1. This is a defendant's appeal that arises out of a suit for an injunction and recovery ofdamages. The respondent viz. the Union of India was the plaintiff. aS owner of the erst-while East Indian Railway, it claimed to be theowner of the Harangau Railway Station with all the lands adjacent to it and bounded anddemarcated by the railway boundary posts and fencing. On the north of the railway land just adjacent to it there is a glass factory of the appellant known as the Jain Glass Works. The plaintiff took exception to the defendant's construction of a pucca drain for the discharge ofthe foul refuse water from his ractory on the railway land. In the sketch plan filed along with the plaint which was subsequently made apart of the decree of the trial court, the drain was shown by letters AB. The further grievanceof the plaintiff was that the foul refuse waterof the defendant's factory after coming out of the drain was being allowed to stagnate on the plaintiff's land and was causing damage. The plaintiff contended that the defendant had no right to discharge the water in the manner he was doing and it was therefore prayed-
(a) That the defendant be ordered to stop discharging or stagnating refuse foul water through the drain into, on, or upon the plaintiffs aforesaid land, as shown in the annexed plan.
(b) That the defendant be restrained by a perpetual injunction from discharging or flowing or stagnating any water into, on or upon the plaintiff's land.
(c) That a decree for Rs. 50/- on account of damages caused to the plaintiff's land be awarded to the plaintiff as against the defendant.
(d) Costs of the suit be awarded to the plaintiff against the defendant.
2. The suit was contested by the defendant, who pleaded that his glass factory had been constructed in the year 1928 but for more than 60 years the water of all the plots over which the factory had been built and that of all adjoining plots used to accumulate in plot No. 380 which was Pokhar and the water from this Pokhar used to flow towards the railway boundary and then used to pass into a Nala situated in village Ulao near the factory. He further pleaded that the slope of the flow of water had always been towards the south of the factory to the Jharna through the Pokhar, and when the defendant's factory was built the flow continued to be on the same side. He said that there was no other outlet for water on any side. He denied that any damage had been caused to the plaintiff on account of the flow of water and pleaded that the plaintiffs rights had not been interfered with at all. He also claimed to have acquired a prescriptive right of easement regarding How of the water of his factory on the Plaintiff's land, and said that the plaintiff had no right in law to complain about the same. The Court's jurisdiction was challenged and limitation, insufficiency of court-fee and undervaluation were pleaded.
3. The learned Munsif rejected the pleas of undervaluation, insufficiency of court-tee and want of jurisdiction. It found that the land claimed by the plaintiff had been acquired under the Land Acquisition Act in 1933-34 and under Section 16 of the Act. All easementary rights if any which the defendant or his predecessors might have acquired earlier had been extinguished. He was also of opinion that as 60 years had not elapsed after the acquisition of the land the defendant could not claim to have acquired any right of easement for flow of water. He did not accept the plaintiffs' plea that any damage had actually been caused to its land. aS a result of these findings he decreed the plaintiff's claim for a permanent injunction but dismissed it for damages. He left the parties to bear their own costs.
4. The defendant preferred an appeal, but the appeal was dismissed. It was not disputed before the appellate court that the defendant had constructed his factory in 1928-29 and that the land on which the foul refuse water of the defendant's factory flowed had been acquired by the Government under the provision of Land Acquisition Act in 1934 or 1935. It was on these facts held that the defendant could not claim to have acquired any right of easement for the flow of water on the plaintiff's land. With respect to the defendant's claim about a natural right of flow of water on the plaintiffs land the appellate court observed:
'Learned counsel for the appellant has urged that the rain water of the land on which the plaintiff's factory exists used to flow towards the land in suit because the slope was in that direction. Even if it be correct still then it would not give defendant a right to discharge foul water of the factory towards the land in suit.'
5. Against the dismissal of his appeal the defendant came to this Court in second appeal. It first came up for disposal before Mr. Justice Upadhya. Before him it was urged on behalf of the appellant that the provisions of Section 15 of the Easement Act which prescribed the period of 60 years for the acquisition of rights of easement against the State as against 20 years for the acquisition of the same rights against the other persons were discriminatory and offended Article 14 of the Constitution. A similar plea was raised in respect of Section 16 of the Land Acquisition Act under which all land acquired by the State was to stand free from all encumbrances. These constitutional points were in the opinion of the learned Judge of importance and deserved to be decided by a Division Bench. He therefore referred the case to a Division Bench. That is how the case has come to us.
