1. This is a second appeal preferred against the decree and judgment of the learned District Judge of Tirunelveli in A. S. No. 247! of 1954, reversing the well-considered judgment of the learned District Munsif of Tirunelveli in O. S. No. 384 of 1953.
2. The plaintiff is the owner of S. Nos. 547/ 1-A and 547/2-B, These lands are situated near a channel known as Vadamalayan Channel. These lands are two feet higher in level than the surface of the said channel. The plaintiff claims that he is entitled to irrigate his lands by erecting cross-bunds across the Vadamalayan Channel. In fact he has been cross-bunding the channel with palmyrah and coconut trees and covering them with turf and leaves to a height of 4 to 6 feet in more than half a dozen places in Erewadi and Nambitalaivanpalayam villages. The plaintiff claims' this right to crossbund on two grounds viz., (a) customary right and (b) grant.
The defendant, the State of Madras, contended that the suit lands were originally baling wet lands and that only in 1915 and 1921 were these lands classified under the Ayacut of Vadamalayan Channel on the application of the then owner of the lands, that the Government itself has no right to permit the plaintiff to put up cross-bunds so as to impede the free flow of water to the lands which are registered Ayacut wet lands and thus prevent the accustomed supply to those lands of the extent of 250 acres. It is in these circumstances that when the Tahsildar reported that by reason of this crossbunding there has been diminution of water supply to the lands lower down registered under this channel, the Collector of Turunelveli forbade the cross-bunding of the channel which has resulted in this suit being filed by the plaintiff for a declaration of his rights to cross-bund,
3. The learned District Munsif found that the customary right set up by the plaintiff had not been made out, that the Government as a fact did not grant the right to the plaintiff to irrigate his lands by cross-bunding the channel and that as a matter of fact the Government could not do so because though they are entitled to regulate the flow and supply of water to Ayacut lands, the Government have no right to permit the plaintiff to put up cross-bunds so as to impede the free flow of water to the lands which arc registered Ayacut.
Therefore he dismissed the suit of the plaintiff with costs. On appeal the learned District Judge inexplicably came to the conclusion on the ground that be was following the decision of this Court in Secretary of State v. Ambalav;uia Pandara Sannadhi, ILR (1914) Mad 369: AIR 1914 Mad 552, followed in Harihar Mabapatra v. Hari Otha, : AIR1950Ori257 . that the plaintiff was entitled to crass-bund the channel for the purpose of direct irrigation of his lands. Therefore he allowed the appeal end decreed the suit and granted the plaintiff the injunction asked for. Hence this second appeal by the State of Madras.
4. In this second appeal 1 have come to the conclusion that the decision of the lower appellate Court cannot at all be supported and that the correct conclusion is the one arrived at by the learned District Munsif.
5. The points for consideration which arise are three in number viz., (a), the rights of the upper riparian owners and lower riparian owners in regard to the water flowing in the water course passing through or adjoining their lands: (b) the right to cross-bund; and (c) the scope and authority of Government of this State to distribute water for irrigation to registered ayacutdars.
6. The law in regard to (a) and (b) is the same in India. England and America. But as pointed out by Angell on Watercourses, 7th Edition, at page 120 there are few cases of irrigation decided in England because that is a country in which drainage is more; important than irrigation. On the other hand, the United States of America contains large tracts of land where the problems of irrigation are similar to ours. That is why in America the subject of irrigation has been the subject-matter of detailed studies of which it is enough to mention the standard works, Farnbam's 'The Law of Waters and Water Rights' (3 volumes) published by the Lawyers' Co-operative Publishing Company; 56 American Jurisprudence; Angell on Watercourses, 7th Edition (Little, Brown and Company, Boston); Gould on 'The Law of Waters and Riparian Rights', Third Edition. The standard English text-books are Coulson and Forbes on Waters and Land Drainage, Sixth Edition (Sweet and Maxwell) and Halsbury's Laws of England (Hailsham Edition) Volume 33, relating to 'Water and Water Courses'. In India unfortunately in spite of irrigation being one of the most important subjects of controversy, there are no similar standard text-books and we have to rely on the case-law to which reference will be made presently. This subject has recently received attention however in the well-known works on the Law of Easements and Licenses by B. B, Katiar and K. N Joshi.
