TaxTMI 
TaxTMI 
2004 (6) TMI 619
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....l although it had been paid the amount necessary for the purpose as also for the recurring expenditure towards maintenance of the canal. A suit was filed by the State of Haryana in 1979 being Suit No. 1 of 1979 in this Court under Article 131 of the Constitution seeking completion of the construction of the canal. The State of Punjab also filed a suit being Suit No. 2 of 1979 inter alia challenging Section 78 of the Punjab Reorganisation Act and the notification dated 24th March 1976 by which the river waters were directed to be shared between Haryana and Punjab. During the pendency of the suits, an agreement was entered into between the States of Haryana, Punjab and Rajasthan in the presence of the Prime Minister of India on 13th December 1981. The agreement, in so far as it is relevant, provided that the Sutlej-Yamuna Canal Project would be implemented in a time bound manner. The canal and appurtenant works in the Punjab territory were to be completed within a maximum period of two years from the date of the signing of the agreement. On the basis of and after recording this agreement, the suits were allowed to be withdrawn by this Court on 12th February, 1982. The date for ....
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....) 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 No. 1 to immediately restart and complete the portion of the Sutjej-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) 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 Ravi and Beas waters". A written statement was filed by the State of Punjab questioning the jurisdiction of this Court ....
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....ed 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 plant: (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 of 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) Decl....
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....ired to be disposed of at the outset because on the outcome of this application will depend the fate of the second proceeding which may in turn have an impact on the first. I.A. No. 1 in O.S. 1 of 2003. Order XXIII Rule 6 of the Supreme Court Rules, 1966 under which I.A. 1 of 2003 has been filed provides : "The plaint shall be rejected : (a) where it does not disclose a cause of action. (b) where the suit appears from the statement in the plaint to be barred by any law." According to Haryana, a suit to set aside a decree of this Court, as Suit No. 1 of 2003 purports to do. is not maintainable under Article 131 of the Constitution. It is also submitted that the suit seeks to raise water disputes which are not capable of being entertained by this Court by virtue of Article 262 of the Constitution and that the prayer (c) to (f) were barred by the doctrine of res judicata. Additionally, it has been urged that the State of Punjab could not competently challenge the vires of Section 78 of the Punjab Reorganisation Act, 1986, apart from the fact that under Order XXXII Rule 2 of the Rule the issue having been raised in OS 2 of 1979 could not after its withdrawal, be raise....
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....n for rejection of the plaint should be heard by Bench of three judges was left to the same Bench to decide. There is no legal provision by which the issues raised by Haryana in its application is required to be heard by a Bench of three judges. On the other hand the suit filed by Punjab seeks modification of a decree. That decree was passed by a Bench of two judges. The normal rule is that an application for modification of the decree or order is to be made before the Bench which passed the decree or order. Merely because the litigating parties are States, would not alter this position. In any event we are not of the view that any such issue has been raised which requires determination by a larger Bench. This submission of the State of Punjab, therefore, is rejected. It is also our opinion that Punjab's challenge to Order XXIII Rule 6(a), even if successful, would not result in dismissal of Haryana's application because the grounds made out for rejection under Order XXIII Rule 6 pertain not only to clause (a) but also to clause (b) thereof. Haryana has also invoked this Court's powers under Order XLVII Rule 6 which provides that :  ....
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....ontext of Article 131 unimpaired by the meaning judicially given to it in other contexts. Literally, the phrase means nothing more than the 'ground to sue'. Construed in this sense can it be said that there is no requirement of disclosing a ground to sue in a suit under Article 131? Article 131 has been the subject matter of interpretation by this Court in several decisions of which Punjab has sought to rely on two. The first is the decision in State of Rajasthan v. Union of India, [1977] 3 SCC 592 1. Rajasthan High Court Advocates' Association v. Union of India. [2001] 2 SCC 204. which pertained to six suits filed by the States of Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh and Orissa challenging a letter written by the Union Home Minister to the Chief Ministers of those States on the ground that the letter constituted a threat of action under Article 356 of the Constitution. The Union of India raised a preliminary objection that on the allegations made in the plaint, no suit would lie under Article 131 of the Constitution. All six suits were dismissed by a majority of six of the seven Judges constituting the Bench. Among the six, four (Beg CJ, Gos....
