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SUPREME COURT OF INDIA
ANIL R. DAVE, PINAKI CHANDRA GHOSE, SHIVA KIRTI SINGH, ADARSH KUMAR GOEL, AMITAVA ROY, JJ.
“In Re: The Punjab Termination of Agreement Act, 2004”
Special Reference No. 1 of 2004 (Under Article 143 (1) of The Constitution of India) Decided On : 10-11-2016
(a) Constitution of India – Article 143 – Reference not restricted to pure questions of law – Opinion can be sought on question of law and even on question of fact. (Para 21)
(b) Constitution of India – Article 143 – Supreme Court can answer the reference or refuse to do so at its discretion subject to certain parameters – Instantly held, opinion should not be refused. (Para 22, 24)
(2012) 10 SCC 1 – Relied upon
(c) Constitutional law – Separation of powers – Rule of law – Once a binding decree has been passed by a Court of law, a party to the litigation cannot unilaterally act to nullify the effect of the decree – Held, State of Punjab had exceeded its legislative power in proceeding to nullify the decree of this Court – Therefore, Punjab Termination of Agreement Act, 2004 not a validly enacted legislation. (Para 32, 36, 38)
(2014) 12 SCC 696; (1993) 1 Supp. SCC 96 (II) – Relied upon
(d) Inter State Water Disputes Act, 1956 – Section 14 – Tribunal even considering section 78, Punjab Reorganization Act, 1966 taking a judicial decision resulting in agreement dated 31st December, 1981 about sharing of waters of Ravi and Beas rivers – Such agreement not terminable by one of the parties to the Agreement – Any such unilateral action of a particular State would be ultra vires the constitution and the Act 1956 – State of Punjab cannot discharge itself from its obligation arising from the judgment and decree dated 15th January, 2002 and the judgment and order dated 4th January, 2004 of Supreme Court. (Para 39, 40)
(e) Punjab Termination of Agreement Act, 2004 – Held, not in accordance with the provisions of the Constitution of India – State of Punjab cannot nullify the judgment and decree of Supreme court and terminate the Agreement dated 31st December, 1981. (Para 41)
Per Shiva Kirti Singh, J. (Concurring)
(f) Constitutional law – Separation of powers – Legislative superiority of Centre and Parliament – Articles 246, 248, 249, 251, 252, 253 and 254 – Only judiciary empowered to adjudicate disputes – This power cannot be usurped by Centre or States – Judgments and decrees cannot be set at naught by the process of legislative declaration in respect of facts and circumstances – No authority should delay execution of a final judgment or decree, more so when it is of the Apex Court. (Para 45, 46, 47)
Facts of the case:
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 by the State of Punjab.
The following questions have been referred by the President of India to the Supreme Court:
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."
Finding of the Court:
Punjab Termination of Agreements Act, 2004 is ultra vires the constitution and the Inter-State Water Disputes Act, 1956.
Result: Reference answered in the negative.
JUDGMENT :
The following is the opinion of the Court:
Anil R. Dave, J. - 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 (Including 1.30 MAF for Pepsu) | 7.20 MAF |
| 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 rema
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