“IN RE: THE PUNJAB TERMINATION OF AGREEMENT ACT, 2004” versus .

11. At this juncture, we would like to refer to ce11ain unwarranted developments which took place after we sta11ed 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 ofGovermor 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 31" December, 1981 which has been referred to in the Reference.

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 of2016 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 Com1 cannot be a silent spectator of the said fact and therefore, we IN RE: THE PUNJAB TERMINATION OF AGREEMENT ACT, 2004 [ANIL R. DAVE, J.] direct that status quo shall be maintained by the parties with regard to the following properties referred to in para ( d)(ii) of the application: "(dXii) 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 ofHaryana 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 oflndia appearing for the Union of India and learned counsel appearing for the States of Punjab, ljaryana, 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; e'specially 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 herein below.

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 oflndia. He submitted that several issues with regard to facts not on record are also involved c c (2016] 11 S.C.R. 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 refeJTed to this Court by the President oflndia. 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 oflndia under the provisions of Article 143( I) of the Constitution oflndia.

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 vi res 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 comp! iance of all earlier orders should not be insisted upon and a fresh decision based on the ground realities should IN RE: THE PUNJAB TERMINATION OF AGREEMENT ACT, 2004 [ANIL R. DAVE, J.] 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 suppo11ing 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, c 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 itthinks 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 Cou11 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 oflaw 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 oflaw. 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 in for this Court to decide whether to render its opinion to the President and it is also true that such a view has been f2016] I 1 S.C.R. taken by this Court and in a given case this Court can refuse to give its opinion. c

23. While considering the same issue, this Court in the case of Natural Resources Allocation, In Re, Special Reference No.1 of 20122012(10) SCC I has observed as under: "35. Insofar as the impact of filing and withdrawal of the review application by the Union oflndia against the decision in 2G case on the maintainability of the instant Reference is concerned, it is a matter ofrecord 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( I) 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 ofreview 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 tenns of the reference and scrutinising whether the same satisfies the requirements inherent in the language employed under Article 143( I) 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 undeF the provisions of Article 143 of the Constitution oflndia 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 IN RE: THE PUNJAB TERMINATION OF AGREEMENT ACT, 2004 [ANIL R. DAVE, J.] we sliould 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. l'Ie further submitted that by a legislative act, a party to the litigation cannot enact a Statute which would nullify the effect ofa decree passed by a Court oflaw and if such a thing is permitted, governance of our democracy as per rule of law would be in jeopardy because the Constitution oflndia provides forthe 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) I Supp. SCC 96 (II) and State of Tamil Nadu v. State ofKerala 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 -0f 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. c c [2016] l l S.C.R. 28. He further submitted that iffor 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 !lCt in a wav 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 oftheAgreement in question. 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 3 I" December, 1981 had been made. There is thus a legal sanction to the said arrangemeot 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. IN RE: THE PUNJAB TERMINATION OF AGREEMENT ACT, 2004 (ANIL R. DAVE, J.] 34. Dealing with a similar issue, this Cou11 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 fm1her observed by this Cou11 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 impo11ant 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 pm1y 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 oflndia ((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 Tami I 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 ofMullaperiyar 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 com1. 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 c c (2016] 11 S.C.R. 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 court." 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 IN RE: THE PUNJAB TERMINATION OF AGREEMENT ACT, 2004 [ANIL R. DAVE, J.] 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 oflndia 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 13 l 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 oflaw, as by such Jaw, 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 judgments. c c 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 3 1st 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 oflndia 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 l 5'h January, 2002 and the judgment and order dated 4'h 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 oflndia 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. SHIVA KIRTI SINGH, J. 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 oflndian 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. IN RE: THE PUNJAB TERMINATION OF AGREEMENT ACT, 2004 [SHIVA KIRT! SINGH, J.] 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 constitutional ism. 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 with in 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 c f20161 11 S.C.R. <.', State can usurp the powerofadjudicating 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 itself. Divya Pandey Referred questions answered.