A riparian owner is entitled to the usufructuary use of the water in the river as it flows past his land. If Government introduce at a higher point more water into the river by artificial means they can divert the water for non-riparian purposes higher up the stream only to the extent of the water so introduced by them.
Norman Macleod, Kt., C.J.
1. The plaintiffs filed Suit No. 21 of 1913 in the District Court of Ahmedabad on behalf of themselves and the people of the village of Nawagam, Taluka Matar, District Kaira, against the Secretary of State for India This village is situated on the bank of the Khari river which rises near the village of Amnagar in the Idar State. By their plaint the plaintiffs claim that they, together with the inhabitants of the other villages, are entitled to the use of all the water necessary in the Khari river from its source up to their lands for the purpose of irrigation and for all their other necessities by virtue of an arrangement made between them and Government in 1843. Disputes had arisen with regard to the mode and the terms of enjoyment of the preferential rights to tke water, which were referred to the arbitration of the Mamlatdar and certain other gentlemen who prepared a statement or Kalam-bandhi of the rules regarding the mode and the terms for the enjoyment of the water by the said eleven villages which were thereafter called the Kalambandhi villages. In 188], Government constructed a canal, known as the Khari Cut, to the north of the said villages to convey flood waters to the Chandola Tank. The plaintiffs also alleged that the current of the Khari river was fed by the Bhujva rivulet on this side of Amnagar and by the natural currents of the Bokhs of Prantij, and the Hathmati, and claim that they have preferential rights to all this water as accretion to the Khari river from ancient times. When the plaintiffs had occasion to complain to Government that the waters of the Khari river were being conveyed to the Chandola Tank, they were assured that their rights were being preserved and only superfluous water was allowed to be conveyed to the Chandola Tank.
2. In 1899-1900, Government expanded the Chandola irrigation system and constructed a large reservoir near the village of Limla on the Hathmati canal to which they conveyed the. waters of the Bokhs of Prantij and the Bhujva current mentioned above, thereby, so the plaintiffs allege, diminishing the water of the Khari river. When the villagers complained, the Government officers either asserted that their rights were not being interfered with, or allowed the water to flow in the Khari river according to their requirements. Still the plaintiffs complain that the flow of water has been improperly diverted so that for the years 1912-13 and for several previous years their crops had been destroyed entirely. In September 1909, the plaintiffs threatened to file a suit owing to their not receiving sufficient water, whereupon they were supplied with sufficient water for that year, but in further corresspondence on the subject the plaintiffs received a notice, dated December 27,1911, that they would be supplied with sufficient water during the years when the rainfall was normal, but in those years in which there was a scarcity, they would get the same benefit as would be available to other villages, The plaintiff's complain that then for the first time, their preferential right to the water was ' denied by Government.
3. The plaintiffs claim a declaration that they are entitled to a preferential right of enjoying the water of the Khari river beginning from its source and fed by the waters of other currents and rivers before the same are made available to villages other than the Kalambandhi villages, and an injunction restraining the defendant from diverting the said water to the Chandola irrigation system or any other system or from doing anything contrary to the right to be declared under the first prayer mentioned above.
4. The defendant pleads :-
1. That no proper notice, as required by Section 80 of the Civil Procedure Code, had been served upon him.
2. That the plaintiffs have not the preferential right to the waters of the Khari river from its source as claimed, over the non-Kalambandhi villages.
3. That the plaintiffs have only the ordinary right of riparian owners.
4. That the Government as riparian owners were entitled to a reasonable use of the water of the Khari river and such use has not materially diminished the application of the water by the plaintiffs.
5. That the diversion of the water of the Khari river into the Khari Cut only takes place in flood times, and the main supply of the Khari Out is obtained from the Hathmati weir and the Bokh reservoir works which have enabled the plaintiffs to be supplied with water in times of scarcity to which they were not entitled as of right.
5. Generally, various allegations contained in the plaint are controverted or denied and the defendant asks that the suit should be dismissed.
