IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA NO. 161 of 2000 Date of Decision: 19th November, 2010 __________________________________________________________ State of H.P. & others ….Appellants. Versus Bhoop Singh(dead) through LRs Devender Kumar & others ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. ___________________________________________________________ For the Appellant: Mr. P.K. Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Advocate. For the Respondents: Mr. Ramakant Sharma, Advocate. __________________________________________________________ Dev Darshan Sud, J (oral). This appeal has been preferred by the State against the concurrent findings of the two Courts below decreeing the suit preferred by the respondents-plaintiffs, granting them a decree for permanent prohibitory injunction, prohibiting and restraining the State from causing any interference in the flow of water existing in Baged Ka Naal and lifting water therefrom in Khata/Khatono No. 13 min/25 min beasuring Khasra No. 6 measuring 5-5 bighas situated in village 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 Baged, Pargana Chail, Tehsil Kandaghat, either personally or through their agents, contractors etc. 2. The case pleaded by the plaintiffs was that they alongwith proforma defendants are the joint owners in possession of land comprised in Khata Khatoni No. 2/4 to 6, kitas 33 measuring 38-1 bigha, Khata Khatoni No. 3/7 kita 1 measuring 0-19 bighas, Khata Khatoni No. 5/10 kitas 10 measuring 5-0 bighas, Khata Khatoni No. 1/1-3 mitas 32 measuring 21-19 bighas and Khata Khatoni No. 8/13-14 kitas 2 measuring 21-0 bighas situated in village Baged Pargana Chail, Tehsil Kandaghat, District Solan. The major portion of the land was under irrigation and the plaintiffs and proforma defendants irrigated their land through different kuhals emanating from Naal known as Baged Ka Naal since time immemorial and except this there is no other source of water with the plaintiffs and proforma defendants for the purposes of drinking, irrigation etc. They pleaded that their rights have been recorded during the settlement in Riwajat Aaab Pashi and Kuhal No. 4 to 12 i.e. total 9 kuhals originate from Baged Ka Naal which irrigate their land. The defendants, who have no right or interest, expressed their intention to lift the water and started digging for the purpose of pump house etc. According to the plaintiffs, this would permanently adversely affect their rights with respect to water for irrigation and drinking purposes. 3. This suit was resisted by the defendants. On the pleadings of parties, the learned trial Court settled eight issues. Three issues which were framed for determination of the suit were (a) whether the plaintiffs and the proforma defendants have been irrigating their land through different kuhals 3 emanating from Baged Ka Naal, (b) whether there are 10 gharats (water mills) of the plaintiffs etc. which used this water for grinding wheat and corn etc. (c) whether the defendants have no rights to lift this water. 4. Before adverting to the judgment of the learned Courts below, what is required to be noticed is that the defendants have denied in any manner that they are lifting water from the source/stream claimed by the plaintiffs. The pleadings in the written statement are: 3. That in reply to this para it is submitted that the plaintiffs and the proforma defendants have no irrigation rights in Baged Ka Nala. However, the State of Himachal Pradesh through Irrigation and Public Health Department is not lifting the water from Baged Ka Nala. The defendant No. 1 to 3 are lifting water from Kanu Ka Nala and Nagali Ka Nala for the benefit of the general public including plaintiffs and proforma defendants. It is denied that the source Baged Ka Nala is disputed source in view of the clear denial of Def. No. 1 to 3 of any lifting of water from Baged Ka Nala. 4. That the contents of this para are wrong, hence denied. That plaintiffs and proforma defendants have no rights in the source known as Kanu Ka Nala and Nagali Ka Nala from where defendants No. 1 to 3 are lifting water for the benefit of the general public. However, it is further submitted that in Kanu Ka Nala and Nagali Ka Nala, the total discharge of water is 302400 litres per day during the peak season of summer. The defendants No. 1 to 3 are lifting only 73,350 litres water per day and remaining water is a wastage. 5. That the contents of this para are wrong, hence denied. The water source mentioned in the plaint is not a disputed source, the defendants are not 4 lifting water from Baged Ka Nala. Since the defendants are taking water from Kanu Ka Nala and Nagali Ka Nala so the construction of pump house to lift the water from these sources is not against the interest of the plaintiffs and proforma defendants.” 4. This fact, by itself, should have been sufficient for grant of decree, as it amounts to an admission, being made by the defendants, that they are not interested in lifting water from Baged Ka Naal and have pleaded that they are not lifting the water from Baged Ka Nala but there is other source. 5. Considering the evidence on record, the plaintiffs have produced four witnesses to prove on record Riwajat Aabpashi by PW2 and to prove that their rights to use the water have been kept intact. DW1 is proforma defendant No. 8, who says that the scheme is for the betterment of the Gram Panchayat and is being carried out at the instance of the people. He says that water would be lifted from Shila Kyar on the Kanu Ka Naal and 4-5 nallas merge in Baged Ka Naal, but he does not know which Nalas merge where. The learned trial Court noticed that Kanu Ka Nala does not merge in Baged Ka Naal. 6. DW2 Roop Singh Pradhan Gram Panchayat has also corroborated DW1. He admitted that if water is not lifted from Kanu Ka Nala it would flow in Baged Ka Nala, suggesting that Kanu Ka Nala infact feeds Baged Ka Nala. No resolution of Panchayat has been produced. 7. DW3 Naresh Kumar, Junior Engineer I&PH, states that water would be lifted from Kanu Ka Naal and discharge of water in Kanu Ka Naal and Nagali Ka Naal is more than three lacs 5 litre per day and only 73,000 litres of water per day would be lifted. He is emphatic in his deposition that no water would be lifted from Baged Ka Nala. No site plan or Panchayat certificate or other document has been placed on record to this effect. The defendants have not placed even a single document on record of the case. 8. DW4 is Surender Kumar who prepared the survey. He states that discharge of water in Kanu Ka Nala and Nagali Ka Nala was 2.5 litres per second and only 73,350 litres of water would be lifted and the remaining would be allowed to flow freely. 9. On the documentary evidence i.e. the revenue record produced by the plaintiffs, the Court holds that rights of the plaintiffs were established. There as noticed no documentary evidence produced by the defendants. 10. Appeal was filed in the Court of the learned District Judge, Solan, who has affirmed the findings of the Court below. 11. This appeal was admitted on two substantial questions of law by this Court on 19.7.2001viz:- 1. Whether the State Government has the sovereign right to regulate the collection, rentention and distribution of water of rivers and streams flowing in the channels for the use of general public by ignoring the recorded rights of the plaintiffs No. 1 to 9? 2. Whether public policy of the State to supply water for irrigation to the general public can be defeated by individual rights of the respondents- plaintiffs No. 1 to 9? 6 12. All that I need say is that no evidence has been led by the State for adjudication on these points or facts. In the pleadings, which have been reproduced, the defendants have made a different case that they are not touching this water at all. Further there is no documentary evidence on record that this very source of water is being affected by the State. Some site plan, revenue record or survey record should and ought to have been placed on record to prove their case. There is no evidence in law and fact. The questions urged by the State, do not arise for determination and therefore answered against it. The State asserts omni sovereignty over the entire water channels etc. which from the time immemorial have been used by the villagers and it has been proved by evidence on record. I have noted supra that the pleadings of the State do not claim any right over the water source/stream from where the water is to be lifted. In these circumstances, these questions do not arise for determination. This appeal is accordingly dismissed. It is clarified that right of the State to take water from any water source including the present source is not foreclosed by this appeal and it will be open to the State to utilize such water in accordance with law. (Dev Darshan Sud) Judge November 19th, 2010(ms)