# Sho.kat Narayan Ranad1 v. Clniu11 of India

- **Citation:** [1964] 1 S.C.R. 885
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** P. B. GJ.JENlJHAOADKAR, K. N. WANUllUO, M. HIDAYA'l'ULLAH, K. C. Das Gupta, j. C. SHA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sho-kat-narayan-ranad1-v-clniu11-of-india-2820
- **Pages:** 13

## Headnote

Inam-Oonstruction of sanad--Orant of villar1e ind1uling
water-If i'J.icluiln water of jlow/ng riner-</lriim of rizHu·irin riyltl
-Validity-Bombay Land Revenue Corle, 1879 (Act 5 of 18711),
s. 37 (1)-Bombay Irrigation Act, 187.9 (Bom. 7 of 187[)), s. cJTransfer of Property Act, 1882 (IV of 1882), s. 8 .
The appellant was one of the sharers in the Inam village
of vadner and brought a suit againt respondents clain1ing relief
on the basis of his title to the running water of river valdevi.
During World War II, the military authorities constructed
residential quarters within and outside the limits of vadner.
They built a dam across the river within the limits of vadner
and dug a well near the bank of the river which was fed by the
river water and the water was carried to the residential areas.
The diversion of water and the use of land continued from 1942
to 1959, which deprived the appellant and the other Inamdars
of their right to utilise that water for their own gain and of
others ; this had caused injury and damage to them, for which,
the appellant claimed compensation from the respondents.
According to the respondents, by virtue of a notification under
s. 5 of the Bombay Irrigation Act, 1879, the river had become
a notified canal and consequently the fnamdars had lost their
rights, if any, in the waters of the said river. They also took
a pica of limitation. The trial court decreed the suit and held
that the appellant was entitled to the compensation only for two
years before the date of the suit and the rest of his claim was
barred by time. The decree was challenged both by the
1969
M/s, .Bhi.kuse r.nits•
/(lfzat,iya (P) Lit
••
U1d.·11 of i1;,.'i1
.shah, 1.
1969
Fehru<Jty, 8.
1969
Sho.kat Narayan
Ranad1
v.
Clniu11 of India
Gq]ndra:eaJkar, J.
880
I.
SUPREME COURT REPORTS [lUG,1] VOL.
appellant ana the resp01ide11ts by cross-appeals in the High
Court. The High Court dismissed the appeal with modification•.
Then followed an appeal to this court un certificate.
•
lleld~ that the u11e of the word "\valcr
11 in the sanad, properly construed, r.Xcludes the running water of tile rivCr and it
c•:,uld not be said that title tQ the flowing \va.ter of the river went
\\'ith the: title to the· bed of the riJcr.
If\. the sa.nac1 n1atle no
gran,t of the running w'atcr in tcr1n~, t tc appcllao( could not
clai1n. the same as the riparian owner .
.1lu.rtint.rur1(1ts.i·lltipt,l v.
(lov1,rnmr.u.l of /l1unb1ty ( 1931) 47
Hu~n. i •. lt. U:)9 a11<l £yen v • .lli:~h-tifun~;er~' ()ouipa1t?1 LIU7GJ I
·"i'P· Gas. 6ti2, icfcrrcJ.to.
!!cft'.
f11~1cr..~tl!at the appellant could 1111L I>"' ;ill1l\ved 10
u1'1.kc an alternative C°;lllje on the ground or
hi~ right!! as a
ripariaH o\vncr as Lhcr~ was neither any ;Lllcg-;,lliou i11 the plaiul
H'Jr a11y evideucc on the recvr<l to that effect.
Ctv11, Al:'PBLLATB Jumsu1c:rr<1N :. Ciyil Aup.;cal
Nu. 2i2 of 1!101.
-· "°''
Fr.om the judgment and decree dated December I l, l 9fi7, of the Bombay High ·Court in First
Appeal ,Nt•. 040 uflU57.
·
U. 8. Pathak, N. D: Karkhanis, JJ. Datto, J.
JJ. JJarlucl1anji, 0. G .. .;lfathur- and Ruvinder Narafo,
for the appellant.
O. J\. Daphwry, Solicitor-General of India,
d. S. :Uind·m and R. H. Dhebu.r for P. D. Menon,
lot the re8p"c;mdents.
1963.
Febru11ry 8.
