Shankar Narayan Ranade vs Union Of India

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 8 February 1963

Coram: J.C. Shah, K.C. Das Gupta, K.N. Wanchoo, M. Hidayatullah, P.B. Gajendragadkar

The case Shankar Narayan Ranade versus Union of India was decided on 8 February 1963 by the Supreme Court of India. The Bench comprised Justices J. C. Shah, K. C. Das Gupta, K. N. Wanchoo, M. Hidayatullah and P. B. Gajendragadkar, and the judgment was delivered by Justice Gajendragadkar. The principal issue before the Court was whether the appellant, Shankar Narayan Ranade, had successfully established a legal title to the flowing water of the river Valdevi that passes through his Inam village of Vadner. The village of Vadner had been granted to the appellant’s ancestors by the Peswa Government in the year 1773 A.D., and that grant was subsequently confirmed by the British Government when it assumed authority. The river Valdevi originates in the hills of Trimbak, flows down to Vadner, and continues to Chehedi where it joins the river Darna, after which it ceases to exist as a separate watercourse. The entire length of the Valdevi is approximately twenty‑five miles, while the portion that runs within the boundaries of Vadner measures about two miles and eighty‑two furlongs. After its confluence with Valdevi, the Darna proceeds toward Sangvi and ultimately merges with the Godavari River. The appellant, who was one of the sharers in the Inam village of Vadner, instituted suit number 12/1950 before the Civil Judge (Senior Division) at Nasik, seeking relief against the Union of India and the State of Bombay, respectively identified as respondents 1 and 2, on the basis of his claimed title to the river’s water.

The factual background revealed that in 1942, during the Second World War, military authorities erected barracks and other residential quarters for army personnel both within and outside the limits of Vadner. As part of these works the military also constructed a dam across the Valdevi inside Vadner’s boundaries and excavated a well near the riverbank. Water from the river was diverted through two channels into the well; from there it was pumped into four reservoirs where it was filtered and subsequently conveyed by pipe to the residential areas occupied by the military. The appellant approached the military authorities and the Government of Bombay, demanding compensation for the use of water and land by the military. When his request for satisfactory compensation was refused, he filed the present suit on 11 March 1950, pleading in a representative capacity under Order 1, Rule 8 of the Code of Civil Procedure. In the plaint the appellant, on behalf of himself and the other sharers in Vadner, asserted that the Jagirdars of the village possessed full ownership of the entire village, including its land, the stream and the water flowing through the stream within the village limits. According to the complaint, the diversion of water carried out by the military authorities constituted a deprivation of the appellant’s and the other Inamdars’ right to use that water for their own benefit and caused injury and damage to them.

The appellant asserted that the military authorities had deprived him and the other Inamdars of their right to utilise the water flowing through the village, thereby causing injury and damage to them. To compensate for that injury, the appellant claimed a sum of Rs 1,11,250/‑ from the respondents. In addition, the appellant sought Rs 750/‑ as compensation for the use of his land by the military authorities. The appellant explained that the diversion of water and the occupation of land by the military continued from 1942 through 1949. Besides the monetary claims, the appellant also asked for other incidental reliefs that he considered necessary to remedy the alleged injury.

Respondent No 2 contested the appellant’s claim. It contended that the Inamdars were not owners of the soil but were merely holders of the royal share of the revenue, and it further submitted that, in any event, the Inamdars possessed no ownership right over the flowing water of the Valdevi river. Respondent No 1 adopted the written statement filed by Respondent No 2 and filed the Purshis on that basis. The respondents argued that the Valdevi river had been declared a notified canal by a notification dated 17 February 1913 issued under section 5 of the Bombay Irrigation Act, 1879. According to that argument, the notification had extinguished any rights that the Inamdars might have had in the river water, and Respondent No 2 therefore enjoyed the absolute right to use the water. Both respondents also pleaded that the appellant’s claim was barred by limitation.

