunal in terms of the historical Rajiv-Longowal Award.
It may not be out of place to mention that this was done by State of Punjab and its Legislative Assembly in complete negation of precise Constitutional provisions contained in Articles 131 and 162 of the Constitution of India.
Considering the gravity of the matter, Government of India intervened by exercising its extraordinary powers of reference under Article 143 of Constitution of India and referred the validity of the Punjab Termination of Agreements Act, 2004 to a Constitution Bench of Supreme Court of India.
(xii) Recently, on 7th May, 2014; a Constitution Bench of five Judges of Supreme Court of India in case titled ‘State of Tamil Nadu vs. State of Kerala and another’ has finally adjudicated on the identical issue of power of legislature of a State to be a judge in its own cause by deciding on an inter-State dispute by enacting a law to decide such a dispute in its favour and by openly flouting a judicial pronouncement in process thereof. Relevant portion is reproduced herein-below:-
“14. On 18.03.2006, in less than three weeks of the decisions of this Court in Mullaperiyar Environmental Protection Forum 1, the Kerala State Legislature amended 2003 Act by the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 (for short 2006 (Amendment) Act.”
“Issues
32. On 13.12.2007, the Court framed the following issues for consideration in the suit:
2.(a) Whether the Kerala Irrigation and Water Conservation (Amendment) Act 2006 is unconstitutional and ultra vires, in its application to and effect on the Millai Periyar Dam?
3. Whether the rights of the plaintiff, crystalised in the Judgment dated 27.02.2006 passed by this Court in WP(C) No. 386/2001 can be nullified by a legislation made by the Kerala State Legislature?”
“151. The question whether or not the legislature has usurped the judicial power or enacted a law in breach of separation of powers principle would depend on facts of each case after considering the real effect of law on a judgment or a judicial proceeding. One of the tests for determining whether a judgment is nullified is to see whether the law and the judgment are inconsistent and irreconcilable so that both cannot stand together. In what we have already discussed above, it is abundantly clear that on the one hand there is a finding of fact determined by this Court on hearing the parties on the basis of the evidence/materials placed on record in the judgment of this Court in Mullaperiyar Environmental Protection Form 1 and on the other in 2006 (Amendment) Act, the Kerala legislature has declared the dam being an endangered one and fixed the water level in the dam at 136 ft. If the judgment of this Court in Mullaperiyar Environmental Protection Form 1 and the 2006 (Amendment) Act are placed side by side insofar as safety of the Mullaperiyar dam for raising the water level from 136 ft. to 142 ft. is concerned, it is obvious that the judgment of this Court and the law enacted by Kerala State legislature cannot stand together and they are irreconcilable and inconsistent. The impugned law is a classic case of nullification of a judgment simpliciter, as in the judgment of this Court the question of safety of dam was determined on the basis of materials placed before it and not on the interpretation of any existing law and there was no occasion for the legislature to amend the law by altering the basis on which the judgment was founded. When the impugned law is not a validation law, there is no question of the legislature removing the defect, as the Court has not found any vice in the existing law and declared such law to be bad.
152. There is yet another facet that in federal disputes, the legislature (Parliament and State legislatures) cannot be judge in their own cause in the case of any dispute with another State. The rule of law which is basic feature of our Constitution forbids the Union and the States from deciding, by law, a dispute between two States or between the Union and one or more States. If this was permitted under the Constitution, the Union and the States which have any dispute between them inter se would enact law establishing its claim or right against the order and that would lead to contradictory and irreconcilable laws being enacted has provided for independent adjudication of federal disputes. Article 131 of the Constitution confers original jurisdiction upon this Court in relation to the disputes between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between the two or More States insofar as dispute involves any question on which the existence or extent of a legal right depends. The proviso appended to Article 131 carves out an exception to the jurisdiction of this Court to a dispute arising out of treaty, agreement, covenant, engagement, sanad or other similar instrument which have been entered into or executed between the commencement of the Constitution and continues in operation after such commencement, which are political in nature. In relation to the dispute relating to waters of inter-State river or river valleys, Article 262 provides for creation of tribunal or forum for their adjudication. In federal disputes, Parliament or State legislatures by law, if seek to decide a dispute between the two States or between the Union and one or more States directly or indirectly, the adjudicatory mechanism provided in Articles 131 and 162 of the Constitution would be rendered nugatory and, therefore, such legislation cannot be constitutionally countenanced being violative of separation of powers doctrine.”
(xiii) That pronouncement dated 07.05.2014 by a Constitution Bench of Supreme Court of India, reproduced above, amply demonstrates that the Punjab Termination of Agreements Act, 2004 is a nullity, is unconstitutional and cannot stand the scrutiny of law or Constitution of India. It is mere sham enactment by Punjab Legislature with a view to deny the rightful due to people of Haryana of share of water and construction of SYL Canal in contravention of its own agreements and clinching judicial pronouncements by Supreme Court of India.
“Law of the land having been
Chandigarh, July 14- While taking a cue from the judgement of the Constitution Bench of five Judges of Supreme Court of India delivered on May 7,2014 in a case titled ‘State of Tamil Nadu vs. State of Kerala and another, the Haryana Vidhan Sabha, which was in session, today passed a resolution based on this judgement urging the Central Government to immediately take over and ensure construction of Sutlej Yamuna Link (SYL) Canal to restore the rightful due and aspirations for SYL water to people of Haryana. The House also called upon the Government of Punjab to extend all cooperation in construction of SYL Canal in its territory.
The resolution was moved by Haryana Parliamentary Affairs Minister Mr Randeep Singh Surjewala.
The resolution reads, “SYL Canal is a testament of hope and faith for people of Haryana. Parched land and hardworking farmers of Haryana, who contribute a lion’s share to National Food pool, had patiently yet stoically harbored the hope of irrigating their fields with pristine blue water of SYL Canal for over five decades.
