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Thursday, November 10, 2016

Indus Water Treaty 1960 was entered into between the Governments of India and Pakistan on 19th September, 1960, under which India is entitled to the free, unrestricted use of the waters of the Ravi, Beas and Sutlej till they finally cross into Pakistan; WHEREAS while at the time of signing the said treaty, the waters of Sutlej had already been planned to be utilised for the Bhakra-Nangal Project, the surplus flow of rivers Ravi and Beas, over and above the pre-partition use, was allocated by the Agreement in 1955 between the concerned states as follows namely:- Punjab 7.20 MAF (Including 1.30 MAF for Pepsu) Rajasthan 8.00 MAF Jammu & Kashmir 0.65 MAF ................. 15.85 MAF .................= delay in execution of a final judgment or decree, more so when it is of the Apex Court, should never be countenanced by any authority because it would surely tend to undermine people’s faith in the judicial system of the country, entailing in turn avoidable harm to all the institutions and functionaries under the Constitution, may be even to the Constitution itself.-2016 Nov. U/A 143(1) OF THE CONSTITUTION OF INDIA Vs. ... ANIL R. DAVE, PINAKI CHANDRA GHOSE, SHIVA KIRTI SINGH, ADARSH KUMAR GOEL, AMITAVA ROY

                        IN THE SUPREME COURT OF INDIA
                            ADVISORY JURISDICTION

                       SPECIAL REFERENCE NO. 1 OF 2004

The following is the opinion of the Court:


1.    By a Reference dated 22nd July, 2004, Hon’ble the President  of  India
made a request for an advisory opinion to this Court under Article  143  (1)
of the Constitution of  India,  in  relation  to  enactment  of  the  Punjab
Termination of Agreement Act, 2004 (hereinafter referred to as  “the  Punjab
Act”) by the State of Punjab.

2.    The text of the Reference referred to for the consideration &  opinion
of this Court is as follows:-
      “WHERAS the Indus Basin comprises the rivers  Indus,  Jhelum,  Chenab,
Ravi, Beas and Sutlej;

WHEREAS  the  Indus  Water  Treaty  1960  was  entered  into   between   the
Governments of India and Pakistan  on  19th  September,  1960,  under  which
India is entitled to the free, unrestricted use of the waters of  the  Ravi,
Beas and Sutlej till they finally cross into Pakistan;

WHEREAS while at the time of signing the said treaty, the waters  of  Sutlej
had already been planned to be utilised for the Bhakra-Nangal  Project,  the
surplus flow of rivers Ravi and Beas, over and above the pre-partition  use,
was allocated by the Agreement in  1955  between  the  concerned  states  as
follows namely:-

Punjab                     7.20 MAF
(Including 1.30 MAF for Pepsu)

Rajasthan                8.00 MAF
Jammu & Kashmir          0.65 MAF
                                                15.85                    MAF

WHEREAS after the afore-said allocation, there was a reorganisation  of  the
State of Punjab under the Punjab Reorganisation Act, 1966 (31 of 1966) as  a
result of which successor states, namely,  State  of  Punjab  and  State  of
Haryana were created and it became necessary  to  determine  the  respective
shares of the successor states out of  the  quantum  of  water  which  could
become available in accordance with aforesaid  allocation  for  use  in  the
erstwhile State of Punjab and when the successor states failed to  reach  an
agreement, a notification dated 24th March, 1976 was issued by  the  Central
Government under Section 78 of the Punjab  Reorganisation  Act,  1966  under
which State of Haryana was allocated 3.5 MAF quantity of water;

WHEREAS to give effect to the allocation of 3.5 MAF of water  to  the  State
of Haryana under the said 1976 notification, construction  of  Satluj-Yamuna
Link Canal (hereinafter called SYL  Canal)  was  started  by  the  State  of
Haryana in their portion after the 1976 notification.  The  construction  of
SYL Canal was also started by Punjab in their portion in early eighties;

WHEREAS the States of Punjab, Haryana and Rajasthan entered  into  agreement
dated 31.12.1981, by which the States of Punjab, Haryana and  Rajasthan,  in
view of overall national interest and optimum  utilisation  of  the  waters,
agreed on the reallocation of the waters among the States as follows:-

Share of Punjab     :        4.22 MAF
Share of Haryana    :            3.50 MAF
Share of Rajasthan  :            8.60 MAF

Quantity earmarked
for Delhi water supply:          0.20 MAF
Share of J & K       :       0.65 MAF
Total                          17.17 MAF
WHEREAS it was also agreed under the aforesaid 1981 agreement that  the  SYL
Canal project could be completed in a  time  bound  manner  with  a  maximum
period of two years from the date of signing of the agreement  so  that  the
State of Haryana is enabled to draw  its  allocated  share  of  water.  This
agreement is in use for  deciding  the  periodical  distribution  of  waters
among the concerned states by the Bhakra Beas Management Board;

WHEREAS an accord called the “Punjab Settlement” was signed  on  24th  July,
1985 to resolve the issues relating to the State of Punjab;

WHEREAS paragraph 9.1 of the ‘Punjab Settlement’ provide  that  the  farmers
of Punjab, Haryana and Rajasthan will continue to get water  not  less  than
what they are using from the Ravi-Beas System as on 1.7.1985, though  waters
used for consumptive purposes will also remain unaffected and  that  quantum
of usage claimed shall be verified by the Tribunal referred to in  Paragraph
9.2 of  the  settlement  under  which  the  claims  of  Punjab  and  Haryana
regarding their  shares  in  the  remaining  waters  will  be  referred  for
adjudication to a Tribunal;

WHEREAS  to  give  effect  to  paragraphs  9.1  and  9.2  of   the   ‘Punjab
Settlement’, Section 14 was inserted in the Inter-State water Disputes  Act,
1956 under which Eradi Tribunal was  constituted  for  verification  of  the
quantum of usage of water claimed by the  farmers  of  Punjab,  Haryana  and
Rajasthan  regarding  shares  in  their  remaining  waters.   The   Tribunal
forwarded a report in January, 1987. References of  the  States  of  Punjab,
Haryana  and  Rajasthan  and  Central  Government   seeking   clarification/
guidance on certain points of  the  report  was  made  to  the  Tribunal  in
August, 1987 under  relevant  provisions  of  the  Inter-State  River  Water
Disputes Act, 1956. These references are  under  the  consideration  of  the
Tribunal at present;

