STATE OF PUNJAB Vs STATE OF HARYANA & ORS.
Bench: J.M. PANCHAL,H.L. GOKHALE
Case number: Original Suite 1 of 2007
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
INTERLOCUTORY APPLICATION NO. 7 OF 2011
IN
ORIGINAL SUIT NO. 1 OF 2007
State of Punjab … Plaintiff
Versus
State of Haryana and others … Defendants
O R D E R
J.M. Panchal, J.
The State of Punjab has filed Suit No. 1 of 2007
on July 11, 2007 in this Court under Article 131 of the
Constitution read with Order XLVII of the Supreme
Court Rules, 1966 and claimed a decree of perpetual
injunction restraining the State of Haryana from
further proceeding with the digging of channel and
construction of an embankment under the project
named Hansi Branch – Bhutana Branch Multipurpose
Channel project by puncturing the Bhakra Main Line
Canal. The said State has also prayed for a decree of
mandatory injunction directing the State of Haryana to
dismantle the embankment of the project named Hansi
Branch – Bhutana Branch Multipurpose Channel
Project between the points X and Y in the map
appended to the plaint as Annexure ‘A’. The State of
Punjab has further prayed for a decree of perpetual
injunction restraining the Union of India, its agents or
departments from granting any clearance to the project
named Hansi Branch – Bhutana Branch Multipurpose
Channel Project in the absence of the concurrence of
the State of Punjab as contemplated and mandated by
Article 13 of the Bhakra Nangal Agreement entered
into between the erstwhile State of Punjab and State of
Rajasthan.
2. The Original Suit No. 1 of 2007 along with I.A.
No. 1 of 2007 was placed before this Court for
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preliminary hearing on August 17, 2007 and after
hearing the learned counsel for the parties, following
order was passed by the Court: -
“Defendants have appeared.
List the Suit along with this application on 05th September, 2007.
Written statement and the objections to this I.A. may be filed in the meantime.
The defendant-State is restrained from rupturing the Bhakra Main Line Canal connecting the proposed Hansi Branch – Bhutana Branch Multipurpose Channel till then.”
After pleadings were complete, the Court had framed
five issues for determination by order dated August 26,
2008. Thereafter, pursuant to directions given by the
Court from time to time the evidence is being recorded
in the Suit.
3. During the pendency of the above numbered Suit,
the State of Punjab has filed present interlocutory
application, and prayed to grant ad interim
injunction restraining the Defendant-State of
Haryana from further proceeding with the
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construction of a concrete toe wall/providing
concrete lining on the outer slope of the left
embankment between RD 45000 and 57000 of
the Hansi Branch – Bhutana Branch
Multipurpose Link Channel (MPCL). On service
of a copy of the interlocutory application the State
of Haryana has filed detailed reply to which the
State of Punjab has filed rejoinder.
4. This application was heard at great length and in
great detail on different dates as indicated in
order-sheets. On August 26, 2011 Mr. Mohan
Jain, the learned Additional Solicitor General,
had submitted a copy of “Brief Note on BML –
Hansi Branch – Bhutana Branch Multipurpose
Link Channel (MPCL) Haryana” prepared in July,
2011. A copy of the said Brief Note was taken on
record and the plaintiff as well as defendants
were granted time to enable them to file response
to the report submitted by the learned Additional
Solicitor General. In order to support oral
arguments the learned counsel for the parties
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were also permitted to file written submissions
and accordingly the learned counsel for the
parties have filed written submissions.