The learned trial judge made findings in favour of the appellant on every issue raised. He held that the Inamdars were indeed the grantees of the soil, that the Valdevi river and its flowing water belonged to them, and that the notification relied upon by the respondents was invalid. He further concluded that the acts of the military authorities were unauthorised and that, consequently, the appellant was entitled to compensation for the military use of the river water, for the use of his land, and for the loss of his income from the river‑bed. The judge observed that the appellant could claim compensation only for the two years preceding the filing of the suit, and that the remainder of the claim was barred by the limitation period. Accordingly, the court decreed that the appellant should receive Rs 26,788/1/‑ as compensation for the use of water up to 31 December 1949, directed that compensation for water use after 1 January 1950 be ascertained in execution proceedings, awarded compensation at Rs 100/‑ per annum for the use of the land, and awarded Rs 50/‑ per annum for the loss of income from the river‑bed during the period that the military authorities continued their use.

The decree was challenged by both parties through cross‑appeals. The appellant filed cross‑appeal No 634/1954 seeking a larger amount of compensation, while the respondents filed cross‑appeal No 640/1953 asserting that no compensation was payable for the alleged diversion of the running water of the Valdevi river.

The record shows that, before the High Court, the respondents did not challenge the trial Court’s finding that the Inamdars were the grantees of the soil. They also conceded that the rights of the Inamdars, as they existed, to the waters of the river Valdevi had not been extinguished by the notification issued under the Bombay Irrigation Act. Nevertheless, the respondents argued that because the Valdevi river was a notified canal, the military authorities could have lawfully used its water by making applications under sections 17 and 27 of the same Irrigation Act. Since no evidence was produced to demonstrate that such applications had ever been filed, the court held that this argument could not survive. The contention raised by the respondents in their appeal was that the appellant did not own the water of the stream and therefore lacked a right to claim compensation for its alleged diversion by military authorities. The High Court largely accepted this contention and ruled that, as owners of lands on both banks of the river, the Inamdars were entitled only to use the river water as riparian owners. It further held that they could not claim title over the flowing water and therefore the diversion of that water could not support a claim for compensation. The respondents did not challenge the trial Court’s decree that awarded monetary compensation for the wrongful use of the lands in question. Consequently, the High Court modified the trial Court’s decree by setting aside the portion that related to compensation for the use of the Valdevi river water by the military authorities. The High Court confirmed and gave effect to the remaining directions contained in the original decree as they stood. The appellant approached this Court against that modified decree, presenting an official certificate issued by the High Court. Counsel for the appellant, Mr. Pathak, argued that the High Court erred in rejecting the claim that the Inamdars of the village owned the running water of the Valdevi river. He further contended that this ownership extended to the portion of the river that flowed within the boundaries of the Inam village of Vadner. In support of the appellant’s case, Mr. Pathak urged that when construing the Sanad on which the appellant’s title rested, two important considerations should be kept in mind. The first consideration was that the flowing water of a river constitutes property that can belong to a citizen either by grant or otherwise. Mr. Pathak sought assistance for this argument from section 37 of the Bombay Land Revenue Code, Act V of 1879. Section 37(1) of that Code provides, inter alia, a definition of public property that includes various water bodies.