7. Halsbury's Laws of England, (Hailsham Edition) Volume 33, page 599 and following has the following to say :
'Every riparian owner may divert the water of a stream for purposes in connection with his land, or for other purposes; but he is bound to return the water which he has diverted into the stream again before it leaves his land substantially undiminished in volume and unaltered in character; for a lower riparian owner, subject to the rights of an upper owner, is entitled to have the water flowing in the natural bed of the stream come to him unaltered in quality and quantity, and to come to his land in its ordinary and accustomed channel.
An upper riparian owner must not enlarge the channel so as to prejudice a lower owner.
A riparian owner who diverts water altogether from a stream can be restrained without proof of actual damage, because his acts, if continued long enough, would crystallise into a right and it is no defence that in place of the diverted water he has substituted an equal quantity of water from another source.
*****Obstructions must not be erected in a stream so as to throw back the water on to the lands of an upper riparian owner and thereby flood his lands or injure his mill, for each owner is entitled to have the water go from his lands in the ordinary course of nature; such right may be acquired as an easement. When an obstruction is a natural one, or formed by long natural accumulation, it must not be removed, if by so doing an injury would be inflicted on a lower riparian owner'.
8. Coulson and Forbes on Waters and Land Drainage, Sixth Edition (1952) at page 134 ;
'The right to the flow of running water, with-out diminution or alteration, being common to all those through whose land it flows, any unauthorised interference with or use of the water, to the prejudice of one entitled to its use, is the subject of an action for damage, and may be restrained by injunction.
This right, however, is not an absolute and exclusive right to the flow of all the water, but only subject to the right of other riparian owners to the reasonable enjoyment of it, and consequently it is only for an unreasonable and unauthorised use of this common benefit that an action will lie, thought where there is an injury to a right actual perceptible damage is not necessary to maintain it.'
9. 56 American Jurisprudence, Section 27 (page 517) has the following to say regarding damming :
'...... Subject to public regulation in proper cases, a dam may be constructed and maintained across a stream by a riparian proprietor or by another with proper authority, provided that thereby he does not appreciably diminish the amount of water which should naturally flow on to or by the land of lower proprietors, or materially affect the continuity of the flow, or wrongfully throw the water back upon upper proprietors. As implied by the foregoing proviso, liability may be incurred by the erection and maintenance of a dam which will virtually result in the drying up of the stream, or which will materially interfere with the flow or with the continuity of power supplied by the stream to a lower, proprietor, or which will result in the overflow or flooding of the lands, works, or other property of other persons......'
10. Farnham on Waters and Water Rights (1904) Volume II, devotes Chapter XX (page 1763 and following) to a discussion of the extent of right to damming back water of stream and at page 1843 and following states the procedure for securing redress by the affected lower down riparian owner and which reliefs are classified under five heads (a) abatement by the injured party; (b) statutory action for redress, like 'the Boards Standing Orders and Acts and Regulations in vogue in this State, enabling the Collector to take various actions; like penalising etc.; (c) common law action like an assize of nuisance or a quid permitted action on trespass in the case; (d), relief in equity viz., injunctions; and (e) criminal proceedings. The Indian Penal Code contains provisions for dealing with such cases under the head of 'mischief.
