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: Civil Appeal No. 212 of 1961

Decision Date: 8 February 1963

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

In the matter titled Shankar Narayan Ranade versus Union of India, the Supreme Court delivered its judgment on 8 February 1963. The opinion was authored by Justice P. B. Gajendragadkar and the bench comprised Justices P. B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah, K. C. Das Gupta and J. C. Shah. The petitioner, Shankar Narayan Ranade, was one of the sharers in the Inam village of Vadner and he instituted a suit against the Union of India asserting a right to the running water of the river Valdevi that flowed through his village. During the Second World War, military authorities constructed residential quarters both inside and outside the limits of Vadner, built a dam across the river within Vadner’s boundaries and excavated a well near the riverbank which was fed by the river water; the water from the well was then conveyed to the residential areas. From 1942 until 1959 the diversion of the river water and the utilization of the land continued, thereby depriving the petitioner and the other Inamdars of the ability to use that water for their own purposes. The petitioner claimed that this deprivation caused injury and damage, and he sought compensation from the respondents.

The respondents contended that a notification issued under section 5 of the Bombay Irrigation Act, 1879 had declared the river a notified canal, and consequently any rights that the Inamdars might have possessed in the river waters were lost. They also raised a plea of limitation, asserting that the claim was barred by the passage of time. The trial court decreed the suit, holding that the petitioner was entitled to compensation only for the two years preceding the filing of the suit, while the remainder of his claim was barred by limitation. Both the petitioner and the respondents filed cross‑appeals before the Bombay High Court. The High Court dismissed the appeal with certain modifications to the decree. Thereafter, an appeal was taken to this Court on a certificate.

The Supreme Court examined whether the word “water” appearing in the original sanad, when properly interpreted, included the running water of the river. The Court concluded that the term, correctly construed, excluded the flowing water and that title to the riverbed did not convey title to the river’s running water. Because the sanad made no grant of the running water, the petitioner could not claim it as a riparian owner. The Court referred to the authorities Anapurnabai Gopal v. Government of Bombay (1931) 47 Bom. L. R. 839 and Lyen v. Fish‑Mongers’ Company [1876] 1 App. Cas. 662 in support of this view. Furthermore, the Court held that the petitioner could not pursue an alternative case based on riparian rights, as the plaint contained no such allegation and there was no evidence on record to support it.

The Court observed that the appellant could not rely on a claim of riparian ownership because the plaint contained no allegation of such a right and the record presented no evidence to support it. The matter before the Court was a civil appeal numbered 212 of 1961, taken on a certificate from the judgment and decree dated 11 December 1957 delivered by the Bombay High Court in First Appeal No. 640 of 1957. Counsel for the appellant comprised G S Pathak, N D Karkhanis, B Datta, J B Dadachanji, O C Mathur and Ravinder Narain. For the respondents, the Solicitor‑General of India, C K Daphtary, together with N S Bindra and R H Dhebar, appeared on behalf of P D Menon. The judgment was delivered on 8 February 1963 by Justice Gajendragadkar.

The short question raised for determination was whether the appellant, Shankar Narayan Ranade, had sufficiently established a title to the flowing water of the Valdevi River that passed through his Inam village of Vadner. The village of Vadner had been granted to the appellant’s ancestors by the Peshwa Government in 1773 A.D., a grant that was subsequently upheld by the British Government after it assumed authority. The Valdevi River originated in the hills of Trimbak, flowed down to Vadner, continued to Chehedi where it merged with the Darna River, and thereafter lost its separate identity. The river’s total length was approximately twenty‑five miles, of which about two miles and eighty‑two furlongs lay within the limits of Vadner village. After joining the Valdevi, the Darna River proceeded toward Sangvi and eventually merged with the Godavari River.

The appellant was one of the co‑sharers in the Inam village of Vadner and had instituted suit number 12/1950 in the Court of the Civil Judge (Senior Division) at Nasik, seeking reliefs against the Union of India and the State of Bombay, who were the first and second respondents respectively, on the basis of his claimed title to the river’s running water. The factual backdrop revealed that in 1942, during the period of the Second World War, military authorities constructed barracks and other residential quarters for army personnel both within and outside the boundaries of Vadner. They also erected a dam across the Valdevi River inside Vadner and excavated a well near the riverbank. Water from the river was diverted through two channels to fill the well; the water was then pumped from the well into four reservoirs where it was filtered and subsequently conveyed by pipes to the military residential area.