The judgment of the
Court was delivered liy
GA.mNDRAGADKAR,
J.-The
s~ort question
which thi! appcaJ raisc;s fot our decision. is whether ·the appellant Shankar Narayan Ranade has
established his title to the running water of the river
Valdevi which ruhs·fhr.ough'his lnam village Vadner.
The said vi llagc hall been granted to the ancestors of
.,
•
1 S.C.R.
SUPREME COURT REl'ORTS
887
the appellant by the Peswa Government in 1773 A.D.
This grant was continued by the British
Gov~rnment
when the British Government came in power.
The
river Valdevi has its origin in the hills of Trim\,.,k
and from those hills it flows to Vadner and then to
Chehcdi where it joins the river Darna and thus loses
ils individuality.
The total length of thi

## Text

•
•
1 S.C.R.
SUPREME COURT REPORTS
885
On that view the petition must fail and 1s
dismissed with costs, two sets, one hearing fee. ·
Petition lJismisscd.
SHANKAR NARAYAN RANADE
t'.
UNION OF INDIA
(P. B. GJ.JENlJHAOADKAR, K. N. WANUllUO,
M. HIDAYA'l'ULLAH, K. C. DAS GUPTA and
j. C. SHA,H JJ.)
Inam-Oonstruction of sanad--Orant of villar1e ind1uling
water-If i'J.icluiln water of jlow/ng riner-</lriim of rizHu·irin riyltl
-Validity-Bombay Land Revenue Corle, 1879 (Act 5 of 18711),
s. 37 (1)-Bombay Irrigation Act, 187.9 (Bom. 7 of 187[)), s. cJTransfer of Property Act, 1882 (IV of 1882), s. 8 .
The appellant was one of the sharers in the Inam village
of vadner and brought a suit againt respondents clain1ing relief
on the basis of his title to the running water of river valdevi.
During World War II, the military authorities constructed
residential quarters within and outside the limits of vadner.
They built a dam across the river within the limits of vadner
and dug a well near the bank of the river which was fed by the
river water and the water was carried to the residential areas.
The diversion of water and the use of land continued from 1942
to 1959, which deprived the appellant and the other Inamdars
of their right to utilise that water for their own gain and of
others ; this had caused injury and damage to them, for which,
the appellant claimed compensation from the respondents.
According to the respondents, by virtue of a notification under
s. 5 of the Bombay Irrigation Act, 1879, the river had become
a notified canal and consequently the fnamdars had lost their
rights, if any, in the waters of the said river. They also took
a pica of limitation. The trial court decreed the suit and held
that the appellant was entitled to the compensation only for two
years before the date of the suit and the rest of his claim was
barred by time. The decree was challenged both by the
1969
M/s, .Bhi.kuse r.nits•
/(lfzat,iya (P) Lit
••
U1d.·11 of i1;,.'i1
.shah, 1.
1969
Fehru<Jty, 8.
1969
Sho.kat Narayan
Ranad1
v.
Clniu11 of India
Gq]ndra:eaJkar, J.
880
I.
SUPREME COURT REPORTS [lUG,1] VOL.
appellant ana the resp01ide11ts by cross-appeals in the High
Court. The High Court dismissed the appeal with modification•.
Then followed an appeal to this court un certificate.
•
lleld~ that the u11e of the word "\valcr
11 in the sanad, properly construed, r.Xcludes the running water of tile rivCr and it
c•:,uld not be said that title tQ the flowing \va.ter of the river went
\\'ith the: title to the· bed of the riJcr.
If\. the sa.nac1 n1atle no
gran,t of the running w'atcr in tcr1n~, t tc appcllao( could not
clai1n. the same as the riparian owner .
.1lu.rtint.rur1(1ts.i·lltipt,l v.
(lov1,rnmr.u.l of /l1unb1ty ( 1931) 47
Hu~n. i •. lt. U:)9 a11<l £yen v • .lli:~h-tifun~;er~' ()ouipa1t?1 LIU7GJ I
·"i'P· Gas. 6ti2, icfcrrcJ.to.
!!cft'.
f11~1cr..~tl!at the appellant could 1111L I>"' ;ill1l\ved 10
u1'1.kc an alternative C°;lllje on the ground or
hi~ right!! as a
ripariaH o\vncr as Lhcr~ was neither any ;Lllcg-;,lliou i11 the plaiul
H'Jr a11y evideucc on the recvr<l to that effect.
