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SECURING WATER JUSTICE: SYL CANAL DISPUTE

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SECURING WATER JUSTICE: SYL CANAL DISPUTE

Of all the natural resources on the earth, water is quintessential to life. In India, Right to water has been protected as a fundamental right by the Supreme Court as part of the Right to Life guaranteed under Article 21 of the Constitution of India. Great cities have been born on the rivers and many have vanished when the rivers dried up. Viewed in this light, water must be preserved and managed properly by the State. Recently, Ministry of Jal Shakti addressed a letter to the Attorney General of India regarding execution of a decree of Supreme Court on the aspect of the construction of Satluj Yamuna Link Canal (SYL Canal) which has been languishing for two decades. The same was placed before the Supreme Court and the three-Judge bench ordered the State of Punjab and Haryana to negotiate an amicable settlement to resolve the long standing dispute. It is pertinent to mention the timeline leading to the present day dispute:

PUNJAB REORGANISATION ACT, 1966

The Punjab Reorganisation Act, 1966, led to the bifurcation of the State of Punjab into two different states- Punjab and Haryana. Consequent to the creation of the State of Haryana from the erstwhile State of Punjab, the question of apportionment of the river waters made available to the erstwhile State of Punjab between Haryana and Punjab arose. A notification was issued by the Union of India on 24th March 1976 under Section 78 of Punjab Reorganisation Act, 1966, inter alia dividing the river waters between the two States. Since Haryana was not a riparian State, the only way it could enjoy its waters was through a new canal. Accordingly, the construction of the Sutlej-Yamuna Link Canal (SYL Canal) which was to pass through the Punjab and Haryana was initiated. Haryana’s portion of the canal was completed but Punjab did not complete its share of the canal.

CROSS SUITS OF 1979 AND AGREEMENT OF 1981

In 1979, State of Haryana filed a suit under Article 131 of the Constitution of India seeking completion of the construction of the canal. The State of Punjab filed a cross suit challenging notification by which the river waters were directed to be shared between Haryana and Punjab. During the pendency of the suits, a tripartite agreement was entered into between the States of Haryana, Punjab and Rajasthan on 13th December 1981 which provided that the SYL Canal works in the Punjab territory were to be completed within a two years. Resultantly, both suits were allowed to be withdrawn by the Supreme Court in 1982. However, in 1985, the Punjab Legislative Assembly passed a resolution, repudiating the Agreement of 31st December, 1981 and declaring the White paper to be redundant and irrelevant.

RAJIV GANDHI-LONGOWAL ACCORD OF 1985

As per the Rajiv Gandhi-Longowal Accord, it was resolved that Punjab and Haryana will continue to get their existing share of water from the Ravi-Beas system. It was also agreed that a tribunal headed by a Supreme Court Judge would be constituted to verify the river water claims of Punjab and Haryana and its findings will be binding on both the states.

CONSTITUTION OF INTER-STATE WATER TRIBUNAL- ERADI TRIBUNAL (1986)

The dispute was referred to the Inter State Water Tribunal as per the provisions of Section 14 of the Inter State Water Disputes Act, 1956. To reassess availability and sharing of water, Eradi Tribunal headed by Justice V Balakrishna Eradi was set up in 1986. In 1987, the Tribunal passed orders while upholding the validity of prior agreements that had been entered into, by the respective States and brought to the fore the fact that State of Haryana had same rights over the waters of Ravi and Beas as the present day Punjab since Haryana was a part of composite Punjab prior to 1966. It further stated, “In a country like India the riparian theory is not accepted because there is no fixity of state boundaries. Under our Constitution state boundaries can be changed and a state can even be abolished. So no state can claim ownership of waters.” It concluded that the additional water allocated to Haryana could only be utilised when the SYL Canal is functional. The State of Punjab filed multiple applications seeking clarifications in the order. The tribunal was wound up after 24 years as the dispute remained majorly unresolved due to administrative difficulties.

STATE OF HARYANA V. STATE OF PUNJAB, (2004) 12 SCC 673

In 1996, State of Haryana filed a suit in the Supreme Court, seeking directions to Punjab, to complete the SYL Canal that was 90% ready. The Apex Court decreed the suit in favour of Haryana and directed Punjab to construct the SYL canal within a year. The travesty of justice is that the said 2002 decree passed by the highest Court of India till date remains unexecuted.

