IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Civil Revision No. 199 of 2007 Judgment Reserved on 24.07.2008 Date of Decision 25.08.2008 __________________________________________________________ 547, Khewatdaran (Right Holders) of Village Moorang through Prem Kumar and others ….Petitioners Versus 194, Khewatdaran (Right Holders) of Village Thangi, through Prem Singh and others ….Respondents _____________________________________ ____________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 C.R. 199of 2007 For the Petitioner : Shri K.D. Sood, Advovcate. For the Respondent No.1 to 4: Shri G.D. Verma, Sr. Advocate with Shri Romesh Verma, Advocate For the Respondents No. 5 & 6: Ms. Ruma Kaushik, Additional Advocate General. __________________________________________________________ Dev Darshan Sud, J. This revision petition has been filed by plaintiffs against the order passed by the learned District Judge, Kinnaur at Rampur Bushahr partly allowing the injunction application filed by petitioners/plaintiffs. In the suit instituted by petitioners/plaintiffs herein, an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure was filed by them for interim directions with a prayer that the defendants-respondents be restrained from interfering in the customary and easementary rights of the plaintiffs, 1 Whether reports of Local Papers may be allowed to see the judgment? 2 entitling them to draw water from the natural source. The learned trial Court, while considering the application held that the State of Himachal Pradesh is owner of the land and plaintiffs have only bartandari rights over it. Another averment made by defendants/State was that the discharge of water in Ruwang Khad will not be affected by the water/irrigation scheme being executed by the State and the rights of plaintiffs would not be adversely affected. The Court held that irrigation scheme being in the larger public interest and if the water is lifted from the Khad would not be of a quantity which would adversely affect the rights of the plaintiffs and therefore, declined to grant the injunction. In appeal, the learned District Judge considering the totality of circumstances and modified the order of the learned trial Court and allowed defendant No.6 who is State of Himachal Pradesh to collect the discharge of water of the Khud/Kuhal at one or two points which may be feasible and then to distribute it in accordance with law. The detailed order is as under:- “13. In view of my findings on point No.1 above, the appeal is partly allowed and the order of the trial Court is modified to the extent that defendant No.1 is allowed to collect the discharge of the water of the above Kuhal at one or two points which may be feasible as per topography of that area and them distribute the same in the proportionate ratio, that is by dividing the total discharge of the water with the total area of both the villages and then distributing the flow of water in the Kuhal in such a manner that each of the village gets their share as per the area of the village and this order shall be subject to the final disposal of the main suit in which after deciding the customary and Bartandari rights of the parties, they shall be entitled to get water as per their rights and in case any of the parties is not entitled to the water of the above Khud, then the flow of the water shall be closed at the source to that area. In case, any party is entitled to less water or more water, then the discharge of the water shall be regulated accordingly in accordance with the rights which may be determined by the trail 3 Court at the time of final disposal of the case. The order of status quo granted by the trial Court stands vacated against both the parties. The rights of grazing of cattle and other rights shall continue to be enjoyed by the parties as per their admission in the plaint and the written statement and thedefendant No.6 shall be entitled to continue with the welfare schemes of irrigation without any hindrance from any of the parties. Defednat No.6 shall not cause any damage to the forest wealth. Memo of costs be prepared accordingly. The record of the trial Court be returned together with copy of this order and file of this Court, after its due completion, be consigned to record room.” Learned counsel appearing for petitioner has assailed the order on a number of grounds. During the pendency of this revision, I had called for an affidavit of the Superintending Engineer, Irrigation Public Health Circle, I&PH, Recknongpeo, who has stated in clear terms that there can be no apprehension of shortage of water to village Morang (the place of residence of plaintiffs) except in extreme natural calamity beyond the control of human force. Learned counsel for parties made the submissions on the respective merits of the case. Considering the totality of the circumstances of the case more especially that a public irrigation scheme cannot be injuncted, coupled with the fact that the State itself has assured that there will be no water shortage to the petitioners herein, I do not find this to be a fit case in which the revisional powers of this Court can be invoked. There is no jurisdictional error committed by the Court while granting the order against which the revision has been filed. The learned Court holds and rightly so that the larger public interest cannot be allowed to suffer. At the same time, rights of the petitioners herein have been kept intact. This revision petition is accordingly disposed of. Liberty reserved to the petitioners to move the trial Court for such other or further order in the case of changed circumstances. There shall be no order as to costs. 4 August 25, 2008(ms) (Dev Darshan Sud), Judge