State of Punjab Vs. State
of Haryana and others
O R D E R
J.M. Panchal, J.
1.
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 2further 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 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 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 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 6Punjab 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 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 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 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 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 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 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 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 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 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.
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".
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)
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 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 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 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, 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 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 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.
(J.M. PANCHAL)
....................................J.
(H.L. GOKHALE)
New
Delhi;
September
23, 2011.
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