“Right of State of Haryana to share of water through construction of Satluj-Yamuna Link (SYL) Canal is historically, legally and constitutionally established as is borne out from the following sequence of events:-
(i) The Indus Water Treaty, 1960 was signed between the then Prime Minister, Pt. Jawaharlal Nehru and Field Marshal, Mohd. Ayub Khan, the then President of Pakistan, which finally affirmed the rights of India (including Joint Punjab) over Punjab Rivers. Post-partition, on demand of people of Haryana region of Punjab, a number of committees were constituted by the Joint Punjab Government and Government of India to provide water to the areas now comprising of State of Haryana. All these committees recommended a substantial share of water for Haryana region from Punjab rivers. Particular are “The Food Committee on Land and Water Use in Punjab’, constituted on 12.01.1965 and ‘The Haryana Development Committee’, constituted on 20.01.1965. Both these Committees recommended 4.56 million acre feet of water for Haryana areas in Joint Punjab.
(ii) Haryana was carved out of State of Punjab on Ist November, 1966. Section 78 of Punjab Reorganisation Act, 1966 made special provisions with regard to rights and liabilities of successor States including sharing of water of Bhakra, Ravi and Beas. On failure of settlement of dispute, Haryana approached Government of India on 21.10.1969 for a decision of the water dispute under Section 78 of the 1966 Act. In accordance with Section 78 of the 1966 Act, Government of India headed by then Prime Minister – Smt. Indira Gandhi took the initiative to decide allocation of water vide order/notification dated 24.03.1976, popularly known as ‘Indira Gandhi Award’. Haryana and Punjab were allocated 3.5 million acre feet each of water and it was directed that a canal be dug in Punjab territory to carry Haryana’s share of water.
(iii) Haryana paid a sum of Rs.1.00 crore to Punjab on 10.11.1976 and another sum of Rs.1.00 crore on 31.03.1979 for purposes of construction of SYL Canal. S. Prakash Singh Badal was then the Chief Minister of Akali Dal government in Punjab.
(iv) Having accepted the money for construction of SYL Canal, in terms of order/notification dated 24.03.1976 of Government of India, State of Punjab again backtracked. Haryana filed Suit No.1 of 1979 in Supreme Court of India on 30.04.1979 for implementation of order/notification dated 24.03.1976 of Government of India for construction of SYL Canal in the territory of Punjab within a period of two years. State of Punjab proceeded to file a counter Suit No. 2 of 1979 on 11.07.1979 challenging the validity of order/notification dated 24.03.1976 of Government of India allotting share of water to Haryana as also the very foundation of the Punjab Reorganisation Act,1966.
(v) This vexed issue was again settled on intervention of then Prime Minister, Smt. Indira Gandhi and it resulted into signing of a tripartite agreement between States of Punjab, Haryana and Rajasthan on 31.12.1981. Under this tripartite agreement, Haryana was allocated 3.5 million acre feet of water, while Punjab and Rajasthan were allocated 4.22 million acre feet and 8.60 million acre feet of water respectively out of the total surplus water of Ravi-Beas Rivers. Under this tripartite agreement, SYL Canal was to be completed within a period of two years. Based on this agreement, both the Suits referred to in (iv) above were withdrawn by States of Punjab and Haryana from Supreme Court of India on 12.02.1982.
(vi) On 8th April, 1982; Smt. Indira Gandhi, the then Prime Minister, once again took the initiative and started digging of Canal in Punjab territory at Kapoori.
(vii) Digging of SYL Canal in Punjab territory started after 1982 and 95 per cent of the work was completed till June, 1987 i.e. during the period of Congress government.
(viii) In the meanwhile, State of Punjab went through extreme turmoil of terrorism. Punjab once again challenged the very claim of Haryana to share of water in Punjab Rivers based on ‘Riparian principles’.
Mr Rajiv Gandhi, the then Prime Minister, once again took the initiative to settle the inter-State water dispute and other inter-State issues. On 24.07.1985, an agreement historically known as ‘Rajiv-Longowal Accord’, was signed at between the then Prime Minister, Shri Rajiv Gandhi and then President of Shiromani Akali Dal, Sant Harchand Singh Longowal. Shri Surjit Singh Barnala, the then Punjab Chief Minister, was also a party to this agreement on behalf of the Akali Dal. Government of India agreed to appoint a tribunal for adjudication of the share of water as also claims of the States of Punjab and Haryana. A judicial tribunal was accordingly constituted under the Chairmanship of Justice V.B. Eradi. This tribunal toured States of Punjab and Haryana, called for all the documents and heard extensive arguments.
On 30.01.1987, Eradi Tribunal delivered its landmark verdict and allocated 3.83 million acre feet of water to Haryana based on ‘Riparian principles’ and 5.00 million acre feet of water to Punjab, besides Rajasthan and Delhi. The then State Government of Haryana, however, took no steps for a period of nearly five years to fulfill the aspirations of people of Haryana for getting SYL Canal water.
(ix) In 1991, Congress government of Haryana instituted a suit for issuing directions to State of Punjab for completion of the Canal. On 06.09.1996, the then Haryana government instituted an amended suit for the same relief after withdrawing the earlier Suit. On 15.01.2002, Supreme Court of India allowed the Suit of Haryana government, directing the Punjab government to complete the SYL Canal within one year.
(x) On failure of Punjab government, an executory application was filed for issuing directions to Punjab for completion of Canal.
State of Punjab also filed Suit No.1 of 2003 on 13.01.2003 in Supreme Court of India for discharging itself and dissolving the obligation to construct the SYL Canal in light of mandatory judgment and decree dated 15.01.2002 of Supreme Court.
Vide its judgment dated 04-06-2004, Supreme Court proceeded to dismiss the suit of Punjab Government and directed Union of India to take control of the canal work from Punjab and undertake its construction.
Supreme Court in particular held as follows:-
“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 132 of the Constitution has therefore given this Court the exclusive jurisdiction to decide such a dispute strictly on legal considerations and in keeping with the provisions of the Constitution. To resist the execution of the degree on 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. Apart from rendering the provisions of Article 131 a dead 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 degree 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:
“Such an act is an invitation to lawlessness and anarchy, in as much 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 of a 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.”
Supreme Court then proceeded to direct Union of India to construct the canal and ended with the following remarks:-
“_ _ _ _ _ _ _. In the circumstances we direct the Union of India to carry out its proposed action plan within the following time frame:-
1) The Union of India is to mobilize a Central agency to take control of the canal works from Punjab within a month from today.
2) Punjab must hand over the works to the Central Agency within 2 (Two) weeks thereafter.