WHEREAS it was also agreed under paragraph 9.3 of  the  ‘Punjab  Settlement’
that the construction of the SYL  Canal  shall  continue  and  it  shall  be
completed by 15th August, 1986;

WHEREAS the SYL Canal could not be completed as the works  came  to  a  halt
following the killings of Chief Engineer and a  Superintending  Engineer  of
the project in July, 1990 and were not resumed by the Government  of  Punjab
subsequently and the State of Haryana filed Suit No. 6 of 1996  before  this
Hon’ble Court praying for early  completion  of  the  SYL  Canal  in  Punjab

WHEREAS the said suit was decreed by this Hon’ble Court by its  order  dated
15.01.2002, by relying on the 31.12.1981 agreement and the State  of  Punjab
was directed to make the SYL Canal functional within a period of one year;

WHEREAS the State of Punjab filed a  Suit  (O.S.  No.  1  of  2003)  seeking
discharge/ dissolution of the obligation  to  construct  the  SYL  Canal  as
directed and Suit O.S. No. 1 of 2003 was dismissed by this Hon’ble Court  by
its judgment and order dated 4.6.2004. The Union of India  was  directed  in
the said judgment and order dated 4.6.2004 to mobilise a central  agency  to
take control of the canal works within a period of one month and  the  State
of Punjab was directed to handover the works to the  Central  Agency  within
two weeks thereafter;

WHEREAS on 12th July, 2004, the State  of  Punjab  has  enacted  the  Punjab
Termination of Agreements Act, 2004 (herein after called Punjab  Act,  2004)
terminating and discharging the Government of Punjab  from  its  obligations
under the agreement dated 31.12.1981 and all other  agreements  relating  to
waters of Ravi-Beas.

WHEREAS on 15th July, 2004, the Union of  India  filed  an  application  for
taking on record subsequent facts and developments after the passing of  the
order of the  Hon’ble  Supreme  Court  dated  4.6.2004  and  requesting  the
Hon’ble Court to pass such other and further orders as  deemed  fit  in  the
interest of justice;

WHEREAS doubts  have  been  expressed  with  regard  to  the  constitutional
validity of the Punjab Act, 2004 and its provisions  and  also  whether  the
agreement dated 31.12.1981 can be said to have been  validly  terminated  by
the State of Punjab and whether  the  State  of  Punjab  has  been  lawfully
discharged from the said agreement;

AND whereas in view of the aforesaid, it appears that  there  is  likelihood
of the constitutional validity of the provisions  of  the  Punjab  Act  2004
being challenged  in  Courts  of  law  involving  protracted  and  avoidable
litigation, that the differences  and  doubts  have  given  rise  to  public
controversy which may lead to undesirable consequences and that  a  question
of law has arisen which is of such a nature and of  such  public  importance
that is expedient to obtain the opinion of  the  Hon’ble  Supreme  Court  of
India thereon;

NOW, THEREFORE, in exercise of powers conferred upon me  by  clause  (1)  of
Article 143 of the Constitution of India, I, A.P.J. Abdul  Kalam,  President
of India, hereby refer the following  questions  to  the  Supreme  Court  of
India for consideration and report thereon, namely:

i)    Whether the  Punjab  Termination  of  Agreements  Act,  2004  and  the
provisions  thereof  are  in  accordance  with   the   provisions   of   the
Constitution of India;

ii)   Whether the  Punjab  Termination  of  Agreements  Act,  2004  and  the
provisions thereof are in accordance with the provisions of  Section  14  of
the  Inter-State  Water  Disputes  Act,  1956,  Section  78  of  the  Punjab
Reorganisation Act, 1966 and the Notification dated 24th March, 1976  issued
there under;

iii)  Whether the State of  Punjab  had  validly  terminated  the  agreement
dated 31.12.1981 and all other agreements relating to the  Ravi-Beas  waters
and is discharged from its obligation under the said agreement(s); and

iv)   Whether in view of the provisions of the Act; the State of  Punjab  is
discharged  from  its  obligations  from  the  judgment  and  decree   dated
15.01.2002 and the judgment and order dated 4.6.2004 of  the  Supreme  Court
of India.”

3.    In pursuance of notice issued, the learned Attorney General for  India
appeared and made introductory submissions with regard to the Reference  and
thereafter, by an order dated 2nd August, 2004, this Court,  issued  notices
to the Union of India and States of  Punjab,  Haryana,  Rajasthan,  Himachal
Pradesh, Jammu & Kashmir and the  NCT  of  Delhi  through  their  respective
Chief Secretaries.

4.    Virtually, all relevant facts which are necessary  for  rendering  our
opinion on the issues referred to this Court have been duly incorporated  in
the Reference and in the circumstances, we would  not  like  to  burden  our
opinion by reiterating the facts.  Suffice it to state  that  by  virtue  of
the provisions of Article 143 of the Constitution of India  this  Court  has
to examine the validity of the Punjab Act, 2004 and we have also to  examine
whether the State of Punjab had validly terminated the Agreement dated  31st
December, 1981 and other agreements relating to Ravi-Beas waters  so  as  to
discharge it from the obligations which it had to  discharge  under  certain
valid  orders  passed  by  appropriate  authorities.  However,  for  further
clarity we may incorporate facts with regard to  certain  litigation,  in  a
nutshell, which are as under:

The States of Punjab, Haryana and Rajasthan entered into an Agreement  dated
31st  December,  1981  which  has  been  referred  to  hereinabove  in   the
Reference, by virtue of which the States of Pubjab, Haryana  and  Rajasthan,
in view of overall national interest and optimum  utilization  of  Ravi  and
Beas waters had agreed on re-allocation of Ravi and Beas waters but  as  the
said agreement was not being acted upon by the State of  Punjab,  the  State
of Haryana had instituted Suit No.6 of 1996 before this Court under  Article
131 of the Constitution of India impleading the State of  Punjab  and  Union
of India, seeking the following, among other, reliefs:-

