Orissa High Court
State Of Orissa And Others vs Gangadhar Nayak And Others on 6 November, 2017
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
S.A.No.14 of 1990
From a judgment and decree dated 28.9.1989 and 24.10.1989
respectively passed by Mr.A.K.Das Pattanayak, Subordinate Judge,
Aska in T.A.No.20 of 1987 confirming the judgment and decree dated
26.9.1987 and 16.10.1987 passed by the learned Munsif, Aska in
T.S.No.67 of 1978.
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State of Orissa and others .... Appellants
Versus
Gangadhar Nayak and others .... Respondents
For Appellants -- Mr.Samapika Mishra
A.S.C.
For Respondents -- Mr.Sidhartha Mishra,
Advocate
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of Hearing: 26.10.2017 & Date of Judgment:06.11.2017
Dr.A.K.RATH, J.State of Orissa and its functionaries are the appellants against an affirming judgment.
2. The plaintiffs-respondents filed the suit for permanent injunction restraining the defendants from raising the level of the bed and bund of the suit Jama Nala, transferring the same to the Irrigation Department from the Revenue Department and for certain ancillary reliefs. The case of the plaintiffs is that there is a hill stream starting from the mountain and forest near Hadichira village in ex-
2Dharakote estate. The water channel runs from west to east up to the village Mahupadara and passes through the lands of several villagers including the plaintiffs' village. From its starting point up to some distance, the stream is called as Nikiti Nala, whereafter the same is locally known as Jama Nala. The stream is in existence since time immemorial. The same is the source of irrigation of different villages including the lands of the plaintiffs' village. The raiyats of the plaintiffs' village have easementary rights to take water of the channel for irrigation. The channel passes through a culvert constructed over P.W.D. road running from Aska to Digapahandi. Some culverts have been constructed by the plaintiffs' villagers to facilitate the supply of water from the channel to their nearby lands. The water of the channel falls in Amba Gahi lying in its north. The water also falls in the irrigation tank of Mahuapadar village. The villagers of Mahuapadar use the water of the channel for irrigation. While the matter stood thus, the Irrigation Department of the Government of Orissa excavated a canal from the Rushikulya canal for taking the water of the main Rushikulya canal into the new canal through a pipe fixed to it known as no.6 pipe. The new canal runs from the south to the north and is connected with the suit channel at a point about a kilometer off from Aska-Digapahandi road. The water level of the canal is about 3 to 4ft. higher than the bed level of the suit channel. The canal water falls into the channel. The engineers of Irrigation Department have attempted to raise the level of the bed of the channel by about 3 to 4ft. by putting earth. They have also attempted to raise the level of the bund of the channel by 3 to 4ft. by putting a cross-bund over the channel at the end of the canal just near the masonry drop to stop the flow of water of the canal to amalgamate with Jama Nala. When the plaintiffs' villagers objected to the raising of height of the bund and the bed of the suit 3 channel, the villagers of Mahuapadar with the help of the officers of Irrigation Department tried to invade the easementary rights of the plaintiffs. It is further pleaded that originally the channel belonged to the Zamindar of Dharakote. After abolition of the estate, the same is under the control of the Revenue Department, Government of Orissa. The engineers of the Irrigation Department moved the Tahasildar, Aska to transfer the channel from the Revenue Department to the Irrigation Department. If the level of the bed and the embankment of the channel is raised and the cross bund is put, there will be obstruction to the free flow of water of the channel, level of water will swell up by 3 to 4ft., thereby the lands of the plaintiffs' village will be inundated by excess water of the channel. The excess water of the channel will break the bund of the channel and damage the crops. The same will remain a perennial problem. The excess water will pass through the adjoining fields from the western portion of the channel spoiling the lands and the crops. The same will fall into Amba Ghai and its adjoining nala. Water will flow towards the field of the plaintiffs and cause irreparable loss and damage. In rainy season, water will accumulate in the field of the plaintiffs' village. Raising of level of the bed of the channel will also cover up the openings in the culverts through which water passes. The same will obstruct the supply of water and thereby irrigation of the lands of the plaintiffs' village. With this factual scenario, they instituted the suit seeking the relief mentioned supra.