THE PUNJAB TERMINATION OF AGREEMENT ACT, 2004

While the 2002 matter was sub judice, Punjab Legislative Assembly enacted the Punjab Termination of Agreements Act, in July 2004, thereby annulling all inter-state agreements signed by the state relating to sharing of the Ravi and Beas water, including the December 1981 tripartite agreement. The said act was declared illegal and unconstitutional by the Supreme Court on Presidential Reference, In Re: The Punjab Termination of Agreement Act, 2004.

EXECUTION PETITIONS BY HARYANA

State of Haryana filed execution petitions for implementing the two judgments in the SYL suit on February 19, 2011. When the execution petition came up for the hearing in July 2019, the Court noted with anguish that the decree passed in January 2002 decree remains unexecuted till date. Pursuant to that, it passed several orders to work out some amiable and amicable settlement acceptable to the parties. In 2016, Punjab State Assembly passed the Punjab Sutlej-Yamuna Link Canal Land (Transfer of Property Rights) Bill, 2016. It denotified the land acquired for the SYL Canal and provided for it to be returned to farmers for free. The Supreme Court directed that status quo be maintained until the matter is disposed of. Further, vide in 2019, the Supreme Court directed functionaries ensure deliberations take place with the intervention of the Central Government at the highest level to work out a solution. In the latest order, the Court has granted time to the parties to negotiate an amicable settlement and devise ways to execute the decree. The matter is next listed for hearing in January, 2023.

LEGISLATIVE COMPETENCE

Under the Constitution of India, regulation and development of Inter State Rivers is Entry 56 of the Union list whereas States have power to legislate with respect to intra-water supply and irrigation. Article 262 contains express provisions for adjudicating Inter State Water Disputes and empowers the Union Government to enact laws for the same. Deriving power from Article 262, Parliament enacted the Inter State River Water Disputes Act in 1956 to provide normative framework for addressing inter-state rivers disputes and constituting tribunals. If a State Government makes a request regarding any water dispute and the Central Government is of opinion that the water dispute cannot be settled by negotiations, then a Water Disputes Tribunal is constituted for the adjudication of the water dispute. The Act was amended in 2002 to mandate one year time frame to setup the water disputes tribunal and 3 year time frame to give a decision. The award of the Tribunal is binding and final. Article 262 (1) and Section-11 of the Inter State River Water Disputes Act bar jurisdiction of the Supreme Court but the States can approach the Supreme Court invoking writ or special leave petition jurisdiction matters on jurisdictional and constitutional issues. Judicial Review being a part of basic structure of the Constitution of India, such matters can be decided inevitably by the Supreme Court. Interstate River Water Dispute (Amendment) Bill, 2019 which is passed by Lok Sabha and pending in Rajya Sabha streamlines the timelines and provides for constitution of a permanent tribunal. It also binds the Central Government to set up Dispute Resolution Committee to amicably resolve the issue by negotiations in one year which is a progressive step.

EPILOGUE

The technical nature of inter-state water disputes and the adversarial nature of existing tribunal proceedings is invariable a complex and time consuming process. The existing statutory framework clearly falls short in providing authoritative guidance for effective water dispute resolution. The tribunal system has also failed to produce sustainable results. The Tribunals require nod from the Centre before they are constituted and take considerable time to pass orders. To add to the complexity, the decision of Tribunal becomes enforceable as an order of the Supreme Court when published by the central government in the official gazette. There is a dire need for speedy disposal of such disputes with a permanent institutional mechanism. Post-Cauvery litigation the doors of special leave appellate jurisdiction of the Supreme Court were opened for Inter-state River disputes which adds to more delay. Once the matter is taken to the Supreme Court in special leave appeal, it joins the serpentine queue of matters, thus adding to the delay. It is therefore suggested that inter-state water disputes be directly taken up by the Supreme Court under its original jurisdiction rather than special leave appellate jurisdiction. Similar recommendations were put in perspective by the National Commission to Review the Working of the Constitution (2002) and National Commission on Centre-State Relations (2010). A water body has to flow through some State and it would be travesty of justice if the riparian States deny equitable distribution of river water amongst non-riparian States on technical grounds. Due to politicization and defiance by the State Governments, co-operative federalism in matters pertaining to river water sharing is at a crossroads. State of Punjab instead of cooperating with Union and State of Haryana in larger public interest has been defying judicial and executive orders since inception. The instant dispute is a collective failure of the constitutional functionaries in administering water justice for its citizens. The half-dug SYL Canal and two decade-old unexecuted decree continues to languish while the basic tenets of co-operative federalism are being eroded. It is the solemn duty of Union and State Governments to ensure that its citizens have physical as well as economic access to water. The welfare state concept obligates the State to ensure that the material resources are so distributed to best sub serve the common good of “We the People.” The Supreme Court of India in State Of Haryana v. State Of Punjab (2004) remarked,

“Great states have a temper superior to that of private litigants, and it is to be hoped that enough has been decided for patriotism, the fraternity of the Union, and mutual consideration to bring it to an end.”