"(a) pass a decree declaring that the order dated 24-3-1976,  the  Agreement
of 31-12-1981 and the Settlement of 24-7-1985 are final  and  binding  inter
alia on the State  of  Punjab  casting  an  obligation  on  Defendant  1  to
immediately restart and complete  the  portion  of  the  Sutlej-Yamuna  Link
Canal Project as also make it usable in all respects,  not  only  under  the
aforesaid order of 1976, Agreement of 1981 and Settlement of 1985  but  also
pursuant to a contract established by conduct from 1976 till date;

(b) pass a decree of mandatory injunction compelling  defendant  1  (failing
which  defendant  2  by  or  through  any  agency)  to  discharge  its/their
obligations under the said Notification of 1976, the Agreement of  1981  and
the Settlement of 1985  and  in  any  case  under  contract  established  by
conduct, by immediately  restarting  and  completing  that  portion  of  the
Sutlej-Yamuna Link Canal Project  in  the  State  of  Punjab  and  otherwise
making it suitable for use within a time bound manner as may  be  stipulated
by this Hon'ble Court to enable the State of Haryana to  receive  its  share
of the Ravi and Beas waters;”

5.    This Court after examining  all  the  legal  aspects  and  provisions,
passed a decree in the said Suit No. 6 of  1996  vide  judgment  dated  15th
January, 2002, relevant portion of which is extracted hereinbelow:-
“18. ........ The State Governments having  entered  into  agreements  among
themselves on the  intervention  of  the  Prime  Minister  of  the  country,
resulting in withdrawal of  the  pending  suits  in  the  Court,  cannot  be
permitted to take a stand contrary to  the  agreements  arrived  at  between
themselves. We are also of the considered opinion that  it  was  the  solemn
duty of the Central Government to see that the terms of  the  agreement  are
complied with in toto. That apart,  more  than  Rs.  700  crores  of  public
revenue cannot be allowed to be washed  down  the  drain,  when  the  entire
portion of the canal within  the  territory  of  Haryana  has  already  been
completed and major portion of  the  said  canal  within  the  territory  of
Punjab also has been  dug,  leaving  only  minor  patches  within  the  said
territory of Punjab to be completed. If the apprehension  of  the  State  is
that on account of digging of the canal, the State  of  Haryana  would  draw
more water than that which has been allocated in its favour, then  the  said
apprehension also  is  thoroughly  unfounded  inasmuch  as  the  source  for
drawing of  water  is  only  from  the  reservoir,  which  lies  within  the
territory of Punjab and a drop of water will not flow in  the  canal  unless
the connecting doors are open. But the quantity of water  that  has  already
been allocated in favour of the State of Haryana,  must  be  allowed  to  be
drawn and that can be drawn only if the additional link canal  is  completed
inasmuch as the existing Bhakra Main Canal has  the  capacity  of  supplying
only 1.62 MAF of water. This being  the  position,  we  unhesitatingly  hold
that the plaintiff-State of Haryana has made out a case for issuance  of  an
order of injunction in the mandatory form against the  State  of  Punjab  to
complete the portion of SYL Canal,  which  remains  incomplete  and  in  the
event the State of Punjab  fails  to  complete  the  same,  then  the  Union
Government-defendant 2 must see to its completion, so that  the  money  that
has already been spent and the money which may further  be  spent  could  at
least be utilized by the countrymen. We have  examined  the  materials  from
the stand point of existence of a prima facie case, balance  of  convenience
and irreparable loss and injury and we are satisfied that the plaintiff  has
been able to establish each one of the aforesaid criteria  and  as  such  is
entitled to the injunction sought for. This issue  is  accordingly  answered
in favour of the plaintiff and against the  defendants.  We,  therefore,  by
way of a mandatory injunction,  direct  the  defendant-State  of  Punjab  to
continue the digging of Sutlej-Yamuna Link Canal, portion of which  has  not
been completed as yet and make the canal functional  within  one  year  from
today. We also direct the Government of India –  defendant  2  to  discharge
its constitutional obligation in implementation of the  aforesaid  direction
in relation to the digging of canal and if within a period of one  year  the
SYL Canal is not completed by the defendant-State of Punjab, then the  Union
Government should get it done through its own agencies as  expeditiously  as
possible, so that the huge amount of money that has already been  spent  and
that would yet to be spent, will not be wasted and  the  plaintiff-State  of
Haryana would be able to draw the full quantity of water  that  has  already
been allotted to its share. Needless to mention, the direction  to  dig  SYL
Canal should not be construed by the  State  of  Haryana  as  a  license  to
permit them to draw water in excess of  the  water  that  has  already  been
allotted and in the event the tribunal, which is still considering the  case
of re-allotment of the water, grants  any  excess  water  to  the  State  of
Haryana, then it may also consider issuing appropriate directions as to  how
much of the water could be drawn through SYL Canal.

19. The Plaintiff’s suit is decreed on the aforesaid terms.  There  will  be
no order as to costs.”
                                     [Emphasis Supplied]
6.    The State of  Punjab  did  not  comply  with  the  decree  dated  15th
January, 2002 passed by this Court in Suit No. 6 of 1996. On  18th  January,
2002, the State of Punjab filed an application for review of  said  judgment
dated 15th January, 2002 which was dismissed by this  Court  on  5th  March,
2002. On 18th December, 2002, an application  was  filed  by  the  State  of
Haryana for enforcement of the judgment and decree dated 15.01.2002 and  the
said application was registered as IA No. 1 of 2002.