Section 430 penalises mischief by injury to works of irrigation or by wrongfully diverting water or doing any act which causes or is likely to cause a diminution of the supply of water : Emperor v. Fateh Din, 4 Ind Gas 863; In re, Nallappa Udayan, 1 Weir 505; Deenabandhu Rajaguru v. Vishwarasarayi Lachanna Dora, AIR 1924 Mad 176: Mewa Ram v. Emperor : AIR1934All687 ; Va-davalli Narasimha Rao v. Ayyanna Rao, AIR 1939 Mad 794; Chengama Naidu v. Emperor, (1911) 2 Mad WN 349; Athimoolam Pillai v. Palaniandi Am-balam, AIR 1921 Mad 536; Ragunath Thakur v. Emperor, : AIR1932Pat224 ; Chidambaram Pillai v. Muhamad Khan Sahib, AIR 1918 Mad 72; Budda Reddi, In re, AIR 1923 Mad 141. For detailed exposition of Section 430, See V. B. Raju-I. C. S., Penal Code (19571 page 1206 and foll Ratan Lal Law of Crimes Sixteenth edition p. 1074 and foll. Sir H. S. Gour The Penal Law of India Fourth Edition Volume II p. 2313 and foll.:
11. Gould on Waters, Third Edition (1900) at page 418, dealing with diversion states:
'A riparian proprietor may divert the water from the stream, as it passes through his own land, without license from the proprietors above him, it he does not obstruct the water from flowing as freely as it was wont, and without license from the lower proprietors if he restores the water to its natural channel before it enters their land and does not materially diminish its flow The distinction is to be observed between the right to divert or change tiie course of the stream itself so as to turn it away from a lower proprietor, and the right to take water from the stream.
The first is wholly unlawful; the second may be exercised to a reasonable extent. There must not be such an abstraction of the water as will materially interfere will the rights of any other proprietor, and it is no answer to such a violation of right by one party that the other has increased the usefulness of die stream by means of a reservoir higher up, since the private right of one man cannot be taken by another upon the subslitution of an equivalent benefit ...... The question whether the injury is caused by the defendant's diversion or artificial diminution or by a gradual drying up of the stream is properly a question of fact for the jury.......'
12. Angell on Water Courses, 7th Edition (1877) page 96:
'The Law has been supposed to be well settled, and in my opinion is nowhere more clearly stated than by Lord Kingsdown, in Minor v. Gilmour, 12 Mad PC 131 ...... By the general law applicable to running streams, every riparian proprietor has a right to what may he called the ordinary use of water flowing past his land.......But he has' no right to intercept the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors and inflicts upon them a sensible injury'. The use in all the above cases must be a reasonable one.
By all the modern as well as by all the ancient authorities, the right of properly in the water is usufructuary, and consists not so much of the fluid itself, as of the advantage of its momentum or impetus. The owner of the land merely transmits the water over the surface; he receives as much from his higher neighbour as he sends down to his neighbour below; lie is neither better nor worse; the level of the water, remains the same.......the general doctrine in relation to the right to apply the water of a watercourse is thus laid down by Mr. Justice Story (Tyler v. Wilkinson, 4 Mason 400). Prima facie, every proprietor on each bank of a river is entitled to the land covered with water, to the middle thread of the stream or as is-commonly expressed, usque ad filum aquae. In virtue of this ownership, he has a right to the use of the water flowing over it, in its natural current, without diminution or obstruction. But strictly speaking, he has no property in the water itself; but a simple use of it, while it passes along, The consequence of this principle, is that no proprietor has a right to use the water to the prejudice of another. This, adds the same high authority, 'is the necessary result of the perfect equality of right among all the proprietors of that which is common to all..,.....'
13. These principles regarding the rights of the riparian owners and the right to cross-burnd have been set out in the following Indian decisions. The first is ILR (1914) Mad 369: AIR 1914 Mad 552, to which reference has 'been made above. The learned District Judge however lias not paid attention to the relevant passage at page 370 (of ILR Mad): Cat p. 554 of AIR) of that decision. In that case it was found that the plaintiff as a riparian proprietor was entitled to take the water for the irrigation of his own lands without causing any material injury to the other riparian proprietors and that the method he had adopted of constructing an cuts for the purpose of damming the river was in the circumstances of the case, the only reasonable method of enjoying his right and that no material injury was thereby caused to the other riparian proprietors and that the plaintiffs predecessors-in-title had been putting up the dams in question and thereby diverting the water of the stream into his channels for a very long time probably from the year 1803 and certainly for more than 30 years, and that in the circumstances of the case there was a presumption of a grant by the Government in favour of the plaintiff. It will thus be seen that the facts of this case are entirely different.
