SHANKAR NARAYAN RANADE versus UNION OF INDIA

J.-The s~ort question which thi! appcaJ raisc;s fot our decision. is whether ·the appellant Shankar Narayan Ranade has established his title to the running water of the river Valdevi which ruhs·fhr.ough'his lnam village Vadner. The said vi llagc hall been granted to the ancestors of the appellant by the Peswa Government in 1773 A.D. This grant was continued by the British Gov~rnment when the British Government came in power. The river Valdevi has its origin in the hills of Trim\,.,k and from those hills it flows to Vadner and then to Chehcdi where it joins the river Darna and thus loses ils individuality. The total length of this river is about 25 miles, while its length within the limits of Vadner village-is about 2 miles 82 furlongs. The Dama river after its conjunction with Valdevi pro· cccds towards Sangvi and there is merged with Godavari river : The appellant is one of the sharers in lhe Inam village of Vadner and he brought the present suit No. 12/1950 in the Court of the Civil Judge (Senior Division) at Nasik, claiming reliefs against the Union of India and the State of Bombay, respondents ~ & 2 respectively, on the basis of his title to the running water of the said river.

pp. 886–887

It appears that in rni'.?, during the period ol the II World \<Var, the ivfilitarv authorities constructed barracks and other rcsidci1tial quarters for the army personnel within and outside the limits of Vadner. Thev also built a dam across the river Valckvi within the.limits of Vadner and dug a well near the bank of the river. This well was fed with water carried by two channels drawn from the river. When the water reached the well, it was pumped from the well and duly stored in four reservoirs where it wa1 filtered and then it was carried by means of pipes to the residential area occupied by the military personnel.

p. 887

The appellant then approached the military authorities and also the Government of Bombav and claimed compensation for the use e>f the watc'r and· the lands bv the military authorities. Since his request for adequate compensation was not met. he filed the present suit on Marchll, IHIJO, in a representative character un<lcr 0. l r. 8 C. P. C.

p. 887

In this suit, the appellant speaking for himself and for the other sharers in the lnam village of Vadner alleged that the Jagirdars of the village were full owners of the entire area c.f th:1t village, including the land, the stream and the water flowing through the stream within the limits or the village. According to the plaint, the acts of diversion of waler committ· cd by the military authoritie> had deprived the appellant and the other Inamdars of their right

p. 888

utilise that waler for their own gains and thus, had caused injury and damage to them. A5 compens;1tion for this rlamagc, the appellant rLiimed Rs. 1,11,:!GO/- from the respondents. The appellant further made a claim for Rs. 750/· as co111pcmalio11 for the use of lus land by the military authorities. The diversion of water and the use of hmd continued from l!H2 to l!J.l!J. Some other incidential reliefs were also claimt-d by the appellant·

p. 888

Respondent No. 2 contested the appellant's daim. It urged that the Inamdars were not the grantees of the soil, but were the grantees of the royal share of the revenue only; and it was urged that in any case, they had no ownr.rship over the flowing water of the Valdevi river. Respondent No. I adopted the written statement of respondent '.\lo. 2 and filed the Purshis in Lhat behalf. According to the respondents, the river Valdc~i had become a notified canal by virtue of a notification issued on February Ii, l!Jl3 und,,r scc1ion 5 of the Bombay Irrigation Act, 18/!l, and consequence, the lnamdars had lost their rights, if any, in the waters of the said river and respondent No. 2 had the absolute right of the use of the said water. A pka of limitation was also made by both the respondents.

p. 888

The learned trial Judge made findings in fa\'Clur of the appellant on all the issues. He held that the Inamdars were the grantees of the soil, that the river Valdevi and its flowing water belonged to them, that the notification on which reliance was placed by the respondents was invalid, that the acts of the military au•hrnilies were unauthori<cd am! that the appellant \\las consequently entitled to the compensa· tion for the use, by the military authorities, of the water of the river and his lands and also for the loss of his income from. the river bed. According to the trial Court, the appellant was entitled to this compensation only for two years before the date of the suit and the rest of his claim· was barred by time. Accordingly, it passed a decree iu favour of the appellant for an amount of Rs. 26, 788/1/· as compensation for the use of water up to December 31, 1949, directed that the compensation for the use of water for the period sub· sequent to January l, 1950 should be ascertained in execution proceedings, and awarded compensation @"Rs. 100/· per annum for the use of the land, and Rs. 50/- per annum for the loss of income from the river· bed during the period· that the act of the military authorities continued.

