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inter state water disputes ?- 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

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 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 

 2

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 

 3

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 

 4

 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 

 5

 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 

 6

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 

 7

 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 

 8

 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 

 9

 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 

 10

 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 

 11

 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 

 12

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 

 13

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 

 14

 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 

 15

 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.

 16

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".

 17

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)

 18

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 

 19

 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 

 20

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 

 21

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, 

 22

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 

 23

 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 

 24

 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.

 25

 (J.M. PANCHAL)

 .....................................J.

 (H.L. GOKHALE)

New Delhi;September 23, 2011.
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