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.... controversy was a notification issued by the Central Government constituting a Commission of Inquiry under the Commission of Inquiry Act, 1952 to inquire into charges of corruption, nepotism, favourtism and misuse of Government power against the Chief Minister and other Ministers of the State of Karnataka. The Union of India raised the preliminary objection that the suit was not maintainable under Article 131 because the inquiry was against the Chief Minister and other individuals and not against the State. Although the suit was dismissed on merits by a majority opinion of the Judges, there was again a division within the majority on the question whether the preliminary objection of the Union of India should be upheld. Beg, CJ, Chandrachud and Bhagwati JJ. held the suit was maintainable. Untwalia Shinghal and Jaswant Singh JJ. held it was not. There was a division of opinion on the question as to whether there was a dispute within the meaning of Article 131. But all the Judges considered the question of maintainability of the suit filed by the State of Karnataka under Order XXIII Rule 6(a) by reading "cause of action" in the context of Article 131 as meaning 'a dispute involvi....
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.... be satisfied for invoking the original jurisdiction of this Court is that the dispute between the parties referred to in clauses (a) to (e) must involve a question on which the existence or extent of a legal right depends". This 'cause of action' under Order XXIII Rule 6(a) is this 'sole condition' which is required to be satisfied before the jurisdiction of this Court can be invoked under Article 131. If the plaint does not ex facie show the fulfilment of that condition, it would not be maintainable. This follows from the language of Article 131 itself. Therefore merely because the phrase "cause of action" has been used in order XXIII Rule 6(a) does not mean that principles enunciated in the context of Section 20 of the Code of Civil Procedure are imported. Order XXIII Rule 6(a) only gives effect to limitations implicit in Article 131 itself. It follows that it does not violate Article 131 or any other provision of the Constitution. The application under Order XXIII Rule 6 of the Rules is by way of demurrer. The question whether the plaint should be rejected must therefore be decided on the basis of the allegations contained in the plaint.2 Paragraphs 2 and 7 o....
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....hts of Haryana and Rajasthan to the rivers waters as non riparian States. The next ground is that Haryana had declined to abide by the other terms of the Punjab settlement. The last ground is that water allocations were subject to review. This is followed by arguments in support of the last submission with reference to diverse authorities. In paragraphs 9, 10 and 17 the plaintiff has challenged the decree dated 15th January, 2002 on the ground that it was violative of Articles 145(3) and 262 of the Constitution and Pragraph 18 questions the correctness of the order dismissing, the plaintiffs Review Petition. Paragraph 19 contains an assertion that the construction of the SYL Canal was a water dispute. Paragraphs 11, 12, 13 and 14 set out the grounds for challenge to Section 78(1) of the Punjab Reorganisation Act, 1966. Paragraph 15 gives grounds for claiming the invalidity of Section 14 of the Inter-State Water Disputes Act, 1956. Paragraph 16 refers to correspondence exchanged with the Chief Ministers of the two States relating to the "changed circumstances" being the "remaining aspect" of the Punjab Settlement. Paragraph 20 contains arguments as to why this Court has jurisdict....
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....een Governments have no place under the scheme of that article.....:. It is only when a legal, as distinguished from a mere political, issue arises touching upon the existence or extent of a legal right that the article is attracted. Hence the suit in the present case would obviously not be maintainable unless it complies with both these limitations." The plaintiff in the present case claims that the legal right in question is the right to have an injunction modified by reason of changed circumstances. Several decisions both Indian and of the United States have been cited in support of this proposition. Before we consider these authorities it must be kept in mind that as far as this country is concerned the general law relating to injunctions is contained in Sections 36 to Section 42 of the Specific Relief Act, 1963. Although these provisions may not limit the powers of this Court under Article 131 nevertheless they provide valuable guidelines as to the nature of this form of equitable relief. An injunction may be permanent (perpetual) or temporary3. A permanent injunction is final and conclusive of the facts in the context of which the injunction is granted. A temporary injunct....
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....eral rule, such as specific performance, bills to reform instruments, and others. A final decree in such equitable proceeding is unchangeable, except possibly through gross mistake to be corrected by a bill of review, and not then if any intervening right has appeared since entering the decree. In all such proceedings the decree calls for definite action, and the law presumes much action to follow the order. "But though a decree may be final, as it relates to an appeal and all matters included or embodied in such a step, yet, where the proceedings are of a continuing nature, it is not final. These are exceptions to the general rule, and to determine them the nature and character of the equitable action must be considered : that is, whether, the decree is final for the purpose of execution, or contemplates other and further steps in the administration of justice ". "An injunction is the form of equitable proceeding which protects civil rights from irreparable injury, either by commanding acts to be done, or preventi....