6. On the issues framed on these pleadings the Joint Judge held :-
(1) that the Bokh reservoir was constructed in 1902, the Khari Cut in 1881, and the Bhujva stream was joined to the Hathmati canal in 1899;
(2) that after the construction of these works there was some diminution in the flow of the water of the Khari river but there was none at the date of the suit;
(3) that the Government were not bound by the Kalambandhi Settlement of 1843 and the levy of Pathastal rates not to diminish the supply;
(4) that proper notice had been given under Section 80 of the Civil Procedure Code;
7. and passed a decree declaring that the plaintiffs had a right to the water of the Khari river proper together with the water from the Bhujva stream which was preferential to any right which the villages served by the Khari Cut canal had over such water, but that the villagers had no right to the water supplied to the Khari by the Prantij Bokh and by the Hathmati canal. As the plaintiffs had been supplied with the water, to which they were entitled, and often more, an injunction was refused.
8. The plaintiffs have appealed, while the defendant has filed cross-objections to the effect that the lower Court was wrong in granting a declaration to the plaintiffs and that the suit ought to have been dismissed with costs.
9. Two publications have been admitted in evidence, the Khari Sluices Hand Book of 1905, and the papers relating to the second revision settlement of the Matar Taluka of the Kaira District, printed in 1920, from which the history of the Khari river and the measures adopted from time to time to increase the supply of water in the river are fully disclosed.
10. The Khari river rises in Amnagar of the Idar State, about eighty miles north of Ahmedabad, and flowing in a southerly direction joins the Sabarmati about twenty miles below Ahmedabad. About twenty miles from its source, it is joined by a small tributary called the Bhujva, and a few miles further on by another tributary called the Bokh.
11. Up to 1898, the Khari had the reputation of being an almost perennial stream. It rarely ceased flowing until March, and often continued until the monsoon. However, complaints were being constantly received that the flow of water was decreasing, even so far back as 1843 such complaints were common. Above the Kalambandhi villages, a group of villages situated partly in the Ahmedabad District and partly in the Kaira District, some ten to fifteen miles south-west of Ahmedabad, with which we are concerned in this suit, there was no system of irrigation from the river except by means of bag-lifts or Dhekudies, and the Kalambandhi villages complained that the number of these lifts was increasing, thus diminishing the flow of water which came to the villages. Up to 1848, there were constant quarrels between these villages as to the distribution of the water. There was no system of regulating the flow or distribution by means of sluice gates, but each village used to construct a temporary dam in the river for the purpose of drawing the water into 'its fields. In 1843, a Panch consisting of Captain Full James, two Mamlatdars, a non-official member and an Amin, was called, and a permanent settlement finally agreed, the terms of which were embodied in a memorandum. It is necessary to point out that this settlement merely declared how each village in turn should be entitled to draw water from the Khari for the purpose of irrigation. It was not competent for the Panch to suggest that a declaration should be made with regard to any preferential rights the villages might claim to the water as against the rights of riparian owners to the north of the Kalambandhi villages. Thereafter, irrigation was extended and masonry sluices were constructed to take the place of the old earthen dams. In 1873, a committee was appointed to consider the Khari system, and in their report they made various suggestions for the improvement of the water supply and for the better distribution of the water. At that time the work on the Hathmati canal was in progress and the committee considered how far it would be advisable to draw water from that canal for increasing the supply in the Khari river. The Hathmati river rises to the north of the Khari river and flowing in a south-westerly direction joins the Sabarmati. The Hathmati canal was not built with the express object of helping the Kalambandhi villages, and the suggestion made from time to time and continned up to the present time, that those villages have any claim that the water from the Hathmati canal should be let into the Khari river must be negatived. The Committee of 1878 in their report considered whether the Khari supply should be regularly supplemented by the Hathmati, and the final conclusion was against this being done on the ground that no extra cess could be imposed for its use and alienated lands would reap at least half the benefit. The proper principle on which the Hathmati water might be supplied was really laid down in 1875, In that year it was proposed by the Irrigation Department that, when the Khari supply was deficient, it should be supplemented by water from the Hathmati canal, if available, go as to keep the water at a certain fixed height above the regulator at Pinglaj one of the Kalambandhi villages. It may be taken that the rate of flow of water at Pinglaj indicates the volume of water available to the Kalambandhi villages for irrigation, As the level fell at Pinglaj, more Hathmati water was to be given to maintain the prescribed level, but the Hathmati canal was in-tended primarily for purposes other than supplementing the supply in the Khari river, and the Kalambandhi villages had no right to claim the Hathmati water which was to be distributed by the irrigation authorities as they thought most advisable. Between 1878 and 1881, the Khari Out was built, which was a canal taking off from the Khari at Raipur and designed to irrigate Ahmedabad lands and to fill the Chandola Tank three miles south of Ahmedabad. The scheme was looked upon with considerable distrust by the officers of the Kaira District who were aware how rarely there was any surplus available in the Khari, The Collector, however, waived his objection on the clear understanding that no Khari water should be diverted except the surplus over one-hundred cubic feet per second. This condition was subsequently modified by the irrigation authorities. In the letter of the Executive Engineer of October 9, 1885, it was explained that water was diverted at Raipur:
(1) to the extent of the water running to waste below Chanindra, one of the Kalambandhi villages,
(2) only with the coasant of the Kalambandhi villages, if there was no waste below Chanindra.
