STATE OF BOMBAY Vs. LAXMAN SAKHARAM PIMPARKAR

JUDGEMENT

(1.) This second appeal by the State of Bombay raises some interesting questions of considerable importance affecting the right of riparian owners, under the general law, to the extra-ordinary use of water of a natural stream flowing past their lands by putting up Bandharas for the purpose of irrigating their lands. The suit out of which this appeal arises was brought by seven agriculturists of the village Jopul in Chandwad Taluka in the District of Nasik in a representative capacity on behalf of themselves and others claiming as riparian owners the irght to put up thre kachha dams (bandharas) at specified points in the river Shelu and receive water therefrom for the purpose of irrigating their lands abutting on the river. It appears that n 1947 some villagers of Devargaon, who were lower riparian owners complained to the Government about the diminution of flow of water to them in consequence of the Bandharas constructed up-stream by the villagers of Jopul and orders were issued by the Mamlatdar, Chandwad, calling upon the inbabitants of Jopul to demolish the Kachha Bandharas put up by them. It was also directed in those orders that the villagers of Jopul should not take any water from the river and if they did so, action would be taken against them. The villagers, howeer, erected Kachha Bandharas and water charges at penal rates were recovered from them by the Government. Apprehending that the same situation would arise the next years, the plaintiffs brought the suit claiming a declaration that they had a right to erect the three Kachha Bandharas in the river Shelu and for consequential relief by way of injunction restraining the defendant, the State of Bombay from obstructing them in the exercise of their rights. The defendants denied the rights claimed by the plaintiffs. They also relied on the paramount right of the Stte to control and regulate the water of the river and further alleged that the rights of the villagers, if any, had been extinguished by virtue of a Notification issued on the 17th February 1913 under Section 5 of the Bomay Irrigation Act.

(2.) The erucial questions are (1) whether the plaintiffs, the villagers of Jopul, the foundation of whose rights is that they have lands on the margin of a flowing stream are entitled in exercise of and for the proper enjoyment of that right to put up the three temporary dams (Bandharas) and lead the water collected at the dams to their lands by means of channels or what are called "Pats" and (2) if they have that right, whethr the state of Bombay has the paramount right to control and regulate the water of the river Shelu so as to refue it altogether to the plaintiffs for te purpose of irrigaton.

(3.) It may be observed that there are a number of such Bandharas both up and down stream and on the pleadings of the paraties, the dispute in suit was not as to the manner of enjoyment of this right, i.e. about the volume of water the plaintiffs could impound for their agricultural purposes but turned solely on the factum of their right to put up those Bandharas, which, according to the State, the plaintiffs had no right whatever to construct.We make this oservation here because an argumenton that line was sought to be advanced by the learned Assistant Government Pleader, although there was no pleading not any issue relating to the quantity of water diverted by the plaintiffs and its effect on the equal right to the flow of the ater of lower riparian owners. Of course, on the basis of the natural right of riparian oners, the plaintiffs could not possibly set-up a claim to divert waters of the Shelu ad libitum. We shall advert to this aspect of the matter when the examine that argument.