3) _ _ _ _ _ _ _ _
4) _ _ _ _ _ _ _ _
5) _ _ _ _ _ _ _ _
We conclude this chapter with a reminder to the State of Punjab that “Great states have a temper superior to that of private litigants, and it is to be hoped that enough has been decided for patriotism, the fraternity of the Union, and mutual consideration to bring it to an end.”
Punjab filed a review petition against the aforesaid judgment dated 04.06.2004. This review petition was also dismissed by Supreme Court on 02.07.2004.
(xi) On 12.07.2004, in a blatant affront to federalism and Parliamentary democracy, State of Punjab passed the ‘Punjab Termination of Agreements Act, 2004’ terminating the tripartite agreement dated 31.12.1981 between the States of Punjab, Haryana and Rajasthan as also seeking to nullify the impact/obligation under any judgment/decree of the court. It is apparent that this wholly illegal and unconstitutional exercise in enacting the Punjab Termination of Agreements Act, 2004 was aimed at nullifying the judgments dated 15-01-2002 and 04-06-2004 of Supreme Court after Punjab had lost the original suit in the High Court of Punjab & Haryana and its own suit No.1 of 2003 had been dismissed by Supreme Court besides seeking to negate the historical agreements and pronouncements from Punjab Legislative Assembly in the Joint State of Punjab to successive decisions under Section 78 of the Punjab Reorganization Act, 1966, the tripartite agreement dated 31.12.1982 and even the verdict dated 30.01.1987 of Eradi Tribunal in terms of the historical Rajiv-Longowal Award.
It may not be out of place to mention that this was done by State of Punjab and its Legislative Assembly in complete negation of precise Constitutional provisions contained in Articles 131 and 162 of the Constitution of India.
Considering the gravity of the matter, Government of India intervened by exercising its extraordinary powers of reference under Article 143 of Constitution of India and referred the validity of the Punjab Termination of Agreements Act, 2004 to a Constitution Bench of Supreme Court of India.
(xii) Recently, on 7th May, 2014; a Constitution Bench of five Judges of Supreme Court of India in case titled ‘State of Tamil Nadu vs. State of Kerala and another’ has finally adjudicated on the identical issue of power of legislature of a State to be a judge in its own cause by deciding on an inter-State dispute by enacting a law to decide such a dispute in its favour and by openly flouting a judicial pronouncement in process thereof. Relevant portion is reproduced herein-below:-
“14. On 18.03.2006, in less than three weeks of the decisions of this Court in Mullaperiyar Environmental Protection Forum 1, the Kerala State Legislature amended 2003 Act by the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 (for short 2006 (Amendment) Act.”
“Issues
32. On 13.12.2007, the Court framed the following issues for consideration in the suit:
2.(a) Whether the Kerala Irrigation and Water Conservation (Amendment) Act 2006 is unconstitutional and ultra vires, in its application to and effect on the Millai Periyar Dam?
3. Whether the rights of the plaintiff, crystalised in the Judgment dated 27.02.2006 passed by this Court in WP(C) No. 386/2001 can be nullified by a legislation made by the Kerala State Legislature?”
“151. The question whether or not the legislature has usurped the judicial power or enacted a law in breach of separation of powers principle would depend on facts of each case after considering the real effect of law on a judgment or a judicial proceeding. One of the tests for determining whether a judgment is nullified is to see whether the law and the judgment are inconsistent and irreconcilable so that both cannot stand together. In what we have already discussed above, it is abundantly clear that on the one hand there is a finding of fact determined by this Court on hearing the parties on the basis of the evidence/materials placed on record in the judgment of this Court in Mullaperiyar Environmental Protection Form 1 and on the other in 2006 (Amendment) Act, the Kerala legislature has declared the dam being an endangered one and fixed the water level in the dam at 136 ft. If the judgment of this Court in Mullaperiyar Environmental Protection Form 1 and the 2006 (Amendment) Act are placed side by side insofar as safety of the Mullaperiyar dam for raising the water level from 136 ft. to 142 ft. is concerned, it is obvious that the judgment of this Court and the law enacted by Kerala State legislature cannot stand together and they are irreconcilable and inconsistent. The impugned law is a classic case of nullification of a judgment simpliciter, as in the judgment of this Court the question of safety of dam was determined on the basis of materials placed before it and not on the interpretation of any existing law and there was no occasion for the legislature to amend the law by altering the basis on which the judgment was founded. When the impugned law is not a validation law, there is no question of the legislature removing the defect, as the Court has not found any vice in the existing law and declared such law to be bad.
152. There is yet another facet that in federal disputes, the legislature (Parliament and State legislatures) cannot be judge in their own cause in the case of any dispute with another State. The rule of law which is basic feature of our Constitution forbids the Union and the States from deciding, by law, a dispute between two States or between the Union and one or more States. If this was permitted under the Constitution, the Union and the States which have any dispute between them inter se would enact law establishing its claim or right against the order and that would lead to contradictory and irreconcilable laws being enacted has provided for independent adjudication of federal disputes. Article 131 of the Constitution confers original jurisdiction upon this Court in relation to the disputes between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between the two or More States insofar as dispute involves any question on which the existence or extent of a legal right depends. The proviso appended to Article 131 carves out an exception to the jurisdiction of this Court to a dispute arising out of treaty, agreement, covenant, engagement, sanad or other similar instrument which have been entered into or executed between the commencement of the Constitution and continues in operation after such commencement, which are political in nature. In relation to the dispute relating to waters of inter-State river or river valleys, Article 262 provides for creation of tribunal or forum for their adjudication. In federal disputes, Parliament or State legislatures by law, if seek to decide a dispute between the two States or between the Union and one or more States directly or indirectly, the adjudicatory mechanism provided in Articles 131 and 162 of the Constitution would be rendered nugatory and, therefore, such legislation cannot be constitutionally countenanced being violative of separation of powers doctrine.”
(xiii) That pronouncement dated 07.05.2014 by a Constitution Bench of Supreme Court of India, reproduced above, amply demonstrates that the Punjab Termination of Agreements Act, 2004 is a nullity, is unconstitutional and cannot stand the scrutiny of law or Constitution of India. It is mere sham enactment by Punjab Legislature with a view to deny the rightful due to people of Haryana of share of water and construction of SYL Canal in contravention of its own agreements and clinching judicial pronouncements by Supreme Court of India.