3. The defendants 1 to 4-State of Orissa and its functionaries filed written statement stating inter alia that the Irrigation Department has authority to undertake construction work, repair the perennial water sources and canal within its jurisdiction meant for irrigation purpose. The specific case of the defendants is 4 that by raising height of embankment and bed level of Jama Nala (water channel), the villagers of Mahuapadar will get free flow of water to irrigate their lands. There will be no diminution of supply of water causing any inconvenience to the plaintiffs' villagers. The defendants have every right to undertake the earth work and excavate the canal. The defendants 6 and 7 supported the case of the plaintiffs.
4. Stemming on the pleadings of the parties, the learned trial court struck three issues. The parties led evidence. The learned trial court held that riparian rights have been created in favour of the plaintiffs over the suit canal and the channel. They are entitled for unobstructed flow of water. The intended earth work for the purpose of supply of water to the villagers of Mahuapadar at the instance of defendants 1 to 4 will cause obstruction for natural flow of water and riparian rights of the plaintiffs would be curtailed. Held so, it decreed the suit. The unsuccessful defendants 1, 3 and 4 filed T.A.No.20 of 1987 before the learned Sub-ordinate Judge, Aska, which was eventually dismissed.
5. It is apt to state here that during pendency of the appeal, respondent no.1 died, whereafter applications for substitution, setting aside the abatement and condonation of delay were filed. By order dated 1.10.1991, this Court held that during pendency of the First Appeal, applications shall be heard along with the Second Appeal. A representative suit does not abate on the death of one of the plaintiffs. The maxim "action personalis moritur cum persona", a personal action dies with the person has no application in a representative suit.
56. The appeal was admitted on the following substantial questions of law enumerated in ground nos. A, B and D of the appeal memo. The same are:-
"(a) Whether a suit for permanent injunction injuncting the defendants, State and its officials to discharge their duties under the Orissa Irrigation Act is at all maintainable in law.
(b) Whether a suit as framed was maintainable u/s 52 of the Orissa Irrigation Act, 1959.
(d) Whether the finding of the learned Appellate Court that the plaintiffs have a riparian rights and entitled for obstruct flow of water is sustainable in law, the channel and Nala admittedly being within, the command area of the Irrigation Authorities."
7. Ms.Samapika Mishra, learned Advocate for the appellants submitted that Government is the paramount owner of the channel. The Government have every right to raise embankment of the channel and excavate canal to facilitate the irrigation work. Jurisdiction of Civil Court is barred under Section 52 of the Orissa Irrigation Act, 1959 ('Act'). The suit in its present form is not maintainable. She further contended that raising the level of embankment or bed of the channel will not obstruct free flow of water or cause any prejudice to the plaintiffs' village. Work have been undertaken to facilitate the supply of water to other villages. She placed reliance on a decision of this Court in the case of Khandeswar Champati and others Vrs. Gokulananda Jena and others, AIR 1965 Orissa 91.
8. Per contra, Mr.Sidhartha Mishra, learned Advocate on behalf of Mr.B.B.Ratho, learned Senior Advocate for the respondents submitted that jurisdiction of the Civil Court is plenary. Section 52 of the Act is a bar to entertain any suit relating to the said Act except 6 provided in Secs. 16 and 35 of the Act. On a reading of Secs.16 and 35 of the Act, it is clear that jurisdiction of the Civil Courts is not barred. He further contended that by raising the level of water channel and its embankment, the lands of the plaintiffs' village will be inundated by excess flow of water. The same will obstruct the free flow of water. In the rainy season excess water will accumulate in the lands of the plaintiffs' village, thereby most of the areas will be sub-merged. He further contended that there is no perversity or illegality in the findings of the courts below.
9. Secs. 16, 35 and 52 of the Orissa Irrigation Act, which are relevant, are quoted hereunder:
"16. Settlement of disputes concerning water-courses - Whenever a dispute arises between two or more persons in regard to their mutual rights or liabilities in respect of the use, construction or maintenance of a water-course, of among joint owners of a water-course as to their respective shares of the expenses of constructing or maintaining such water-course or as to the amount severally to be contributed by them towards such expenses or as to failure on the part of any owner to contribute his share, any person interested in the matter of such dispute may apply in writing to the Irrigation Officer stating the matter in dispute. Such officer shall thereupon proceed to make a summary enquiry into the matter in the manner prescribed and pass orders thereon. Against the said order of the Irrigation Officer an appeal shall lie to the Collector within thirty days from the date of communication of the said order and the decision of the Collector in appeal shall be final unless set aside by a decree of a Civil Court.
