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1989 DIGILAW 26 (MAD)

N. Arivudai Nambi v. State of T. N.

1989-01-11

S.T.RAMALINGAM

body1989
Judgement JUDGMENT:- The earlier appeal is by the Plaintiff Arivudai Nambi and the latter is by the State Govt. Both the appeals arise as a result of a common judgment delivered by the first appellate Court, namely learned Additinal District Judge, Coimbatore under the following circumstances 2. The plaintiff is a resident of Mettupalayam owning lands to the extent of 11 acres, namely six acres comprised in S. F. No. 814 and five acres in S. F. No. 815/ 1 at Thekkampatty Village two Kilo metres from Mettupalayam. They are dry lands and he has got two wells installed with electric motors each with 7.5 H. P. The lands are situate on the southern banks of river Bhavani, more fully described in the plan marked as Ex. B. 4, filed by the Government. The suit is for a declaration that the plaintiff is entitled to lift water from the river at a point numbered as (2) in the plan Ex. B. 4 for the purpose of irrigating the lands stated above as a riparian owner. 3. It transpires that when the water in the river recedes the plaintiff used to dig a channel so as to facilitate water to flow to the Point No. 2 and then to lift the water for irrigation. In Ex. B. 4 the channel, that the plaintiff used to form, when the water recedes in the river, is also shown. This was objected to by the State Government. A demand notice for fasli 1386 asking the plaintiff as to why the water Cess should not be levied, was acknowledged by the plaintiff on 12-3-1987 without replying to the notice the plaintiff has filed the suit. The suit is for a declaration that the plaintiff is entitled to draw water from Bhavani River as a riparian owner. The trial court on a consideration of the oral and documentary evidence dismissed the suit. The plaintiff preferred an appeal and the first appellate court virtually agreed with the trial court with, reference to the right of the plaintiff to take water from the river and dismissed the suit. As far as the alleged percolation of the river water into the wells situate in the lands of the plaintiff, the first appellate court came to the conclusion that river water does not percolate into the wells. As far as the alleged percolation of the river water into the wells situate in the lands of the plaintiff, the first appellate court came to the conclusion that river water does not percolate into the wells. Aggrieved by the finding of the first appellate court, the plaintiff has preferred Second Appeal No. 622 / 1982 and the State has preferred Second Appeal No. 669/ 1982 with reference to the finding of the first appellate court that the water found in the wells is not the water percolated from the River. 4. In both the Second Appeals the following questions of law had been raised at the time of admission "S. A. No. 622/ 1982: 1. Whether the lower appellate court was right in holding that though the plaintiff is entitled to as a riparian owner to use river water for irrigating his lands and that the so-called channel only forms part of the bed of the river, still he is using the water only through an artificial channel and therefore liable to pay water charges and penal rates? and 2. Whether the lower appellate Court was right in holding that the plaintiff is not entitled to the relief of refund of penal charges collected from him, particularly with reference to the levy made on the basis of alleged percolation or river water in the wells inside the patta lands? S. A. No. 669/ 1982: Whether the water percolating from natural or artificial source is the property of the owner of the well? After hearing both the parties, the only question that arises for consideration in these two appeals is: Whether the plaintiff appellant in S. A. No. 622/ 1982 is entitled to divert water from the Bhavani River to a point marked as No. 2 in the plan Ex. 4 at a titre when the water level in the river recedes from the plAcc marked as No. 2 by exercise of an alleged riparian right pleaded by the plaintiff? 5. Learned counsel for the plaintiff cited two decisions reported in (1) Secretary of State v. Ambalavana Pandara Sannadhi (1914) ILR 37 Mad 369: (AIR 1914 Mad 552) and (2) Secretary of State for India v. Subbarayudu (1932) 62 Mad LJ 213, : (AIR 1932 PC 46). 5. Learned counsel for the plaintiff cited two decisions reported in (1) Secretary of State v. Ambalavana Pandara Sannadhi (1914) ILR 37 Mad 369: (AIR 1914 Mad 552) and (2) Secretary of State for India v. Subbarayudu (1932) 62 Mad LJ 213, : (AIR 1932 PC 46). In both the aforesaid decisions the right of the landlord to take water for the lands situate on the banks of the natural river is accepted. The learned Government Pleader while acceding that point contended that the plaintiff has no right to interfere with the flow of water in the river so as to divert water to his lands by forming a channel, even though it is fbrmed manually. I find that will be objected to only if the lower riparian owners complain to the Government that by the conduct of the plaintiff their share of water is affected. The learned Government Pleader also cited a decision rendered in State of Madras v. Krishnasami Ayyangar (1959) 2 Mad LJ 127. That decision far from helping the Government, is in favour of the plaintiff. In the decision cited by the learned Government Pleader, this court has observed as follows: "It is therefore clear that although Uyyakondan River as such is only an artificial channel it should be deemed to have been impressed with the qualities of a natural channel as indeed similar rivers in the neighbouring Tanjore District have, so as to invest the owners of lands abutting on the river with riparian rights. On this it follows that the Government could not levy the cess in the case. It is not claimed on the part of the appellant (Government) that the user made by respondent (Plaintiff) of the water was excessive." 6. Such is the position in this case also. For the reasons stated above, I find that the demand made by the village Karnam of Thekkampatty to pay the water cess is not warranted, as a result the payments made by the plaintiff for Fasli years 1385, 1386 and 1394 are liable to be refunded. 7. In the result, the appeal preferred by the plaintiff (S. A. No. 622/ 1982) is allowed and the appeal preferred by the State (S. A. No. 669/ 1982) is dismissed. I direct each party to bear their own costs.