“Law of the land having been thus settled vide aforementioned judgment dated 07.05.2014, judgment dated 15.01.2002 of Supreme Court and final direction dated 04.06.2004 by Supreme Court to Government of India come into play with immediate effect.
“There is clear obligation of Government of India to implement the direction dated 04.06.2004 of Supreme Court by taking over construction of SYL Canal and proceeding to construct the same through its own agency in order to give rightful due to people of Haryana.
“This House, therefore, calls upon Government of India to ensure immediate compliance of the direction contained in judgment dated 04.06.2004 of Supreme Court of India in view of latest judgment dated 07.05.2014 of Supreme Court by immediately taking over and ensuring construction of SYL Canal to restore the rightful due and aspirations for SYL water to people of Haryana. This House also calls upon the Government of Punjab to extend all cooperation in construction of SYL Canal in its territory.” thus settled vide aforementioned judgment dated 07.05.2014, judgment dated 15.01.2002 of Supreme Court and final direction dated 04.06.2004 by Supreme Court to Government of India come into play with immediate effect.
“There is clear obligation of Government of India to implement the direction dated 04.06.2004 of Supreme Court by taking over construction of SYL Canal and proceeding to construct the same through its own agency in order to give rightful due to people of Haryana.
“This House, therefore, calls upon Government of India to ensure immediate compliance of the direction contained in judgment dated 04.06.2004 of Supreme Court of India in view of latest judgment dated 07.05.2014 of Supreme Court by immediately taking over and ensuring construction of SYL Canal to restore the rightful due and aspirations for SYL water to people of Haryana. This House also calls upon the Government of Punjab to extend all cooperation in construction of SYL Canal in its territory.”
While taking a cue from the judgment of the Constitution Bench of five Judges of Supreme Court of India delivered on May 7,2014 in a case titled ‘State of Tamil Nadu vs. State of Kerala and another, the Haryana Vidhan Sabha, which was in session, today passed a resolution based on this judgment urging the Central Government to immediately take over and ensure construction of Sutlej Yamuna Link (SYL) Canal to restore the rightful due and aspirations for SYL water to people of Haryana. The House also called upon the Government of Punjab to extend all cooperation in construction of SYL Canal in its territory.
The resolution was moved by Haryana Parliamentary Affairs Minister Mr Randeep Singh Surjewala.
The resolution reads, “SYL Canal is a testament of hope and faith for people of Haryana. Parched land and hardworking farmers of Haryana, who contribute a lion’s share to National Food pool, had patiently yet stoically harbored the hope of irrigating their fields with pristine blue water of SYL Canal for over five decades.
“Right of State of Haryana to share of water through construction of Satluj-Yamuna Link (SYL) Canal is historically, legally and constitutionally established as is borne out from the following sequence of events:-
(i) The Indus Water Treaty, 1960 was signed between the then Prime Minister, Pt. Jawaharlal Nehru and Field Marshal, Mohd. Ayub Khan, the then President of Pakistan, which finally affirmed the rights of India (including Joint Punjab) over Punjab Rivers. Post-partition, on demand of people of Haryana region of Punjab, a number of committees were constituted by the Joint Punjab Government and Government of India to provide water to the areas now comprising of State of Haryana. All these committees recommended a substantial share of water for Haryana region from Punjab rivers. Particular are “The Food Committee on Land and Water Use in Punjab’, constituted on 12.01.1965 and ‘The Haryana Development Committee’, constituted on 20.01.1965. Both these Committees recommended 4.56 million acre feet of water for Haryana areas in Joint Punjab.
(ii) Haryana was carved out of State of Punjab on Ist November, 1966. Section 78 of Punjab Reorganisation Act, 1966 made special provisions with regard to rights and liabilities of successor States including sharing of water of Bhakra, Ravi and Beas. On failure of settlement of dispute, Haryana approached Government of India on 21.10.1969 for a decision of the water dispute under Section 78 of the 1966 Act. In accordance with Section 78 of the 1966 Act, Government of India headed by then Prime Minister – Smt. Indira Gandhi took the initiative to decide allocation of water vide order/notification dated 24.03.1976, popularly known as ‘Indira Gandhi Award’. Haryana and Punjab were allocated 3.5 million acre feet each of water and it was directed that a canal be dug in Punjab territory to carry Haryana’s share of water.
(iii) Haryana paid a sum of Rs.1.00 crore to Punjab on 10.11.1976 and another sum of Rs.1.00 crore on 31.03.1979 for purposes of construction of SYL Canal. S. Prakash Singh Badal was then the Chief Minister of Akali Dal government in Punjab.
(iv) Having accepted the money for construction of SYL Canal, in terms of order/notification dated 24.03.1976 of Government of India, State of Punjab again backtracked. Haryana filed Suit No.1 of 1979 in Supreme Court of India on 30.04.1979 for implementation of order/notification dated 24.03.1976 of Government of India for construction of SYL Canal in the territory of Punjab within a period of two years. State of Punjab proceeded to file a counter Suit No. 2 of 1979 on 11.07.1979 challenging the validity of order/notification dated 24.03.1976 of Government of India allotting share of water to Haryana as also the very foundation of the Punjab Reorganisation Act,1966.
(v) This vexed issue was again settled on intervention of then Prime Minister, Smt. Indira Gandhi and it resulted into signing of a tripartite agreement between States of Punjab, Haryana and Rajasthan on 31.12.1981. Under this tripartite agreement, Haryana was allocated 3.5 million acre feet of water, while Punjab and Rajasthan were allocated 4.22 million acre feet and 8.60 million acre feet of water respectively out of the total surplus water of Ravi-Beas Rivers. Under this tripartite agreement, SYL Canal was to be completed within a period of two years. Based on this agreement, both the Suits referred to in (iv) above were withdrawn by States of Punjab and Haryana from Supreme Court of India on 12.02.1982.
(vi) On 8th April, 1982; Smt. Indira Gandhi, the then Prime Minister, once again took the initiative and started digging of Canal in Punjab territory at Kapoori.
(vii) Digging of SYL Canal in Punjab territory started after 1982 and 95 per cent of the work was completed till June, 1987 i.e. during the period of Congress government.