Ctv11, Al:'PBLLATB Jumsu1c:rr<1N :. Ciyil Aup.;cal
Nu. 2i2 of 1!101.
-· "°''
Fr.om the judgment and decree dated December I l, l 9fi7, of the Bombay High ·Court in First
Appeal ,Nt•. 040 uflU57.
·
U. 8. Pathak, N. D: Karkhanis, JJ. Datto, J.
JJ. JJarlucl1anji, 0. G .. .;lfathur- and Ruvinder Narafo,
for the appellant.
O. J\. Daphwry, Solicitor-General of India,
d. S. :Uind·m and R. H. Dhebu.r for P. D. Menon,
lot the re8p"c;mdents.
1963.
Febru11ry 8.
The judgment of the
Court was delivered liy
GA.mNDRAGADKAR,
J.-The
s~ort question
which thi! appcaJ raisc;s fot our decision. is whether ·the appellant Shankar Narayan Ranade has
established his title to the running water of the river
Valdevi which ruhs·fhr.ough'his lnam village Vadner.
The said vi llagc hall been granted to the ancestors of
.,
•
1 S.C.R.
SUPREME COURT REl'ORTS
887
the appellant by the Peswa Government in 1773 A.D.
This grant was continued by the British
Gov~rnment
when the British Government came in power.
The
river Valdevi has its origin in the hills of Trim\,.,k
and from those hills it flows to Vadner and then to
Chehcdi where it joins the river Darna and thus loses
ils individuality.
The total length of this river is
about 25 miles, while its length within the limits of
Vadner village-is about 2 miles 82
furlongs.
The
Dama river after its conjunction with Valdevi pro·
cccds towards Sangvi and there is merged with Godavari river : The appellant is one of the sharers in
lhe Inam village of Vadner and he brought the present suit No. 12/1950 in the Court of the Civil Judge
(Senior Division) at Nasik, claiming reliefs against
the Union of India and the State of Bombay, respondents ~ & 2 respectively, on the basis of his title to
the running water of the said river.
It appears that in rni'.?, during the period ol
the II World \<Var, the ivfilitarv authorities constructed barracks and other rcsidci1tial quarters for the
army personnel within and outside the limits of Vadner. Thev also built a dam across the river Valckvi
within the.limits of Vadner and dug a well near the
bank of the river.
This well was fed with water
carried by two channels drawn from the river. When
the water reached the well, it was pumped from the
well and duly stored in four reservoirs where it wa1
filtered and then it was carried by means of pipes to
the residential area occupied by the military personnel.
The appellant then approached the military
authorities and
also
the Government of Bombav
and claimed compensation for the use e>f the watc'r
and· the lands bv the military authorities.
Since
his request for adequate compensation was not met.
he filed the present suit on Marchll, IHIJO, in
a representative character un<lcr 0. l r. 8 C. P. C.
1963
Shankar Narayan
Ranar!t
v.
Lfiiion nf !,.dill
Gajendra.~ndkar, J.
1963
ShmiMr Nar-.,an
R..Ue
v.
f,'nion of /Mia
8S8 SUPREME COURT REPORTS [1!!6'1] VOL.
In this suit, the appellant speaking for himself and
for the other sharers in the lnam village of Vadner
alleged that the Jagirdars of the village were full
owners of the entire area c.f th:1t village, including
the land, the stream and the water flowing through the
stream within the limits or the village.
According
to the plaint, the acts of diversion of waler committ·
cd by the military authoritie> had deprived the
appellant and the other Inamdars of their right
Lo utilise that waler for their own gains and thus,
had caused
injury and
damage to them.
A5
compens;1tion
for
this rlamagc, the
appellant
rLiimed Rs. 1,11,:!GO/- from the respondents.
The
appellant further made a claim for Rs. 750/· as
co111pcmalio11 for the use of lus land by the military
authorities.
The diversion of water and the use of
hmd continued from l!H2 to l!J.l!J.
Some other
incidential reliefs were also claimt-d by the appellant·
Respondent No. 2 contested the appellant's
daim. It urged that the Inamdars were not the
grantees of the soil, but were the grantees of the
royal share of the revenue only; and it was urged
that in any case, they had no ownr.rship over the
flowing water of the Valdevi
river.
