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S. Ravinder Singh Kaleka and ors. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petition No. 375 of 1982
Judge
Reported inAIR1984P& H235
ActsPunjab Reorganisation Act, 1966 - Sections 78; Constitution of India - Article 299
AppellantS. Ravinder Singh Kaleka and ors.
RespondentUnion of India and ors.
Cases ReferredFertilizer Corporation Kamgar Union (Regd.) Sindri v. Union of India
Excerpt:
.....to the overly strict traditional rule, as under: --if no one can maintain an action for redress of such public wrong or public injury, it would be disastrous for the rule of law, for it would be open to the state or a public authority to act with impunity beyond the scope of its power or in breach of a public duty owned by it......ultra vires, illegal and void; (iii) that the subsequent agreement amongst the chief ministers of punjab, haryana and rajasthan in the presence of the prime minister on 31-12-1981, is equally beyond the scope and ambit of s. 78 aforesaid; (iv) that in any case the exercise of the power under s. 78(1) and under the proviso thereto is not in proper constitutional form; (v) that even on the assumption that the agreement of chief ministers of punjab, haryana and rajasthan of 31-12-1981 is contractual in nature, the same does not satisfy the mandatory requirements of art. 299 of the constitution and is, therefore, void and unenforceable; (vi) that the state of rajasthan being not a successor state within the meaning of the punjab reorganisation act, 1988 and also being not a co-riparian.....
Judgment:

S.S. Sandhawalia, C.J.

1. At the threshold of the portals of the Court, the very locus standi of the 23 writ petitioners to enter is frontally assailed on behalf of the respondents in this set of five cases. For the limited purpose of this motion order, it seems unnecessary to advert to the facts in any great detail. Suffice it to mention that the significant constitutional and even national issues sought to be raised in these writ petitions infer alia are:--

(i) the constitutional validity of S: 78, Punjab Reorganisation Act, l966, and the very legislative competence of Parliament to enact the some in the context of Legislative Entry 17 of Last II and Entry 56 of List I of the Seventh Schedule to the Constitution;

(ii) even assuming that S. 78 aforesaid is intra vires, the Award given by the Prime Minister and notified by the Central Government in the gazette of March 24, 1978 purported to be under S. 78 above, is nevertheless ultra vires, illegal and void;

(iii) that the subsequent agreement amongst the Chief Ministers of Punjab, Haryana and Rajasthan in the presence of the Prime Minister on 31-12-1981, is equally beyond the scope and ambit of S. 78 aforesaid;

(iv) that in any case the exercise of the power under S. 78(1) and under the proviso thereto is not in proper constitutional form;

(v) that even on the assumption that the agreement of Chief Ministers of Punjab, Haryana and Rajasthan of 31-12-1981 is contractual in nature, the same does not satisfy the mandatory requirements of Art. 299 of the Constitution and is, therefore, void and unenforceable;

(vi) that the State of Rajasthan being not a successor State within the meaning of the Punjab Reorganisation Act, 1988 and also being not a co-riparian State with regard to the rivers of Ravi add Beas was wholly ineligible for being. a party to the purported agreement; and

(vii) that S. 78 aforesaid pertaining to the sharing of assets between the successor States in so far as sharing of water sources stood completed and exhausted by the Beas Project Report.

2. Apart from the pristinely legal issues, what is substantially at stake herein is the allocation of the waters of Ravi and Beas primarily betwixt the States of Punjab and Haryana. Though the challenge herein goes back to the Award of the Prime Minister notified on March 24, 1976, under S. 78, Punjab Reorganisation Act, 1988 (hereinafter called 'the Act'), subsequent agreement betwixt the States of Punjab, Haryana and Rajasthan of 31-12-1981, is more pointedly under attack.

3. Now it was not disputed before us that the issue of locus standi has primarily to be adjudged on the pleadings in the writ petitions end the basic lis and the primarily issues raised therein. Herein, an assiduous attack is first launched on the constitutionality of Section 78 of the Act itself. Indeed, the very competence of Parliament to enact this Section is challenged as being beyond entry 56 of List I of the seventh Schedule to the Constitution and being wholly within entry 17 of List II thereof. That being the position, there is no gain-saving the fact that the High Court under Art. 226 of the Constitution is indeed the proper if not the only forum for raising the. issue of the constitutionality and competence of Parliament to enact S. 78 of the Act. Indeed, the learned counsel for the respondents very fairly did not seriously controvert this position. It seems to be somewhat plain that ordinarily no legal bar can be raised and no specific provision could be pleaded before us which can forbid the writ petitioners to out into issue-the very validity of S. 78 of the Act. It follows, therefore, that if S. 78 of the Act is applicable or attracted in the circumstances, then the writ jurisdiction is the forum for seeking such a remedy.