(viii) In the meanwhile, State of Punjab went through extreme turmoil of terrorism. Punjab once again challenged the very claim of Haryana to share of water in Punjab Rivers based on ‘Riparian principles’.
Shri Rajiv Gandhi, the then Prime Minister, once again took the initiative to settle the inter-State water dispute and other inter-State issues. On 24.07.1985, an agreement historically known as ‘Rajiv-Longowal Accord’, was signed at between the then Prime Minister, Shri Rajiv Gandhi and then President of Shiromani Akali Dal, Sant Harchand Singh Longowal. Shri Surjit Singh Barnala, the then Punjab Chief Minister, was also a party to this agreement on behalf of the Akali Dal. Government of India agreed to appoint a tribunal for adjudication of the share of water as also claims of the States of Punjab and Haryana. A judicial tribunal was accordingly constituted under the Chairmanship of Justice V.B. Eradi. This tribunal toured States of Punjab and Haryana, called for all the documents and heard extensive arguments.
On 30.01.1987, Eradi Tribunal delivered its landmark verdict and allocated 3.83 million acre feet of water to Haryana based on ‘Riparian principles’ and 5.00 million acre feet of water to Punjab, besides Rajasthan and Delhi. The then State Government of Haryana, however, took no steps for a period of nearly five years to fulfill the aspirations of people of Haryana for getting SYL Canal water.
(ix) In 1991, Congress government of Haryana instituted a suit for issuing directions to State of Punjab for completion of the Canal. On 06.09.1996, the then Haryana government instituted an amended suit for the same relief after withdrawing the earlier Suit. On 15.01.2002, Supreme Court of India allowed the Suit of Haryana government, directing the Punjab government to complete the SYL Canal within one year.
(x) On failure of Punjab government, an executory application was filed for issuing directions to Punjab for completion of Canal.
State of Punjab also filed Suit No.1 of 2003 on 13.01.2003 in Supreme Court of India for discharging itself and dissolving the obligation to construct the SYL Canal in light of mandatory judgment and decree dated 15.01.2002 of Supreme Court.
Vide its judgment dated 04-06-2004, Supreme Court proceeded to dismiss the suit of Punjab Government and directed Union of India to take control of the canal work from Punjab and undertake its construction.
Supreme Court in particular held as follows:-
“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 132 of the Constitution has therefore given this Court the exclusive jurisdiction to decide such a dispute strictly on legal considerations and in keeping with the provisions of the Constitution. To resist the execution of the degree on 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. Apart from rendering the provisions of Article 131 a dead 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 degree 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:
“Such an act is an invitation to lawlessness and anarchy, in as much 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 of a 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.”
Supreme Court then proceeded to direct Union of India to construct the canal and ended with the following remarks:-
“_ _ _ _ _ _ _. In the circumstances we direct the Union of India to carry out its proposed action plan within the following time frame:-
1) The Union of India is to mobilize a Central agency to take control of the canal works from Punjab within a month from today.
2) Punjab must hand over the works to the Central Agency within 2 (Two) weeks thereafter.
3) _ _ _ _ _ _ _ _
4) _ _ _ _ _ _ _ _
5) _ _ _ _ _ _ _ _
We conclude this chapter with a reminder to the State of Punjab that “Great states have a temper superior to that of private litigants, and it is to be hoped that enough has been decided for patriotism, the fraternity of the Union, and mutual consideration to bring it to an end.”
Punjab filed a review petition against the aforesaid judgment dated 04.06.2004. This review petition was also dismissed by Supreme Court on 02.07.2004.
(xi) On 12.07.2004, in a blatant affront to federalism and Parliamentary democracy, State of Punjab passed the ‘Punjab Termination of Agreements Act, 2004’ terminating the tripartite agreement dated 31.12.1981 between the States of Punjab, Haryana and Rajasthan as also seeking to nullify the impact/obligation under any judgment/decree of the court. It is apparent that this wholly illegal and unconstitutional exercise in enacting the Punjab Termination of Agreements Act, 2004 was aimed at nullifying the judgments dated 15-01-2002 and 04-06-2004 of Supreme Court after Punjab had lost the original suit in the High Court of Punjab & Haryana and its own suit No.1 of 2003 had been dismissed by Supreme Court besides seeking to negate the historical agreements and pronouncements from Punjab Legislative Assembly in the Joint State of Punjab to successive decisions under Section 78 of the Punjab Reorganization Act, 1966, the tripartite agreement dated 31.12.1982 and even the verdict dated 30.01.1987 of Eradi Tribunal in terms of the historical Rajiv-Longowal Award.
It may not be out of place to mention that this was done by State of Punjab and its Legislative Assembly in complete negation of precise Constitutional provisions contained in Articles 131 and 162 of the Constitution of India.
Considering the gravity of the matter, Government of India intervened by exercising its extraordinary powers of reference under Article 143 of Constitution of India and referred the validity of the Punjab Termination of Agreements Act, 2004 to a Constitution Bench of Supreme Court of India.
(xii) Recently, on 7th May, 2014; a Constitution Bench of five Judges of Supreme Court of India in case titled ‘State of Tamil Nadu vs. State of Kerala and another’ has finally adjudicated on the identical issue of power of legislature of a State to be a judge in its own cause by deciding on an inter-State dispute by enacting a law to decide such a dispute in its favour and by openly flouting a judicial pronouncement in process thereof. Relevant portion is reproduced herein-below:-
“14. On 18.03.2006, in less than three weeks of the decisions of this Court in Mullaperiyar Environmental Protection Forum 1, the Kerala State Legislature amended 2003 Act by the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 (for short 2006 (Amendment) Act.”
“Issues
32. On 13.12.2007, the Court framed the following issues for consideration in the suit:
2.(a) Whether the Kerala Irrigation and Water Conservation (Amendment) Act 2006 is unconstitutional and ultra vires, in its application to and effect on the Millai Periyar Dam?
3. Whether the rights of the plaintiff, crystalised in the Judgment dated 27.02.2006 passed by this Court in WP(C) No. 386/2001 can be nullified by a legislation made by the Kerala State Legislature?”
