RSA No.3633 of 2003 -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3633 of 2003 Date of Decision: 7.11.2008 Municipal Council Budhlada ..Appellant. Vs. Vinod Kumar ..Respondent. CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN * * * Present: Mr.Sanjiv Sharma, Advocate for the appellant. Mr.L.S.Sidhu, Advocate for the respondent. * * * Rakesh Kumar Jain, J. This is an appeal filed by the defendant against the judgment and decree of both the Courts below whereby suit of the plaintiff for permanent injunction has been decreed. The case of the plaintiff is that he is the owner of the land measuring 25 Kanal 12 Marlas and has been cultivating vegetables in his land. There was an arrangement between the plaintiff and the defendant Council as per which the plaintiff was entitled to utilise dirty water for irrigation of his land in lieu of defendant-Council constructing bridges, ducts and leaving pipes in the land of the plaintiff. It is stated that this arrangement has been continuing for the last about 25 years but suddenly defendant-Council stopped providing water to the plaintiff as a result of which defendant's crops would be damaged. Hence the suit was filed for seeking permanent injunction restraining defendant from obstructing the use RSA No.3633 of 2003 -2 - of the water by the plaintiff. As against this, case of the defendant-Council is that they had leased out sewerage water to a contractor, who is responsible for its distribution. It is denied that there was any arrangement between the plaintiff and the defendant-Council, as alleged, therefore, it was stated that plaintiff has no right to utilise the sewerage water for irrigating his land. The core issue in this case was “as to whether the plaintiff is entitled to irrigation of his land by the water being released by the Municipal Council.” In this regard, the trial Court observed as under : “Statements of PW1 and PW2 are clear to show that there was an oral agreement between the plaintiff and defendants, according to which defendant constructed ducts, bridges and laid pipes in the land belonging to the plaintiff without payment of any compensation and in lieu of this plaintiff had been utilising the sewerage water for irrigating his land. DW1 who appeared on behalf of the defendant did not say a word to rebut the statement of PW1 and PW2. He has only spoken about the leasing out of water by defendant council to the contractor. Rather, DW1 admitted in his cross examination that there are ducts, pipes and bridges in the land of the plaintiff as shown in map as Ex.P2. He also admitted that photographs Ex.P3 and Ex.P4 showing the ducts and water channel existing in the land belonging to the plaintiff. He also admitted that no compensation was paid to the plaintiff for laying pipes and construction of water outlet in his land. He also admitted that there is no record regarding the auction of water previously RSA No.3633 of 2003 -3 - except the documents produced on the record as Ex.D1 to Ex.D6. These documents relate to the releasing of water from 1.4.2001 to 31.3.2004. These admissions in the statement of DW1 support the case of the plaintiff that earlier plaintiff has been utilising the sewerage water belonging to the Municipal Council as per arrangement agreed between the parties and this arrangement has been continuing for 25 years. In view of the above when arrangement has been continuing between the parties and no objection was made by the defendant legal obligation has been created in defendant to allow the plaintiff to irrigate his land with the sewerage water until he is paid compensation for the land belonging to the plaintiff used by defendant for constructing water channel and ducts. Accordingly, plaintiff has vested right in accordance with the arrangement agreed between the parties which has been continuing for 25 years, particularly when this fact is not disputed by DW1 who appeared on behalf of the defendant. Accordingly, it is proved that there is an oral arrangement according to which plaintiff has been utilising the water for irrigating his land and this right cannot be taken away by defendant illegally. The plea of the defendant that sewerage water has been leased out to the contractor and it is for the contractor to give water to the plaintiff or not is not tenable. Said contractor is an agent of the defendant who have agreed to give water to the plaintiff unless the arrangement continuing for more than 25 RSA No.3633 of 2003 -4 - years is terminated legally. Accordingly, plaintiff is entitled to irrigate his land by sewerage water being released by Municipal Council through his land according to his needs. This issue is decided in favour of the plaintiff and against the defendant.” Before the Appellate Court, the stand of the defendant- appellant was the same on which firm finding was recorded in para 10 of this judgment, which is reproduced as under : “This issue was raised by defendant that suit is bad for non-joinder of necessary parties. However, no evidence has been led in this respect. DW1 did not say a word in this respect, perhaps this objection was taken by defendant that it is for the contractor to utilise the water according to his wishes. As stated above, said contractor is an agent of the defendant council and is bound by his obligation which lies on the defendant council to give the water to the plaintiff. So, this issue is decided in favour of the plaintiff and against the defendant.” Sh.Sanjeev Sharma, learned counsel appearing for the appellant could not point out any illegality in the decision of both the Courts below much less in the judgment of the first Appellate Court, who had returned a firm finding of fact. Thus, neither any question of law has been raised nor arises in the present appeal, therefore, the same is hereby dismissed. (Rakesh Kumar Jain) 7.11.2008 Judge Meenu