In Venkatadri Appa Rao v. Seetharamayya, ILR 1939 Mad 45: AIR 1938 Mad 816, what is a riparian tenement and what are the rights of a riparian proprietor have been fully discussed be Venkata Subba Rao and Abdur Rahman, JJ. on the same lines as Halsbury. See also the later decision of Abbas Ali v. Shaikh Munir, : AIR1953Bom305 .
In Ah Li v. U San Baw, AIR 1939 Rang 446, it has been laid down:
'The proprietor of an upper tenement who claims the right to dam up a natural stream has right to take for the purpose of irrigation so much water only as can be abstracted without materially diminishing what should be allowed to descend. If the amount which is allowed to descend is sufficient to supply the owner of a lower holding with as much water as he needs for his own purpose, it cannot be said that the amount that goes down is materially diminished. Diminished it may be, but not materially diminished if the owner of the lower holding has enough for his needs. The owner of the lower holding is not entitled to restrain the owner of the upper holding without any proof of damage, actual or to be feared, for the future'.
In Zamindar of Bethavole v. Satyanarayana Rao, : AIR1940Mad656 ; it was held that where from the evidence in the case it was found that the putting up a bund was an infraction of the right of the defendants, the defendants had every right to have it removed without showing any damage.
In Bakthavathslammal v. Secy, of State, 9 Mad LT 375: 9 Ind Cas 636, the Court has held that a person who is entitled to put up a dam of turf and loose stones is not necessarily entitled to substitute a tighter and stronger dam. The question in each case is the exact nature of the right which is shown by the evidence to have been acquired. The whole position has been summed up by their Lordships of the Privy Council in Debi Pershad Singh v. Joynath Singh, ILR 24 Gal 865 as follows :
'A riparian owner, where a stream flows in a channel down from a property higher up, is entitled to the flow of water. without interruption, and without substantial diminution caused by the upper proprietor, who may for legitimate purposes withdraw so much only of the water as will not materially lessen the downward flow on to his neighbour's land.
In this suit the upper proprietor claimed the right to dam up a stream OH his own estate, and to impound so much of its water as he might find convenient for irrigation, leaving only the surplus, if any, for the use of the proprietors below. He has no such right, in the absence of a right obtained by him in virtue of contract with the lower proprietors, or acquired by him as a consequence of prescriptive use. His common law right is to take for the purpose of irrigation so much water only as can be abstracted without materially diminishing what is to be allowed to descend. What quantity of water can be abstracted and used without infringing that essential condition must in all cases be a question of the circumstances, depending mainly upon the size of the stream and the proportion which the water taken bears to its entire volume.'
(1) See also 'Water Righis' Ch. IV, P. 49] 'and'foil? of B. B. Katiar, Law of Easements and Licenses in India 3rd Edn, (1955) and 'Rights in Respect of Water' Ch. II, P. 307 and foil, of K. N. Joshi Easements and Licenses 3rd Edn. (1957).
14. Bearing these principles in mind, if we examine the facts of this case, we find that in this case the plaintiff was not entitled to cross-bund.