The Court observed that the statutory provision declared that every public road, lane or path which did not belong to any individual was the property of the Crown, and that the clause expressly enumerated as Crown property various water bodies including rivers, streams, nallas, lakes, tanks, all canals, water‑courses, and both standing and flowing water. The argument presented relied on the proposition that this sub‑section therefore indicated that the categories of property listed could at times belong to private persons, while also stipulating that in the absence of proof of private ownership such property would automatically vest in the State. Consequently, when interpreting the Sanad, the Court held that it was necessary to bear in mind that a river and its flowing water were regarded as property capable of being granted by the sovereign ruler to a private individual. The second line of reasoning advanced by counsel for the appellant invoked section 8 of the Transfer of Property Act, which provides that, unless a contrary intention is expressly or necessarily implied, a transfer of property immediately conveys to the transferee the entire interest that the transferor is capable of passing, together with all legal incidents. Counsel argued that, assuming that before the grant the Peshwa Government—being the ruling authority at that time—owned the river and its flowing water, the grant made by that Government to the appellant’s predecessors should be construed in accordance with the principle of section 8, thereby encompassing all rights, title and interest of the grantor unless a specific provision expressly excluded such rights or it was necessarily implied to do so. Keeping these two considerations in view, the Court turned to the actual terms of the Sanad itself. The document was noted to be drafted in a style consistent with the customary format of that era and to contain the usual introductory recitals. The relevant excerpt of the Sanad read: “Seeing the respectable Erahsins, performing Snan Sandhya (bath and prayer) leading ascetic life, devoted to the performance of their duties as laid down in Shrities and Smrities, the Government has constructed houses there and given to them. Thinking that if the same are given to them, it would be beneficial to the Swami and to the Kingdom of Swami, the village of mouje Vadner, Pargana aforesaid in (a) (b) Swarajya as well as Moglai‑Dutarfa (on both sides) has been given to them as Nutan (New) (c) (d) Inam together with Sardeshmukhi, Inam Tizai, (e) (f) (g) Kulbab‑Kulkanu Hali‑Patti, and Pestr‑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 Court noted that the Sanad subsequently allocated the village’s current revenue among the respective shares and contained additional provisions in its concluding part, which were not pertinent to the present appeal. The Sanad had originally been executed in the year 1773 A.D., and it was later confirmed during British rule in 1858 A.D.

It was observed that the essential provisions which had to be examined in order to ascertain the appellant’s title were embodied in the earlier Sanad. The Sanad expressly referred to rights over water, trees, grass, wood, stones and hidden treasures. Established jurisprudence clarified that the term “water” (jal) denoted water stored in tanks or wells and did not extend to the flowing water of a river. The reasoning was that, where the intention was to convey a river and its current, the Sanad would have employed the specific term “river” (nadi), because historically documents that granted rivers, drains or culverts used the words “nadi” and “nalla”. Consequently, on a plain construction of the language employed in the Sanad, there was no doubt that the grant concerned only stationary water found in ponds or wells, and not the flowing water of a river. The explicit reference to water as that of a well or pond served two purposes: it identified the kind of water being conveyed and, by necessary implication, excluded any grant of river water. Earlier decisions of the Bombay High Court had consistently interpreted the word “water” in similar documents to mean only pond or well water and not river water, as illustrated in Annapurnabai Gopal v. Government of Bombay. Therefore, the two arguments advanced by Mr. Pathak in support of his interpretation did not assist his case. The Sanad’s language precisely defined the nature of the water transferred and, by necessary implication, omitted the flowing river water.

Mr. Pathak further contended that the respondents did not dispute that the Sanad conferred title to the soil of the village and was not limited to the royal share of revenue. He argued that a grant of soil necessarily included the river bed while the river traversed the Inam village, and that if the river bed had been granted to the appellant’s predecessors, the water flowing over that bed within the village limits should likewise belong to the appellant. He maintained that ownership of the river’s running water should accompany ownership of its bed. Two difficulties arose in accepting this contention. First, as previously held, the use of the word “water” (jal) in the Sanad excluded the running water of a river. Second, it was not established that title to the flowing water of a river automatically followed title to the river bed.