Respondent
No. I adopted the written statement of respondent
'.\lo. 2 and filed the Purshis in Lhat behalf. According to the respondents, the river Valdc~i had become
a notified canal by virtue of a notification issued on
February Ii,
l!Jl3
und,,r
scc1ion 5
of
the
Bombay Irrigation Act, 18/!l, and i11 consequence,
the lnamdars had lost their rights, if any, in the
waters of the said river and respondent No. 2 had
the absolute right of the use of the said water.
A
pka of limitation was
also
made by both the
respondents.
The learned
trial Judge made findings in
fa\'Clur of the appellant on all the issues. He held that
the Inamdars were the grantees of the soil, that the
..
•
•
1 S.C.R.
SUPREME COURT REPORTS
889
river Valdevi and its flowing water belonged to them,
that the notification on which reliance was placed
by the respondents was invalid, that the acts of the
military au•hrnilies were unauthori<cd am! that the
appellant \\las consequently entitled to the compensa·
tion for the use, by the military authorities, of the
water of the river and his lands and also for the
loss of his income from. the river bed.
According
to the trial Court, the appellant was entitled to this
compensation only for two years
before the date
of the suit and the rest of his claim· was barred
by time.
Accordingly, it passed a decree iu favour
of the appellant for an amount of Rs. 26, 788/1/·
as
compensation for
the
use
of water up to
December 31, 1949, directed that the compensation for
the use of water for the period sub·
sequent to January l, 1950 should be ascertained
in execution proceedings, and awarded compensation @"Rs. 100/· per annum for the use of the land,
and Rs. 50/- per annum for the loss of income from
- the river· bed during the period· that the act of the
military authorities continued.
This decree was challenged both by the appe·
llant
and
the
respondents
by
cross-appeals
Nos.
634/1954 and 640/1953 respectively.
The
appellant claimed a larger amount of compensation,
whereas, according to the respondents, no compensation was payable in respect of the alleged diversion
of the running water of the river Valdevi. It
appears that before the High Court, the respondents
did not dispute the finding of the trial Court that
the Inamdars were the grantees of the soil and
conceded that the rights of the Inamdars such as
they were to the waters of the river Valdevi had
not been extinguished by the notification issued
under the Bombay Irrigation Act.
It was, how·
ever, ·urged that the Valdevi river being a notified
canal, the military authorities could have used its
watf'r by making appropriate applications under
1963
./1m1kar 1\tarayan
Ranadt
v.
Union of Inlii2
GojenrlragadAar, J.
1963
Shankar Narayan
Ra'!nd~
v.
fJnio11 ri.f f11dia
8!JO SUPREME COURT REPORTS [1964] VOL.
ss. 17 and 27 of the sai,d Irrigation Act; but since
there wa~ no
evidence to show that any such
applications had been made, the said point did not
survive.
The rna i 11
ar~1lment u1ged by
the rcspondents'·in their appe~l "as that the appellant was
not the bwllti:._pf the running water of the stream
and so, he had· no right to claim any compensation
for the alleged clivnsion 'of the sakl waler bv the
military 2uthori\i6. Th\! 'High 'Court' has· sub·,
stantially accepted this contention. It .has held
that as owners of the !'ands in
the village situated
on both banks o\' tlie river the hiamd<1rs
were
entitled to the use of the· water of the river as
rip'1rian owners and what belonged to them was
water which
lhcy t<iok out from the rivrr aml
appropriated tn 1heir use; they we1·e, howcyer, not
entitled to claim title over the flowing water of the
river and so, the aivrrsion of the flowing water of th(:
<l'ivrr cannot sustain
their claim for compensation.
The decree pass¢d . by the trial Court in respect of
compensatio'n for the wrongful use of the lands was
not challenged by the respondents. In tb.c result, the
High Court modj(ie<;I the decree passed by the trial
Court by setting aside that part of it which related
lo the compensation for the use of the water of the
Valdevi river by the military authorities and con·
firmed the rest of the directions issued by the decree.
It is against this .decree that the appellant has come
to this Court \vith 'a cc;rtificate issued by the l:Iigh
Court ; and the main point which has been urged
before u~ by 1\.fr. Pathak on behalf of the appellant
is that the Higl1-Court was in error in rejecting the
appellant's claim. th;it the Inamdars of the village
were tlic owners of !he running water of the river
Vald~vi during its course \Vithin the limits of the
lnam villagr of Vadner.
In support o,f tjle appellant's case, Mr. Pathak
has urged that in construing the Sanad on which the
appellant's title is founded, it would be necessary to
1
(
'
1 $.C.R.