6. Two points were urged before us in support of the appeal by learned counsel for the appellant. He urged in the first place that the court below had not approached the case from the correct stand-point and had not properly considered the appellant's claim that he had a natural right to let the water of his land How on the plaintiff's land because the former was higher in level than the latter. His second contention was that Section 15 of the Indian EasementsAct which prescribed a different period for acquisition of easenrentary rights on Government land as compared to land belonging to private owners was discriminatory and void as it contravened Article 14 of the Constitution.
7. There is no dispute now as to the facts. The land on which the defendant's factory is built was formerly lying open and the defendant's factory was built On it in 192S or 1929. Adjacent to that land is the land of the plaintiff which is on a slightly lower level. This land was acquired by the plaintiff under the Land Acquisition Act in the year 1034 or 1935. The defendant has built a pucca drain on his own land just adjacent to the boundary line separating his own land from the land of the plaintiff and the foul refuse water of the defendant factory flowing through the pucca drain is now discharged on the plaintiffs land and accumulates in a depression on that land which has been described as a Pokhar. When the depression is full the water overflows over the plaintiffs land and flows into Nala. In his written statement the defendant did not specifically claim any natural right of flow o water. The only thing which he said in this connection was contained in para 13 of the written statement which reads as follows:
'13. That the slope of the flow of water had always been towards the south of the factory to the Jharna through the Pokhar over which a part of the factory has been built about the year 1929, since more than 100 years and when the defendant constructed the flow continued towards the same side. There was never any other outlet for the flow of water on any other side nor there can be any outlet now on any other side.'
The principal defence of the defendant was that he and his predecessors had acquired a right of easement regarding flow of water, and the case was fought on that basis. Before the lower appellate court a mention was made about the natural right of the defendant to flow water on a land of lower level but as has already been mentioned it was pointed out that that right could relate only to natural water and not to foul refuse water.
8. Clause (b) of Section 7 of the Indian Easements Act recognises the right of every owner of immovable property to enjoy without disturbance by another the natural advantages arising from its situation. An easement is a restriction on such a right. An example of such a natural right is given in illustration (i) of the section, which reads as follows:
'(i) The right of every owner of upper land that water naturally rising in, or falling on, such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally thereto.'
This natural right of every owner of upper land is a well recognised right but it has its own limitations. If the owner of the land of the higher level claims to have acquired any easementary right which is a restriction on the natural right he has to establish the claim. The natural right which he can claim is only the limited right mentioned in illustration (i), of Section 7. That right can be claimed only in respect of water naturally rising in, or falling on his land and not passing in defined channels. He cannot claim a right to flow water la a defined channel like a drain as a natural right; nor can he claim a right to discharge that water on the lower land which does not naturally arise on his land or fall upon it. Dealing with this right it has been observed by Katiar in his Treatise on the Law of Easements and Licences in India' III Edition page 110:
'The owner of the upper tenement has a natural right to discharge or to pass to lower lands water which naturally rises or falls in his tenement. The right to pass water in a defined channel can only be acquired as an easement. The owner of the lower land is under an obligation to receive natural waters from the upper tenement, but he is not bound to receive foreign water which has been brought to the surface of the upper tenement by artificial means.'
No natural right can, therefore, be claimed in respect of foul refuse water of the defendant's factory built on his land which the defendant claimed he could flow on the plaintiff's land simply on the ground that the letter's land was of a lower level. No dispute was raised in the present case by the plaintiff in respect of the flowing on the plaintiff's land of water naturally falling on the defendant's land e.g. rain water which will not flow in defined channels. If the defendant has that right the present suit does not relate to it. That right remains unaffected by it. The defendant could not claim, in our opinion a natural right to flow water through the drain which he had constructed and which Was a defined channel; nor could he claim such a right in respect of foul and refuse water of his factory which could not by any mean's be considered to be natural water arising out of or falling on the defendant's land.
9. The injunction issued by the courts below apparently relates only to such foul refuse water of the defendant's factory which was flowing through the drain built by him and was accumulating On and flowing through the plaintiff's land.
