ABBASALI HASANALI PEERJADE Vs. SHAIKH MUNIR SHAIKH DAGU

JUDGEMENT

(1.) (His Lordship after narrating fads & dealing with a point not material to the report continued) : The next point which is pressed by Mr. Gokhale for the appellants is an important point which goes to the root of the case and that point is: Even assuming that the plaintiffs as lower riparian owners have got a natural right to the use of the water of this stream, are they entitled to construct a 'bandhara' across the stream in their own village of Girasgaon? What the plaintiffs are obviously wanting to do in this case is to build a 'bandhara' across the stream in Girasgaon, store the water by that contrivance and use that water for their own domestic requirements and agricultural purposes and also permit that water to be used by several of them who are not riparian owners in so far as their own lands are not abutting on the stream itself. I have already pointed out above that plaintiffs 1, 2, 3, 4, 6, 7, 3, 11, 12, 14, 15 and 16 are not riparian owners at all; and yet the plaintiffs are seeking to build a 'bandhara' and store water of this stream so that the water may be made available even to such of them who are not riparian owners for their agricultural operations. The question before us thus is: Whether the plaintiffs fire entitled to store or collect the wafer for the abovementioned purposes by the construction of a dam?

(2.) Now, a riparian owner is a person whose land actually abuts on a stream and there is no doubt that ho has got a natural right to use the water of that stream primarily for domestic purposes and also for carrying out agricultural operations upon the lands abutting on the stream. Now, the contention of Mr. Gokhale, which, in my opinion, is a perfectly correct contention) is that it is not a natural right of a riparian owner to put an obstruction across the path of a flowing stream and collect wafer by that artificial means. The point which is sought to be made by Mr. Gokhale is that a riparian owner is entitled to the use of the water in its natural flowing state, that is to say, as it flows along in a natural way in a stream. It is submitted by him that even the quantity o water which is reasonably required by a riparian owner cannot be stored by him by the erection of a dam because storage in that manner is an artificial contrivance. There is a great deal of difference, says Mr. Gokhale, between constructing water channels or employing oil engines or 'mots' to carry the water from a running stream to agricultural holdings abutting on the stream and construction of 'bandharas'. Mr. Gokhale is right. The former, i.e., water channels, oil engines or 'mots', are no doubt artificial contrivances in a way, but those are contrivances without which it would be impossible to make the water available even to the lands which are actually situated on the bank of the stream, in other words impossible to exercise even the natural right of a riparian owner. On the other hand, the storage of water by erecting a 'bandhara' is a mechanical or artificial contrivance of a different category altogether. Clearly it could not be said that non-resort to an artificial method of storage of water by the construction of a 'bandhara would make it impossible for a riparian owner to exercise his natural right to the use of the water. It is next contended by Mr. Gokhale that in no case can a riparian owner store water more than what is reasonably required for his ordinary purposes, namely, domestic and agricultural purposes. In this case, there is every likelihood that the quantity of water sought to be stored by the plaintiffs by constructing a dam across the stream would be a quantity far in excess of the reasonable requirements of the plaintiffs for their domestic purposes and agricultural operations and that, says Mr. Gokhale, the plaintiffs are not entitled to do under the guise of a natural right to use the water. Finally, Mr. Gokhale's contention is that in this particular case, by the construction, of a 'bardhara' across the stream, the plaintiffs are not merely seeking to exercise the natural right of riparian owners, but are wanting to make water available to those persons who not being riparian owners have not got a natural right to the use of the water, and this they are not entitled to do in. any event. As I have stated above, I see considerable force in all these contentions of Mr. Gokhale.

(3.) In the case of --'Secretary of State v. Sannidhiraju Subbarayudu', AIR 1932 P.C. 45 (A), it was held by the Privy Council that "the right of a riparian owner to take water from the stream for all ordinary purposes (namely, for domestic use and for irrigation of his own property alone) is a natural right, analogous to an easement but not in the strict sense of the word an easement." In the body of the judgment of their Lordships which was delivered by Viscount Dune-din it was observed (p. 48)