SUPREME COURt REPORTS
891
bear in mind two important considerations.
The
first consideration is that the flowing water of a river
constitutes property which can belong to a citizen
either by grant ur otherwise; and assistance is suught
for this argument from the pruvisions of section :37 of
the Bombay Land Revenue Code (Act V ul l87U).
S·-ction 37 (I) provides, inter alia, that all public
roads, lanes and paths which arc not the property of
individuals, belong to the Crown, and amohgst the
items of property specified in this clause arc included
rivers, streams, nallas, lakes, tanks and all canals and
water-courses, and all standing and flowing water.
The argument is that this sub·sect ion postulates that
the items of property specified by it can belong to
private individuals, am! it provides that if they are not
shown to belong to private individuals, they would vest
in the State. Therefore, in construing the Sanad,
we ought to remember that the river and its Jlowing
water constitute property which can be granted by
the Ruler to a citizen.
The other consideration on which Mr. Pathak
has relied is that under the provisions of section 8 of
the Transfer of Property Act, it should be assumed
that unless a different intention
is
expressly or
necessarily implied, a transfer of property passes
forthwith to the transferee all the interest which the
transferor is then capable of passing in the property,
and
in tlw leg.ii incidents thereuf.
Mr. Pathak
contends that
a~suming that prior lo the grant, the
Peshwa Government as the ruling power of the day
was the owner of the river and its flowing water,
when the said Government made· a grant to the
appellant's predecessors, the principle enunciated by
s. 8 of the Tramfcr uf Property Act should be applied
and the grant should be construed to include all
rights, title and interest u_f the grantor, unless there is
a contrary provision either expressly mad~, or imp·
lied by necessary implications.
1963
~htmkar A'araymi
Ran,, de
v.
0nion ef /ndi"
r:ojtndro:adk.ur, J.
1963
Snanlr."' NM•yan
R.,..J,
••
Unin'lt of India
(iafa,,t/ragt:dktJr, J,
892
SUPREME COURT REPORTS [1964] VOL.
Bearing those two considerations in mind, let us
consider the terms of the Sanad itself. The Sanad is
drawn in terms which are consistent with the pattern
prevailing in that behalf in th use days and contains
the usual familiar recitals. The relevant portion of
rhe Sanad reads a! follows :-
"Secin~ the respectable Erahsins, performing
Snan Sandhya (bath and prayer) leading ascetic
life, devoted to the performance of their dutie~
as laid down in
Shrities and Smrities, the
Government has constructed houses there and
given to (them).
Thinking that if the same
arc given to them, it would be beneficial to the
Swami and to the Kingdom of Swami, the
village of mouje Vadner, Pargana aforesaid in
~·
IW
Swarajya as well as· Moglai-Dutarfa (on both
sides) has been given to them as Nutan (New)
·
(c)
l<l)
Inam together with Sardeshrnukhi, Inam Tizai,
:•
rn
w
Knlbab-Kulkanu, Hali· Patti, and Pcstr-Patti
excluding (the rights of) Hakkadar and Inamdar and together with water, trees, grass, wood
stones and hidden treasures, for maintenance
of their families."
The Sanad then defines the shares in the current
revenue of the said village amongst the respective
shares.
In the concluding portion, it makes certain
other provisions with which we arc not concerned in
the present appeal.
This Sanad was executed in
1773 A. D.
During the British rule, this Sanad was
confirmed in 1858 A. D. It is common ground that
the material terms which have been construed for the
purpose of determining the title of the appellant are
contained in the earlier Sanad.
It would be noticed that the Sanad reters to the
rights in water, trees, grow, wood, stones and hidden
•
•
•
\
I S.C.R.
SUPREME COURT REPORTS
893
treasures.
It is well settled that the word "water
(jal)" refers to water in tanks or wells and does not
refer to the flowing water of the river.
Indeed, if a
grant of the river including its flowing water .is intended to be made, the Sanad would have definitely
used the word "river (nadi)'', because it is wellknown that when rivers, drains or culverts are intended to be gifted, the Sanads usually use the words
"nadi and nalla".
Therefore, on a plain construction of the relevant words used in the Sanad,
there can be no doubt that what is conveyed to
the grantee by the Sanad is stationary or static water
in the ponds or wells and not the Howing water of the
river. The specific reference to water meaning water of
the well or the pc.nd serves two purposes ; it defines
the kind of water which is conveyed, and by necessary
implication, excludes the grant of flowing water of
the river. Sanads containing words like these have
frequently been considered by the Bombay High
Court in the past and it has been consistently held
that the word "water" means only water in the ponds
or wells and does not refer to the flowing water of
the river, vide A 1inapurnabai Gopal v. Government of
Bombay (1).