10. About the prescriptive right of easement for the discharge of foul and refuse water of his factory on or through the plaintiff's land which the defendant claimed, it is contended that the defendant's factory was built in 1928. The present suit was filed in 1952, Before the filing of the suit therefore the defendant had completed the period of 20 years during which the rights had been exercised. He had on that basis acquired right of easement which he claimed by prescription. This claim of the defendant was disputed on two grounds. The first was that the plaintiff's land having been acquired in 1934 or 1935, in view of Section 16 of the Land Acquisition Act whatever right of easement had been exercised on land got extinguished with the acquisition. Between 1934 and 1952no right of easement could be claimed to have been perfected. The other ground on which the right was challenged was that the land being Government land it was not enough, for the plaintiff to prove 20 years user. In order to establish his claim to a prescriptive right of easement he should have proved that he has exercised the right for 60 years. That period had admittedly not expired.
11. Section 16 of the Land Acquisition Act (Act I of 1894) provides:
'16. When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances.' It is well settled that the word 'encumbrances' includes rights of easement. Under this section, therefore, when the land was acquired in 1934 it became free from all rights of easement which may have been exercised on it before the date of the acquisition. When the case was argued before Mr. Justice Upadhya the validity of Section 16 also was questioned. Learned counsel for the appellant could not however put forward before us. any ground on which this section could be held to be unconstitutional. There is no question of the section, being discriminatory because it does not create any discrimination between any two persons. The section only declares that on acquisition the land will stand free from all encumbrances whoever be the person whose land is acquired, whoever be the person who has any encumbrances over the land, the provision applies equally to all. The compensation that is awarded for the land at the time of its acquisition includes, compensation for encumbrances also (vide Clause (iii) Sub-section (1) of Section 23). Compensation having been paid to the person who claimed the encumbrances he could not object to the extinguishment of his rights. If therefore Section 19 is not invalid the plaintiff's claim of having acquired a prescriptive right of easement must be negatived on the simple ground that before the date of the suit he had not completed even 20 years user on the plaintiff's land after its acquisition under the Land Acquisition Act.
12. In support of his contention that Section 15 of the Indian Easements Act had become unconstitutional on the coming into force of the Constitution, learned counsel for the appellant urged that Article 14 of the Constitution guaranteed equality before the law and prohibited discrimination between the Government and other persons. For acquiring rights of easement against the Government it prescribed a limitation of 60 years, but for the acquisition of similar rights on other persons' land the period prescribed was 20 years only. It is contended that this amounts to discrimination which affects the validity of the section. The general rule (the 20 years rule) should apply, according to the learned counsel for the applicant, to the cases of Government land also. The exception made in favour of the Government, should, he contends, be struck down.
13. Learned counsel for the respondent seeks to meet this contention on several grounds.
14. He urges in the first place that if Section 15 of the Indian Easements Act is held to be ultra-vires on the ground that it contravenes Article 14 of the Constitution it must be struck down as a whole, only a part of it cannot be struck down. He contends further that if the section is struck down as a whole the plaintiff cannot claim to have acquired any right of easement at all. He refers in this connection to the Full Bench case of Bhai Singh v. The State : AIR1960All369 .
15. His second argument is that Article 14 prohibits discrimination between person and person. It lays down that equality of law should not be denied to any person. For the purposes of the Article Government is not a person. The legislation in favour of the State cannot therefore be affected by the Article.
16. The third contention of learned counsel is that even if Article 14 is held applicable it does not prohibit reasonable classification. The only thing necessary is that classification should be founded on an intelligible differentia and that the differentia must have a nexus with the purpose of the statute in question. Both these conditions he contends are fulfilled by the legislation in question. He relies in this connection on the presumption in favour of constitutionality and contends that the legislation must be held to be good if it is possible to conceive any ground on which the case of a State can be differentiated from the case of another person.
17. In Mehar Chand v. State : AIR1959All660 it was held by a Bench of this Court that Section 29 of the Indian Arms Act, 1878 suffered from discrimination and on that account contravened Article 14 of the Constitution. The general rule, it was pointed out, was that sanction of the District Magistrate was necessary in all cases before launching a prosecution under Section 19 of the Arms Act, Exception had however been made in respect of offences committed in territories north of the Ganga. It was held that the discrimination rendered the exception invalid and sanction was therefore necessary in all cases. The decision was however overruled by a Full Bench in : AIR1960All369 and it was held that if the section was affected by discrimination not only the exception but the entire section became invalid and sanction was not needed in any case at all.