Following these activities, the appellant approached the military authorities and the Government of Bombay, demanding compensation for the use of water and land by the military establishments. When his request for satisfactory compensation was not granted, he filed the present suit on 11 March 1950, proceeding in a representative capacity under Order 1, Rule 8 of the Code of Civil Procedure. In that suit, the appellant pleaded on his own behalf and on behalf of the other sharers in the Inam village of Vadner.

In the plaint, the appellant, acting on behalf of the other share‑holders in the Inam village of Vadner, asserted that the village jagirdars were the absolute owners of the whole village area, including the land, the stream and the water flowing through that stream within the village limits. The plaint alleged that the military authorities had diverted the water, thereby depriving the appellant and the other Inamdars of their right to use the water for their own benefit, and that this diversion had caused injury and damage to them. As compensation for the alleged injury, the appellant claimed a sum of one lakh eleven thousand two hundred fifty rupees from the respondents. In addition, the appellant sought a further compensation of seven hundred fifty rupees for the use of his land by the military authorities. The diversion of water and the occupation of land by the military continued from 1942 until 1949, and the appellant also claimed various incidental reliefs. Respondent No 2 opposed the appellant’s claim, contending that the Inamdars were not grantees of the soil but only holders of a royal share of revenue, and that, in any event, they owned no right in the flowing water of the Valdevi River. Respondent No 1 adopted the written statement of Respondent No 2 and filed the plaint in support of that position. The respondents further argued that the Valdevi River had become a notified canal by a notification dated 17 February 1913 issued under section 5 of the Bombay Irrigation Act, 1879, and that, consequently, any rights the Inamdars might have possessed in the river waters were extinguished, leaving Respondent No 2 with the absolute right to use that water. Both respondents also pleaded limitation. The learned trial judge examined the matters and found in favour of the appellant on every issue. He held that the Inamdars were indeed grantees of the soil, that the Valdevi River and its waters belonged to them, that the 1913 notification relied upon by the respondents was invalid, that the military authorities’ acts of diversion were unauthorised, and that the appellant was therefore entitled to compensation for the military’s use of the river water, for the occupation of his land, and for the loss of income from the river‑bed. The trial court further held that the appellant could claim such compensation only for the two years preceding the filing of the suit, with the remaining portion of his claim barred by limitation. Accordingly, the court decreed a payment of twenty‑six thousand seven hundred eighty‑eight rupees as compensation for the use of water up to 31 December 1949, directed that compensation for water use after 1 January 1950 be determined in execution proceedings, awarded a compensation of one hundred rupees per annum for the use of the land, and a compensation of fifty rupees per annum for the loss of income from the river‑bed during the period that

The decree issued by the trial Court remained in effect while the act of the military authorities continued. Both the appellant and the respondents filed cross‑appeals against that decree; the appellant filed cross‑appeal No 634 /1954 and the respondents filed cross‑appeal No 640 /1953. The appellant sought a larger sum of compensation, whereas the respondents contended that no compensation was payable for the alleged diversion of the running water of the Valdevi River. Before the High Court, the respondents did not dispute the trial Court’s finding that the Inamdars were the grantees of the soil, and they conceded that the rights of the Inamdars to the waters of the Valdevi River had not been extinguished by the notification issued under the Bombay Irrigation Act. However, they argued that because the Valdevi River was a notified canal, the military authorities could have used its water by making appropriate applications under sections 17 and 27 of the same Act; the High Court observed that no evidence showed any such applications had been made, and therefore that argument could not succeed. The principal contentions raised by the respondents in their appeal were that the appellant was not the owner of the running water of the stream and consequently had no right to claim compensation for the alleged diversion of that water by the military authorities. The High Court largely accepted this position. It held that, as owners of land on both banks of the river within the village, the Inamdars were entitled to use the river water as riparian owners—meaning they could draw water from the river and appropriate it for their own use—but they did not acquire title to the flowing water itself. Accordingly, the diversion of the flowing water could not support a claim for compensation. The respondents did not challenge the portion of the trial Court’s decree that awarded compensation for the wrongful use of the lands, and the High Court therefore left that part untouched. The High Court modified the trial Court’s decree by setting aside only the portion that related to compensation for the military’s use of the Valdevi River water, while confirming all other directions contained in the decree. The appellant then approached this Court, presenting a certificate issued by the High Court. Counsel for the appellant urged that the High Court erred in rejecting the appellant’s claim that the Inamdars of the village were owners of the running water of the Valdevi River during its course within the limits of the Inam village of Vadner. In support of this claim, counsel argued that, when construing the Sanad on which the appellant’s title is based, certain considerations must be borne in mind.

