State Of Punjab vs State Of Haryana & Ors

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.