In considering the authority of Lord Selborne in Lyon v. Fish‑mongers’ Company, the Court noted that the title to the soil forming the river bed does not automatically convey an exclusive right to the running water of the stream. Lord Selborne explained that such water may be lawfully appropriated only by severance and only by persons who possess a right of access to the water. Consequently, the Court rejected the submission that the grant of the village soil, including the river bed, must necessarily include a title to the flowing water of the river. The Court then turned to the factual circumstance that the Valdevi River traverses only a limited portion of the village, namely two miles and two furlongs. The river does not run entirely within the village from its source to its junction with another river. The Court observed that if a river both originated and terminated within the boundaries of an Inam village, the situation would be different. However, in the present case, acknowledging the appellant’s claim to the flowing water would enable the Inamdars to divert the entire stream, thereby destroying the rights of riparian owners whose lands lie outside the village. Such diversion could also permit pollution or other harmful uses that would prejudice those other owners. The Court held that these rights could not be claimed by the appellant unless the Sanad expressly granted the running water. The Court reiterated that the Sanad makes no such grant and, by necessary implication, excludes the running water from the scope of the grant.

Mr. Pathak subsequently argued that the diversion of the Valdevi River’s water during the relevant period impaired the appellant’s riparian rights and therefore gave rise to a cause of action for damages against the respondents. To support this contention, he cited the observations of Parke, B., in Embrey v. Owen (1851) 6 Ex. 353: E.R. 579, where the judge described flowing water as “publici juris” in the sense that all persons with a right of access may reasonably use it, and that no one may own the water itself except for the specific portion he may lawfully abstract and retain in possession for the time of such possession. The Court explained that the right to have a stream flow in its natural state, without diminution or alteration, is incidental to ownership of the land through which the water passes. However, this right is not absolute or exclusive; it is subject to the reasonable enjoyment of other riparian proprietors. Accordingly, any claim based on unreasonable or unauthorized use of the common water would be the only basis for an action, and the appellant’s alleged rights could not be sustained without a clear grant in the Sanad.

The Court observed that the right of a riparian proprietor extended only to the reasonable enjoyment of the water, and it held that an action could arise only when there was unreasonable and unauthorised use of this common benefit. In support of its analysis, the Court noted that Mr. Pathak had drawn the Court’s attention to the decision of the Privy Council in the Secretary of State for India v. Subbarayudu [(1931) L.R. 59 I.A. 56, 63‑64]. In that case the Privy Council examined in detail the nature and extent of the rights that a riparian owner could claim. Viscount Dunedin was quoted as saying, “A riparian owner 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 stream usque ad medium 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.” The Privy Council also observed that “the right of a riparian owner to take water is first of all, for domestic use, and then for other uses 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 easement.” The Court then explained that, despite the thorough discussion of riparian rights, it could not permit Mr. Pathak to raise this alternative argument before the Court. The reason was that the reliefs claimed by the appellant were based on a single ground – the title to the flowing water of the river. The plaint, in paragraph 8, expressly stated that the appellant claimed compensation for the use of water belonging to the plaintiff, and in paragraph 3 it clearly averred that the running water of the river belonged to the appellant. Consequently, the unlawful acts of the military authorities allegedly prevented the appellant and the Inamdars from letting out the bed of the stream for planting water‑melons and caused them loss. In other words, the plaint made no alternative allegation that the appellant or the other Inamdars possessed riparian rights in the flowing water of the river that were infringed by the military authorities. Moreover, the High Court had observed that there was no evidence on record to sustain the appellant’s claim that the military authorities’ actions had prejudicially affected the appellant’s riparian rights to use the water. Accordingly, on the record there was nothing to support an alternative claim based on riparian ownership.

The Court observed that the plaintiff had failed to produce any evidence demonstrating that the diversion of river water by the military authorities had caused damage to the Inamdars of the village. Because no factual basis was established to link the alleged diversion with any loss suffered by the village’s Inamdars, the Court concluded that the appellant could not rely on an alternative claim founded on a supposed riparian ownership interest. Accordingly, the Court held that the appellant’s argument that he possessed rights as a riparian owner was untenable in the absence of proof of injury. As a result, the appeal was found to have no merit and was dismissed. The Court ordered that the appellant bear the costs of the proceedings, specifying that two separate sets of costs were to be assessed, together with one hearing fee. Finally, the Court affirmed that the appeal was dismissed, thereby concluding the litigation.