4. Since the argument here revolves around S. 78 of the Act, it is apt to quote the relevant part thereof:--

'Rights and Liabilities in regard to Bhakra-Nangal and Beas Projects:--

(1) Notwithstanding anything contained in this Act but subject to the provisions of Ss. 79 and 80 all rights and liabilities of the existing State of Punjab in relation to Bhakra Nangal Project and Beas Project shall on the appointed day, be the rights and liabilities of the successor States in such proportion as may be fixed and subject to such adjustments as may be made by agreement entered into by the said States after consultation with the Central Government or, if no such agreement is entered into within two years of the appointed day, as the Central Government may by order determine having regard to the purposes of the Projects: Provided that the order so made by the Central Government may be varied by any subsequent agreement entered into by the successor States after consultation with the Central Government.

xxxx xxxx

5. In face of the plain language of the aforesaid provision, it appears to us that an argument almost of despair was raised behalf of the respondent-State of Haryana that the provisions of the aforesaid Section were not at all attracted to the controversy and, therefore, the challenge to its constitutionality was of no great relevant. This stance has to be only noticed and rejected. It is common ground that the Award of the Prime Minister which was later notified on March 24, 1976 and appears to be the foundation-stone of the dispute is in terms under S. 78 of the Act. A bare reference to the said notification makes it plain that the same is expressly sought to be issued under S. 78 (1) of the Act and is couched within the parameters of the said provision. As stands already noticed this notification is one of the primary acts under challenge. Therefore, to canvass that herein S. 78 of the Act is not attracted, appears to be plainly untenable.

6. The learned Advocate General, Haryana had then attempted to argue that the agreement of the Chief Ministers of Punjab, Haryana and Rajasthan dated 31-12-1981, in presence of the Prime Minister had superseded the earlier notification under S. 78 of the Act and therefore, the latter had now become irrelevant to the issue. This ancillary contention does not find favour with us. A plain reading of sub-section (1) of S. 78 of the Act would show that in the absence of agreement betwixt the successor States the Central Government was empowered to determine the rights and liabilities of each States in the Bhakra Nangal, Beas Project. It was manifestly under the said provision that the Prime Minister's Award was rendered and later duly notified on March 24, 1978. In the opening part of the said notification, it is expressly mentioned that the same was under S. 78 (l) of the Act. Now once that is so, it would follow that the subsequent agreement comes squarely within the ambit of the proviso to sub-section (1) wherein the States of Punjab, Haryana and Rajasthan had varied the earlier Award by a subsequent agreement entered into by them. Admittedly, Punjab and Haryana were successor States under the Act and this variation had also been done after consultation with the Central Government. Consequently, this would equally be referable for the proviso to S. 78 (1) of the Act. Therefore, the said Section directly and substantially falls for consideration whilst dealing with the issues raised in these writ petitions and the question of its vires cannot be evaded or sidetracked. As Already noticed at thc outset it is common ground that this Court, acting under Art. 226 of the Constitution, is admittedly an appropriate forum therefor.

7. Yet again, the somewhat tenuous stand of the respondents on the question of locus standi was that the writ petitioners being private individuals or parties were barred from moving the courts for judicial redress. It was argued that such remedy could only be sought by the States of Punjab, Haryana and Rajasthan and none of them felt aggrieved by the original Award of the Prime Minister nor by the subsequent agreement of the Chief Ministers. It was the respondents' case that since the disputes pertains to inter-State rivers, no public rights of the petitioners are infringed to enable them to assail the same either for personal injury or for public wrong. In the alternative, it was argued that the private injury to the writ petitioners by the non-allocation of the water of a river basin and the consequent diminishing of the same for agricultural purpose was minuscule.

8. The aforesaid stand of the respondents might have availed them if the traditional rule in regard to locus stand, that a writ petitioner who has himself suffered a legal injury alone can seek judicial redress were to still hold the held. However, it is more than manifest that a new jurisprudence has now whittled down this traditional rule which is rendered archaic in view of the widened horizon of the concept of locus standi and making it equally applicable to a public wrong or a public injury suffered by the citizen. For the purposes of this order, it is unnecessary to trace the development of law in this field in view of the recent authoritative enunciation or reiteration thereof by the Constitutional Bench of seven Judges in S. P. Gupta v. President of India, AIR 1982 SC 149. As regards earlier precedent reference may instructively be made in the gradual expansion of the ambit of locus standi in Ram Kishore v. Union of India, AIR 1966 SC 644: Maganbhai Ishwarbhai Patel v. Union of India, AIR 1969 5C 783: Akhil Bharatiya Soshit Karamchari Sanah (Railway) v. Union of India, AIR 1981 SC 298 and, Fertilizer Corporation Kamgar Union (Regd.) Sindri v. Union of India, AIR 1981 SC 344. In S. P. Gupta's case (supra) their Lordships first traced the long history of the traditional rule of locus its standi and noticed thc relaxation thereof and its enlargement in the following terms:--

'........... The view has therefore been taken by the Courts in many decisions that whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury. The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busybody or a meddlesome interloper but who has sufficient interest in the proceeding.......................'

Thereafter, their Lordships concluded as under:--

'We would, therefore, hold that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. This is absolutely essential for maintaining the rule of law, furthering the cause of justice and accelerating the pace of realisation of the constitutional objective..............'