7.    On 13th January, 2003; the State of Punjab filed suit No.  1  of  2003
under Article 131 of the Constitution of India  before  this  Court  seeking
inter-alia the following reliefs:-
(a) To discharge/dissolve the obligation to construct SYL Canal  imposed  by
the  mandatory  injunction  decreed   by   this   Hon'ble   Court   in   its
judgment/decree dated 15.01.2002 in OS No.6/1996 for the reasons set out  in
the plaint;

(b) To declare that the judgment/decree dated 15.01.2002 in  OS  No.  6/1996
is not binding or enforceable since the issues raised  in  that  suit  could
only have been decided by a Constitution Bench in terms  of  Article  145(3)
of Constitution of India;

(c) To declare  that  Section  14  of  the  Act,  1956  is  ultra-vires  the
Constitution of India;

(d) To declare that Section 14 of the Act, 1956  is  no  longer  enforceable
for the reasons set out in the plaint;

(e) To  declare  the  Punjab  Settlement  (Rajiv  Longowal  Accord)  is  not
enforceable under the changed circumstances as set out in the Plaint:

In the alternative;
in case it is held by this Hon'ble Court that the  Punjab  Settlement  dated
24.07.1985 is  an  enforceable  Agreement  then  direct  enforceability  and
compliance with other 10 issues  and  to  keep  in  abeyance  obligation  to
construct SYL canal till other conditions set  out  in  the  settlement  are
implemented and/or the Water Disputes arising from the reallocation of Ravi-
Beas waters are resolved under the Act, 1956.

(f) Declare that  Section  78(1)  of  the  Act,  1966  is  ultra  vires  the
Constitution of India, and that all acts, deeds  and  things  done  pursuant
thereto or in consequence thereof including all  Notifications,  Agreements,
etc. are null and void including the notification dated 24.03.1976  and  the
Agreement dated 31.12.1981 as non-est and void ab initio.

8.    By judgment and order dated June 4, 2004;  this  Court  dismissed  the
suit filed by the State of Punjab and allowed the execution  petition  filed
by the State of Haryana by passing inter-alia the following order:-
“96.  The residuary power under Section 51(e) allows a Court to pass  orders
for enforcing a decree in a manner  which  would  give  effect  to  it.  The
period specified in the decree for completion of  the  canal  by  Punjab  is
long since over. The Union of India has  said  that  it  had  worked  out  a
contingent action plan during this period. The contingency in  the  form  of
expiry of the one 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  BRO  and  at  a
meeting convened as early as on 20-2-1991, the then Prime Minister  directed
that BRO take over the work for completion of the SYL Canal in  the  minimum
time possible, BRO is not now available for the purpose.  After  the  decree
the Central Water Commission Officials have inspected  the  canal  on  9-10-
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 and has  estimated
an amount of about Rs.250 crores 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:

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) 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;

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 Central  Agency  within  such  time  as  the  High  Powered
Committee will determine.

5) The Central and the Punjab Governments should provide  adequate  security
for the staff of the Central Agency.

97. 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".
                                     [Emphasis Supplied]
9.    In the aforestated background,  on  12th  July,  2004,  the  State  of
Punjab enacted the Punjab Act, 2004  with  an  intention  to  terminate  the
Agreement dated 31st December, 1981 and all  other  Agreements  relating  to
sharing of waters of rivers  Ravi  and  Beas.   Intention  behind  the  said
enactment  was  also  to  discharge  the  Government  of  Punjab  from   the
obligations arising under the aforestated  Agreement  dated  31st  December,
1981 and to nullify the decrees of the Court referred to hereinabove.

10.   The aforestated facts will give some further idea about the facts  and
circumstances in which the President of India has referred  the  aforestated
questions to this Court for its opinion.

11.   At this juncture, we  would  like  to  refer  to  certain  unwarranted
developments which took place after we started hearing this Reference.   The
legislature for the State of Punjab introduced  Punjab  Satluj  Yamuna  Link
Canal Land (Transfer of  Proprietary  Rights)  Bill,  2016.   No  assent  of
Goverrnor till date and therefore, it is not a legislation and  will  remain
Bill  passed  by  Legislative  Assembly.  By  virtue  of   the   aforestated
legislation, the State of Punjab proposed to act in clear violation  of  the
Agreement dated 31st December, 1981  which  has  been  referred  to  in  the

12.   The State of Punjab had an intention to de-notify  the  land  acquired
for the purpose of construction of Sutlej  Yamuna  Link  Canal  (hereinafter
referred to as “the SYL Canal”) in Punjab  and  in  pursuance  of  the  said
enactment, the State of Punjab had started returning possession of the  land
already acquired to its landlords  and  earth  moving  equipments  had  been
mobilized to level, destroy and fill up the  SYL  Canal  which  was  in  the
process of construction.

13.   In the aforestated circumstances, I.A. No.7 of 2016 had been filed  by
the State of Haryana  praying  that  the  operation  and  implementation  of
Punjab Satluj Yamuna Link Canal Land (Transfer of Proprietary  Rights)  Act,
2016 be suspended so that the entire proceedings initiated in  pursuance  of
the Reference may not be frustrated.  After hearing the  concerned  parties,
on 17.3.2016, this Court was constrained to pass the following order:-

“I.A. No.7/2016 – for appropriate directions. Taken on Board.  Upon  perusal
of the contents of the application and  upon  hearing  the  learned  counsel
appearing for the parties, prima facie, it appears that an effort  has  been
made to see that  execution  of  a  decree  of  this  Court  is  being  made
inexecutable and this Court cannot be a silent spectator of  the  said  fact
and therefore, we direct that status quo shall be maintained by the  parties
with regard to the following properties referred to in para (d)(ii)  of  the

“(d)(ii) lands, works, property and portions of the SYL canal and all  lands
within the alignment of the SYL canal within the territories  of  the  State
of Punjab which are covered by the judgments  of  this  Court  in  State  of
Haryana v State of Punjab, (2002) 2 SCC  507  (paragraphs  18  and  19)  and
State of Haryana v State of Punjab, (2004) 12 SCC 712 (paragraph 96),”.