“151. The question whether or not the legislature has usurped the judicial power or enacted a law in breach of separation of powers principle would depend on facts of each case after considering the real effect of law on a judgment or a judicial proceeding. One of the tests for determining whether a judgment is nullified is to see whether the law and the judgment are inconsistent and irreconcilable so that both cannot stand together. In what we have already discussed above, it is abundantly clear that on the one hand there is a finding of fact determined by this Court on hearing the parties on the basis of the evidence/materials placed on record in the judgment of this Court in Mullaperiyar Environmental Protection Form 1 and on the other in 2006 (Amendment) Act, the Kerala legislature has declared the dam being an endangered one and fixed the water level in the dam at 136 ft. If the judgment of this Court in Mullaperiyar Environmental Protection Form 1 and the 2006 (Amendment) Act are placed side by side insofar as safety of the Mullaperiyar dam for raising the water level from 136 ft. to 142 ft. is concerned, it is obvious that the judgment of this Court and the law enacted by Kerala State legislature cannot stand together and they are irreconcilable and inconsistent. The impugned law is a classic case of nullification of a judgment simpliciter, as in the judgment of this Court the question of safety of dam was determined on the basis of materials placed before it and not on the interpretation of any existing law and there was no occasion for the legislature to amend the law by altering the basis on which the judgment was founded. When the impugned law is not a validation law, there is no question of the legislature removing the defect, as the Court has not found any vice in the existing law and declared such law to be bad.
152. There is yet another facet that in federal disputes, the legislature (Parliament and State legislatures) cannot be judge in their own cause in the case of any dispute with another State. The rule of law which is basic feature of our Constitution forbids the Union and the States from deciding, by law, a dispute between two States or between the Union and one or more States. If this was permitted under the Constitution, the Union and the States which have any dispute between them inter se would enact law establishing its claim or right against the order and that would lead to contradictory and irreconcilable laws being enacted has provided for independent adjudication of federal disputes. Article 131 of the Constitution confers original jurisdiction upon this Court in relation to the disputes between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between the two or More States insofar as dispute involves any question on which the existence or extent of a legal right depends. The proviso appended to Article 131 carves out an exception to the jurisdiction of this Court to a dispute arising out of treaty, agreement, covenant, engagement, sanad or other similar instrument which have been entered into or executed between the commencement of the Constitution and continues in operation after such commencement, which are political in nature. In relation to the dispute relating to waters of inter-State river or river valleys, Article 262 provides for creation of tribunal or forum for their adjudication. In federal disputes, Parliament or State legislatures by law, if seek to decide a dispute between the two States or between the Union and one or more States directly or indirectly, the adjudicatory mechanism provided in Articles 131 and 162 of the Constitution would be rendered nugatory and, therefore, such legislation cannot be constitutionally countenanced being violative of separation of powers doctrine.”
(xiii) That pronouncement dated 07.05.2014 by a Constitution Bench of Supreme Court of India, reproduced above, amply demonstrates that the Punjab Termination of Agreements Act, 2004 is a nullity, is unconstitutional and cannot stand the scrutiny of law or Constitution of India. It is mere sham enactment by Punjab Legislature with a view to deny the rightful due to people of Haryana of share of water and construction of SYL Canal in contravention of its own agreements and clinching judicial pronouncements by Supreme Court of India.
“Law of the land having been
Chandigarh, July 14- While taking a cue from the judgement of the Constitution Bench of five Judges of Supreme Court of India delivered on May 7,2014 in a case titled ‘State of Tamil Nadu vs. State of Kerala and another, the Haryana Vidhan Sabha, which was in session, today passed a resolution based on this judgement urging the Central Government to immediately take over and ensure construction of Sutlej Yamuna Link (SYL) Canal to restore the rightful due and aspirations for SYL water to people of Haryana. The House also called upon the Government of Punjab to extend all cooperation in construction of SYL Canal in its territory.
The resolution was moved by Haryana Parliamentary Affairs Minister Mr Randeep Singh Surjewala.
The resolution reads, “SYL Canal is a testament of hope and faith for people of Haryana. Parched land and hardworking farmers of Haryana, who contribute a lion’s share to National Food pool, had patiently yet stoically harbored the hope of irrigating their fields with pristine blue water of SYL Canal for over five decades.
“Right of State of Haryana to share of water through construction of Satluj-Yamuna Link (SYL) Canal is historically, legally and constitutionally established as is borne out from the following sequence of events:-
(i) The Indus Water Treaty, 1960 was signed between the then Prime Minister, Pt. Jawaharlal Nehru and Field Marshal, Mohd. Ayub Khan, the then President of Pakistan, which finally affirmed the rights of India (including Joint Punjab) over Punjab Rivers. Post-partition, on demand of people of Haryana region of Punjab, a number of committees were constituted by the Joint Punjab Government and Government of India to provide water to the areas now comprising of State of Haryana. All these committees recommended a substantial share of water for Haryana region from Punjab rivers. Particular are “The Food Committee on Land and Water Use in Punjab’, constituted on 12.01.1965 and ‘The Haryana Development Committee’, constituted on 20.01.1965. Both these Committees recommended 4.56 million acre feet of water for Haryana areas in Joint Punjab.
(ii) Haryana was carved out of State of Punjab on Ist November, 1966. Section 78 of Punjab Reorganisation Act, 1966 made special provisions with regard to rights and liabilities of successor States including sharing of water of Bhakra, Ravi and Beas. On failure of settlement of dispute, Haryana approached Government of India on 21.10.1969 for a decision of the water dispute under Section 78 of the 1966 Act. In accordance with Section 78 of the 1966 Act, Government of India headed by then Prime Minister – Smt. Indira Gandhi took the initiative to decide allocation of water vide order/notification dated 24.03.1976, popularly known as ‘Indira Gandhi Award’. Haryana and Punjab were allocated 3.5 million acre feet each of water and it was directed that a canal be dug in Punjab territory to carry Haryana’s share of water.
(iii) Haryana paid a sum of Rs.1.00 crore to Punjab on 10.11.1976 and another sum of Rs.1.00 crore on 31.03.1979 for purposes of construction of SYL Canal. S. Prakash Singh Badal was then the Chief Minister of Akali Dal government in Punjab.