Applying the principle laid down by the Full Bench to Section 15 of the Easements Act if the contention of the appellant is accepted and it is held that the section is discriminatory and on that account contravenes Article 14 of the Constitution not only the exception prescribing the period of 60 years for acquisition of easementary rights on Government land becomes invalid but the entire section must be struck down and if that is done it would not be possible for the applicant to claim any right of easement under the Act on the ground of prescription. Article 14 enjoins on the State not to deny equality before law to any person. The contention of the respondent is that 'person' for the purposes of the. Article does not include the State. In support of the propositionreliance is placed on several cases. In Shiv Prasad v. Punjab State , a Division Bench of the Punjab High Court took the view that neither State nor Government could fall within the ambit of the expression 'person' appearing in Article 14 of the Constitution, The same view was taken by a Bench of this Court in State v. Shanker : AIR1958All432 where it was observed:
'On a consideration of the various authorities which have been cited above we are of opinion that the State as representing the society is not Included in the word 'person' in Article 14'
The same view was taken by a Bench of the Bombay High Court in Madhya Pradesh Mineral Industries Association v. Regional Provident Fund Commissioner : (1959)ILLJ368Bom .
18. Learned counsel for the appellant however placed reliance on some observations made in the Full Bench case of Moti Lal v. State of Uttar Pradesh, reported in : AIR1951All257 . In that case Malik, C. J., had observed at one place:
''Where a business is carried on by the Government as incidental to its ordinary functions as such, there can be no doubt that Article 14 cannot be relied on in support of the argument that the State should be put on the same footing qua that business as any private citizen. It cannot be seriously urged that a citizen can claim that he must be given the same rights, as the State has to be given for carrying on its functions as such.'
Agarwala J. had also taken the view that Article 14 applied not only between individual and individual but also between an individual and the State particularly when the State 'descended into the arena of competition with private persons'.
19. As was however pointed out by Mudholkar J. in the Bombay case : (1959)ILLJ368Bom (supra) the later observations of Malik C. J. in the Full Bench judgment indicated a different opinion. He had observed in para 75 of the report:
'If the word 'person' in Article 14 is interpreted to include the State then the provisions of Article 14 would appear to be in conflict with the provisions of Article 289. Reading the Constitution as a whole I am inclined to the view that it was not intended that the Government of a State should be placed on the same footing as any person carrying on a business.'
The Supreme Court in Saghir Ahmad v. State of U. P. : 1SCR707 rejected the argument of Mr. Pathak that
'That State ceases to function as a State as soon as it engages itself in a trade like ordinary trader'.
In the subsequent case of Ram Jawaya v. State of Punjab : 2SCR225 It expressed its disapproval of the view taken by Agarwala J. in Moti Lal's case : AIR1951All257 , The question does not appear to be free from difficulty and has not been argued before us from all aspects. We would therefore not like to express any final opinion on the point or to base our opinion in the present case on this ground.
20. There can be no doubt that there is a strong presumption in favour of the constitutionality of every enactment and it is for the person challenging the enactment to show that it violatesany of the fundamental rights guaranteed in Part 3 of the Constitution. It is also established beyond controversy that Article 14 of the Constitution does not forbid all classifications. It is not necessary to refer to the earlier cases in which the principles to be kept in mind while applying Article 14 of the Constitution were enunciated. In the case of M.H. Qureshi v. State of Bihar : 1SCR629 the principles were summarised as follows:--
'The meaning, scope and effect of Article 14, which is the equal protection clause in our Constitution, has been explained by this Court in a series of decisions in cases beginning with Chiranjitlal Chowdhury v. Union of India : 1SCR869 and ending with the recent case of Ramkrishna Dalmia v. Justice Tendolkar : 1SCR279 . It is now well established that while Article 14 forbids class legislation it does not forbid reasonable classification for the purposes of legislation and that in order to pass, the test of permissible classification two conditions must be fulfilled, namely, (i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) such differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification, it has been held, may be founded on different bases, namely, geographical, or according to objects or occupations or the like and what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. The pronouncements of this Court further establish, amongst other things, that there is always a presumption in favour of the constitutionality of an enactment and that the burden is upon him who attacks it, to show that there has been a clear violation of the constitutional principles. The Courts, it is accepted must presume that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation. We therefore proceed to examine the impugned Acts in the light of the principles thus enunciated by this Court.'