      In the circumstances, it is further directed that (i)  The  Secretary,
Home Department, Union of India, (ii) The Chief Secretary, State of  Punjab,
and (iii)The Director General of Police, State of Punjab  are  appointed  as
Court Receivers as prayed  for  in  para  (d)(ii)  and  all  the  properties
referred to in the said para shall be deemed to  have  vested  in  them  and
they shall also see that  status  quo  is  maintained  with  regard  to  the
properties referred to herein-above. Counter affidavits to  the  application
be filed on or before 28th March, 2016”.

14.   We have heard the learned Solicitor General  of  India  appearing  for
the Union of India and learned counsel appearing for the States  of  Punjab,
Haryana, Jammu and Kashmir (J & K), Rajasthan, Himachal Pradesh and the  NCT
of Delhi at length.  Several judgments were cited by the learned counsel  so
as to substantiate their arguments.  We do not propose to refer to  all  the
judgments cited, especially in view of the fact that the law  laid  down  by
this Court, which has been referred to by  the  learned  counsel  cannot  be
disputed and there are some judgments which refer to  all  the  issues  with
which we  are  concerned.   We  have  considered  all  the  submissions  and
substance of all the judgments referred to by them and we are  referring  to
the submissions made by them in a nutshell hereinbelow.

15.   As all the questions referred to this Court are interlinked,  for  the
sake of convenience, we have discussed the same together instead of  dealing
with them separately.

16.   The learned counsel  appearing  on  behalf  of  the  State  of  Punjab
vehemently submitted that this  Reference  is  not  maintainable  under  the
provisions of Article 143(1) of the Constitution  of  India.   He  submitted
that several issues with regard to facts not on  record  are  also  involved
and that is one of the reasons for which this Court should  not  render  its
opinion.  He further submitted that it is not  obligatory  on  the  part  of
this Court to give its opinion in each  and  every  matter  which  might  be
referred to this Court by the President of India. According to him,  looking
at the facts of this case, especially when several  other  incidental  facts
are involved in the issue referred to this Court, this Court  should  refuse
to give its opinion.  He also referred to some of the  judgments  which  lay
down law to the effect that it is not obligatory on the part of  this  Court
to give opinion as and when a Reference is made by the  President  of  India
under the provisions of Article 143(1) of the Constitution of India.

17.   He further submitted that this Court must take into account  the  fact
that the circumstances have changed substantially in  the  last  few  years.
According to him, after this Court had decreed the suit filed by  the  State
of Haryana referred to hereinabove, the actual position with regard  to  the
supply of water in the rivers has  remarkably changed  as  supply  of  water
has been substantially reduced, which has created problems for the State  of
Punjab and in view of the changed circumstances, according to  him,  it  was
necessary for the State of Punjab to take a different stand and in  the  new
set of circumstances, the Punjab Act, 2004 had  to  be  enacted  and  it  is
imperative on the part of  the  Statutory  Authorities  and  this  Court  to
consider the said changed circumstances and therefore, the Punjab Act,  2004
cannot be said to be invalid or ultra vires the Constitution  of  India.  He
further submitted that in view of the fact  that  under  the  provisions  of
Section 14 of The Inter-State River Water Disputes Act,  1956  the  Tribunal
has already been constituted, it would be  expedient  to  refer  the  entire
matter to the Tribunal so that the Tribunal can consider  all  the  relevant
facts and take an appropriate decision.

18.    He further submitted that the State of Punjab  has  already  filed  a
suit with a prayer to constitute a Tribunal  so  that  the  dispute  can  be
referred  to  the  Tribunal  and  in  the  aforestated  circumstances,   the
Reference should not be answered.  Moreover, he also submitted that the  law
on the subject is crystal clear to the effect that  whenever  there  is  any
decision with regard to sharing of waters, the decision should  be  reviewed
periodically when the circumstances get changed i.e. when the flow of  water
or  supply  of  water  is  changed.   According  to  him,  in  the   changed
circumstances compliance of all earlier orders should not be  insisted  upon
and a fresh decision based on the ground  realities  should  be  taken  with
regard to sharing of the waters.  The sum and substance of  the  submissions
of the learned counsel appearing for the  State  of  Punjab  was  that  this
Reference is not at all maintainable as the law  enacted  by  the  State  of
Punjab is within its statutory powers.

19.    In reply to the main  issue  with  regard  to  the  validity  of  the
Reference the learned counsel appearing for the State of Haryana  and  those
supporting  him  submitted  that  the  Reference  is  maintainable  and  the
submissions made by the learned counsel appearing for the  State  of  Punjab
did not have any substance.

20.   So as to examine  whether  such  a  Reference  can  be  made,  let  us
consider the provisions of Article 143 of the Constitution of  India,  which
reads as under:-
“Article 143: Power of President to consult Supreme Court.-

(1) If at any time it appears to the President that a  question  of  law  or
fact has arisen, or is likely to arise, which is of such  a  nature  and  of
such public importance that it is expedient to obtain  the  opinion  of  the
Supreme Court upon  it,  he  may  refer  the  question  to  that  Court  for
consideration and the Court may,  after  such  hearing  as  it  thinks  fit,
report to the President its opinion, thereon.

(2) The President may, notwithstanding anything in the  proviso  to  Article
131, refer a dispute of the kind  mentioned  in  the  said  proviso  to  the
Supreme Court for opinion and Supreme Court shall, after such hearing as  it
thinks fit, report to the President its opinion thereon.”

21.   A bare perusal of Article 143 of the Constitution would show that  the
President is authorized to refer to this Court a question of  law  or  fact,
which in his/her  opinion  is  of  such  a  nature  and  of  such  a  public
importance that it is expedient to obtain the opinion of the  Supreme  Court
upon it.  The Article does not restrict  the  President  to  obtain  opinion
only on a pure question of law.  The submission made by the learned  counsel
appearing for the State  of  Punjab  that  several  questions  of  fact  are
involved in the Reference is thus hardly relevant, for the  reason  that  an
opinion can be sought on question of law and even on question of fact.

