In a setback to Punjab, the Supreme Court today directed maintenance of status quo on land meant for Sutlej-Yamuna Link (SYL) canal after Haryana alleged that attempts have been made to alter its use by levelling it.
The apex court in its interim order also appointed Union Home Secretary and Punjab's Chief Secretary and Director General of Poloce (DGP) as the 'joint receiver' of land and other property meant for the SYL canal till the next date of hearing on March 31.
A five-judge Constitution Bench headed by Justice A R Dave passed the order with a hard-hitting observation that "an effort is made to make execution of the decree of this court unexecutable and this court cannot be a silent spectator."
It passed the order on an urgent application moved by Haryana Government submitting that Punjab Assembly on March 14 passed a bill against the construction of contentious SYL canal providing for transfer of proprietary rights back to the land owners free of cost.
Senior advocate Shyam Divan said the bill awaiting Governor's assent would negate the apex court's 2004 decree calling for unhindered construction of the canal which will provide share of its water to Haryana.
He referred to newsreports with photographs that JCB and earthmoving equipments have been arranged for levelling the land in the Punjab part of the canal and sought ad-interim protection by appointing the 'court receiver' and restraining the publication of the assent to the bill in gazette notification.
Haryana's application was opposed by senior advocates Ram Jethmalani and Rajeev Dhawan, appearing for Punjab, who submitted that the apex court has only advisory jurisdiction and cannot pass interim orders as there was no prima facie case made out and the arguments of the opposite side was based on media reports.
However, Dhawan's submission on media reports did not cut much ice with the bench, which shot back "do you think that what has been stated in the newspapers is incorrect?"
"You could have done something on Monday (the day the bill was passed in Punjab Assembly)", the bench said adding that if anything happens in between "we will modify our order.
Like the Punjab Government, the Centre, through Solicitor
General Ranjit Kumar, sought an adjournment maintaining that he needed to take instruction as he was not aware of the ground reality and needed to speak to officials.
The Solicitor General was also of the views of Jethmalani and Dhawan that the apex court should refrain from passing any interim order on appointment of receiver.
However, the bench said there was a need for an interim order in view of the prevailing situation.
"After hearing the contentions of the parties, we find that an effort is made to make execution of the decree of this court unexecutable. In this circumstances, this court cannot be a silent spectator.
"The Secretary, Ministry of Home Affairs and Chief Secretary of Punjab and Punjab's DGP will be the joint receiver. Status quo be maintained for the land meant for the SYL canal," the bench, also comprising Justices P C Ghose, Shiva Kirti Singh, A K Goel and Amitava Roy said while posting the matter for further hearing on March 31.
At the outset, Haryana referred to the new legislation
and submitted that the neigbouring state has started allowing farmers to take possession of the land and reports suggest that filling of land has been started in anticipation that the bill will be notified.
The legislation -- Punjab Sutlej-Yamuna Link Canal (Rehabilitation and Re-vesting of Proprietary Rights) Bill, paves way for denotifying 5,300 acres of land acquired in Punjab side for 122 km SYL canal.
Divan, representing Haryana, submitted that as an interim measure, the apex court should appoint Union of India as receiver to take possession of the land and other properties and prevent Punjab to defeat the jurisdiction of the top court when the matter is pending before it.
"People have already started filling up the canal in the Punjab territory. Your lordships should appoint a receiver for the canal land. This court should not allow its jurisdiction to be rendered toothless by such legislative activity", he submitted.
While explaining the background of SYL canal of which 92 km falls in Haryana side, Divan said "if the Punjab Act is permitted ...Constitutionalism as a value would be deeply be eroded and rule of law would also be eroded."
"This court as a custodian of Constitution is also the final adjudicator in the federal structure and protector of the Constitution. The Supreme Court as a final adjudicator also has an advisory jurisdiction to resolve dispute between states in federal structure. It has to preserve and protect the subject in question --the land and property and if not protected the canal will not be built," Divan said and stressed that "the share of Haryana would be lost."
He said the apex court has to ensure its role as complete adjudicator and not allow this role "to be diminished."
Further, the senior advocate submitted that if any state makes a law to negate the decree of the court, then "it imperils the federal structure."
"If federal structure is to be preserved then dispute resolution mechanism has to be preserved," he said while seeking interim protection from the Punjab law.
He submitted that the parties should not be allowed to take extra-legal measures and in the delicate situation, the Centre should be appointed as a court receiver.
Countering Haryana's stand, Jethmalani began by saying "I
am not as smart and well versed as my learned friend (Divan) is. I will only take ten minutes to argue."
The noted jurist contended that the Supreme Court's jurisdiction under the Presidential Reference was limited and it can only submit a report to the President and not give any interim orders.
"Your jurisdiction is only to hear arguments on the questions referred to you and report to the President. The report will not have the character of a decree. Grant of interim reliefs do not arise when it comes to advisory jurisdiction exercised by this court," he submitted.
Supplementing Jethmalani's arguments, Dhawan said all the submissions of constitutionalism, rule of law, Directive Principles of State Policy and federalism advanced by Haryana was a "rhetorical exuberance".
He said every agreement between the states was reviewable after the lapse of 25 years on the grounds of change in conditions.
He said SYL share of water to Haryana was based on 1920 data and now situation and conditions have changed completely.
At the fag end, the Solicitor General submitted that he would need more time to take instructions in the matter and asked the court to adjourn the case.
"Haryana did not press for a stay of the 2004 Act. They waited for 12 years for this reference to come up. My request is to give me more time to take instructions. I don't know the ground realities," he said.