(iv) Having accepted the money for construction of SYL Canal, in terms of order/notification dated 24.03.1976 of Government of India, State of Punjab again backtracked. Haryana filed Suit No.1 of 1979 in Supreme Court of India on 30.04.1979 for implementation of order/notification dated 24.03.1976 of Government of India for construction of SYL Canal in the territory of Punjab within a period of two years. State of Punjab proceeded to file a counter Suit No. 2 of 1979 on 11.07.1979 challenging the validity of order/notification dated 24.03.1976 of Government of India allotting share of water to Haryana as also the very foundation of the Punjab Reorganisation Act,1966.
(v) This vexed issue was again settled on intervention of then Prime Minister, Smt. Indira Gandhi and it resulted into signing of a tripartite agreement between States of Punjab, Haryana and Rajasthan on 31.12.1981. Under this tripartite agreement, Haryana was allocated 3.5 million acre feet of water, while Punjab and Rajasthan were allocated 4.22 million acre feet and 8.60 million acre feet of water respectively out of the total surplus water of Ravi-Beas Rivers. Under this tripartite agreement, SYL Canal was to be completed within a period of two years. Based on this agreement, both the Suits referred to in (iv) above were withdrawn by States of Punjab and Haryana from Supreme Court of India on 12.02.1982.
(vi) On 8th April, 1982; Smt. Indira Gandhi, the then Prime Minister, once again took the initiative and started digging of Canal in Punjab territory at Kapoori.
(vii) Digging of SYL Canal in Punjab territory started after 1982 and 95 per cent of the work was completed till June, 1987 i.e. during the period of Congress government.
(viii) In the meanwhile, State of Punjab went through extreme turmoil of terrorism. Punjab once again challenged the very claim of Haryana to share of water in Punjab Rivers based on ‘Riparian principles’.
Mr Rajiv Gandhi, the then Prime Minister, once again took the initiative to settle the inter-State water dispute and other inter-State issues. On 24.07.1985, an agreement historically known as ‘Rajiv-Longowal Accord’, was signed at between the then Prime Minister, Shri Rajiv Gandhi and then President of Shiromani Akali Dal, Sant Harchand Singh Longowal. Shri Surjit Singh Barnala, the then Punjab Chief Minister, was also a party to this agreement on behalf of the Akali Dal. Government of India agreed to appoint a tribunal for adjudication of the share of water as also claims of the States of Punjab and Haryana. A judicial tribunal was accordingly constituted under the Chairmanship of Justice V.B. Eradi. This tribunal toured States of Punjab and Haryana, called for all the documents and heard extensive arguments.
On 30.01.1987, Eradi Tribunal delivered its landmark verdict and allocated 3.83 million acre feet of water to Haryana based on ‘Riparian principles’ and 5.00 million acre feet of water to Punjab, besides Rajasthan and Delhi. The then State Government of Haryana, however, took no steps for a period of nearly five years to fulfill the aspirations of people of Haryana for getting SYL Canal water.
(ix) In 1991, Congress government of Haryana instituted a suit for issuing directions to State of Punjab for completion of the Canal. On 06.09.1996, the then Haryana government instituted an amended suit for the same relief after withdrawing the earlier Suit. On 15.01.2002, Supreme Court of India allowed the Suit of Haryana government, directing the Punjab government to complete the SYL Canal within one year.
(x) On failure of Punjab government, an executory application was filed for issuing directions to Punjab for completion of Canal.
State of Punjab also filed Suit No.1 of 2003 on 13.01.2003 in Supreme Court of India for discharging itself and dissolving the obligation to construct the SYL Canal in light of mandatory judgment and decree dated 15.01.2002 of Supreme Court.
Vide its judgment dated 04-06-2004, Supreme Court proceeded to dismiss the suit of Punjab Government and directed Union of India to take control of the canal work from Punjab and undertake its construction.
Supreme Court in particular held as follows:-
“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 132 of the Constitution has therefore given this Court the exclusive jurisdiction to decide such a dispute strictly on legal considerations and in keeping with the provisions of the Constitution. To resist the execution of the degree on 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. Apart from rendering the provisions of Article 131 a dead 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 degree 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:
“Such an act is an invitation to lawlessness and anarchy, in as much 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 of a 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.”
Supreme Court then proceeded to direct Union of India to construct the canal and ended with the following remarks:-
“_ _ _ _ _ _ _. In the circumstances we direct the Union of India to carry out its proposed action plan within the following time frame:-
1) The Union of India is to mobilize a Central agency to take control of the canal works from Punjab within a month from today.
2) Punjab must hand over the works to the Central Agency within 2 (Two) weeks thereafter.
3) _ _ _ _ _ _ _ _
4) _ _ _ _ _ _ _ _
5) _ _ _ _ _ _ _ _
We conclude this chapter with a reminder to the State of Punjab that “Great states have a temper superior to that of private litigants, and it is to be hoped that enough has been decided for patriotism, the fraternity of the Union, and mutual consideration to bring it to an end.”
Punjab filed a review petition against the aforesaid judgment dated 04.06.2004. This review petition was also dismissed by Supreme Court on 02.07.2004.
(xi) On 12.07.2004, in a blatant affront to federalism and Parliamentary democracy, State of Punjab passed the ‘Punjab Termination of Agreements Act, 2004’ terminating the tripartite agreement dated 31.12.1981 between the States of Punjab, Haryana and Rajasthan as also seeking to nullify the impact/obligation under any judgment/decree of the court. It is apparent that this wholly illegal and unconstitutional exercise in enacting the Punjab Termination of Agreements Act, 2004 was aimed at nullifying the judgments dated 15-01-2002 and 04-06-2004 of Supreme Court after Punjab had lost the original suit in the High Court of Punjab & Haryana and its own suit No.1 of 2003 had been dismissed by Supreme Court besides seeking to negate the historical agreements and pronouncements from Punjab Legislative Assembly in the Joint State of Punjab to successive decisions under Section 78 of the Punjab Reorganization Act, 1966, the tripartite agreement dated 31.12.1982 and even the verdict dated 30.01.1987 of Eradi Tribunal in terms of the historical Rajiv-Longowal Award.
It may not be out of place to mention that this was done by State of Punjab and its Legislative Assembly in complete negation of precise Constitutional provisions contained in Articles 131 and 162 of the Constitution of India.