pp. 888–889

This decree was challenged both by the appe· llant and the respondents by cross-appeals Nos. 634/1954 and 640/1953 respectively. The appellant claimed a larger amount of compensation, whereas, according to the respondents, no compensation was payable in respect of the alleged diversion of the running water of the river Valdevi. It appears that before the High Court, the respondents did not dispute the finding of the trial Court that the Inamdars were the grantees of the soil and conceded that the rights of the Inamdars such as they were to the waters of the river Valdevi had not been extinguished by the notification issued under the Bombay Irrigation Act. It was, how· ever, ·urged that the Valdevi river being a notified canal, the military authorities could have used its watf'r by making appropriate applications under ss. 17 and 27 of the sai,d Irrigation Act; but since there wa~ no evidence to show that any such applications had been made, the said point did not survive. The rna ar~1lment u1ged the rcspondents'·in their appe~l "as that the appellant was not the bwllti:._pf the running water of the stream and so, he had· no right to claim any compensation for the alleged clivnsion 'of the sakl waler bv the military 2uthori\i6. Th\! 'High 'Court' has· sub·, stantially accepted this contention. It .has held that as owners of the !'ands in the village situated on both banks o\' tlie river the hiamd<1rs were entitled to the use of the· water of the river as rip'1rian owners and what belonged to them was water which lhcy t<iok out from the rivrr aml appropriated tn 1heir use; they we1·e, howcyer, not entitled to claim title over the flowing water of the river and so, the aivrrsion of the flowing water of th(: <l'ivrr cannot sustain their claim for compensation. The decree pass¢d . by the trial Court in respect of compensatio'n for the wrongful use of the lands was not challenged by the respondents. In tb.c result, the High Court modj(ie<;I the decree passed by the trial Court by setting aside that part of it which related lo the compensation for the use of the water of the Valdevi river by the military authorities and con· firmed the rest of the directions issued by the decree. It is against this .decree that the appellant has come to this Court \vith 'a cc;rtificate issued by the l:Iigh Court ; and the main point which has been urged before u~ by 1\.fr. Pathak on behalf of the appellant is that the Higl1-Court was in error in rejecting the appellant's claim. th;it the Inamdars of the village were tlic owners of !he running water of the river Vald~vi during its course \Vithin the limits of the lnam villagr of Vadner.

pp. 889–890

In support o,f tjle appellant's case, Mr. Pathak has urged that in construing the Sanad on which the appellant's title is founded, it would be necessary to bear in mind two important considerations. The first consideration is that the flowing water of a river constitutes property which can belong to a citizen either by grant ur otherwise; and assistance is suught for this argument from the pruvisions of section :37 of the Bombay Land Revenue Code (Act V ul l87U). S·-ction 37 (I) provides, inter alia, that all public roads, lanes and paths which arc not the property of individuals, belong to the Crown, and amohgst the items of property specified in this clause arc included rivers, streams, nallas, lakes, tanks and all canals and water-courses, and all standing and flowing water. The argument is that this sub·sect ion postulates that the items of property specified by it can belong to private individuals, am! it provides that if they are not shown to belong to private individuals, they would vest in the State. Therefore, in construing the Sanad, we ought to remember that the river and its Jlowing water constitute property which can be granted by the Ruler to a citizen.

pp. 890–891

The other consideration on which Mr. Pathak has relied is that under the provisions of section 8 of the Transfer of Property Act, it should be assumed that unless a different intention is expressly or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in tlw leg.ii incidents thereuf. Mr. Pathak contends that a~suming that prior lo the grant, the Peshwa Government as the ruling power of the day was the owner of the river and its flowing water, when the said Government made· a grant to the appellant's predecessors, the principle enunciated by s. 8 of the Tramfcr uf Property Act should be applied and the grant should be construed to include all rights, title and interest the grantor, unless there is a contrary provision either expressly mad~, or imp· lied by necessary implications.

