Karnataka High Court
Sri Shivanna @ M S Shivanna @ Angadi ... vs Smt Kalamma on 11 September, 2024
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NC: 2024:KHC:41196
RSA No. 435 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 435 OF 2013
(DEC/INJ)
BETWEEN:
SRI SHIVANNA @ M S SHIVANNA ]
@ ANGADI SHIVANNA
S/O LATE SANNEGOWDA
AGED ABOUT 53 YEARS
R/O MOOKANAHALLI VILLAGE
KASABA HOBLI, HUNSUR TALUK
MYSORE DISTRICT - 570 001
...APPELLANT
(BY SRI. VINOD GOWDA, ADVOCATE)
AND:
Digitally 1. SMT KALAMMA
signed by R W/O LATE VEERABHADREGOWDA
DEEPA DEAD BY HER LEGAL REPRESENTATIVE
Location:
HIGH COURT 1(A) SOMEGOWDA
OF S/O LATE VEERABHADREGOWDA
KARNATAKA AGE: MAJOR
R/AT ADHISHAKTHI ENTERPRISES AND PAINTING
NETHAJI CIRCLE, DATTGAHALLI 1ST STAGE
MYSURU.
1(B) NINGEGOWDA
S/O LATE VEERABHADREGOWDA
MAJOR
R/AT KASABA HOBLI
HUNSUR TALUK
MYSURU DISTRICT
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NC: 2024:KHC:41196
RSA No. 435 of 2013
1(C) RAMKRISHNA
S/O LATE VEERABHADREGOWDA
MAJOR
R/AT No.1083, 14TH MAIN
SAUKAR CHENNAIAH ROAD
T.K. LAYOUT, (TANACHI KOPPALU)
MYSURU.
1(D) BOJEGOWDA
S/O LATE VEERABHADRAGOWDA
MAJOR
R/AT KASABA HOBLI
HUNSUR TALUK
MYSURU DISTRICT.
2. THE EXECUTIVE ENGINEER
MESCOM
HUNSUR SUB DIVISION
HUNSUR, MYSORE DISTRICT-570001
3. THE ASST. EXECUTIVE ENGINEER
MESCOM
HUNSUR SUB DIVISION
HUNSUR, MYSORE DISTRICT-570001
...RESPONDENTS
[BY SRI. P. NATARAJU, ADVOCATE FOR R1(A & C)
V/O DATED 11.06.2024 G.C. SHANMUGA, ADVOCATE FOR
R2 & R3
V/O DATED 11.03.2024 SERVICE OF NOTICE ON
PROPOSED LEGAL REPRESENTATIVES R1(B) & R1(D) ARE H/S]
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 15.12.2012 PASSED IN
R.A.NO.92/2008 ON THE FILE OF SENIOR CIVIL JUDGE AND
JMFC, HUNSUR, PARTLY ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGEMENT AND DECREE DTD 16.7.2008 PASSED
IN OS.NO.26/2005 ON THE FILE OF CIVIL JUDGE (JR.DN.) AND
JMFC, HUNSUR.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC:41196
RSA No. 435 of 2013
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellant challenging the judgment and decree dated 15.12.2012 passed in R.A.No.92/2008 by the Senior Civil Judge, Hunsur, wherein the First Appellate Court vide impugned judgment, decreed the suit of the plaintiff.
2. For convenience, parties are referred to as per their ranking before the trial Court. The appellant is defendant No.1, the deceased respondent No.1 is the plaintiff, and respondent Nos.2 and 3 are defendant Nos.2 and 3. The plaintiff filed a suit for declaration that the borewell dug by defendant No.1 in the 'B' schedule property is within the radius of 100 meters; for mandatory injunction to remove or close the alleged borewell dug by defendant No.1 in 'B' schedule property, which is shown as 'C' schedule property in the rough sketch and for -4- NC: 2024:KHC:41196 RSA No. 435 of 2013 permanent injunction to restrain defendant Nos.2 and 3 to regularize the unauthorized power connection.
3. The brief facts leading rise to filing of the appeal are as follows:
It is the case of the plaintiff that, he is the absolute owner in possession of 'A' schedule property. Adjacent to 'A' schedule property, the plaintiff has other joint family properties, which stands in the name of Somegowda, who is his son. The plaintiff is an agriculturist by profession.
The suit schedule properties are the garden land consisting of 100 coconut and 500 areca-nut trees and banana trees, and katha, and revenue documents stands in the name of the plaintiff. The plaintiff dug an open well in the year 1972 and, installed an irrigation pump set and got the power connection. For 15 years, the plaintiff has raised sugarcane, paddy and other agricultural crops in the 'A' schedule property and has converted it into garden land.