12. Then, so far back as 1869, proposals had been considered to build a large storage tank near Mamrali two miles below Prantij, close to the source of the Bokh river mentioned above. At that time the only object of such a reservoir could be to supplement the supply of water in the Khari river. The reservoir, however, was not built until 1900-1902, the famine years, and then the . Executive Engineer took up the position that the reservoir was built with the sole object of supplementing the supply of water to the Khari Cut canal, See the letter of the Assistant Engineer of March 28, 1903, at p. 77.
13. At that time the villagers of Nawagam were complaining about the shortage of water supplied to them from the Khari due to water being abstracted at Raipur for the Khari Cut.
14. In his letter of April 17, 1903, the Superintending Engineer N. D wrote to the Commissioner (p. 80) with reference to these complaints. He said:-
There are no fixed rules as to the distribution of water between the two systems but the principle invariably observed in that no water is diverted into the Khari Cub except during floods or unless the requirements of the Kalambandhi villages have been thoroughly satisfied. To remove, however, any cause whatever for complaints in future, I am prepared to lay down that no water should, on any account, be diverted into the Khari Cut, if the discharge of the Khari river is below fifty casecs and that the excess over fifty Cusecs should only be taken into the Khari Cut if not requird on the sluices. As regards the water from the Bokh Reservoir and the Hathmati Caual, it is to be noted that although these works have been owied out by famine labour, still as 'their cost has been debited be the capital account of the Khari Cut system, the Kalambandhi villages have no right on these waters and Government have in G.R. No. W.T. 1866 of July 25, 1902 (see p. 101), already ruled be this effect.
15. In 1905, the villagers of Nawagam again complained to the Commissioner (p. 102) and at p. 110 of the paper book will be found a most exhaustive reply sent by the Collector of Kaira to the Commissioner, in which he claimed at p. 126 that the Khari sluices and the Hathmati Canal should be satisfied first independently of each other, When the Khari sluices failed they should be satisfied out of the surplus of the Hathmati Canal, and that only then would any water of the Khari including the Bokh be due to the Khari Cut.
16. In forwarding the letter to the Superintending Engineer through the Collector of Ahmedabad, the Commissioner wrote (p. 129) :-
It appears be the Commissioner N.D. that the Kalambandhi villages of Kaira are entitled be a supply of water sufficient for their needs from the Khari as a legal right and that the Khari river means the river and its tributaries of every sort. Of course, this legal right does not obtain under calamities such as the visitation of God by drought, but Government is debarred from such a special plea if any water is diverted from the Khari river. The Commissioner thinks, therefore, that it should be ascertained what are the requirements of the Kalambaudhi villages and that only surplusage should be used for Chandola and other works.
17. At page 135 will be found a note by Mr. Taraporewalla, Superintending Engineer, Public Works Department, on the letter of the Collector of Kaira referred to above.