p. 891

Bearing those two considerations in mind, let us consider the terms of the Sanad itself. The Sanad is drawn in terms which are consistent with the pattern prevailing in that behalf in th use days and contains the usual familiar recitals. The relevant portion of rhe Sanad reads a! follows :- "Secin~ the respectable Erahsins, performing Snan Sandhya (bath and prayer) leading ascetic life, devoted to the performance of their dutie~ as laid down in Shrities and Smrities, the Government has constructed houses there and given to (them). Thinking that if the same arc given to them, it would be beneficial to the Swami and to the Kingdom of Swami, the village of mouje Vadner, Pargana aforesaid in

p. 892

~· Swarajya as well as· Moglai-Dutarfa (on both sides) has been given to them as Nutan (New) Inam together with Sardeshrnukhi, Inam Tizai,

p. 892

:• rn w Knlbab-Kulkanu, Hali· Patti, and Pcstr-Patti excluding (the rights of) Hakkadar and Inamdar and together with water, trees, grass, wood stones and hidden treasures, for maintenance

p. 892

of their families." The Sanad then defines the shares in the current revenue of the said village amongst the respective shares. In the concluding portion, it makes certain other provisions with which we arc not concerned in the present appeal. This Sanad was executed in 1773 A. D. During the British rule, this Sanad was confirmed in 1858 A. D. It is common ground that the material terms which have been construed for the purpose of determining the title of the appellant are contained in the earlier Sanad.

p. 892

It would be noticed that the Sanad reters to the rights in water, trees, grow, wood, stones and hidden treasures. It is well settled that the word "water (jal)" refers to water in tanks or wells and does not refer to the flowing water of the river. Indeed, if a grant of the river including its flowing water .is intended to be made, the Sanad would have definitely used the word "river (nadi)'', because it is wellknown that when rivers, drains or culverts are intended to be gifted, the Sanads usually use the words "nadi and nalla". Therefore, on a plain construction of the relevant words used in the Sanad, there can be no doubt that what is conveyed to the grantee by the Sanad is stationary or static water in the ponds or wells and not the Howing water of the river. The specific reference to water meaning water of the well or the pc.nd serves two purposes ; it defines the kind of water which is conveyed, and by necessary implication, excludes the grant of flowing water of the river. Sanads containing words like these have frequently been considered by the Bombay High Court in the past and it has been consistently held that the word "water" means only water in the ponds or wells and does not refer to the flowing water of the river, vide A 1inapurnabai Gopal v. Government of Bombay ( Therefor~, the two considerations on which Mr. Pathak strongly relied in support of his construction of the Sanad do not really assist him. The language of the Sanad precisely defines the nature of the water that is conveyed and in doing so, by nec~sary implication, excludes the flowing water of the river.

pp. 892–893

Mr. Pathak, however, suggests that it is not disputed by the respondents that the Sanad in question grants title to the soil of the village and is not confined to the royal share of the revenue only ; and he argues that the grant of the soil necessarily means the grant of the bed of the river while it flows within the limits of the Inam village. If the bed of the river has been granted to the- appellant's predecessors by the Sanad, why does it not follow that the water flowing on the said bed during the said limits belongs to the appellant ? The title to the running water of the river must, Mr. Pathak says, go with the title to the bed of the river. There are two difficulties in accepting this contention. The first difficulty is that the use of the word "water ' ijal)" .in the Sanad, as we have already held, excludes the running water of the river. Besides, it is· by no means clear that the title to the flowing water of the ,river necessarily goes with the.title. to the bed of .the river .. As was observed by Lord Selborne in . Lyon v. Fish-mongers' Company. "The title.to the soil constituting the bed of a river does not carry with it only exclusive right of property in the running water of the stream, which can only be appropriated by severance, and which may be lawfully. so. appropriated by· every one . having a right of. access to it.'' Therefore, the argu· ment that the grant of_ the soil of the village including the bed of the river must necessarily include the grant of the title to the .flowing water of the river cannot be accepted.

pp. 893–894

. .

p. 894

In this connection, it is necessary to remember that the river Valdevi flows through the village only for the distance of 2 miles & 2. furlongs.· . It is not . a ca<e where. the whole cif the stream of the river fro:n its origin to its_. me;ging .in another;rivei:: runs entirely, through. thts ·village. . If a nver takes its origin within the limits of an Inam village and its course is terminated within the limits of the same village, that would be auother matter. In the present case, if the appellant's right to theJollowing water of the river is conceded, it would mean that . the Inamdars would be able to . divert the water com-· · plctely and destroy the rights of the other riparian owners whose lands are situated outside the village. They may be able to pollute the water or.do anything with it to the prejudice of the said riparian owners. Such rights cannot be claimed by the appelfant unless the Sanad in his favour makes the grant of the running water in terms. As we have already seen, the Sanad not only does not make any such grant, but by necessary implication also excludes the running water from the purview of the grant.

