N. Arivudai Nambi vs State of Tamil Nadu and Others

S.T. Ramalingam, J.—The earlier appeal is by the plaintiff Arivudai Nambi and the latter is by the State Government. Both the appeals arise as a result of a common judgment delivered by the first appellate Court, namely, learned Additional District Judge, Coimbatore under the following circumstances:

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 meters 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.

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 declaration that the plaintiff is entitled to draw water from the 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. Aggrieved by the finding of the first appellate court, the plaintiff has preferred Second Appeal No. 622 of 1982 and the State has preferred Second Appeal No. 669 of 1982 with reference to the finding of the first appellate court that the water found in the well is not the water percolated from the river.

In both the Second Appeals the following questions of law had been raised at the time of admission.

S.A.No.622 of 1982:

Whether the lower appellate court was right in holding that though the plaintiff is entitled, 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

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 of river water in the wells inside the patta lands.

SA.No.669 of 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 this two appeal is:

Whether the plaintiff appellant in S.A.No.622 of 1982 is entitled to divert water from the Bhavani River to a point marked as No. 2 in the plan Ex.B.4 at a time when the water level in the river recedes from the place marked as No. 2 by exercise of an alleged riparian right pleaded by the plaintiff?

Learned Counsel for the plaintiff cited two decisions reported in Secretary of State v. Ambalavana Pandora Sannadhi 181.C.294:1.L.R.37 Mad.369 and Secretary of State for India v. Subbaraudu 62 M.L.J.213: 35 L.W.238. In both the aforesaid decisions the right of the landlord to take water from 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 formed 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. Krishnaswami Ayyangar (1959)1 M.L.J.157: 72 L.W.461. 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 Uyyakonr dan 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".

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, and as a result the payments made by the plaintiff for fasli years 1385,1386 and 1394 are liable to be refunded.

In the result, the appeal preferred by the plaintiff (S.A.No.622 of 1982) is allowed and the appeal preferred by the State (SA.No.669 of 1982) is dismissed. I direct each party to bear their own costs.