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....was made before the lower Court by an intervenor for vacating the decree on the ground of lack of jurisdiction. The operation of the decree was suspended by an interim order. On an appeal preferred by the Government and by the wholesale grocers, the U.S. Supreme Court allowed the appeals. In the course of the judgment it was said : "Power to modify the decree was reserved by its very terms, and so from the beginning went hand in hand with its restraints. If the reservation had been omitted, power there still would be by force of principles inherent in the jurisdiction of the chancery. A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need". (114) A distinction was made between restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative. The Court, however, made it clear that in proceedings for modification of a decree, the decree itself be impeached and that th....
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.... "The source of the power to modify is of course, the fact that an injunction often requires continuing supervision by the issuing court and always a continuing willingness to apply its powers and processes on behalf of the party who obtained that equitable relief. Firmness and stability must no doubt be attributed to continuing injunctive relief based on adjudicated facts and law, and neither the plaintiff nor the court should be subjected to the unnecessary burden of re-establishing what has once been decided. Nevertheless the court cannot be required to disregard significant changes in law or facts if it is "satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong" United States v. Swift & Co. Supra (286 US at 114, 115). A balance must thus be struck between the policies of res judicata and the right of the court to apply modified measures to changed circumstances". Coming to the Indian cases cited by the respondent, the first is a decision of the Lahore High Court in Khazan Singh v. Ralla Ram, AIR (1937) Lahore 839. In that case, a decree h....
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....essee had filed a suit to restrain the Municipal Board from interfering with the construction on leasehold land. Subsequent to the suit, the lease was terminated and the land was included within the municipality. This Court was of the view that in such circumstances, the original decree permanently injuncting the Board from interfering with the construction to be made by the lessee could be considered. The principles that emerge from these decisions are that (a) There is a distinction between a final peremptory injunction and a final decree which requires a continuous course of action. (b) A decree granting a preventive injunction continuously operates to prevent a course of action and (c) Such a decree may be modified prospectively if the circumstances, whether of fact or law on which the decree is based, are substantially altered and (d) Such a decree cannot be impeached or reopened. It is only if the decree is one which grants a continuous injunction and if conditions (b), (c) and (d) are fulfilled that proceedings for modification of the decree can be maintained. In the present case the decree granted a final mandatory injunction. Punjab's contention is....
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....ed to its share." The mandate in the decree was to carry out the obligations under agreement dated 31st December, 1981. It did not envisage a "continuing process over which the equity court necessarily retains jurisdiction in order to do equity". Principle (b) relating to modification of decrees enunciated earlier is therefore absent. In any event there has been no change in the circumstances on the basis of which the decree was passed. Although there is a discussion on the various issues while rejecting the submissions made by Punjab, ultimately the reasons for issuing the injunction were two. The first was the agreement dated 31st December 1981 and the order of this Court permitting the withdrawal of the two cross suits filed by Haryana and Punjab (OS 1 of 1979 and OS 2 of 1979). This is apparent from the following passage : "The State Government having entered into agreements among themselves on the intervention of the Prime Minister of the country, resulting in withdrawal of the pending suit in the Court, cannot be permitted to take a stand contrary to the agreements arrived at b....
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....gedly not being complied with by Haryana that is not a change of circumstance or ground for modification of the decree passed on 15th January, 2002. The challenge to Section 14 of the Inter State Water Disputes Act, 1956 is also inapposite to the question of modification of the decree. The section related to and was in enforcement of paragraphs 9.1 and 9.2 of the Punjab Settlement and relates to the resolution of the water disputes between the States by the Tribunal. Paragraph 9.3 which is related to the canal and referred to by the Court does not form part of Section 14. It has not been averred that either of the two grounds which founded the decree have in any sense of the word ''changed''. Principle (c) is therefore unfulfilled. And finally Principle (d): the suit for modification of the decree dated 15th January, 2002 will not lie because the decree itself has been sought to be impeached. "The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making'. In other words since the plaint in the present suit does not even ex facie fulfil all four conditions subject to which a decree may....