The same view was reiterated more recently in Moti Das v. S.P. Sahi : AIR1959SC942 where it was laid down ;
'The provisions of Article 14 of the Constitution had come up for discussion before this Court in a number of earlier cases (see the cases referred toin : 1SCR279 ). It is therefore, unnecessary to enter upon any lengthy discussion as to the meaning, scope and effect of the Article. It is enough to say that it is now well settled by a series of decisions of this Court that while Article 14 forbids class legislation it does hot forbid reasonable classification for the purposes o legislation, and in order to pass the test of permissible classification, two conditions must be fulfilled namely (1) that the classification must be founded on an intelligible differentia which, distinguishes persons or things that are grouped together from others left out of the group and (2) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases such as, geographical, Or according to objects or occupations and the like. The decisions of this Court further establish that there is a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it, to show that there has been clear transgression of the constitutional guarantee; that it must be presumed that the legislature understands and correctly appreciates the needs of its own people and that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds and further that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest.'
21. In enacting Section 15 of the Indian Easements Act a classification has. been made by putting the Government in one class and other persons in another class. The first question which we have to consider is whether the classification is founded on an intelligible differentia. It cannot be denied that in more respects than one the State stands on a footing quite different from its subjects, The State really forms a distinct class of its own and the rights and liabilities of the State are in several respects not at par with those of other persons. It cannot in the circumstances be denied that there is an intelligible differentia between the State and other persons. In the case : 1SCR707 while the Supreme Court was dealing with the question whether the creation by the State of a monopoly in its favour was hit by Article 14 of the Constitution it was conceded before it that the State as a person came under a different class or category from private citizens. It was however contended that when the State carries on trade or business it occupies the same position as a private trader. The contention was negatived and it was observed that the State did not cease to function as soon as it engaged in a trade as an ordinary trader. There is therefore a reasonable ground for making a distinction between the State on the one side and other persons on the other while making a legislation.
22. The next question is whether the distinction which has been made between the State and other persons in respect of the rights which can be acquired under Section 15 of the Indian Easements Act has any rational relation to the object sought to be achieved by the Statute in question.
As the Preamble of the Easements Act shows, it was enacted to define and amend the law relating to Easements and Licences. An easement being a restriction on the rights of other persons the purpose of the Act was to limit and define the rights which, one person could acquire for the beneficial enjoyment of his own property, to do or not to do some act on the property of another. The limits of such rights, were laid down in the Act and the conditions under which they could be acquired were prescribed. In providing for these limitations and conditions the legislature made a distinction between land belonging to the Government and land belonging to other persons. In respect of the former it prescribed a longer period during which the right to be acquired had to be exercised. The question is Whether there was any reasonable ground for making this distinction.
The presumption is in favour of the constitutionality of the enactment and it must be assumed that the Legislature understood and correctly appreciated the problems towards which the Legislation was directed. If therefore any state of facts can be reasonably conceived which could justify the discrimination the legislation must be upheld. It is not at all difficult to think of grounds on which the Legislature found it necessary to prescribe a longer period for the acquisition of right of easement for Government as compared to lands belonging to other persons. Ordinarily no owner of a land would permit another person to exercise any rights on his land in such a manner that it may ultimately lead to the acquisition of a right of easement. That is why so far as a prescriptive right of easement was concerned it was provided by the Legislature that before the right could be acquired it should be exercised openly without interruption as a right and as an easement for a fairly long period of years. Private ownership of land as compared to Government ownership is limited in extent and a private owner is therefore in a better position to safeguard his rights and to prevent the acquisition of prescriptive rights by others.
Keeping in view the extent of land belonging to the Government, the fact that these lands are scattered all over the country and that the machinery at the disposal of the Government for safeguarding its rights in respect of its lands and for preventing encroachments and the exercise by others of their rights on the land was greatly limited and not very efficient nor as vigilant as a private owner of property, it is not at all surprising that the Legislature considered it necessary to prescribe a longer period for the acquisition of rights by prescription on Government land than for doing the same thing on private land. It cannot therefore be said that there is no reasonable nexus between the distinction made and the purpose of the legislation. Both the requirements laid down by the Supreme Court for justifying classification are therefore fulfilled by the legislation in question and it is not possible to accept the contention of the appellant that the distinction made in Section 15 of the Easements Act renders It violative ofArticle 14 of the Constitution and void on that account.
23. The Courts below were therefore correct in their view that the defendant could not have acquired any right of easement to discharge the refuse and foul water of his factory on the plaintiffs land. They were justified in stopping the discharge of the water and in issuing the permanent injunction to which exception has been taken by this appeal.
24. The appeal must therefore fail as with-out force. It is dismissed with costs.