18. It is interesting as showing that the Public Works Department denied the right of the Kalambandhi villages to the surplus water of the Hathmati. In or about 1899, a branch was made from the Hathmati canal connecting with the Bhujva tributary, and after the Bokh reservoir was completed it was also joined up with the Hathmati canal. Mr. Taraporewalla wrote-
Mr. Wood seems to be under the impression thab bhe construction of the Bokh Reservoir has deprived the Khari of a considerable part of ita original supply. The Bokh is no doubt a oontributary of the Khari but the dam only outs off about seven miles of its length from its beginning and the run off in this part, in ordinary years is little more than sufflcient be fill the old huge depression known as the big and small Bokh Reservoirs. The Reservoir itself is mostly filled from the Hathmati canal to which the sluices have no right. The construction of the Bokh Reservoir has not therefore done any great harm to the Kalambandhi villages but, on the contrary, may occasionally prove of considerable assistance to them according to the arrangement arrived at between the Public Works Department and Revenue Department, vide correspondence ending with the Commissioner N.D.'8 endorsement No. 1400, dated April 20, 1904.
19. On May 11, 1907, the Collector of Kaira wrote to the Executive Engineer, Gujarat Irrigation (p. 159):
I cannot refrain from writing to express my satisfaction at the happy results which are promised by your recent inspections of the Khari sluices system. If you are able as you undertook at our mooting on the 1st instant to supply seventy-five cusecs at Pinglaj from the middle of September to the middle of November and willing as you then oppressed yourself to starve Chandola, if necessary, for the purpose, the Kalambandhi villages will be saved from ruin and enabled after a year or two to carry out the minor improvements which you expect of them.
20. The Executive Engineer replied on May 17 :
You may trust ma to do my best to give the Khari sluices as much water as I can in preference even to the Khari Out system, as I find that it is likely to be used to greater advantage there than elsewhere.
21. The real question in the suit depends on the extent to which the defendant is entitled to draw off water for the Khari Out canal.
22. The rights of riparian owners were defined in Secretary of State v. Balvant Ganesh I.L.R.(1903) 28 Bom. 105 . They have a right to the usufructuary interest in the water which is incident to the possession of the adjacent scil and are entitled to the benefit and enjoyment of the water as it flows past. In The First Assistant Collector of Nasik v. Shamji Dasrath Patil (1878) I.L.R. it was held that they have a right to all the water which actually forma part of the stream as soon as it becomes part, whether such water comes by ordinary natural meana as from springs or from the surface of the adjacent hills or from rain or is added by percolation.
23. In that case the plaintiffs' stream had been added to by percolation from a Government canal and it was held that, though Government could take eteps to prevent the percolation, as soon as the canal water reached the stream by percolation, it could not be distinguished from the original natural stream. The plaintiffs contend that the decision is an authority for the proposition that, as they had rights to the original natural waters of the Khari, they were entitled to all the Khari(sic) as augmented by the works constructed by the Gove(sic) at the source of the rivers, On the other hand, Government contend that the water which they have added to the Khari by artificial means can be separated from the natural supply of water and diverted for Government purposes, if Government so decided before it reaches the plaintiffs' village.
24. If this contention is correct, the difficulty remains to ascertain, first, the extent to which the Khari water has been augmented by the artificial means, and, secondly, whether any water in excess of the augmentation has been diverted.
25. This difficulty is very much accentuated by the natural conditions which vary from year to year. With the exception of the Bokh reservoir, there are no means for storing the water from the early rainfall which is usually the heaviest, while the water is most wanted from September to November when the rainfall is usually leas. Therefore the number of inches of rain which falls in a given year is no criterion on the question whether there will be a proper supply for the purposes of irrigation. It can only be premised that, if the rainfall is much below normal, there will not be enough water for irrigating the rice crop in the plaintiffs' village, while in a year when the rainfall is from something below normal to above there will be sufficient water for both the Khari sluices and the Chandola system, provided the rainfall is equally distributed over the critical months.