Therefor~, the two considerations on
which Mr. Pathak strongly relied in support of his
construction of the Sanad do not really assist him.
The language of the Sanad precisely defines the nature
of the water that is conveyed and in doing so, by nec~sary implication, excludes the flowing water of
the river.
Mr. Pathak, however, suggests that it is not
disputed by the respondents that the Sanad in question grants title to the soil of the village and is not
confined to the royal share of the revenue only ; and
he argues that the grant of the soil necessarily means
the grant of the bed of the river while it flows within
the limits of the Inam village. If the bed of the river
has been granted to the-appellant's predecessors by the
Sanad, why does it not follow that the water flowing
(ll (19t5) 47 llom. L.R. ea9.
1963
S~ankar .\ ar11v m
Ranade -
v.
llnion ef India
Gajendragad Ir Gr, J.
J
' .
Sh.Mu Narayan
/lanM6
v.
U11io11 of Indi"
r:ajmdra:adkar, J_,
89! SUPREME COURT REPORTS [1964] VOL.
on the said bed during the said limits belongs to the
appellant ? The title to the running water of the
river must, Mr. Pathak says, go with the title to the
bed of the river. There are two difficulties in accepting this contention. The first difficulty is that the
use of the
word "water ' ijal)" .in the Sanad, as
we have already held, excludes the running water of
the river.
Besides, it is· by no means clear that the
title to the .. flowing water of the ,river necessarily
goes with the.title. to the bed of .the river .. As was
observed by Lord Selborne in . Lyon v. Fish-mongers'
Company. "The title.to the soil constituting the bed of
a river does not carry with it only exclusive right of
property in the running water of the stream, which
can only be appropriated by severance, and which
. may be lawfully. so. appropriated by· every one
. having a right of. access to it.'' Therefore, the argu·
ment that the grant of_ the soil of the village including the bed of the river must necessarily include the
grant of the title to the .flowing water of the river
cannot be accepted.
~ - - - - . .
.
.
In this connection, it is necessary to remember
that the river Valdevi flows through the village only
for the distance of 2 miles & 2. furlongs.· . It is not
. a ca<e where. the whole cif the stream of the river
fro:n its origin to its_. me;ging .in another;rivei:: runs
entirely, through. thts ·village. . If a nver takes
its origin within the limits of an Inam village and
its course is terminated within the limits of the same
village,
that would be auother matter. In the
present case, if the appellant's right to theJollowing
water of the river is conceded, it would mean that
. the Inamdars would be able to . divert the water com-·
· plctely and destroy the rights of the other riparian
owners whose lands are situated outside the village.
They may be able to pollute the water or.do anything with it to the prejudice of the said riparian
owners. Such rights cannot be claimed by the appelfant unless the Sanad in his favour makes the grant
'
1 S.C.R.
SUPREME COURT REPORTS
895
of the running water in terms.
As we have already
seen, the Sanad not only does not make any such
grant, but by necessary implication also excludes the
running water from the purview of the grant.
Mr. Pathak then attempted to argue that the
diversion of the water of the
river Valdevi during
the relevant period affected the appellant's right as
the riparian owner and that, according to him, would
furnish him with a cause of action for claiming
damages against the respondents.
In this connection,
Mr. Pathak invited our attention to the observations
of Parke, B. in Embrey v. Owen. (').
"Flowing
water," said Parke, B., "is publici juris in this sense
·only that all may reasonably use it who have a right
of access to it, and that none can have any property
in the water itself, except in the particular portion
which he may choose to abstract from the stream
and take into his possession, and that during the time
of his possession only.-The right to have a stream of
water flow in its natural state, witho•1t diminution or
alteration, is an incident to the property in the land
through which it passes ; but this is not an absolute
and exclusive right to the flow of all the water, but
only subject to the right of other riparian proprietors
to the reasonable enjoyment of it; and consequently
it is only for an. unreasonable and unauthorised use
of this common benefit that any action will lie .. ,
In this connectlon, Mr. Pathak has also referred
•
us to the decision of the Privy Council in the
Secretary of State /01' India v. 8ubbnrayu-lu (').