pp. 894–895

Mr. Pathak then attempted to argue that the diversion of the water of the river Valdevi during the relevant period affected the appellant's right as the riparian owner and that, according to him, would furnish him with a cause of action for claiming damages against the respondents. In this connection, Mr. Pathak invited our attention to the observations of Parke, B. in Embrey v. Owen. ('). "Flowing water," said Parke, B., "is publici juris in this sense ·only that all may reasonably use it who have a right of access to it, and that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only.-The right to have a stream of water flow in its natural state, witho•1t diminution or alteration, is an incident to the property in the land through which it passes ; but this is not an absolute and exclusive right to the flow of all the water, but only subject to the right of other riparian proprietors to the reasonable enjoyment of it; and consequently it is only for an. unreasonable and unauthorised use of this common benefit that any action will lie .. ,

p. 895

In this connectlon, Mr. Pathak has also referred us to the decision of the Privy Council in the Secretary of State /01' India v. 8ubbnrayu-lu ('). In that case, the Privy Council has elaborately considered the nature and extent of the rights which a riparian owner can claim. "A riparian owner", observed Viscount Dunedin, "is a person who owns land abutting on a stream and who as such has a certain right to take water from the stream. In ordinary cases, the fact that his land abuts on the stream makes him the proprietor of the bed of the stream usque ad ~dium filum. But he may not be. He may be ousted by an actual grant to the person on the other side, or he may be and often is ousted by the Crown when the stream is tidal and navigable, the solum of the bed belongs to the Crown." It was also observed that "the right of a riparian owner to take water is first of all, for domestic use, and then for other use.i connected with the land, of which irrigation of the lands which form the property is one. This right is a natural right and not in the strict sense of the word an easement, though in many cases it has been called an casement."

pp. 895–896

We do not, however, think that it is possible for us to allow Mr. Pathak to raise this alternative argument before us, because it is clear that the reliefs claimed by the appellant were based only on one ground and that was, the title to the flowing water of the river. In paragraph 8 of the plaint the appellant ha• specifically stated that he was claiming the of compensation for the use of water belonging to the plaintiff and in paragraph 3 it has been clearly averred that the running water of the river belongs to the appellant and so, by the un· authorisrd acts of the military authorities, the appellant and he Inamdars were not able to let out their bed of the stream for the plantation of water-melons etc., and were thus put to loss. In other words, the plaint has made no allegation even alternatively that the appellant and the other Inamdars of the village had certain rights in the flowing water of the river as riparian owners and the illegal acts of the military authorities bad affected the said rights and thereby caused darnagc to them. In fact, as the High Court has pointed out, there is no evidence on the record which won Id sustain the appellant's claim that the acts of th~ military authorities had prejudicially affected the appellant's rights as a riparian owner to the use of the water, and that mean~, on the record there is nothing to show that any damage had been caused to the Inamdars of the village as a result of the di version of the water caused by the military authorities. Therefore, we are satisfied that the appellant cannot now make an alternative case on the ground of his rights as a riparian owner. --

pp. 896–897

The result is, the appeal fails and is dismissed with costs, two sets; one hearing fee

p. 897

Appe~l aismi.,sed. RAI RAMKRISHNA & OTHERS

p. 897

v.

p. 897

THE STATE OF BIHAR (P. B. K. N. M. K. C. and

p. 897

J. C. JJ.)

p. 897

Tazing Statide-Tax on passengers and goods-Retros· pective operation-Validity-Restrictions, if unreasonable- Fundamental rights, if infringed-State's power of taxation- Gonstitution of India, Arts. 19(1)(/) and (g), (6), (6), 304(b), Seventh Schedule, hist II, Entry 66-liihar Finance Act, ltl60 ( Bihar 17 of 1960)-Bihar Taxation on Passengers and Goods (Carried by Public Service Motor Vehicles) Act, 1961, (Bihar 17 of 1961) ss. 1 (3), 23(b) •

p. 897

On March 30, 1950, the Bihar Legislature pa<sed the Bihar Finance Act, 1950. That Act levied a tax on passengers and goods carried by public service motor vehicles in Bihar. The appellants challenged the validity of the Act and certain provisions of the Act were struck down by this Court. The respondent then issued the Bihar Ordinance No. II of 196! on August I, 1961. By that Ordinance, the provisions of the Act of 1950 which had been struck down by this Court were validated and brought into retrospectively from the date when the earlier Act purported to come into force. Later on, the provisions of the said Ordinance were incorporated in the Bihar

p. 897