5. The State of Punjab has taken out this I.A. to
restrain the construction of a concrete toe-wall
providing concrete lining on the outer slope of the
left embankment. The case of the Plaintiff-State
of Punjab is that this strengthening will result
into an increased collection of back water and the
sheet flow towards the State of Punjab. This
assertion is made on the footing that because of
heavy rains in July-August, 2010 and flooding of
the river Ghaggar, which flows on the northern
since of the stretch RD 45,000 to RD 57,000 of
this canal, such water-clogging did take place in
Punjab, in spite of a breach of the canal at point
RD 53,000, and whereby some 15 villages
suffered and severe damage and nuisance of
various kinds over an area of around 5000 acres
had taken place. The breach has already been
attended by the State of Haryana, to which
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Punjab did not object. It is objecting to this
strengthening work which is being done to avoid
any such breach in the future. It is stated that
the strengthening work undertaken by the
Defendant-State of Haryana is likely to cause
further serious nuisance. According to the
Plaintiff-State of Punjab, the principle of
cooperative federalism and territorial integrity of
the State of Punjab do not permit the
Government of Haryana to construct a toe-
wall/providing concrete lining on the outer slope
of left embankment as the proposed construction
has propensity of causing serious damage to lives
and properties situated within the territory of the
State of Punjab. It is also claimed that the
construction undertaken by the State of Haryana,
if allowed to complete, will cause in the event of
heavy rains and flooding of River Ghaggar, in
future an adverse impact on the population of
Punjab in more than 70 villages and would
inevitably result in prolonged and perpetual
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submergence of thousands of acres of lands in
more than 32 villages. The State of Punjab has
mentioned that the protective measures sought to
be undertaken by the State of Haryana are in the
very area in which breach had taken place during
the floods of 2010 and but for the breach, the
floods would have completely inundated and
annihilated 70 villages in Punjab territory if sheer
pressure of the waters had not resulted in the
canal being breached. Under the circumstances,
the State of Punjab has filed the present
application and claimed the relief to which
reference is made earlier. It may be mentioned
that the prayer made by the State of Punjab is
supported by the State of Rajasthan.
6. Before this Court deals with the submissions
advanced at the Bar by the learned counsel for
the parties, it is absolutely necessary to note and
explain the topography of the region where
construction of concrete toe wall/providing
concrete lining on the outer slope of the left
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embankment is undertaken by the State of
Haryana.
7. The Bhakra Main Line Canal runs from the
Bhakra Dam through the State of Punjab and
goes to the State of Haryana and then further
goes towards the State of Rajasthan. The State of
Haryana was carved out from the then bigger
State of Punjab and it came into existence on
November 1, 1996. There are two rivers which
flow in this particular region. One is known as
the Patiala Nadi. It runs almost parallel to the
Bhakra Main Line Canal from north to south-
west. There is another river named Ghaggar
which runs from north-east to south-west. The
plateau of Punjab and Haryana is a flat plateau,
which slopes towards the State of Haryana.
There is a Bandh which has been constructed on
the south of Ghaggar River. The Bandh runs
from north-east to south-west. This Bandh was
constructed way back in the year 1950 when the
State of Haryana was not even created. The
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Bandh was constructed so that when the river
gets flooded during monsoon, its water would not
further overflow towards the southern side. In
the year 1970, the State of Punjab constructed
what is known as the Mirapur Drain, which runs
from a point to the north-east of river Ghaggar in
the State of Punjab and joins into this river
somewhere to the west of the point RD 45000.
The Court was informed that this drain is 30 feet
wide and 10 feet deep. It was basically
constructed to drain the excess water.
8. It is pointed out on behalf of State of Haryana in
its reply that though the injunction, as prayed for
by the State of Punjab in I.A. No. 1 of 2007, was
granted, the construction of the canal was not
restrained and it was completed by the year 2008
at the risk of State of Haryana. It is also stated in
the reply that due to injunction granted by this
Court, no water has been flowing in this canal. It
is common ground between the parties that at the
stretch between point RD 45000 to 57000, the
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canal and the Ghaggar River run parallel to each
other for a distance of about three and a half
kilometres within the territory of State of
Haryana. The Bandh, however, is towards the
Punjab side and it is not disputed that the work
which the State of Haryana is presently carrying
out is at the bottom of the Bandh and
particularly on the northern side, but up to the
surface level a little above so that there should be
no seepage of water and the Bandh does not get
weakened.
9. It is pointed out by the State of Punjab that there
was so much heavy rain and overflow of water in
July/ August, 2010 that it led to a breach at the
point RD 53000 (almost at the centre of this
stretch RD 45000 to 57000), yet because of the
Bandh and the canal there was huge back water
formation in the territory of Punjab, which led to
inundation of 15 villages in the State of Punjab.