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....sue 2 in the affirmative. Punjab's review petition was dismissed by us on the ground that the "so- called vital question with regard to the interpretation of Article 131 and Article 262 has been answered in the Constitution Bench decision and we are bound by the same," In the impugned judgment, we merely applied the interpretation of the Constitution Bench of the provisions of Article 135 and 262 to the facts of the case. There was no further interpretation of Article 131 and 262 to be done in the case before us which required the decision of a bench of five Judges under Article 145(5). The objection as to the jurisdiction of this Court on the basis of Article 262 was specifically negatived in the judgment dated 15th January 2002 when it was held : "...........the construction of SYL Canal has absolutely no connection with the sharing of water between the States and as such is not a ''water dispute" within the meaning of Section 2(c) and consequently the question of referring such dispute to a Tribunal does not arise. In this view of the matter, howsoever wide meaning the expre....
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....w, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis8." This opinion was followed in the matter of Cauvery Water Disputes Tribunal, [1993] 1 SCC 96 (II) and applied to suits under Article 131. The factual background of that case was a dispute over the usage of the waters of the river Cauvery between the States of Tamil Nadu and Karnataka. The Union Government constituted the Cauvery Water Disputes Tribunal and referred the disputes between the two States to the Tribunal. The State of Tamil Nadu filed an application for interim relief. This was rejected by the Tribunal on the ground that it did not have the jurisdiction to grant any interim relief because that dispute had not been referred to it by the Central Government. Being aggrieved, the State of Tamil Nadu approached this Court under Article 136. The Special Leave Petitions were converted into Civil Appeals and disposed of by Order dated 26th April, 1991 by holding that the order of Reference showed that the Central Government had in fact referred the issue relating to interim relief to the Tribunal. The Tribunal then granted interim relief on Tamil N....
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....ions of the Inter-State Water Disputes Act. The Court after perusing the relevant provisions of the Act which were undoubtedly brought to its notice, has come to the conclusion that the Tribunal and jurisdiction to grant interim relief when the question of granting interim relief formed part of the Reference. There is further no violation of any of the principles of natural justice or of any provision of the Constitution. The decision also does not transgress the limits of the jurisdiction of this Court. We are, therefore, of the view that the decision being inter partes operates as res judicata on the said point and it cannot be reopened." Since the doctrine of res judicata is an "essential part of the rule of Law" it follows that if the issues in the suit are barred by res judicata ex facie then this Court is required to reject the plaint in terms of Order XXIII Rule 6(b). There is no substance in the submission of Punjab that even when there is no dispute of fact the issue of res judicata should be left for consideration at the trial of the suit. The decision cited viz. Surayya v. Balagangadhar, AIR (1948) PC 5 is an authority for the proposition that the issue of res judicat....
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....erefore allows a plaintiff to file a fresh suit in respect of the same subject matter as the earlier withdrawn suit only if (i) the order of withdrawal imposed conditions and those conditions have been complied with; or (ii) the order of withdrawal granted leave to the plaintiff to bring such fresh suit. In the order allowing OS 2 of 1979 to be withdrawn no such conditions are present. Consequently a fresh suit in respect of the same subject matter viz., the validity of section 78 of the 1966 Act does not lie. We leave open the question as to whether it is open to the State of Punjab to question the vires of the statute by which it was created. Similarly the challenge to Section 14 of the 1956 Act must be ejected at the threshold. The section reads : "Constitution of Ravi and Beas Waters Tribunal.- (1) Notwithstanding anything contained in the foregoing provisions of this Act, the Central Government may, by notification in the Official Gazette, constitute a Tribunal under this Act, to be known as the Ravi and Beas Waters Tribunal for the verification and adjudication of the mat....
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....ake the other provisions applicable. (D) To oust the jurisdiction of all Courts including the Supreme Court by making Section 11 applicable to this dispute. (E) To leave all other disputes relating to the Punjab settlement to be decided under the amended Act of 1958. This Court in the judgment dated 15th January 2002 considered the arguments of the parties relating to Section 14 and negatived Punjabs' submission as to the construction of section 14. Punjab could have challenged the constitutional validity of Section 14 in its written statement. It did not then. It cannot do so now being barred by the doctrine of res judicata. In this suit Punjab has claimed that the section is ultra vires because ''(i) the raison-d'etre for the introduction of Section 14 in the Act, 1956 was the assumption of the validity of Punjab Settlement i.e. Memorandum of Settlement dated 24.07.1985, which is incorrect as the said Settlement is not a valid or binding Agreement; (ii) The enactment of Section 14 is beyond the competence of Parliament since on the face of it, it is against the constitutional Scheme as set out in the Constitution under Article 262 read with entry 56....