In
that case, the Privy Council has elaborately considered the nature and extent of the rights which a
riparian owner can claim.
"A riparian owner",
observed Viscount Dunedin, "is a person who owns
land abutting on a stream and who as such has a
certain right to take water from the stream.
In
"
ordinary cases, the fact that his land abuts on the
stream makes him the proprietor of the bed of the
(l) (•BU, 6 Ex. 353: 155 E.R. 57ll, (2) (1931) L.R. 59 l.A. 56, 63-6f.
/983
Sliank4r Narayan
Ranad1
v.
Union of India
GojendragadJ:ar, J,
1983
S"41Wu }/1J1aJan
llanod1
Y.
Union of l•dU.
G4imdrataiW, J.
896
SUPREME COURT REPORTS (1964] VOL.
stream usque ad ~dium filum.
But he may not be.
He may be ousted by an actual grant to the person
on the other side, or he may be and often is ousted
by the Crown when the stream is tidal and navigable,
the solum of the bed belongs to the Crown." It
was also observed that "the right of a riparian owner
to take water is first of all, for domestic use, and
then for other use.i connected with the land, of which
irrigation of the lands which form the property is one.
This right is a natural right and not in the strict
sense of the word an easement, though in many cases
it has been called an casement."
We do not, however, think that it is possible
for us to allow Mr. Pathak to raise this alternative
argument before us, because it is clear that the
reliefs claimed by the appellant were based only on
one ground and that was, the title to the flowing
water of the river. In paragraph 8 of the plaint the
appellant ha• specifically stated that he was claiming
the amo11n1 of compensation for the use of water
belonging to the plaintiff and in paragraph 3 it has
been clearly averred that the running water of the
river belongs to the appellant and so, by the un·
authorisrd acts of the military authorities, the appellant and 1 he Inamdars were not able to let out their
bed of the stream for the plantation of water-melons
etc., and were thus put to loss.
In other words, the
plaint has made no allegation even alternatively that
the appellant and the other Inamdars of the village
had certain rights in the flowing water of the river
as riparian owners and the illegal acts of the military
authorities bad affected the said rights and thereby
caused darnagc to them.
In fact, as the High Court
has pointed out, there is no evidence on the record
which won Id sustain the appellant's claim that the
acts of th~ military authorities had prejudicially
affected the appellant's rights as a riparian owner to
the use of the water, and that mean~, on the record
..
•
•
'
1 S.C.R. SUPREME COURT REPORTS
897
there is nothing to show that any damage had been
caused to the Inamdars of the village as a result of
the di version of the water caused by the military
authorities.
Therefore, we are satisfied that the
appellant cannot now make an alternative case on
the ground of his rights as a riparian owner.
--
The result is, the appeal fails and is dismissed
with costs, two sets; one hearing fee ..
Appe~l aismi.,sed.
RAI RAMKRISHNA & OTHERS
v.
THE STATE OF BIHAR
(P. B. GAJENDRAGADKAR, K. N. WANOHOO,
M. HIDAYATULLAH, K. C. DAS GUPTA and
J. C. SHAH, JJ.)
Tazing Statide-Tax on passengers and goods-Retros·
pective operation-Validity-Restrictions, if
unreasonableFundamental rights, if infringed-State's power of taxationGonstitution of India, Arts. 19(1)(/) and (g), (6), (6), 304(b),
Seventh Schedule, hist II, Entry 66-liihar Finance Act, ltl60
( Bihar 17 of 1960)-Bihar Taxation on Passengers and Goods
(Carried by Public Service Motor Vehicles) Act, 1961, (Bihar
17 of 1961) ss. 1 (3), 23(b) •
On March 30, 1950, the Bihar Legislature pa<sed the
Bihar Finance Act, 1950. That Act levied a tax on passengers
and goods carried by public service motor vehicles in Bihar.
The appellants challenged the validity of the Act and certain
provisions of the Act were struck down by this Court. The
respondent then issued the Bihar Ordinance No. II of 196! on
August I, 1961. By that Ordinance, the provisions of the Act
of 1950 which had been struck down by this Court were validated and brought into force retrospectively from the date when
the earlier Act purported to come into force. Later on, the provisions of the said Ordinance were incorporated in the Bihar
19'8
Shan/cJJr Narlfllll
&Md1
v'
Union of India
GqjendragoJ"4T, J,
J96J
..