It is claimed by the State of Punjab that the
breach has been attended to by the State of
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Haryana to which the State of Punjab did not
object. According to the State of Punjab, what is
being objected to is the present work and it is
asserted that if that is permitted, in the event of
heavy rain fall and excessive water in river
Ghaggar, the water will not flow towards the State
of Haryana, but the back water will spill into
larger territory of the State of Punjab. It is
stressed that for protection the population of one
State, problem cannot be created in another
State.
10. On behalf of the State of Haryana, however, it is
pointed out that all the 15 villages, which the
State of Punjab has pointed out as having
suffered, are to the north of the Mirapur Drain
and are quite far off. Only four of those villages
are somewhat near on the northern side of this
Mirapur Drain. It is, therefore, contended that if
there is heavy rain waters from the northern side
of Mirapur Drain, it would get collected into that
drain and go down into Ghaggar River to a point
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to the west of RD 45000. According to the State
of Haryana, if there are heavy rains, the water in
the area between the Mirapur Drain and the
Ghaggar River will go into the Ghaggar River or
spill over into the Punjab territory because of the
Bandh, but that has always been so, and if the
Bandh is not strengthened and more breaches
take place, water will flow down towards Haryana
definitely affecting 19 villages in the immediate
vicinity. The State of Haryana has claimed that
this is what had happened in July, 2010 when as
against some 5765 acres of land getting
submerged in the State of Punjab, more than
12,036 acres of land had got submerged in the
State of Haryana affecting the population of some
19 villages. It is pointed out by the Defendant-
State of Haryana that earlier way-back in the year
1993 this Bandh had breached and the State of
Haryana had attended it at that very point.
According to the State of Haryana, the canal did
not exist at that point of time and, therefore, the
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Bandh, which was very much there, had to be
repaired. The State of Haryana has asserted that
the Bandh was created when the State of
Haryana was not in existence and creation of the
Bandh was with a view to preventing the damage
basically arising out of heavy flow of water
towards villages to the south of the Bandh, which
are now in Haryana. Explaining further, it is
pointed that the State of Haryana had repaired
this Bandh in the year 1993 and subsequently in
the year 2010 and that the Defendant-State of
Haryana should be permitted to strengthen the
basement of the Bandh to avoid the recurrence of
such an event. What is asserted by the State of
Haryana is that the breach which had taken
place in the year 2010 was attended to, and to
avoid the recurrence the foundation of the Bandh
is being strengthened to stop the seepage of
water. What is mentioned by the State of
Haryana is that the work, which is being carried
out, is not in the canal but is at the bottom of the
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Bandh, which is towards the Punjab side. It is
further stated that the work is up to the surface
level and it is only to avoid the seepage of water
therein. Thus, the State of Haryana prays to
dismiss the I.A. No. 7 of 2011 filed by the State of
Punjab.
11. It is necessary to notice that the State of Haryana
has relied upon the report of the Central Water
Commission. The State of Punjab has objected to
the reliance thereof on the ground that when the
engineers of Central Water Commission visited
the particular area, the Punjab engineers were
not informed and it is a one-sided report.
However, it is material to note that the report
clearly states that the strengthening of the
basement of the canal is not going to cause any
serious prejudice as is claimed by the State of
Punjab on the Punjab side of the Bandh. It is
also mentioned in the report that there are
already siphons provided for water to flow under
the canal, which is, of course, at a height of ten
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to twelve feet above the surface level. In the
stretch between RD 45000 to 57000, this Court is
not much concerned with canal or its height, but
with the strengthening of the basement of the
Bandh.
12. As noticed earlier, the Bandh was constructed at
a time when the State of Haryana was not carved
out. The State of Haryana has a duty to protect
the lives and property of the citizens residing
within its territory and a right to carry out the
work within its territory to protect its people. It is
true that the State of Punjab has produced
photographs and other materials to show the
flooding in the area to the north of Ghaggar
Bandh at the stretch between RD 45000 to
57000. However, in view of what is stated earlier,
it is not possible to hold that the previous
flooding except for a limited area in Punjab was
caused basically because of Ghaggar Bandh.