The entire property of the plaintiff has the facility of water connection through the open well. It is contended that -5- NC: 2024:KHC:41196 RSA No. 435 of 2013 defendant No.1 property is situated on the northern side of 'A' schedule property, and the same is bifurcated by fence. Defendant No.1 with an intention to ulterior motive, on the instigation of the people who are not in good terms with the plaintiff, knowing fully well he dug the borewell.
As per the circular of the government dated 04.10.1996, the distance between one borewell and another well existing successful running borewell is not less than the distance of 250 meters. The borewell dug by defendant No.1 is contrary to the circular issued by the government.
Hence, the suit.
4. Defendant No.1 filed the written statement denying the averments made in the plaint. It is admitted the topography of the land, which was situated on the northern side of the plaint 'A' schedule property, and he dug the borewell within the perimeter of his property, which was bearing Sy.No.24/2 measuring 2 acres 9 guntas and he was in possession of the same. It is stated that the petitioner is a stranger to the family, and he has no right -6- NC: 2024:KHC:41196 RSA No. 435 of 2013 of any manner of title or interest. It is contended that the plaintiff had installed the borewell and open well for cultivation purposes. The said land was acquired by the government for the purpose of construction and formation of public tank, namely, 'Balan Kelli Tank' as per the preliminary notification dated 01.07.1981 and final notification dated 04.11.1992. It is contended that the plaintiff has no personal or legal interest in the alleged borewell, and the plaintiff filed a suit only with an intention to harass defendant No.1. The said borewell and open well are situated at a distance of more than 250 meters radiation. The circulation of the government order is not applicable to the case on hand. Hence, prayed to dismiss the suit.
5. Defendant Nos.2 and 3 filed the written statement denying the averments made in the plaint and sought for dismissal of suit.
6. The trial Court on the basis of the pleadings of the parties framed the following issues: -7-
NC: 2024:KHC:41196 RSA No. 435 of 2013
1) Whether plaintiff proves that the bore-well dug by the 1st defendant in the 'B' schedule property within the radiation of 100 meters from the existing running bore-well of the plaintiff situated in the 'A' schedule property is declared as null and void?
2) Whether the plaintiff further proves that the defendant No.1 is liable to remove or close the bore-well in the 'B' schedule property?
3) Whether the plaintiff further proves that the defendant Nos.2, 3 have no right to regularizing the unauthorized power connection of the 1st defendant bore-well?
4) Whether the plaintiff is entitled the relief of declaration, mandatory, permanent injunction as prayed for?
5) What order or decree?
7. The plaintiff in order to prove his case, examined the power of attorney holder as PW.1 and got marked 20 documents as Exs.P1 to P20 and defendant No.1 was examined as DW.1 and got marked 20 documents as Exs.D1 to D20. The Court Commissioner was examined as CW.1 ad got marked documents as -8- NC: 2024:KHC:41196 RSA No. 435 of 2013 Exs.C1 and C2. The trial Court after recording the evidence, hearing on both side and on assessment of oral and documentary evidence, answered issue Nos.1 to 4 in the negative, issue No.5 as per the final order and dismissed the suit of the plaintiff vide judgment dated 16.07.2008. The plaintiff aggrieved by the judgment and decree passed in O.S.No.26/2005 preferred appeal in R.A.No.92/2008 on the file of learned Civil Judge, Hunsur.
8. The First Appellate Court after hearing the parties framed the following points for consideration:
1) Whether the appellant has made out that judgment and decree passed by the trial Court is not based on sound principles of law and the facts and circumstances of the case and the same has to be interfered with?
2) What order?
9. The First Appellate Court, on re-assessment of the oral and documentary evidence, answered point No.1 partly affirmative and point No.2 as per the final order. -9-
NC: 2024:KHC:41196 RSA No. 435 of 2013 The First Appellate Court allowed the appeal and set aside the judgment and decree passed by the trial Court and defendant Nos.2 and 3 are directed not to issue power connection to the existing borewell of defendant No.1 situated in 'B' schedule property and directed not to regularize unauthorized power connection if already obtained by defendant No.1. Defendant No.1 aggrieved by the judgment and decree passed by the First Appellate Court, has filed this regular second appeal.
10. This court admitted the appeal on 25.08.2014 to consider the following substantial question of law :
"When the trial Court dismissed the suit of respondent No.1 seeking relief of declaration and injunction in respect of borewell dug in 'B' schedule property of the appellant herein, whether the first Appellate Court was justified in reversing the findings of the trial Court and in doing so did not assign appropriate and valid reasons to overcome the findings of the trial Court and thereby committed an illegality in the impugned judgment and decree?"
NOTE: The trial Court decreed the suit, but due to typographical error it is typed as dismissed.