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Seeking centre’s response on plea for digitisation of medico-legal documents: Madras High Court

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The Madras High Court in the case Dr. Mohamed Khader Meeran A.S v. State of Tamil Nadu observed and has recently sought the response of the Central and the State government on a plea seeking computerisation of medical records having legal importance, including postmortem report, injury report/ accident, etc.
The bench comprising of Chief Justice T Raja and Justice D Krishnakumar heard the case.
It was submitted by the petitioner, Dr Mohammed Khader Meeran that Medico Legal Examination and Postmortem Reporting (MedLeaPR) is a software developed by the National Informatics Centre (NIC) to issue various medico-legal reports and certificates digitally and to store the data in cloud storage in the encrypted form. Presently, the software is being used by many states and union territories in the country.
It was also directed by Madras High Court to implement this software in the state of Tamil Nadu by January 1st 2021. Thus, even though more than an year has passed, no effort has been made by any authority to implement the same, it was averred. The petitioner added that there is no standard proforma that exists in the State.
It was also contended by him that the present proforma is not at all at par with the standards prescribed by the Supreme Court in the case Samira Kohli Vs Dr. Prabha Manchanda And Anr., Civil Appeal No.1949 of 2004.
Further, the petitioner also submitted that documents like Injury Report, Post-Mortem Report (including viscera/chemical analysis report), report of examination after Sexual assault, age estimation reports have legal importance. However, if these are computerised, it would increase the efficiency of hospital administration, governments and the judiciary also.
The petitioner seek directions from the court to implement this software in all the Government hospitals.

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Bail can’t be cancelled without giving notice to accused, giving him an opportunity of being heard: Allahabad High Court

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The Allahabad High Court in the case Rajendra Kumar and 2 Others v. State Of U.P. Thru Prin Secy Home And Another observed that the cancellation of bail cannot be done without giving notice to the accused and giving him an opportunity of being heard.
The bench comprising of Justice Ajai Kumar Srivastava-I observed and has set aside the order of the Sessions Judge, Raebareli cancelling the bail granted earlier to Rajendra Kumar and 2 others in connection with a criminal case.
It was noted by the High Court that the impugned order cancelling the bail was passed without issuing notice to the accused/applicants and without affording them a reasonable and sufficient opportunity of hearing and the same was patently illegal being in flagrant violation of the rulings of the Supreme Court.
With this regard, it was also referred by the court to Apex Court’s rulings in the cases of Samarendra Nath Bhattacharjee vs. State of W.B. and another case of (2004) 11 SCC 165, Mehboob Dawood Shaikh vs. State of Maharashtra (2004) 2 SCC 362, and the case P.K. Shaji alias Thammanam Shaji vs. State of Kerala.
In the present case the accused/applicants were granted bail vide by the Sessions Judge, Raebareli on November 22, 2021. Later, the court was informed that the accused allegedly threatened the witnesses and the complainant to desist from prosecuting the case after being granted bail.
The court finds that the aforesaid conduct of the applicants was violative of the conditions of bail subject to which they were enlarged on bail, it has been directed by the trial court that the applicants be taken into custody and also passed the impugned order cancelling the bail granted to the applicants.
The Applicant challenging the order, moved the Court arguing that in this case and their bail was cancelled without giving them any opportunity of being heard.
The court noted that it is a settled law that once bail has been granted by a competent court after due consideration of the facts and circumstances of the case and the same should not be cancelled in a mechanical manner without there being any supervening circumstance(s) which are not conducive to the fair trial.
However, it was not made clear by the court that trial court would be at liberty to issue notice to the applicants stating therein the grounds which are to be considered by it for cancellation of bail being granted to the applicants.