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13. As against that, this Court finds that the very
purpose of the Bandh has been to prevent the
flooding of the areas on the southern side of the
Bandh, which is in Haryana. The particulars
supplied by the State of Haryana to this Court
would show that extensive damage was caused to
the 19 villages of the State of Haryana, which was
obviously due to breach of this Bandh/canal at
the point RD 53000.
14. It is relevant to mention that the Professors of IIT,
Roorkee, who visited the site, had suggested
remedial measures in their report stating that
“seepage might be one of the causes of breach of
Hansi-Bhutana Branch MPLC…. Necessity of
proving a barrier on both banks of breached
reach of canal and on the left bank only in similar
weak reaches of canal to be identified by
department. This could be done by way of steel
sheet pile or RCC wall or steel sheet pile with
RCC cap”.
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15. In fact the State of Punjab’s own expert has also
admitted the need to strengthen the Bandh. He
had made another suggestion in his report of July
13, 2011. The suggestion made is as under: -
“It is a well understood knowledge that a deep vertical cut-off or a sheet pile is better suited for seepage control as compared to a toe wall and, ……….. toe walls are generally shallower in comparison and are usually required in order to provide support for slope protection measures such as stone pitching.”
Further, paragraph 10.1 of the CWC Report of July,
2011 mentions following relevant facts: -
“The RCC toe wall/protection wall is being constructed with a RCC CAP whose top has been shown to be flush with NSL. This implies that the top of the toe wall will be at or slightly above or below NSL. Therefore the toe wall will not act as an obstruction for flow of water.”
xxx xxx xxx
“Construction of the toe wall is a part of the embankment, with its top at NSL, and its construction will not interfere with the existing drainage system in a very significant manner.” (NSL = Natural Surface Level)
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16. (i) An assertion is made by the State of
Haryana that in fact State of Haryana had relied
on the principle of cooperative federalism against
the State of Punjab during the course of
arguments in its Suit No. 6 of 1996 relating to the
construction of the Satluj Yamuna Link Canal
and other schemes and that the State of Punjab
is not entitled to invoke the said principle against
the State of Haryana because of its conduct. We
do not think it appropriate to go into this issue in
the present application. Similarly, the argument
advanced on behalf of the State of Punjab that
after having repaired the breach in 2010, the
current strengthening work by Haryana is
nothing but political posturing need not be
examined by this Court because in reply to this
contention, it is argued by the learned counsel for
the State of Haryana that in fact I.A. No. 7 of
2011 is nothing but political posturing on the
part of State of Punjab and the application has
been motivated by internal politics in Punjab just
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prior to impending elections late this year/early
next year. Such an issue cannot be decided on
the basis of allegations and counter-allegations
made by the parties and appropriate evidence will
have to be led by the parties to enable the Court
to decide the same.
(ii) The apprehensions expressed by the State of
Punjab in paragraph 16 of the I.A. No. 7 of 2011 are
based on hypothesis. We are informed by the State of
Punjab that the cunnette capacity of Mirapur Drain is
829 cs. after its widening in 2003-2004 and is not
sufficient to drain all the flood water. We are also
informed that the ground level of the villages varies
between 778 to 784 ft. The highest flood level of River
Ghaggar is of the order of about 794 ft. as mentioned
in the 2008 report of CWC. It was, therefore,
submitted that if the water level in the area of the
north of the canal goes up by 2 ft., the flooding in the
villages will be to the extent of 8 ft. (792.4 – 784). As of
now itself, it is difficult to accept that the flooding in
the areas to the north of Mirapur Drain was caused
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due to the flooding in River Ghaggar, where 4 villages
are situated somewhat nearby to the north of Mirapur
Drain. Assuming to be so, the other 11 villages are
much further to the north and nearer to the Patiala
Nadi. If there are heavy showers because of monsoon
and the rivers and nalas get flooded that will be
because of heavy rains all over the areas. Heavy rains
will be in those areas also and it is difficult to accept
that the areas in the 15 villages got flooded because of
the Ghaggar Bandh, despite the breach therein. In
any case it is very clear that the damage in the 19
villages in Haryana which are on the southern side of
River Ghaggar is clearly attributable to the over flowing
waters of River Ghaggar as well as water flowing
through the breach. The relief claimed in the
interlocutory application cannot, therefore, be granted
on the basis of a hypothesis, that the strengthening of
the Bandh will cause flooding in 70 villages. The
submission made on behalf of the State of Punjab that
strengthening of Ghaggar Bandh would cause
backwater formation in Punjab and thus, exacerbate
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the nuisance of submerging of villages in Punjab to the
north of the Ghaggar Bandh, is not correct because the
Ghaggar Bandh was constructed by the erstwhile State
of Punjab in 1950s for the purpose of preventing flood
waters, entering and submerging areas to the south of
the Bandh. It was constructed neither to guide the
course of River Ghaggar nor was it designed to be
deliberately weak enough to give way in heavy floods.