15. The next question which arises for consideration is the scope of the authority of the Government to distribute the water for irrigation to the registered Ayacutdars and the ryots' right to water and in regard to which the following extract from S. Sundararaja lyengar's Land Tenures in the Madras Presidency (19-16) is apposite ;
'It is one of the most important functions of the. Government in India to construct new work of irrigation and to repair old ones according to means and circumstances: Per Subramania Ayyar, J. in San-karavadivelu Pillai v. Secretary of State, ILR 28 Mad 72; Robert Fischer v. Secretary of State, ILR 32 Mad 141. It has at all times assumed itself, and has the right, in the interests of the public to regulate the distribution of water, subject to the right of the ryotwari holder to whom water has been supplied, to continue and to receive supply as is sufficient for his accustomed requirements : Ponnusamy Thevar v. Collector of Ma-dura, 5 Mad HCR 0; Kritnayyan v. Venkatachela Mudali, 7 Mad HCR 60; Rarncliandva v. Narayana-sami, ILR 16 Mad 333; ILR 28 Mad 72; Nynappa Servai v. Veeran, ILR 32 Mad 423.
It has been held that this right can be received even in those portions of natural rivers passing through proprietary estates as its exercise does not depend on the ownership of the bed of the stream ILR 32 Mad 141, but a contrary view has been taken by Sankaran Nair, J. in Secretary of State v. Janaki Ramayya, ILR 37 Mad 322: AIR 1914 Mad 534. But the right does not include a right to flood a man's land because, in the opinion of the Government, the erection of a work which has this effect is desirable in connection with the general distribution of water for the public benefit; nor does it extend to disturb existing arrangements to the prejudice of any ryot: ILR 16 Mad 333.
The position of the Government in regard to liability for damages caused to individuals by such irrigation works has been compared by the Privy Council in Madras Railway Co. v. Zarnindar of Carvetnagaram, 1 Ind App 364: 22 Suth WR 279, to that of persons acting under statutory powers. It is not bound to repair irrigation works wherever they require repair and a ryotwari landholder has no right to damages against the Government in respect of loss incurred by him owing to failure of water caused by such non-repair: Secretary of State v. Mulhu Veeran Reddi. 20 MLJ 869.
The ryot has no right that water should be supplied to him through a particular source, and the Government has the right to alter the source?, means, works, etc., from or by which the water for irrigation is supplied to the ryot entitled thereto, so long as his right to water is not prejudicially affected so as to cause real damage. A ryotwari proprietor whose source of water supply is interfered with by another is entitled to an injunction restraining him from such interference: Rama Odayan v. Subramania Aiyar, ILR 31 Mad 171.
The right of the ryot to receive the accustomed supply of water is not based on any contract with the Government though a contrary view has also been taken. According to Subramania Ayyar, J. it is of the nature of a right in are and on this principle apparently, it has been held that the person at whose instance the Sub-Collector interfered with the source of supply to (he plaintiff were held liable in damages to the latter ILR 16 Mad 333 and the contrary has been held in Chinnappa Mudaliar v. Sikka Naikan, ILR 24 Mad 36.'
See also the later decisions Basavana Gowd v. Narayana Reddi, ILR (1931) Mad 793: AIR 1931 Mad 284; Lnchnma Goundan v. Pandiayappan, : AIR1951Mad679 .
16. It is therefore the duty of the Government to take one or more of the several procedures set out above for the removal of the obstruction injuriously and sensibly affecting the lower down Ayacutdars and as pointed out in ILR (1931) Mad 793: AIR 1931 Mad 284, the Government cannot shelve its duty of seeing to the equitable distribution of this supply between the ryotwari tenants under each channel source.
In the case of interference by one ryot with the supply of another ryot, the Government is bound to see that the channel is not interfered with by the former, unless and until the Government supply some oilier equally efficient source of irrigation for the latter and ensure that the wrongdoer gets booted in one or more of the five ways mentioned above--abatement, penalising, action on trespass and for damages, declaration and injunction and prosecution under Section 430, I. P. C. etc.,--and the grievance of the lower down Ayacutdars is got redressed. I make these observations especially as I find now and then a temptation on the part of the Government to refer the aggressor as well as the victim to a civil suit thereby abdicating their own functions and responsibilities and which happily is not the case here.
17. In the result, this second appeal is allowed with costs and the decree and judgment of the learned District Judge are set aside and those of the learned District Munsif are restored.