22.   It is true that it is for this Court to decide whether to  render  its
opinion to the President and it is also true  that  such  a  view  has  been
taken by this Court and in a given case this Court can refuse  to  give  its

23.   While considering the same issue, this Court in the  case  of  Natural
Resources Allocation, In Re, Special Reference No.1 of 2012 2012(10)  SCC  1
has observed as under:
“35.  Insofar  as  the  impact  of  filing  and  withdrawal  of  the  review
application by the Union of India against the decision in  2G  case  on  the
maintainability of the instant Reference is concerned, it  is  a  matter  of
record that in the review petition,  certain  aspects  of  the  grounds  for
review which have been stated in the recitals of the Reference  as  well  as
in  some  questions,  were  highlighted.   However,  there  is  a  gulf   of
difference between the jurisdiction exercised by this Court in a review  and
the discretion exercised in answering a reference under  Article  143(1)  of
the  Constitution.   A  review  is  basically  guided  by  the  well-settled
principles for review of a judgment and a decree or order  passed  inter  se
parties.  The Court in exercise of power of review may entertain the  review
under the acceptable and settled parameters.  But, when an opinion  of  this
Court is sought by the executive taking recourse to a constitutional  power,
needless to say, the same stands  on  a  different  footing  altogether.   A
review is lis specific and the rights of the parties to the controversy  are
dealt with therein, whereas a reference is  answered  keeping  in  view  the
terms of the reference and  scrutinising  whether  the  same  satisfies  the
requirements inherent in the language employed under Article 143(1)  of  the
Constitution.  In our view, therefore, merely  because  a  review  had  been
filed and withdrawn and in the recital the narration pertains  to  the  said
case, the same would not  be  an  embargo  or  impediment  for  exercise  of
discretion to answer the reference”.

24.   Thus, it is within the discretion of this Court,  subject  to  certain
parameters to decide whether to refuse to answer a question on a  reference.
 Looking at the facts of this Case, in our opinion this is not a case  where
this Court would like to refuse to give its opinion to the  President  under
the provisions of Article 143 of the Constitution of India as  there  is  no
good reason for the same.

25.   In the circumstances, we do not agree with the submission made by  the
learned counsel for the State of Punjab to the effect  that  we  should  not
give our opinion simply because we are not bound to give our  opinion  under
the provisions of Article 143 of the Constitution of India.

26.   On the other hand, the learned counsel  appearing  for  the  State  of
Haryana narrated the history of the litigation of different  States  on  the
issue of water sharing of the rivers concerned and submitted in  a  nutshell
that by enacting the Punjab  Act,  2004,  the  State  of  Punjab  wanted  to
nullify the effect of the decrees passed by  this  Court  against  the  said
State.  He further submitted that by a  legislative  act,  a  party  to  the
litigation cannot enact a Statute  which  would  nullify  the  effect  of  a
decree passed by  a  Court  of  law  and  if  such  a  thing  is  permitted,
governance of our democracy as per rule of law would be in jeopardy  because
the Constitution of India provides for  the  manner  in  which  the  dispute
among the States has to be adjudicated.  If  in  a  federal  structure  like
ours, one State against whom a decree has  been  passed  by  this  Court  is
permitted to enact law to nullify the decree,  it  would  result  into  very
hazardous consequences and mutilate  the  finality  of  a  judicial  verdict
leading to uncertainty  and   that  may  result  into  legal  chaos  in  the
country. He mainly relied upon the judgments delivered by this Court in  the
case of Re: Cauvery Water Disputes Tribunal, (1993) 1 Supp. SCC 96 (II)  and
State of Tamil Nadu v. State of Kerala and Another, (2014) 12 SCC  696.   He
submitted that our Constitution provides for separation of  powers  and  the
method  of  adjudication  of  disputes  among  the  States.   If   the   law
incorporated in the Constitution is not followed there would not be rule  of
law in  the  country.   He  referred  to  some  other  judgments  so  as  to
substantiate his case, mainly to the effect that such a law would  adversely
affect the functioning of different branches of  the  Government.   He  also
submitted that it would not be within the power of a  legislature  to  enact
law to nullify the decree of the Supreme Court.

27.   He further submitted that once an Agreement with regard to sharing  of
waters had been executed, it becomes duty of each State, which  is  a  party
to the Agreement, to respect the Agreement and to act accordingly.   In  the
instant case, there is not only an agreement but there are decrees  of  this
Court, which would  be  nullified  if  such  an  Act  is  implemented.   He,
therefore,  submitted   that   this   Court   should   opine   against   the
constitutionality of the Punjab Act, 2004 and should also opine that  it  is
obligatory on the part of the State of Punjab to act as  per  the  Agreement
entered into by it.

28.   He further submitted that if for any reason the State of Punjab has  a
feeling that because of the changed circumstances, it  is  not  possible  to
share waters of the rivers in the proportion decided under the Agreement  or
any decree, the State of Punjab or any other State, which is a party to  the
agreement should approach the Tribunal for getting an appropriate  order  so
that the needful can be done for  reviewing  the  proportion  on  the  basis
whereof the water sharing agreement had been  executed.   Instead  of  doing
so, according to him,  the  State  of  Punjab  has  tried  to  exercise  its
legislative powers so as to nullify the  decree  of  this  Court,  which  is
contrary to settled law.

29.   He  further  submitted  that  even  our  federal  structure  would  be
adversely affected if a State is permitted to  act  in  a  way  which  would
nullify the decree passed by a competent  Court.  He  strenuously  submitted
that such an Act would result into lawlessness  and  breaking  down  of  the
legal system.

30.   The other counsel appearing for different States  have  supported  the
learned counsel appearing for the  State  of  Haryana  and  they  have  also
submitted that the State of Punjab could not have enacted the Punjab Act  so
as to nullify the decree of a competent Court and  to  unilaterally  absolve
itself from its liability under the Agreement.

31.   Upon  hearing  the  learned  counsel  and  going  through  the  record
pertaining to the case and upon  perusal  of  the  judgments  cited  by  the
learned counsel,  we  are  of  the  view  that  the  Punjab  Act  cannot  be
considered to be legal and valid and the State of  Punjab  can  not  absolve
itself  from  its  duties/liabilities  arising  out  of  the  Agreement   in

32.   As stated  hereinabove,  it  is  not  in  dispute  that  there  was  a
litigation between the  State  of  Punjab  and  the  State  of  Haryana  and
ultimately a decree was made whereby the arrangement with regard to  sharing
of water as per the agreement dated  31st  December,  1981  had  been  made.
There is thus a legal sanction to the said arrangement and  once  a  binding
decree has been passed by a Court of law, a party to the  litigation  cannot
unilaterally act in a manner which would nullify the effect of the decree.