In this case the Court identified two principal considerations that were urged by counsel for the appellant. The first consideration was that the flowing water of a river is a form of property which may belong to a private individual either by grant or by some other mode of acquisition, and that this proposition can be supported by the provisions of section 37 of the Bombay Land Revenue Code (Act V of 187). Section 37(1) provides, among other matters, that all public roads, lanes and paths which are not the property of individuals belong to the Crown, and that the category of property enumerated in that clause includes rivers, streams, nallas, lakes, tanks, all canals and water‑courses, and both standing and flowing water. The argument advanced was that this sub‑section postulates that the items of property listed therein may be owned by private persons, and that where such ownership is not demonstrated, the ownership would vest in the State. Accordingly, when construing the Sanad that forms the basis of the appellant’s title, it is necessary to remember that a river and its flowing water constitute property which the ruler could have granted to a citizen.

The second consideration relied upon by counsel was derived from section 8 of the Transfer of Property Act. That provision declares that, unless a different intention is expressly or necessarily implied, a transfer of property immediately passes to the transferee the entire interest that the transferor is capable of transferring, together with the legal incidents thereof. Counsel contended that, assuming that before the grant the Peshwa Government, as the ruling authority of the time, owned the river and its flowing water, the grant made by that government to the appellant’s predecessors should be interpreted in accordance with the principle set out in section 8. In other words, the grant ought to be read as encompassing all rights, title and interest of the grantor unless there exists a contrary provision either expressly stated or necessarily implied by the terms of the grant.

Having set out those two considerations, the Court turned to the terms of the Sanad itself. The Sanad was composed in language that was typical of the period and contains the customary recitals that were commonly employed. The relevant portion of the Sanad was quoted as follows: “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 defines further terms, but the passage quoted above establishes the grant of land along with various associated rights, including rights to water, trees, grass, wood, stones and hidden treasures, subject to certain exclusions. These textual components formed the basis for the Court’s analysis of the appellant’s claim to ownership of the flowing water of the Valdevi river within the limits of the Inam village of Vadner.

The Sanad allocated the shares of the current revenue of the village among the respective parties, and in its final part it contained additional provisions that are not relevant to the present appeal. This Sanad was originally executed in the year 1773 A.D. and later, during the period of British administration, it was confirmed in 1858 A.D. All parties agreed that the substantive terms necessary for determining the appellant’s title are contained in this earlier Sanad. The document expressly mentions rights in water, trees, grass, wood, stones and hidden treasures. It is well settled that the term “water (jal)” in such historical instruments denotes water stored in tanks or wells and does not extend to the flowing water of a river. If the intention had been to grant a river together with its moving water, the Sanad would have unmistakably employed the word “river (nadi)”, because it is a recognized practice that when rivers, drains, or culverts are to be gifted, the grantors use the expressions “nadi” and “nalla”. Consequently, a plain construction of the language used in the Sanad leaves no doubt that the conveyance to the grantee is limited to stationary water held in ponds or wells, and does not include the river’s flowing water. The specific reference to water as that of a well or pond serves two purposes: it defines the kind of water being conveyed and, by necessary implication, excludes any grant of flowing river water. Sanads with similar wording have been examined repeatedly by the Bombay High Court, which has consistently held that the word “water” refers only to water in ponds or wells and not to the flowing water of a river, as observed in Annapurnabai Gopal v. Government of Bombay (1). Accordingly, the two arguments on which Mr. Pathak relied in support of his interpretation of the Sanad do not assist his case. The Sanad’s language precisely delineates the nature of the water conveyed and, by necessary implication, excludes the river’s flowing water. Nonetheless, Mr. Pathak contends that the respondents do not dispute that the Sanad confers title to the soil of the village and is not limited to the royal share of revenue alone; he further argues that a grant of the soil necessarily includes the riverbed while the river flows within the limits of the Inam village. He asks why, if the riverbed has been granted to the appellant’s predecessors by the Sanad, the water flowing over that bed within those limits should not belong to the appellant. According to Mr. Pathak, the title to the running water of the river must accompany the title to the riverbed, a view he supports by citing the case (1945) 47 Bom. L.R. 839.