And further pin-pointed the disastrous results of conforming to the overly strict traditional rule, as under:--

'........ If no one can maintain an action for redress of such public wrong or public injury, it would be disastrous for the rule of law, for it would be open to the State or a public authority to act with impunity beyond the scope of its power or in breach of a public duty owned by it. The Courts cannot countenance such a situation where the observance of the law is left to the sweet will of the authority bound by it, without any redress if the 1aw is contravened................'

In the light of the aforesaid authoritative enunciation now there appears to be no choice but to hold that the writ petitioners here, who are seeking a judicial redress for an alleged public wrong arising from the breach of a public duty are squarely within the rule laid down.

9. In fairness to the learned counsel for the respondents, we must also notice that they sought some sustenance from the provisions of Inter-State Water Disputes Act, 1956, and in particular from S. 11 thereof. It was argued that Art. 262 of the Constitution authorised the enactment of statutes for adjudication of disputes relating to waters of Inter-State rivers or river valleys and further to bar the jurisdiction of the Supreme Court or any other court in respect of such particular disputes. It was submitted that the Inter-State Water Disputes Act 1956 has been enacted under the umbrella of this provision and consequently the jurisdiction of the High Court was absolutely ousted in all matters including the issue of constitutionality.

10. It is apt to quote S. 11 of the Inter-State Water Disputes Act, 1956, on which particular reliance has been placed:--

'Bar of jurisdiction of Supreme Court and other courts.- 'Notwithstanding anything contained in any other law, neither the Supreme Court nor any other Court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act.'

It seems to be manifest from the above that assuming everything in favour of the respondents, the bar operates in respect of any water dispute which may be referred to a Tribunal under this Act. Admittedly, no reference with regard to any dispute pertaining to the rivers of Ravi and Beas, has at any stage been referred to any Tribunal under the Inter-State Water Disputes Act, 1956. We are, therefore, unable to see how the aforequoted S. 11 is in any way attracted to the present case. Equally, it deserves notice that the aforesaid statue by virtue of S. 3 thereof only confers the right on the State Governments to raise disputes and make complaints for a reference to the Tribunal. It does not provide any procedure or remedy for the individual citizen for the protection of his public right or the enforcement of public duty by the State Government. The learned Advocate General, Haryana had gone to the extreme length of contending that the aforequoted S. 11 would bar the writ jurisdiction of the High Court even with regard to the constitutionality of the provisions. However, neither principle nor precedent could be cited for this bald assertion. As et are sent advised, we are wholly unable to read the aforesaid S. 11 as being attracted to the situation or as capable of imposing a bar to the constitutional jurisdiction of the High Courts end the Supreme Court to issue the celebrated writs which have become the pillars of the remedies provided by the Constitution itself or to prevent judicial review of the constitutionality of statutes or the competence of legislatures to enact legislation under the respective entries of the Seventh Schedule. Consequently, the respondents contention that S. 11 aforesaid would even bar the right of the writ petitioners to assail S. 78 of the Act, appears to us as wholly untenable.

11. We must also necessarily notice that in the contact of inter-State rivers and disputes pertaining thereto, the learned counsel for the petitioners had pointed out that neither the river Ravi nor Beas could be treated as inter-State river qua the State of Rajasthan because of the admitted ate geographical position that they do not at any stage whatsoever flow through and even touch its territory. Therefore, it was argued that for the purpose of the Inter-State Water Disputes Act, 1956 even the remedies available to a State could only be attracted in the as of an inter-State river qua the disputing parties. Particular reliance was placed on the following observations in the exhaustive and authoritative report of the Narmada Water Disputes Tribunal holding that Rajasthan was not a riparian State qua the dispute with regard to the Narmada waters:--

'Our conclusion, therefore, is that the State of Rajasthan is not entitled to any portion of the waters of Narmada basin on the ground that the State of Rajasthan is not co-riparian State or that no portion of its situated in the basin of River Narmada. We also hold that the Reference of Central Government No. 10/1/69-WD dated 16-10-1969 in referring the complaint of Rajasthan to this Tribunal for adjudication under S. 5 of the 1956 Act is ultra vires of the 1956 Act. Issue 2 (b) and 3 are answered accordingly.'

12. For the detailed reasons recorded above, we find no scope from the conclusion that the writ petitioners do indeed possess the requisite locus standi to maintain the present writ petitions and they cannot be bared at the threshold. The preliminary objections sought to be raised by the respondents in this context, are hereby rejected. Equally evident it is that not only matters of the constitutionality of statutory provisions, but also issues of considerable significance are raised which undoubtedly call for careful and authoritative consideration. We accordingly admit these writ petitions for hearing by a Full Bench.

13. Some of these writ petitions were filed in this Court way back in January, 1982 and have remained pending at the motion stage at the repeated and joint requests of counsel for the parties, apparently in the hope that the issue would be mutually settled out of Court. We consider, however, that now any further delay herein would be inapt and, therefore, direct that the cases which are complete be listed for final hearing on 15-11-1983.

14. Order accordingly.


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