26. In a year of slight deficiency or unequal distribution, everything will depend on the way the diversion of water at the Khari Cut is regulated. The plaintiffs contend that, so long as it is possible, a flow of 100 cusecs should be maintained below the Raipur weir, according to the condition laid down by Mr. Shepherd, and that only surplus waters should be diverted Into the Khari Cut canal. The defendant says, supposing the flow above the weir is 150 cusecs, and I can show that out of that flow 70 cusecs are due to augmentation by artificial means, I am entitled to diverb those 70 cusecs, although thereby the flow below the weir will then be only 80 cusecs. Roughly speaking, it may be taken as proved that the flow of 100 cusecs below the weir at Raipur will be reduced to 50 cusecs at Pinglaj although the rate of absorption must depend on varying circumstance. See the note at the end of Exhibit 147,
27. Exhibition gives the figures from 1906 to 1912 showing how much (sic) received into the Khari
(1) (sic) Bhujva at tail.
(2) From the Hathmati canal at tail.
(3) From the Bokh.
(4) From the Khari above the Bhujva.
28. The total of those four sources should show the flow of the Khari at the point just below its junction with the Bokh.
29. Column 7 gives the flow below the Raipur weir and column 8, the amount diverted for the Khari Cut canal.
30. Column 11 gives the flow at Pinglaj.
31. That the futility of attempting to prove any conclusions from statistics of this character is shown by the summary whioh is part of the record under the signature of the Executive Engineer, Gujrat Irrigation Department.
32. In the year 1906, the total discharge from the 6rst four sources was 11,859 cusecs, yet the discharge below the weir at Raipur wag 24, 966 cusecs and at the Khari Cut 5,370, making a total of 30,336. From this it would appear that nearly two-thirds of the water which reached Raipur was augmentation from natural sources after the junction of the Khari with the Bokh.
33. But, out of 24,966 cusecs below the Raipur weir, only 4,603 reached Pinglaj.
34. In 1908, out of 45,297 cusecs below the Raipur weir, only 7,768 reached Pinglaj; 1911 was a year of famine, while the figures for 1912 were 15,572 and 8,255 respectively.
35. But, although it would then appear that sufficient water reached Pinglaj for the crops in the Kalambandhi villages, owing to unequal distribution of the rainfall, the revenue collections were far less than in the good years 1907-08 to 1910-11. The Exhibit 42 is a statement showing the area irrigated and the growth of revenue on the Khari Cut canal since its construction, from which it is apparent that since 1906 there has been a very large increase in the area irrigated, with a corresponding increase in the revenue collections. The learned Judge has found that the Kalambandhi villages can have no prescriptive right to the water of the Bokh or to that of the Hathmati canal. If they were occasionally given water from these sources, it was merely as an act of grace, He concludes from the evidence of Exhibits 147, 148 and 170, that the entire water of the Khari, and much more than that, had usually been allowed below the Raipur weir.
36. The area under irrigation in the Kalambandhi villages, he thought, had been steadily rising from 1905, and it had been satisfactorily proved that there had been no diminution in the water due to the construction of the ancillary works. In particular he found that in the months of September, October and November, in 1912, the discharges at Raipur were above those at Bhujva. That would not be a satisfactory way of showing that a proper discharge was being allowed to flow below the Raipur weir, and I feel extremely doubtful whether the plaintiffs did not suffer from an excessive diversion of water for the Khari Out during those months. From Exhibit 49, already referred to, it will be seen that although 6,317 cusecs were received in 1912 from the Bokh and 695 from the Hathmati tail, 15,391 cusecs were diverted for the Khari Out.
37. Moreover, I am not satisfied that the defendant is entitled to consider that the whole of the water discharged by the Bokh into the Khari is augmentation due to the construction of works by Government and the introduction of water from the Hathmati canal into the Bokh reservoir. There must have been some flow in the Bokh through its course of fifteen or sixteen miles before the dam was built, and really the defendant should have shown how much water was put into the reservoir from the Hathmati canal.
