IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.328 of 1998. Date of decision: 15.11.2010. Mohan Meakin Limited … …Appellant Versus Hari Dass and Others … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant: Mr.K.D. Sood, Advocate. For the Respondents: Mr.G.D. Verma, Senior Advocate with Mr.B.C. Verma, Advocate. Dev Darshan Sud,J. This appeal was admitted on substantial questions of law No.1, 3, 4, 7 and 9. When read in conjunction, the point for consideration is as to whether the respondents-plaintiffs were entitled to the relief as claimed by them in the suit, namely; a decree for injunction against the appellant-defendants restraining them from causing any obstruction for lifting water by any mode or in any manner from Khasra No.327, situated in village Shilly, known as Kotla-Ka- Haul. 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 2. It is undisputed before me that the land purchased by the appellant adjoins and abuts the Khud subject matter of the suit. It was also undisputed that the water which flows into this Khud and qua which the dispute has been raised, firstly flows through the land of the respondents-plaintiffs and thereafter to the land of the appellants and then into the Khud. When this appeal was taken up for hearing, both the parties were at ad-idem that the respondents would have no objection in case right of the appellants for irrigation of their land is not obstructed. The evidence of Shri H.N. Handa, who was the Company Secretary of the defendant, is clear that the land purchased adjoins and abuts the Khud. He states that, ”… … … …Hamari Jameen ko bhi pani irrigate karte hain. Hamari jameen mein pani gaon walon ki tamam jamino main se hokar aata hai uske bad khud mein chala jata hai. … … …” (The water flows into our land after it has passed through the land of the plaintiffs.) There is no evidence to the contrary so far as this fact situation is concerned. In these circumstances, it would be natural that the user of the water by the defendant would only be after the water has been utilized by the upper riparian owners. 3. Learned counsel for the appellant submits that it is not possible for the defendants to obstruct the right of the plaintiffs. The water which flows from the higher ground to the lower ground cannot be 3 obstructed by the owner of the land situated at a lower level. Learned counsel relies upon the judgment of the Kerala High Court in Dr.K.Anantha Bhat vs. K.M. Ganapathy Bhatta and Others, AIR 1981 Kerala 102, wherein the Court holds:- “6. It is admitted by both sides that the thodu marked in Ext.C1 plan is a natural stream running from south to north. The plaintiffs in O.S.25/69 are the higher riparian owners having lands on the eastern bank of the natural stream. The first defendant in O.S. 25/69 is a lower riparian owner having lands on the western bank of the natural stream. The first defendant in O.S. 25/69 is a lower riparian owner having lands on the western bank of the natural stream. The other defendants in the suit are not lower riparian owners, and they are not interested in the katta being put up at point `K’ in Ext.C1 plan. In S.A. No.1013 of 1976 this Court is concerned with the right of the first defendant in O.S. No.25/69 to put up a katta or an embankment across the natural stream at the point marked `K’ in the plan for the purpose of irrigating his lands on the western bank of the stream. The prayer in the plaint is for a permanent injunction restraining the defendants, their men and agents from putting up any katta touching or adjoining R.S. 557/4 or which would have the effect of accumulating water in R.S. 557/1 or otherwise interfering with the second plaintiff’s exclusive user of the water in the stream. The relief claimed therefore is against a lower riparian owner putting up an embankment across the thodu to 4 conserve water for the purpose of irrigating his lands. Since a portion of the thodu flows along R.S. 557/1 relief is claimed against accumulation of water in R.S. 557/1 relating to that portion of the thodu flowing along the said survey number. The law relating to the rights of owners of land on the banks of a natural water course for the use of its water is considered by this Court in the decision in M.Kanna v. T.Chathu (1970 Ker LT 124), and it is held in paragraph 5 of the judgment as follows:- “5. The plaintiffs as well as the defendants are riparian owners, the properties of defendants being adjacent to the stream at the higher reaches. The water in such a natural course is open to use by the riparian owner for all primary purposes, irrespective of diminution in the quantity of water resulting from such use. Domestic use, use for cattle, and such other purposes are primary purposes. But in diverting water for secondary purposes such as for irrigation or for running a mill the use by the riparian owner is subject to the restriction that such use shall not cause material diminution in the supply in the stream to other riparian owners. The rights of the other riparian owners should not be sensibly injured. Any riparian owner who seeks to use the water of a natural stream must use it reasonably keeping in mind that he is not entitled to exclusive user of the water of the stream and that the fundamental consideration is that the user by the other riparian owners should not in any way be prejudiced by the way he diverts the resources 5 to his own purposes. Section 7 of the Indian Easement Act recognizes this right of every owner of immovable property. Section 7(b) recognizes the right of every owner of immovable property to enjoy, without disturbance by another, the natural advantages arising from its situation subject to any law for the time being in force. One of the natural advantages that is enjoyed by an owner of property which is situate adjoining a stream is to exploit the water of the stream for his own purposes subject to the limitation to which I have already referred. Illustration (j) in Section 7 runs as follows: “The right of every owner of land abutting on natural stream, lake or pond to use and consume its water for drinking, household purposes and watering his cattle and sheep; and the right of every such owner to use and consume the water for irrigating such land, and for the purposes of any manufactory, situate thereon, provided that he does not thereby cause material injury to other like owners.” In the former part of this illustration the primary use is referred to. There is no limitation in the matter of the primary use. In the latter part of the illustration the secondary use is referred to. But that is qualified, that qualification being that no material injury to other like owners be caused. What exactly would be material injury to other riparian 6 owners is the question which would then arise. As I said earlier, material injury would be caused to other riparian owners if their right to use the water of the natural stream, whether for primary or for secondary purposes is in any way materially affected. It would be materially affected. It would be materially affected if there is perceptible diminution in the supply of water to them. Such injury may arise by reason of the volume of the water diverted by the upper riparian owner and also the mode employed by him to divert such water. After referring to the decision in (1897) ILR 24 Cal 865, 1904 AC 301, AIR 1932 PC 46, AIR 1934 Mad 583, AIR 1960 Bom 490, 1962 KLJ 45 and AIR 1969 Guj 276, this Court held:- “7. What I have stated above, is sufficient for the purpose of this case. No doubt, an upper riparian owner can claim that to irrigate his paddy fields he is entitled to supply of water from the river or stream. He can even put up a bund across the course of the river for the purpose of diverting water for his fields. But one thing that must be remembered is that his acts should not in any way injure the other riparian owners who depend upon the water from the same stream and who have a right to expect water from the stream to irrigate their own lands. The stream must continue to flow without sensible diminution.” It is thus clear that the plaintiff in O.S.No.25/69 who is the upper riparian owner with respect to the natural stream is 7 not entitled to exclusive user of the water in the natural stream. He cannot complain of the user of the water by the lower riparian owner, and in law he has no locus standi to bring a suit against a lower riparian owner putting up a bund across the natural stream and diverting the water for purpose of irrigating his lands.” (pp.104-106) 4. This appeal is accordingly disposed of. The right of the plaintiffs to use the water will remain intact. However, at the same time, they cannot obstruct the appellant-defendants from utilizing this surplus water when it reaches his land and flows into the Khud. No order as to costs. November 15, 2010. (Dev Darshan Sud) (aks) Judge.