Considering the gravity of the matter, Government of India intervened by exercising its extraordinary powers of reference under Article 143 of Constitution of India and referred the validity of the Punjab Termination of Agreements Act, 2004 to a Constitution Bench of Supreme Court of India.
(xii) Recently, on 7th May, 2014; a Constitution Bench of five Judges of Supreme Court of India in case titled ‘State of Tamil Nadu vs. State of Kerala and another’ has finally adjudicated on the identical issue of power of legislature of a State to be a judge in its own cause by deciding on an inter-State dispute by enacting a law to decide such a dispute in its favour and by openly flouting a judicial pronouncement in process thereof. Relevant portion is reproduced herein-below:-
“14. On 18.03.2006, in less than three weeks of the decisions of this Court in Mullaperiyar Environmental Protection Forum 1, the Kerala State Legislature amended 2003 Act by the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 (for short 2006 (Amendment) Act.”
“Issues
32. On 13.12.2007, the Court framed the following issues for consideration in the suit:
2.(a) Whether the Kerala Irrigation and Water Conservation (Amendment) Act 2006 is unconstitutional and ultra vires, in its application to and effect on the Millai Periyar Dam?
3. Whether the rights of the plaintiff, crystalised in the Judgment dated 27.02.2006 passed by this Court in WP(C) No. 386/2001 can be nullified by a legislation made by the Kerala State Legislature?”
“151. The question whether or not the legislature has usurped the judicial power or enacted a law in breach of separation of powers principle would depend on facts of each case after considering the real effect of law on a judgment or a judicial proceeding. One of the tests for determining whether a judgment is nullified is to see whether the law and the judgment are inconsistent and irreconcilable so that both cannot stand together. In what we have already discussed above, it is abundantly clear that on the one hand there is a finding of fact determined by this Court on hearing the parties on the basis of the evidence/materials placed on record in the judgment of this Court in Mullaperiyar Environmental Protection Form 1 and on the other in 2006 (Amendment) Act, the Kerala legislature has declared the dam being an endangered one and fixed the water level in the dam at 136 ft. If the judgment of this Court in Mullaperiyar Environmental Protection Form 1 and the 2006 (Amendment) Act are placed side by side insofar as safety of the Mullaperiyar dam for raising the water level from 136 ft. to 142 ft. is concerned, it is obvious that the judgment of this Court and the law enacted by Kerala State legislature cannot stand together and they are irreconcilable and inconsistent. The impugned law is a classic case of nullification of a judgment simpliciter, as in the judgment of this Court the question of safety of dam was determined on the basis of materials placed before it and not on the interpretation of any existing law and there was no occasion for the legislature to amend the law by altering the basis on which the judgment was founded. When the impugned law is not a validation law, there is no question of the legislature removing the defect, as the Court has not found any vice in the existing law and declared such law to be bad.
152. There is yet another facet that in federal disputes, the legislature (Parliament and State legislatures) cannot be judge in their own cause in the case of any dispute with another State. The rule of law which is basic feature of our Constitution forbids the Union and the States from deciding, by law, a dispute between two States or between the Union and one or more States. If this was permitted under the Constitution, the Union and the States which have any dispute between them inter se would enact law establishing its claim or right against the order and that would lead to contradictory and irreconcilable laws being enacted has provided for independent adjudication of federal disputes. Article 131 of the Constitution confers original jurisdiction upon this Court in relation to the disputes between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between the two or More States insofar as dispute involves any question on which the existence or extent of a legal right depends. The proviso appended to Article 131 carves out an exception to the jurisdiction of this Court to a dispute arising out of treaty, agreement, covenant, engagement, sanad or other similar instrument which have been entered into or executed between the commencement of the Constitution and continues in operation after such commencement, which are political in nature. In relation to the dispute relating to waters of inter-State river or river valleys, Article 262 provides for creation of tribunal or forum for their adjudication. In federal disputes, Parliament or State legislatures by law, if seek to decide a dispute between the two States or between the Union and one or more States directly or indirectly, the adjudicatory mechanism provided in Articles 131 and 162 of the Constitution would be rendered nugatory and, therefore, such legislation cannot be constitutionally countenanced being violative of separation of powers doctrine.”
(xiii) That pronouncement dated 07.05.2014 by a Constitution Bench of Supreme Court of India, reproduced above, amply demonstrates that the Punjab Termination of Agreements Act, 2004 is a nullity, is unconstitutional and cannot stand the scrutiny of law or Constitution of India. It is mere sham enactment by Punjab Legislature with a view to deny the rightful due to people of Haryana of share of water and construction of SYL Canal in contravention of its own agreements and clinching judicial pronouncements by Supreme Court of India.
“Law of the land having been thus settled vide aforementioned judgment dated 07.05.2014, judgment dated 15.01.2002 of Supreme Court and final direction dated 04.06.2004 by Supreme Court to Government of India come into play with immediate effect.
“There is clear obligation of Government of India to implement the direction dated 04.06.2004 of Supreme Court by taking over construction of SYL Canal and proceeding to construct the same through its own agency in order to give rightful due to people of Haryana.
“This House, therefore, calls upon Government of India to ensure immediate compliance of the direction contained in judgment dated 04.06.2004 of Supreme Court of India in view of latest judgment dated 07.05.2014 of Supreme Court by immediately taking over and ensuring construction of SYL Canal to restore the rightful due and aspirations for SYL water to people of Haryana. This House also calls upon the Government of Punjab to extend all cooperation in construction of SYL Canal in its territory.” thus settled vide aforementioned judgment dated 07.05.2014, judgment dated 15.01.2002 of Supreme Court and final direction dated 04.06.2004 by Supreme Court to Government of India come into play with immediate effect.
“There is clear obligation of Government of India to implement the direction dated 04.06.2004 of Supreme Court by taking over construction of SYL Canal and proceeding to construct the same through its own agency in order to give rightful due to people of Haryana.
“This House, therefore, calls upon Government of India to ensure immediate compliance of the direction contained in judgment dated 04.06.2004 of Supreme Court of India in view of latest judgment dated 07.05.2014 of Supreme Court by immediately taking over and ensuring construction of SYL Canal to restore the rightful due and aspirations for SYL water to people of Haryana. This House also calls upon the Government of Punjab to extend all cooperation in construction of SYL Canal in its territory.”
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