33.    In  the  instant  case,  instead  of  approaching   the   appropriate
authority, namely, the Tribunal for appropriate relief, the State of  Punjab
exercised its legislative power by enacting the Punjab Act so as to  nullify
the effect of the Decree.

34.   Dealing with a similar issue, this Court  in  the  case  of  State  of
Tamil Nadu (supra), has held that a State “cannot through legislation do  an
act in conflict with the judgment of the highest Court  which  has  attained
finality.  If a legislation  is  found  to  have  breached  the  established
constitutional limitation such as separation of powers, it  has  to  go  and
cannot be allowed to remain” (Para 146).

35.   It has been further observed by this Court as under:-
“147.  It  is  true  that  the  State’s  sovereign  interests  provide   the
foundation of the public trust doctrine but the judicial function is also  a
very important sovereign function of the State and  the  foundation  of  the
rule of law. The legislature cannot by invoking “public trust  doctrine”  or
“precautionary principle” indirectly control the action of  the  courts  and
directly or indirectly set aside the authoritative and  binding  finding  of
fact by the court, particularly, in situations where  the  executive  branch
(Government of the State) was a  party  in  the  litigation  and  the  final
judgment was delivered after hearing them.

      xxx        xxx         xxx
149.   This Court in Mullaperiyar Environmental Protection  Forum  v.  Union
of India [(2006) 3 SCC 643], after hearing the  State  of  Kerala,  was  not
persuaded by Kerala’s argument that  the  Mullaperiyar  Dam  was  unsafe  or
storage of water in that Dam  cannot  be  increased.  Rather,  it  permitted
Tamil Nadu to increase the present water level from 136 ft  to  142  ft  and
restrained Kerala from interfering in Tamil Nadu’s right in  increasing  the
water level in the Mullaperiyar Dam to 142 ft. Thus,  a  judgment  has  been
given by this Court in contest between the two States in respect  of  safety
of Mullaperiyar Dam for raising the water level to  142  ft.  The  essential
element of the judicial function is  the  decision  of  a  dispute  actually
arising between the parties and brought before the court. Necessarily,  such
decision must be binding upon the parties and enforceable according  to  the
decision. A plain and simple judicial decision on fact cannot be altered  by
a legislative decision by employing doctrines or principles such as  “public
trust doctrine”, “precautionary principle”, “larger safety  principle”  and,
“competence of the State Legislature to override agreements between the  two
States”. The  constitutional  principle  that  the  legislature  can  render
judicial  decision  ineffective  by  enacting  validating  law  within   its
legislative  field  fundamentally  altering  or   changing   its   character
retrospectively has no  application  where  a  judicial  decision  has  been
rendered by recording a finding of fact. Under the pretence  of  power,  the
legislature, cannot neutralise  the  effect  of  the  judgment  given  after
ascertainment of fact by means of evidence/materials placed by  the  parties
to the dispute. A decision which disposes of the matter by  giving  findings
upon the facts is not open to change by legislature. A final judgment,  once
rendered, operates and remains in  force  until  altered  by  the  court  in
appropriate proceedings.

150. The 2006 (Amendment) Act plainly seeks to nullify the judgment of  this
Court which is constitutionally impermissible. Moreover, it is not  disputed
by Kerala that the 2006 (Amendment)  Act  is  not  a  validation  enactment.
Since the impugned law is not a  validating  law,  it  is  not  required  to
inquire whether in making the validation the  legislature  has  removed  the
defect which the Court has found in existing law. The 2006  (Amendment)  Act
in its application to and effect on the Mullaperiyar Dam  is  a  legislation
other than substantially legislative as it is aimed at nullifying the  prior
and authoritative decision of  this  Court.  The  nub  of  the  infringement
consists in the Kerala Legislature’s revising the  final  judgment  of  this
Court in utter disregard of the constitutional principle that  the  revision
of such final judgment must remain exclusively within the discretion of  the

36.   It has been further observed in the said judgment  that  a  litigating
person cannot become judge in its own cause.  The said well known  principle
has been clearly depicted in paragraph 158 of the said judgment as under:-
“158. 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  the
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 other and  that  would  lead  to
contradictory and irreconcilable laws. The Constitution makers in  order  to
obviate any  likelihood  of  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  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 before the  commencement
of the Constitution and continues  in  operation  after  such  commencement,
which are political in nature. In relation to 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  262  of  the
Constitution would be rendered nugatory  and,  therefore,  such  legislation
cannot be constitutionally countenanced being  violative  of  separation  of
powers doctrine.”

37.   Finally, on the subject on hand,  this  Court  observed  as  under  in
paragraph 160:
“160. Where a dispute between two States has already been  adjudicated  upon
by this Court, which it is  empowered  to  deal  with,  any  unilateral  law
enacted by one  of  the  parties  that  results  in  overturning  the  final
judgment is bad not  because  it  is  affected  by  the  principles  of  res
judicata but because it infringes the doctrine of separation of  powers  and
rule of law, as by  such  law,  the  legislature  has  clearly  usurped  the
judicial power.”