38. In order to satisfy ourselves whether the Judge was right in holding that the area under irrigation had increased and that there had been no diminution in the supply of water before suit owing to Government action, we called for a statement showing the area cultivated in the plaintiff's village with the area under rice since 1882. The statement is not so complete as it might have been, but it is clear that the area under rice, though it may have increased after the famine years 1899 to 1905 had passed, was not restored to the extent which existed before the famine, and as pointed out above it is by no means certain that, in the year, before the suit, the plaintiffs received all the water they were entitled to.
39. The question then remains whether the defendant is entitled to divert the water of the Khari to the extent of its augmentation by artificial means. Reliance has been placed by the defendant on the decision in Fischer v. The Secretary of State for India I.L.R.(1908) Mad. 141 where it was held that the Government has power, by the customary law in India, to regulate in the public interests, in connection with the collection, retention and distribution of waters of rivers and streams flowing in natural channels, and of waters introduced into such rivers by means of works constructed at the public expense, and in the public interests, for purposes of irrigation, provided they do not inflict sensible injury on other riparian owners and diminish the supply they have hitherto utilised. In regard to works of irrigation constructed by Government in connection with a natural stream a riparian owner has no higher right than that of not being damaged by any diminution in the supply of water he has been accustomed to receive. This paramount right of Government is recognized by the legislature in Section 7(2) (a) of the Indian Easements Act. An upper riparian owner is entitled to divert water provided the amount diverted does not exceed the amount which he has himself by artificial means put into the stream. The decision was referred to by their lordships of the Privy Council in Prasad Bow v. The Secretary of State for India I.L.R.(19I7) Mad. 886 19 Bom. L.R. 751 in the following passage in the judgment at p. 895 : ' The law of the Madras Presidency as to rivers and streams certainly differs in some respects from English law' and there is no reason for saying that the customary law of India referred to in Robert Fischer's case is confined to the Presidency of Madras.
40. I am satisfied that the plaintiffs have proved that they have the right of riparian owners to the usufructuary use of the water of the Khari river as it flows past their land, and that the defendant has no right to divert the water of the Khari river above the plaintiffs' village for non-riparian purposes, to any greater extent than that of the water put into the Khari by artificial means. I think that the plaintiffs are entitled to a declaration to that effect and that the declaration granted by the lower Court was too restricted, since the plaintiffs are entitled to so much of the water of the Bokh as flows therein from natural sources, I see no reason why an injunction should not be granted to that extent as the defendant has clearly claimed to be entitled to divert the whole of the Eokh water, which enters the Khari.
41. It seems unfortunate that the attitude of Government and the officials in the various departments, Revenue, Public Works Department, and Irrigation, has not been consistent. I think the right attitude to be maintained in regulating the diversion of water at the Khari Out Canal is displayed in the letter of the Executive Engineer of May 17, 1907, and that it would be advisable in times of scarcity to allow to the Khari river as much water as possible, even if some of it be augmented water, rather than risk damage being suffered by the crops of the Kalamban-dhi villages which the villagers might be able to prove was due to an infringement of their right by Government. How much water can rightfully be diverted into the Khari Out Canal must always be difficult to be calculated with any degree of accuracy. I am not prepared to agree with the lower Court that the plaintiffs have Buffered no diminution in the supply which they used to receive before the construction of the Khari Cut Canal. There certainly are indications in the correspondence that some officials of Government thought it of more importance that the Chandola system should be made to appear in the accounts a remunerative one, whether the Kalambandh-villages suffered or not, and as it has been proved that owing to the river, having been allowed to get silted up, and owing to the growth of Gha Bajaria the flow of water is more impeded than it formerly was, so that the same proportion of the water flowing below the Raipur weir does not reach Pinglaj, it is all the more important for Government to see, either that these defects are removed, or that the flow of sufficient water at Pinglaj is not endangered by the diversion of water at the Khari Out.
42. I would vary the decree by declaring that the plaintiffs have the right of riparian owners to the water of the Khari river accruing from natural sources and that the defendant should be enjoined from diverting to the Khari Cut Canal any of the Khari river water which has not been put into the river by artificial means, so long as water is required for the Kalara-bandhi villages. The cross-objections should be dismissed with costs and I think the appellants are entitled to the costs of the appeal.
43. I concur.