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Dispute Of Unregistered Partnership Firm Can Be Referred To Arbitration, Bar U/S 69 Partnership Act Not Applicable

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The Calcutta High Court in the case Md. Wasim and Another v. M/S Bengal Refrigeration and Company and Others observed while hearing an application filed under Section 11 of the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’) for appointment of an arbitrator to resolve the dispute between the parties, wherein it was held that the bars for instituting a suit or any other proceeding under Section 69 of the Indian Partnership Act, 1932 (‘Partnership Act’) shall not be applicable to arbitral proceedings under Section 11 of the Arbitration Act.
The present case of the applicants was that, although unregistered, a partnership deed was executed between the applicants and the respondents containing an Arbitration Clause mandating the referral of all disputes and questions to a person who ahs been appointed unanimously to act as an arbitrator.
However, a dispute arose between the parties, subsequent to which, the applicants sent a notice to the respondents invoking the arbitration clause and proposing the name of an advocate as sole arbitrator to resolve the dispute. The respondent denied the appointment of an arbitrator alleging that the allegations raised by the applicants in their initial notice were false. The applicants filed the application under Section 11 of the Arbitration Act for appointment of an arbitrator, aggrieved in these circumstances,
The application was filled by the applicants and it was argued by the respondents that since the partnership firm was ‘unregistered,’ the dispute could not be referred to an arbitrator in view of the application of and the bar created by Section 69 of the Partnership Act, 1932. Further, their case was that since sub-sections (1) and (2) read with sub-section (3) of Section 69 of the Partnership Act restrict the filing of suit by any person as a partner of an unregistered firm including by means of a claim under ‘other proceedings,’ the appointment of an arbitrator could not be seek by the applicant, the partnership deed in their case being ‘unregistered.’
It was observed that Chief Justice Prakash Shrivastava relied on the Supreme Court decision in Umesh Goel v. Himachal Pradesh Cooperative Group Housing Society Limited and on the Madras High Court decision in the case M/s. Jayamurugan Granite Exports v. M/s. SQNY Granites, wherein both of which held that arbitral proceedings shall not come under the expression ‘other proceedings’ of Section 69(3) of the Partnership Act, 1932 and that the ban imposed under Section 69 can have no application to arbitration proceedings and as well of the arbitral award under Section 11 of the Arbitration Act.
Accordingly, it was held by the Calcutta High Court that non-registration of the partnership firm would not attract the bar under Section 69 of the Partnership Act, so far as institution of proceedings as stated under the provision of Section 11 of the Arbitration Act is concerned.

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Supreme Court: Terms Of Invitation To Tender Are Not Open To Judiciary Scrutiny Unless They Are Arbitrary, Discriminatory Or Mala Fide

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Supreme Court

The Supreme Court in the case Airports Authority of India versus Centre for Aviation Policy observed that the terms of invitation to tender are not open to judicial scrutiny, the top court has set aside a Delhi High Court’s order which had quashed the Airport Authority of India’s tender conditions for selecting Ground Handling Agencies (GHA) agencies at Group D Airports.
The bench comprising of Justice MR Shah and the Justice Krishna Murari observed and has stated that the Delhi High Court committed a “serious error” by entertaining a writ petition at the instance of a third party- an group of advocacy called Centre For Aviation Policy -when none of the GHAs challenging the tender conditions. Thus, the writ petition should have been dismissed on the ground of locus standi (Airports Authority of India versus Centre for Aviation Policy).
The court observed that in view of the matter, it is not appreciable how respondent No.1 (CAPSR) – original writ petitioner being an NGO would have any locus standi to maintain the writ petition, wherein challenging the tender conditions in the respective RFPs. Respondent No.1 cannot be said to be an aggrieved party in the case.
The Court stated that the even on merits, the High Court should not have interfered with the tender conditions, observed the Supreme Court. While referring to various precedents regarding limited scope of judicial interference in tender conditions
Further, the court stated that as per the settled position of law, the terms and conditions of the Invitation to Tender are within the domain of the tenderer/tender making authority and are not open to judicial scrutiny, unless they are arbitrary, discriminatory or mala fide and as per the settled position of law, the terms of the Invitation to Tender are not being open to judicial scrutiny and the same being in the realm of the contract. The Government/tender/tenderer making authority must have a free hand in setting the terms of the tender.
The bench observed and has stated that the court cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been wiser, fair, or logical.
It was observed that the AAI approached the Supreme Court against the order of the High Court dated July 14, 2021, by which it has allowed the said writ petition of the NGO and has struck down the decision to carry out region-wise sub-categorisation of the 49 airports falling under Group D-1 and the stipulation that only the previous work experience in respect of providing the GHS to scheduled aircrafts shall be considered and will be acceptable. It was also found by the High Court that the revised minimum Annual Turnover criteria of INR 18 crores as discriminatory and arbitrary.
Accordingly, the Supreme Court noted that the AAI explained before the High Court the rationale behind the respective conditions, namely, clustering of 49 airports into 4 region-wise sub-categories/clusters; criteria for evaluation of 36 months having experience in the past 7 years in providing 3 out of 7 Core GHS and the financial capacity and an Annual Turnover of Rs. 30 crores (modified as Rs. 18 crores) in any of the one of last three financial years.
The court stated that while having gone through the respective clauses/conditions which are held to be arbitrary and illegal by the High Court, the court is of the opinion that the same cannot be said to be malafide or/ arbitrary and/or actuated by bias. However, it was for the AAI to decide its own terms and fix the eligibility criteria.