38.   Looking at the aforestated legal position, in our opinion,  the  State
of Punjab had exceeded its legislative power in proceeding  to  nullify  the
decree of this Court and therefore, the Punjab Act cannot be said  to  be  a
validly enacted legislation, as held by this Court in terms the  aforestated

39.   It is pertinent to note that the water dispute,  which  the  State  of
Punjab and State of Haryana had, had been referred to the  Tribunal  as  per
the provisions of Section 14 of the Inter State Water  Disputes  Act,  1956.
After considering the relevant provisions, even with regard  to  Section  78
of the Punjab Reorganization Act, 1966, the Tribunal had  taken  a  judicial
decision and the said decision is also sought to be disturbed by  virtue  of
enactment of the Punjab Act.  The Agreement dated  31st  December,  1981  is
about sharing of waters of Ravi and Beas rivers.  The said  Agreement  could
not have  been  unilaterally  terminated  by  one  of  the  parties  to  the
Agreement by exercising its legislative power and if any party or any  State
does so, looking at the law laid down by this Court in the case of State  of
Tamil Nadu (supra), such unilateral action of a particular State has  to  be
declared contrary to the Constitution of India as well as the provisions  of
the Inter State Water Disputes Act, 1956.

40.   Once a conclusion is arrived at to the effect that  one  State,  which
is a party to the litigation or an Agreement, cannot unilaterally  terminate
the Agreement or nullify the decree of the highest  Court  of  the  country,
the State of Punjab  cannot  discharge  itself  from  its  obligation  which
arises from the judgment  and  decree  dated  15th  January,  2002  and  the
judgment and order dated 4th January, 2004 of the apex Court.

41.   For the aforestated reasons, in our opinion, the Punjab Act cannot  be
said to be in accordance with the provisions of the  Constitution  of  India
and by virtue of the said  Act  the  State  of  Punjab  cannot  nullify  the
judgment and decree referred to  hereinabove  and  terminate  the  Agreement
dated 31st December, 1981.

42.   Thus, in our view, all  the  questions  referred  to  this  Court  are
answered in the negative.

43.   This opinion shall  be  transmitted  to  the  President  of  India  in
accordance with the procedure prescribed in Part  V  of  the  Supreme  Court
Rules, 2013.

                      (ANIL R. DAVE)

                          (PINAKI CHANDRA GHOSE)

                             (SHIVA KIRTI SINGH)

                              (ADARSH KUMAR GOEL)

                              (AMITAVA ROY)
New Delhi
November 10, 2016.

                        IN THE SUPREME COURT OF INDIA
                            ADVISORY JURISDICTION

                       SPECIAL REFERENCE NO.1 OF 2004
                   U/A 143(1) OF THE CONSTITUTION OF INDIA

                                O P I N I O N

1.    Having gone through the exceedingly well formulated judgment  of  Anil
Dave, J., I record my respectful agreement with the same.  But at  the  same
time I am tempted by the facts and nature of controversy  involved  in  this
Reference to remind all the stakeholders interested in  the  healthy  upkeep
of Indian Constitutional set-up, and  particularly  the  States  which  form
part of  the  Indian  Federal  structure,  of  the  peculiar  and  essential
features of our federal set-up.  Awareness of these  features  is  essential
to  keep  the  system  healthy  and   transact   constitutional   powers   –
legislative, executive and judicial on proper tracks to  foster  the  spirit
of constitutionalism.
2.    It is not at all necessary to refer to  a  catena  of  judgments  that
tell us in most unambiguous terms that the Indian Constitution  envisages  a
federal form of governance but with  a  pronounced  bias  and  obvious  tilt
towards the Centre.  Historically,  the  States  were  not  having  absolute
sovereignty. The territories of States can be altered or totally taken  away
and  even  their  names  can  be  changed.   Despite  the  distribution   of
legislative power by Article 246, leave aside the situations  of  emergency,
even during normal times provisions like Articles 248, 249,  251,  252,  253
and 254 run counter to  the  normal  legislative  powers  of  States.   Over
subjects covered by the Concurrent List, in the case of any repugnancy,  the
laws by  Parliament  have  superiority  and  prevail  over  those  by  State
Legislature.  Executive  powers  are  understandably  co-terminus  with  the
legislative powers.
3.    Of utmost significance, in the context at hand  is  supremacy  of  the
Constitution.  Even to the permissible extent, it can  be  amended  only  by
the Union  Parliament.   The  Constitution  grants  and  recognizes  supreme
authority to the courts to not  only  interpret  but  also  to  protect  the
Constitution and the laws. Regardless of other features showing  the  Indian
model to be only a quasi-federal, the Indian Constitution is  very  explicit
and emphatic in creating checks and balances by providing for a  strong  and
independent judiciary  and  a  well  defined  constitutional  mechanism  for
resolving conflicts between the executive and legislative authority  of  the
Union and those of the States.  Indians have given to  themselves  a  single
Constitution and single citizenship.  Judicial power  is  exercisable  by  a
single set of courts within their territorial  jurisdictions.   High  Courts
are final courts at State level with constitutional  powers  under  Articles
226 and 227.  Supreme Court is undoubtedly the apex court in  the  hierarchy
with amalgam of ultimate powers  over  decisions  of  all  courts  –  civil,
criminal, revenue and quasi-judicial tribunals.  Its powers and  duties  are
enormous not only on  the  appellate  side  but  under  Article  32  of  the
Constitution  and  other  original  jurisdictions  such  as   Constitutional
References and also original suits where the disputes  may  be  between  the
States or between Union and States etc.
4.    From the abovementioned set up under our  Constitution,  there  is  no
difficulty in concluding that no Government, whether Central  or  State  can
usurp the power of adjudicating disputes vested in the  Judiciary  including
High Courts and the Supreme Court.  Further, as a corollary,  the  judgments
and decrees which are the end product of exercise of judicial  power  cannot
be set at naught by the process of legislative  declaration  in  respect  of
facts and circumstances.  As explained already in  the  main  judgment,  the
situation is somewhat different when a competent legislature engages  itself
in the exercise of validating  a  law  declared  defective  or  invalid  for
reasons which are curable.
5.    An observation necessitated by the somewhat  disturbing  facts:  delay
in execution of a final judgment or decree, more so when it is of  the  Apex
Court, should never be  countenanced  by  any  authority  because  it  would
surely tend to undermine people’s  faith  in  the  judicial  system  of  the
country, entailing in turn  avoidable  harm  to  all  the  institutions  and
functionaries under the  Constitution,  may  be  even  to  the  Constitution

                             [SHIVA KIRTI SINGH]
New Delhi.
November 10, 2016

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