In evaluating the contention that the title to the flowing water of the river followed the title to the river‑bed, the Court identified two principal difficulties. First, the Court reiterated its earlier conclusion that the use of the term “water (jal)” in the Sanad expressly excluded the running water of the river; consequently, the Sanad could not be interpreted as granting any right to the river’s flow. Second, the Court observed that it was not at all established that ownership of a river‑bed necessarily conveyed ownership of the water that ran over it. To illustrate this principle, the Court cited the judgment of Lord Selborne in Lyon v. Fish‑mongers’ Company, wherein it was held that “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.” On this basis, the argument that the grant of the village’s soil, including the river‑bed, automatically included a grant of title to the flowing water could not be accepted. The Court further noted that the Valdevi River traversed only a limited stretch of the village—specifically two miles and two furlongs—and did not run through the entire length of the village from its source to its confluence. Had the river both originated and terminated within the limits of the Inam village, the situation might have been different. However, in the present case, recognising the appellant’s right to the river’s flow would permit the Inamdars to divert the water entirely, thereby harming the interests of other riparian owners whose lands lay outside the village. Such owners could suffer pollution or other detrimental uses of the water, and those rights could not be claimed by the appellant unless the Sanad expressly conferred a grant of the running water. As the Sanad neither made such a grant nor, by necessary implication, included the flowing water, the appellant’s claim could not succeed. Subsequently, counsel for the appellant argued that the diversion of the Valdevi River during the relevant period had impaired the appellant’s riparian rights and, in his view, gave rise to a cause of action for damages against the respondents. To support this argument, counsel quoted the observations of Parke, B. in Embrey v. Owen, who stated that “flowing water is public 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, without 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, 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.” The Court also noted that counsel had referred to the Privy Council decision in Secretary of State for India v. Subbararayudu, where the Council examined in detail the extent of rights available to a riparian owner, emphasizing that 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,” but that such rights are limited by the rights of other riparian proprietors.

The judgment explained that the right to possess only the water that a landowner may actually draw from a stream does not confer an absolute entitlement to the entire flow; the entitlement is limited to allowing a stream to continue in its natural condition without reduction or alteration as an incident to the ownership of the land over which it passes, but this entitlement is subject to the reasonable enjoyment of other riparian proprietors, and only an unreasonable or unauthorized use of the common benefit may give rise to a cause of action. In support of this principle, counsel for the appellant cited the decision of the Privy Council in Secretary of State for India v. Subbararayudu, reporting that the Council had examined in detail the nature and extent of riparian rights. The Council observed that a riparian owner, as described by Viscount Dunedin, is a person who owns land adjoining a stream and consequently has a certain right to take water from that stream. In ordinary circumstances, the fact that the land abuts the stream makes the proprietor the owner of the stream bed up to its middle line, “usque ad medium filum.” (1)(1851) 6 E,.c. 353: 155 E R. 574. (2) (1931) L,R. 59 I.A. 56, 63‑64, although this can be displaced by a specific grant to the opposite side or by Crown ownership where the stream is tidal and navigable, in which case the bed belongs to the Crown. The Council further noted that the right of a riparian owner to take water is primarily for domestic purposes and, secondarily, for purposes connected with the land such as irrigation, characterising this right as a natural right rather than a strict easement, although it is often described as an easement. The judgment, however, held that it could not permit counsel for the appellant to raise the alternative argument based on riparian rights, because the reliefs sought by the appellant were grounded solely on the claim to title over the flowing water of the river. The plaint, in paragraph eight, specifically sought compensation for the use of water alleged to belong to the plaintiff, and in paragraph three it clearly asserted that the running water of the river belonged to the appellant, contending that the unauthorized actions of the military authorities had prevented the appellant and the Inamdars from letting out their stream bed for the cultivation of water‑melons, thereby causing them loss. Consequently, the plaint made no alternative allegation that the appellant and the other Inamdars possessed riparian rights in the flowing water that were infringed by the military authorities.

The Court noted that the appellant had alleged that the actions of the military authorities had interfered with his riparian rights and consequently had caused damage to those rights. However, the Court also referred to the observation of the High Court that the record contained no evidence capable of supporting the appellant’s assertion that the military authorities’ conduct had prejudicially affected his entitlement as a riparian owner to use the water. In other words, the material before the Court showed nothing indicating that any loss or injury had been suffered by the Inamdars of the village as a result of the diversion of water undertaken by the military authorities. Because of this evidentiary gap, the Court was satisfied that the appellant could not now rely on an alternative ground based on his claimed riparian ownership. Consequently, the Court concluded that the appeal could not succeed. The appeal was therefore dismissed, and the appellant was ordered to pay costs on a two‑set basis together with one hearing fee. The dismissal of the appeal was affirmed.