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Court sends Waqf Board scam co-accused to 14 day judicial custody

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A Delhi court on Monday remanded Kausar Imran Siddiqui alias Laddan, co-accused in Delhi Waqf board scam case, to 14 days custody.  

AAP MLA Amanatullah Khan is the primary accused in the case and is out on bail. The Anti-Corruption Bureau (ACB) has stated that Laddan is a fund manager for Khan. The Duty Sessions Judge at Rouse Avenue Court also expressed its displeasure over the non-presence of ACB on the previous date.  

ACB had submitted to the court Ladan’s “handwriting sample” and sought 7 days of custody for him.

The court observed that the agency had not given any reasonable answer for its absence on previous occasion. Thereafter, he was sent to 14 day judicial custody.

AAP MLA was arrested for alleged irregularities in appointment in Delhi Waqf Board during his chairmanship.
Accused Kausar Imran Siddiqui alias Laddan was produced on a production warrant before the court on 27th September. He was interrogated and arrested with the permission of the court.

Laddan’s name came into the frame, when additional public prosecutor Anil Srivastava opposed Khan’s bail plea. He stated that a diary was recovered from Ladan’s house.  It was alleged that he was Khan’s fund manager.  Earlier, the (ACB) had said that money was sent to Dubai and other money transactions need to be investigated. It also stated that a large amount of money was transferred to a party via Dubai. There were 100 people who either received or paid money to Laddan. Out of these 37 people have transactions of crores of rupees.                                                                                                                                                                          

This diary also has an entry about one Zeeshan Haider, who received crores of rupees. He is also a close associate of the accused, ACB had argued. The ACB has also submitted that Laddan is a nominated functionary of a political party. He has photographs with the accused during an iftar party. Additionally, 14 crores sale deed is recovered, which is said to be a ‘Benami property’.

Previously, Ladan was in judicial custody in another case lodged at Jamia Nagar police station. He was arrested from Telangana.

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Solicitor General Tushar Mehta incharge of allocation of cases to ASG’s

Tarun Nangia

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Solicitor General Tushar Mehta incharge of allocation of cases to ASG’s

An office memorandum issued by the Ministry of Law and Justice Indicates that Solicitor General Tushar Mehta would be assigned the responsibility of allocation of cases of ASG’s and panel counsels.
The office memorandum issued September 13th states, A Modification is made in procedure of allocation of cases to Law Officers, Counsel by lncharge Central Agency Section, Branch Secretariats for cases before the Supreme Court and High Courts at Delhi, Mumbai, Kolkata, Chennai & Bengaluru.
In respect of the cases before the Supreme Court, the list of cases on daily basis, will first be placed before the Ld. Attorney General for India for the purpose of his selecting the matters in which he considers his appearance to be necessary. Thereafter, the list of cases will be placed before the Ld. Solicitor General of India who will mark the matters to himself, to the Additional Solicitors General of India to appear alone or with Attorney General for India, Solicitor General of India to the counsel from Group’A’l’B’ l’C’Panel.
Further, in respect of the cases before the High Courts of Delhi, Bombay (PB), Calcutta (PB), Madras (PB) and Karnataka (PB), cases on daily basis will be allocatedand will be marked by the lncharge, Litigation, theBranch Secretariats in consultation with the Additional Solicitor General of India concerned.
It is being directed to ensure strict compliance of the procedure being modified as above to all the subordinate offices of this Department including the Central Agency Section, Litigation (High court) section and all the four Branch Secretariats at Mumbai, Kolkata, Chennai and Bengaluru.
The same being issued with the approval of the competent authority, the office memorandum says.

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