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35. Persons liable to pay the charges under the act and the extent of such liability-Notwithstanding anything contained in any other law for the time being in force the water-rate and cess shall be recoverable from the owner and the occupier in such proportion as may be prescribed: Provided that where such charges remain in arrear either the owner or the occupier may deposit the 7 arrear dues in full in order to save the land and crop thereon from attachment or sale and seek redress in a Civil court for the recovery of the amount deposited on behalf of the other party.
xxx xxx xxx
52. Jurisdiction of Civil Courts barred - No Civil Court shall have jurisdiction to entertainment any suit relating to this Act except provided in Sections 16 and 35 of this Act."
10. On a reading of Secs. 16 & 35 of the Act, it is crystal clear that the jurisdiction of the Civil Court is barred with regard to the settlement of disputes concerning water-courses and persons liable to pay the charges under the Act and the extent of such liability as enumerated in Secs.16 & 35 of the Act. The Civil Court has jurisdiction to entertain the suit for permanent injunction. The Act does not encompass the present dispute.
11. The Privy Council in Secy. of State v Sannidhiraju Subbarayudu, AIR 1932 PC 46, held that the river belongs to such person or persons as have the ownership of the water for the time being at the place at which it is taken. The river only belongs to the Government when the solum (ground) of the stream belongs to the Government, and this happens either when the Government is proprietor of the lands abutting on the river on both sides or when the river is tidal and nevigable. The plaintiffs have right to take water from the channel. The right of riparian owner to the use of the stream is unfettered.
12. In M.C.Mehta Vrs. Kamal Nath and others, (1997) 1 SCC 388, the apex Court held that the doctrine of Public Trust primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private 8 ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.
13. The plaintiffs have lands abutting the channel at different site. They are only entitled to an undiminished flow of water in the same quantity and direction at the very place where they exercise their rights of irrigation in respect of the lands abutting the channel. No scientific study was made nor any material was produced before the courts below to show that by raising the embankment and bed of the channel, free flow of water will be obstructed or the excess water in the rainy season will cause damage to the lands. There is no material on record to show that raising of the height of the embankment and bed of the channel injures the plaintiffs' riparian rights. Further, the Government cannot be injuncted from transferring the stream to the Irrigation Department. The same is an executive function. It is common knowledge that excess water flows from upper level to lower end. The rights of the riparian owners (plaintiffs) to use the suit land are not affected in any manner. The defendants did not interfere with the riparian rights of the plaintiffs. The defendants can raise embankment of the channel and it's bed so as to facilitate the irrigation to the lands of other nearby villagers. In 9 the event the defendants are permanently injuncted in raising the embankment of the channel, then the persons dwelling on the banks of the stream will be seriously affected. The rights of lower riparian owners are natural rights. They cannot be permanently deprived of using the water of the channel. The resultant consequence would be their lands abutting the channel will be prone to draught.
14. The decision in the case of Khandeswar Champati and others (supra) is distinguishable on facts. In the said case, the property constitutes a part of a Nala (water channel) trough which water flows into the lands of the villagers of Betuli and Borigaon and several other villages. The Nala is in existence since time immemorial. When the Nala becomes dry, it also serves as a way for pedestrians and cattle. The plaintiffs used the Nala for irrigation during rainy season and as a way during the dry season. The defendants with the permission of the Sub-Divisional Officer, Khurda and Collector, Puri dug a tank in its bed including 'B' schedule land. The suit was filed for declaration of plaintiffs' right for user of the Nala, recovery of possession and for a perpetual injunction. The only point that required for consideration in the said case was whether the plaintiffs' have acquired a right of way on the disputed portion in any manner. But then the same is not the case here.
15. A priori, the impugned judgments are set aside. Consequently, the suit is dismissed. The appeal is allowed. No costs.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack.
The 6th November, 2017/CRB.
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