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NC: 2024:KHC:41196 RSA No. 435 of 2013
11. Heard the learned counsel for the defendant No.1 and also learned counsel for the plaintiff.
12. Learned counsel for defendant No.1 submits that defendant No.1 dug the borewell, and while digging the borewell, the plaintiff did not raise any objection. He submits that the borewell dug by defendant No.1 is at a distance of 250 meters from the open well, and the borewell belongs to the plaintiff. He submits that the First Appellate Court, without properly examining the government order dated 04.10.1996, passed the impugned judgments. He submits that the First Appellate Court has committed an error in not properly appreciating the report of the Commissioner as per Ex.C2. Hence, on these grounds, he prays to allow the appeal.
13. Per contra, learned counsel for the plaintiff supports the impugned judgments and prays to dismiss the appeal.
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NC: 2024:KHC:41196 RSA No. 435 of 2013
14. Perused the records and considered the submissions of learned counsel for the parties.
15. Substantial question of law: The plaintiff, to substantiate his case, examined the power of attorney holder as PW.1. He has reiterated the plaint averments in the examination-in-chief and produced the documents i.e., Ex.P1 is the letter of authority, Ex.P2 is the patta book, Ex.P3 is the kandaya receipt, Exs.P4 and P5 are the RTC extracts, Ex.P6 is the kandaya receipt, Ex.s.P7 and P8 are the electricity bills, Ex.P9 is the information letter, Ex.P10 is the copy of application, Ex.P11 is the pahani, Exs.P12 to 14 are the electricity bills, Ex.P15 is the notice, Ex.P16 is the COP, Ex.P17 is the postal receipt, Ex.P18 is the pahani, Ex.P19 is the postal cover and Ex.P20 is the copy of Ex.P15. The main grievance of the plaintiff is that defendant No.1 dugged the borewell within 100 meters, and the action of defendant No.1 is contrary to government regulation. The defendant denied the fact, contending that the borewell was not within 100 meters.
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NC: 2024:KHC:41196 RSA No. 435 of 2013 The distance between the borewell dugged by defendant No.1 and the open well of the plaintiff is 250 meters, and the said government circular is not applicable in the present case at hand. During the pendency of the suit, the defendant filed an application for an appointment of the Court Commissioner to conduct a local inspection to ascertain the existence of the alleged borewell and open well in the plaint 'A' schedule property. The said application was allowed. The Commissioner was appointed. The Commissioner has submitted a report. The plaintiff did not file any objection to the Commissioner's report, but the defendant filed an objection to the Commissioner's report. After filing the objection to the Commissioner report, the Court Commissioner was examined as CW.1. The Court Commissioner has also submitted a sketch, which discloses that the open well is in existence of 'A' schedule property and is shown as 'A' and borewell is situated in remaining extent of 2 acres 2 guntas and borewell is shown at point B. 2 acres 2 guntas is not included within 'A' schedule property. As per the report,
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NC: 2024:KHC:41196 RSA No. 435 of 2013 the borewell situated in the defendant's property is marked as point 'C'.
16. To consider the case in hand, it is necessary to examine the provision of the Karnataka Ground Water (Regulations for Protection of Sources of Drinking Water) Act, 1999 (for short 'the Act'). The said Act was enacted vide Karnataka Act No.44 of 2003, which was first published in the Karnataka Gazette Extra-ordinary on the Twenty seventh day of October, 2003.
17. Section 3 of the Act contemplates that no person shall, without obtaining permission from the appropriate authority under sub-Section(3), sink any well for purpose of extracting or drawing water within five hundred meters public source of drinking water.
18. Admittedly, in the instant case, defendant No.1 has not applied seeking permission to sink the borewell, and the appropriate authority has not also taken any advice from the technical officer.
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NC: 2024:KHC:41196 RSA No. 435 of 2013
19. Since water is needed for survival and growth, it is necessary to ensure that benefits are distributed in a fairly and equitable manner to see that everybody has access to it to fulfill the minimum needs of drinking water and water for domestic use. Introduction of high power technology of extracting ground water strikes at the very root of ground water as a property right available to every property owner. The ground water is a dynamic resource which flows from different channels, the owners of land cannot claim absolute ownership over water beneath the land.
20. An easement is a right which the owner or occupier of certain land possess on which for the beneficial enjoyment of his land, to do and continue to do something or to prevent and continue to prevent something being done in or upon or in respect of certain other land not his own.
21. The Hon'ble Apex Court has further reinterpreted Article 21 of the Constitution of India to
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NC: 2024:KHC:41196 RSA No. 435 of 2013 include right to water as a fundamental right to life. The ground water is not mentioned in any of the list in the 7th Schedule of the Constitution of India. This could be because framers of the Constitution did not envisage a situation like that of today when ground water in a particular area is so scarce as to pose threat to environment, life and livelihood of the people of the concerned area in several parts of the country. A few land owners who install powerful bore-wells, tube-wells in the beginning and thereby succeeded in withdrawing higher proportion of water may leave little water for other land owners who join the race later on.
