1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.172 OF 2009 with CIVIL APPLICATION NO.618 OF 2009 Mr.Esarul Haq Usmani ..Appellant versus State of Maharashtra & Others ..Respondents Mr.R.R.Sharma for the appellant Mrs.Mulekar for the respondent Nos.1 and 2 Mr.Xavier for the respondent NO.3 BMC CORAM : R.Y.GANOO, J. DATE : 6th JULY, 2009. P.C: 1. The present appeal relates to drawing of water from suit well by the appellant. Said well is situated within the campus of the High Court. The appellant had secured license to draw the well from 1993 for a period of five years. It was subsequently renewed upto a particular period and thereafter there arose a dispute between the 2 Corporation and the State of Maharashtra as to whom the well belongs and it appears that by letter dated 28.11.2002 the Government of Maharashtra through Public Works Department, addressed a letter to the Deputy Engineer, South Sub Division informing him that the present appellant has been granted license/permission to draw water for a period of 30 years from March 2002 on payment of monthly charges of Rs.1300/-. The said letter was sent by Executive Engineer, Bombay City Division and copy of the same was sent to the present appellant. 2. The present appellant is putting up his claim to draw water from the suit well on the strength of this letter dated 28.11.2002 and the appellant claims that he was ready and willing to pay the monthly charges, however, neither the Corporation nor the State were receiving the said monthly charges. As a result of this he instituted a suit in the City Civil Court, Bombay, being Long Cause Suit No.2207 of 2003 and by prayer clause (a) he 3 sought declaration that he has right to draw water from the well pursuant to the aforesaid letter dated 28.11.2002 and also a declaration that the said permission cannot be revoked. By prayer clause (b) he sought injunction restraining the defendants therein i.e. the Government of Maharashtra and the Corporation Authority from interfering with the drawing of the water from the suit well. By prayer clause (c) he sought permission to deposit the charges from time to time. The present suit was heard by learned Judge of the City Civil Court. He dismissed the said suit by judgment and decree dated 28.1.2009. 3. After the institution of the suit in the year 2003 and before the dismissal of the suit in 2009, important developments took place in as much as by Government notification issued by the Urban Development Department dated 8.1.2004, certain modifications were made as regards inclusion of certain structures as heritage structures and the suit well came to be included in the list of 4 heritage structure. The Prothonotary and Senior Master of the High Court, Bombay by her letter dated 6.11.2003 informed the Executive Engineer, Presidency Division, Bombay that the water from the well cannot be drawn and the appellant should not be permitted to draw the water. After this communication, the Government of Maharashtra through Executive Engineer addressed a letter to the appellant and other authorities being letter dated 21.11.2003 mentioning therein that the appellant is prohibited from drawing the said well. According to the appellant this letter was not received by him, but he came across this letter only when the suit was taken up for final hearing and this letter was produced before the Court. 4. The learned Judge of the City Civil Court, after allowing the parties to attend to the matter, dismissed the suit. While dismissing the suit he came to the conclusion that letter dated 28.11.2002 on the basis of which the appellant is 5 staking his claim to draw water from the well, is an internal communication and does not confer any right upon him. 5. It is a matter of record that in the past when the appellant was permitted to draw water in the year 1993, the regular agreement was entered into between the appellant and the appropriate authorities as set out in the said agreement which is part of record of this court. This will go to show that if at all any license is to be granted to the appellant there has to be a regular agreement entered into between the parties and thereafter the right would be conferred upon the appellant. On record, no such agreement duly executed by and between the appellant and the appropriate authorities of the department is produced. 6. With the assistance of learned Advocate Mr. Sharma, I have perused the plaint and in the plaint there are no averments to show that at site 6 the appellant is prohibited from drawing water from the well. If this is so, there is no cause of action for the appellant to institute the present suit. It is pertinent to note that when the appellant came to know about the two letters, one issued by the High Court to the Executive Engineer and the other by the Executive Engineer to the appellant, the appellant did not challenge those two letters and felt satisfied to prosecute this suit. 7. I have extensively heard learned Advocate Mr. Sharma in support of the appeal and Mrs. Mulekar for the State and Mr. Xavier for the Corporation. According to Mr. Sharma, the letter dated 20.11.2002 confers right on him to draw water whereas the learned Judge has observed that it is an internal communication. I am not inclined to accept the arguments advanced by learned Advocate Mr. Sharma that the letter by itself confers right upon the appellant. The learned Judge was right in holding that the said letter was internal 7 communication between the two departments. It is true that a copy of the said letter was sent to the appellant. However, that act on the part of the author of the said letter to sent the copy to the appellant would not confer the right upon the appellant. 8. Even otherwise, in the absence of a regular writing executed in the proper manner as may be required (as was done in the past) the right to draw water would not be conferred upon the appellant and to that extent as of today, the appellant has no right to draw the water. Even otherwise on account of communication between the High Court and Government as mentioned aforesaid and as the well is declared as Heritage property the appellant is prohibited from drawing water from the well. 9. After having considered the entire matter from all angles, I am inclined to observe that the learned Judge was right in arriving at final conclusion 8 which is rendered in the judgment and no interference is required at the stage of hearing of the first appeal and the first appeal is required to be dismissed. 10.For the reasons mentioned above, the first appeal is dismissed. In the peculiar facts and circumstances there shall be no order as to costs. 11.Civil Application No.618 of 2009 is dismissed in view of the dismissal of the first appeal, with no order as to costs. (R.Y.Ganoo, J.)