It was constructed to hold backwaters in the heaviest
of floods to prevent flood waters from ever submerging
the villages to the south. The Bandh performed the
function for which it was designed until the first
breach occurred in 1993. Though the breach which
had occurred in 1993 was repaired and stone-pitching
was applied to the outer slope to make the Bandh
stronger, the flood of 2010 resulted into another
breach in the same area causing serious and
widespread damage. The case of State of Punjab rests
on the premise that the breach repaired area should be
allowed to remain as it is without strengthening it so
that it can breach again if there is flood once again,
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and this area can act as a pressure release valve,
which would cause less damage to the State of Punjab.
This assertion of right is contrary to the rights of the
Defendant-State of Haryana, which is entitled to
protect its inhabitants from floods just as erstwhile
State of Punjab was entitled to protect its inhabitants
to the south of the Bandh. The State of Haryana is
only ensuring that after the two disastrous breaches of
1993 and 2010, a breach does not occur in the future.
This Court is of the opinion that the State of Punjab
cannot reasonably object to this course of action.
17. As is evident, a concrete toe-wall or a vertical cut-
off below the ground from the natural surface
level is intended to prevent slippage of the
concrete lining and also prevent seepage of water
below the ground level because it is such high
level of seepage continuing throughout the
monsoon that erodes the base of the
Bandh/embankment and by a sliding movement
makes the Bandh weak and unstable. Such a
weak and unstable Bandh is unable to withstand
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the pressure of the flood water above ground
level. The concrete lining proposed on the outer
slope is to strengthen the Bandh for withstanding
flood water pressure above ground level and to
prevent slippage of the lining. Both these
measures have only one object, i.e., to prevent a
breach of the Bandh. The toe-wall would prevent
seepage below ground and also prevent the
weakening of the base of the Bandh, whereas the
concrete lining of the outer slope of the Bandh
above ground level would enable it to withstand
the pressure of flood water.
18. Before we conclude, we must note that although
both the States are canvassing the principle of
inter-State cooperation, yet there is this
unfortunate controversy. The Central
Government has not taken any stand whatsoever.
Whether the dispute should be referred to the
Inter-State River Water Disputes Tribunal, is one
of the issues to be decided in the suit. We are,
however, required to decide the interim
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application on the basis of data which is made
available to us.
19. Hence, in view of the larger damage, which was
caused in Haryana in the year 2010, and which is
likely to be caused in Haryana, if the Bandh is
not properly repaired as undertaken, the balance
of convenience is in favour of the Defendant-State
of Haryana. It is rightly pointed out by the State
of Haryana that if the relief, as prayed for, is
granted to the State of Punjab, it is State of
Haryana, which will suffer greater loss and
irreparable injury. It cannot as well be denied
that State of Haryana has the right to carry out
the necessary work in its territory and also the
duty to its citizens.
20. For the foregoing reasons, it is not possible to
entertain this Interlocutory Application. The
same is, therefore, rejected.
………………………………J.
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(J.M. PANCHAL)
……………………………….J. (H.L. GOKHALE)
New Delhi; September 23, 2011.
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