22. Though the land owner has got a right over the ground water but as it is already discussed, the ground water is not a captive resource. In fact it flows like the river beneath the surface. The nature of the stream or ground water which moves from one area to another area and it provides survival and source of growth to the vast population. Under these circumstances, the owner of a
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NC: 2024:KHC:41196 RSA No. 435 of 2013 particular land claiming as his right under Easementary Act by putting modern equipment to draw water, which ultimately deprives public at large. Hence the mandate put under Section 3 of the Act has to be implemented in its full spirit to save the public, poor and disadvantaged and to keep the environment and livestock. Though the Act provides to take permission under Section 3 to sink a bore-well, it has to be understood in a proper perspective that every bore-well lorry or truck shall take permission from the competent authority or appropriate authority before proceeding to sink a bore-well in anybody's land. It should be in the form of licence to move to sink a bore- well.
23. In ancient times, our ancestors gave important place to environment, worshipped nature namely, Sun, Moon, Earth, Air, Water, River etc., The water has been worshipped in many forms namely, Gange, Jeeva Nadi, Symbol of Life. Tanks and lakes were built in every village and temples and tanks were general found in every
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NC: 2024:KHC:41196 RSA No. 435 of 2013 village. Regular monsoon, full of water, tanks, lakes, kalyanies, river, dams was a regular picture. No scarcity of water noticed. The water was surplus to small population.
24. It is not specifically mentioned in the constitution, right to water, as a fundamental right. Nevertheless, right to life is provided under Article 21 of the Constitution, Right to water as a fundamental right. The Hon'ble Apex Court in SUBHASH KUMAR VS., STATE OF BIHAR, reported in AIR 1991 SC 420 had held that right to environment of pollution free water.
25. In Part-IV of the Constitution, Directive Principles of State Police, Article 39(b) provides that the State shall, in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to sub-serve the common good. In the light of the said provision, the State is under its constitutional duty to take control over the ownership of the material resources of the community, if it is required to sub-serve the common good. The open wells
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NC: 2024:KHC:41196 RSA No. 435 of 2013 even if it belongs to a person, river, lakes, tanks are to be taken out by the Government if it is in its decision that it sub-serves the common good. As it is already discussed, the underground water springs which flow under the soil from place to place like a river and the same is found in any particular place, it should not be treated as its ownership belongs to a particular individual. If the private owners are permitted to sink bore-wells and to employ heavy machines to suck water, it definitely dries up the public water resources.
26. Sub-clause (g) of Article 51-A Part-IV-A of the Constitution provides that it is the duty of every citizen of India to protect and improve the natural environment including the forests, lakes, rivers, wildlife and to have compassion for living creatures. The constitution puts a duty on the part of the individual to protect natural environment including lakes, rivers and water resources for the better natural environment for them and also for the succeeding generation.
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27. This Court in a reported judgment in VENKATAGIRIYAPPA VS. KARNATAKA ELECTRICITY BOARD, BANGALORE & OTHERS reported in 1999(4) KAR.L.J.482 (DB), though it has not held that drinking water is not a right, held that impugned orders apparently appear to have been issued for the purpose of protecting the hardship of drinking water faced by the people in the rural areas. Digging and drilling of further wells in close proximity of one another, they are required to be regulated which apparently appears to have been achieved by issuance of the aforesaid orders.
28. Number of statutes such as water (Prevention & Control of Pollution) Act, the Water Prevention and Control of Pollution) Cess, Act 1977 etc., lay down the guidelines for maintenance of water quality as well as for conservation of water. The Hon'ble Apex Court in M.C. MEHTA VS., KAMAL NATH reported in AIR 1988 SC 1037 held that "the Court declared that our legal system based on English common law includes a public trust doctrine as
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NC: 2024:KHC:41196 RSA No. 435 of 2013 part of its jurisprudence. The State is the trustee of natural resources which are by nature meant for public use and enjoyment. The public at large is the beneficiary of the sea-shore and running water, air, forest, ecologically fragile lands.
29. Though the defendant has not obtained permission as per Section 3 of the Act, instead of disconnecting the power connection to the existing borewell, it would be appropriate to direct defendant No.1 to approach the appropriate authority to make an application under Section 3 of the Act.
30. The said aspect was not properly considered by the First Appellate Court and committed an error in passing the impugned judgment. In view of the above discussion, I answer substantial question of law in the negative.
31. In view of the aforesaid facts and circumstances, I proceed to pass the following:
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NC: 2024:KHC:41196 RSA No. 435 of 2013 ORDER i. The appeal is allowed.
ii. The judgment and decree passed by the First Appellate Court is set aside.
iii. The judgment and decree passed by the trial Court is restored.
However, liberty is reserved to defendant No.1 to make an application to the appropriate authority under Section 3 of the Act.
Sd/-
(ASHOK S.KINAGI) JUDGE SSB