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....[ground (iii)] will not do. At least prima facie acceptable grounds in support have to be pleaded to sustain the challenge. In the absence of any such pleading the challenge to the constitutional validity of a statutory provisions is liable to be rejected in limine. The grounds given in support of Punjab's challenge to Article 14 are ex- fade no grounds in law and no "cause of action'" has been disclosed to challenge the constitutional validity of Section 14 of the Inter-State Water Disputes Act, 1986. Not only does the plaint filed by Punjab in OS 1 of 2003 not disclose any cause of action, but it is also evident from the statements in the plaint that the suit is barred by law. The plaint is accordingly rejected leaving open the other issues raised by Haryana in support of its application. Additionally and in the ultimate analysis, it is manifest that the suit has been filed only with a view to subvert the decision of this Court with all the disingenuousness of a private litigant to resist its execution. We have, in the circumstances, no compunction whatsoever in dismissing the suit under Order XLVII Rule 6 of the Rules. I.A. No. 1 of 2003 filed by the State of Ha....
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....en filed under Section 3 of the Inter-State Water Disputes Act, 1956. Punjab has also submitted that the application for execution was not maintainable, because Haryana had not applied for orders in terms of Clause 2(b) of the 1954 Order, that draft issues had been filed by Haryana and Punjab in Suit 1 of 2003 pursuant to an order passed by this Court dated 24.11.2003 in that suit, that water disputes were to be resolved on the basis of Punjab's complaint under Section 3 of the 1956 Act, that the Decree sought to be executed was liable to be modified under the changed circumstances, and that the Decree was a nullity. On the merits it is denied that nothing was done by the State of Punjab to continue or complete the portion of the canal within its territory and that the Border Roads Organisation (BRO) did not have the requisite experience for constructing SYL canal and finally that the Haryana's prayer for appointment of a High Power Committee showed that the Decree dated 15th January, 2002 is not executable in the ordinary course. The Union of India has also filed a counter affidavit in which it has stated that it has already taken steps to implement and comply with the ....
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....duce strong advise reaction among the people of Punjab and may also provide an emotive issue to secessionists/militant elements and the construction of SYL canal would lead to drying up of 9 lakh hectares land in the Punjab; and (5) Suit No. 1 of 2003 had been filed. Incidentally, the fourth ground is almost a verbatim reproduction of Punjab's stand in the proceedings filed by it earlier. There was no stay granted by this Court at any stage of any of the various proceedings filed assailing the decree. Even when the final assault was made by the filing of Suit No. 1 of 2003 we did not grant any stay and it is basic law that the mere filing of proceedings does not operate as a stay. The correspondence and the record of minutes show that the Chief Minister as well as the Government officials named in the correspondence have arrogated themselves the power of sitting as a super-judicial body over this Court. The Constitution provides for an ordered polity within this country to promote integrity of the country. When disputes arise between States there are usually political underpinnings. The resolution of such a dispute in favour of one party will invariably have a political i....
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....gard to the conduct of the State of Punjab. In any event there is now no question of deferring Haryana's application for execution because the suit itself, namely, O.S. No. 1 of 2003 has been dismissed. The vague plea relating to the possible rise of militancy by the construction of the canal is not an acceptable defence at all. The fact that a letter of complaint has been filed under Section 3 of the 1956 Act is immaterial as that pertains to a water dispute within the meaning of Section 2(c) of the 1956 Act and we have already held that the construction of SYL canal is not a water dispute within the meaning of the 1956 Act read with Article 262 of the Constitution. We have already held that the decree cannot be said to be a nullity. In any event this is not a question which can be raised while opposing an application for execution. What remains of Punjab's opposition is its submission that the application of Haryana is not maintainable under the 1954 order. The 1954 Order has been issued by the President in exercise of powers under Article 142(1) of the Constitution. Punjab's objection to the maintainability of Haryana's application for execution because of all....
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....annot be said that Haryana's application is not maintainable/As to the mode of execution section 51 of the Code of Civil Procedure provides: "51. Power of Court to enforce execution. - Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree - (a) by delivery of any property specifically decreed; (b) by attachment and sale or by the sale without attachment of any property; (c) by arrest and detention in prison for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section; (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require." The residuary power under Section 5 l(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 pe....