P L D 1961 Supreme Court 61 (PLP)

He was however of the opinion that whether the water came from a spring or was a part of a flowing underground stream, property in the water appertained to the Crown and he relied for this upon section 37 of the Bombay Land Revenue Act, which is in the following terms:- "37. (1) All public roads, lanes and paths, the bridges, ditches, dikes, and fences, on, or beside, the same, the bed of the sea and of harbours and creeks below high-water mark, and of rivers, streams, nallas, lakes and tanks, and all canals and water-courses, and all standing and flowing water, and all lands wherever situated which are not the property of individuals, or of aggregates of persons legally capable of holding property, and except in so far as any rights of such persons may be established in or over the same and except as may be otherwise provided in any law for the time being in force are and are hereby declared to be, with all rights in or over the same or appertaining thereto, the property of the Crown, and it shall be lawful for the Collector, subject to the orders of the Commissioner, to dispose of them in such manner as he may deem fit, or as may be authorised by general rules sanctioned by the Government concerned, subject always to the rights of way and all other rights of the public or of individuals legally subsisting." He considered also the nature of the ownership of Ramchand Thawardas under the terms of the grant to him and came to the conclusion that the rights of the grantee were limited to use the water for the purposes of agriculture only. Any water used in excess would in his opinion be liable to assessment of land revenue, and on that basis he came to the conclusion that ownership in the water still inhered in the Government. This view seems to have been upheld by the High Court as will appear from the following passage:- "In our opinion the question whether the Government is the owner of the land subject to certain rights of the occupant, or whether the occupant is the owner of the land subject to certain rights of Government, is academic. The, appellant had the right to construct a well for the purpose of agriculture and Government had no right to evict him from the land so long as he used the land and well for agricultural purposes. and continued to pay the assessment." Again, a little later in the judgment, in an imaginary dialogue the learned Judges have put certain words in the mouth of the purchaser, namely, the Government, appearing from the quotation below:- "Vendor:-You are going to use the water of my well to supply military needs. Purchaser:-That is true, we recognise that this is a special advantage attached to this well. But if you supplied water for these needs, you would have to obtain the permission of the Collector and pay non-agricultural assessment and possibly a fine, so that you are not absolute owner of the water," Mr. Abdul Haque appearing for the State of Pakistan has not been able to place before us any convincing evidence to show that the rights of the grantee were restricted as to user in the manner accepted by the Courts below. On the other hand, we find that Exhibit 79 which is the letter by which the Mukhtiarkar (Tehsildar) communicated to the purchaser Khemchand that the land had been granted to him, clearly mentions that the right of khata was being granted, upon payment of dues, firstly, for malkana that is ownership, secondly, a supplementary payment of an anna in a rupee, and thirdly, the cost of demarcating the boundaries. The land specified in the letter includes survey No. 396, and the letter is dated the 15th April 1919. Exhibit 80 is the letter of acceptance by Khemchand and is dated the 31st May 1919. It purports to accept the specified land on behalf of himself and his present and previous co-khatedar, "without being subject to the terms of restricted tenure" on malkana equal to the assessment, and acknowledges liability to pay regularly from time to time the annual land revenue. This shows that the land was not granted in muafi that is free of land revenue, but for all other intents and purposes the Government had parted with its ownership rights in the land to the aforesaid Khemchand. The mere incident of being subject to payment of land revenue does not affect that position in any way. The right of imposing a tax by way of land revenue belongs to the suzerain power as an inherent right, and it will be convenient to state at once that this right extends to all land in the territory controlled by the suzerain power, using the expression "land" in its widest sense to include all benefits arising out of land. In the present case, the water which comes up in the well that has been dug by the respondent is clearly a benefit arising out of the land, and consequently, if that water were used for a money-earning purpose other than agriculture the Government would no doubt be entitled to lay an assessment on it as a benefit arising out of the land, in the same way as a tax can be imposed on the fruit of trees growing on lands, in the general claim of land revenue. But that would not mean that the fruit of the trees or the trees themselves belong to the Government any more than that the water which comes up in the respondent's well is the property of the Government. In concluding from the mere incident of liability to land revenue that this water is the property of the Government or it is not wholly the property of the respondent, it appears to us that the arbitrator and the High Court have fallen into error. It seems also that some part of the misunderstanding is due to misreading and misconstruction of the relevant portion of section 37 of the Bombay Land Revenue Act which has been cited above. Both the arbitrator as well as the High Court appeared to have read this section as if it lays down that all standing and flowing water appertains to the Crown. It seems to us that the plain meaning of the words used is different. The section has the effect of declaring the ownership of the Crown in the following kinds of property, viz:- (1) All public roads, lanes and paths, the bridges, ditches, dikes and fences, on, or beside the same; (2) the bed of the sea and of harbours and creeks below high-water mark, and of rivers, streams, nallas, lakes and tanks ; (3) all canals and water-courses, and all standing and flowing water, and all lands wherever situated which are not the property of individuals, or of aggregates of persons legally capable of holding property, and except in so far as any rights of such persons may be established in or over the same. The section naturally divides into these three categories. It is inconceivable that all canals and water courses whatsoever should be declared to be the property of the Government, since there are innumerable water courses situated over private land for the purpose of the irrigation of such land, and it would be absurd to suppose that all such water courses belonged to the Government. There are a great many private canals over the length and breadth of the country, and it is impossible to suppose that merely because they are canals they belong to the Government. Similarly, there is standing and flowing water over an enormous area of privately owned land, and no one has over claimed and no one could possibly suppose that property in all such water belongs to the Government. The section clearly avoids any such inference by stating the extent, namely, that all such canals andl water courses, and al! standing and flowing water, and all lands wherever situated which are not properly owned and over which private rights are not established belong to the Government. Upon this reading of the section, no difficulty whatsoever arises in coming to the natural conclusion that the water in Ramchand's well being a benefit arising out of the land which belongs to him C is private property, to be used by him as he pleases, and that when the Government take this water away, he is entitled to be compensated for it. If the Government please, then under, another capacity, that is to say, as suzerain power, they may impose a land revenue assessment upon the water as a special benefit arising out of the land, but that would not in any way affect Ramchand's proprietary rights in the water. Reference was also made in the course of the argument to section 69 of the Bombay Land Revenue Act, which saves the property of the Government in respect of mines and minerals situated in or which may be extracted from land which has been granted to a private individual. Mr. Abdul Haque was unable to say that water extracted from the earth has ever been regarded l as a mineral, and consequently this provision in the land laws is of no avail to the appellant. We consider that compensation for his water has been rightly allowed to the respondent and we accordingly dismiss this appeal with costs. K. B. A.?????????? Appeal dismissed.