P L D 1958 Dacca 267 (PLP)

Hence these appeals by the plaintiffs of Suits Nos. 2 and 3 of 1,939 and the defendant of Suit No. 22 of 1942. Mr. Upendra Kumar Roy, who appears on behalf of the appellants in all the three appeals, has raised the following points :‑ (1) that the lands in dispute and even lands to the south thereof are reformations in situ of the lands of Touzi Na. 1830‑B (1) and, as such, the plaintiffs of Suits Nos. 2 and 3 of 1939 and defendant of Suit No. 22 of 1942 are entitled to deal with them in any way they choose ; (2) that the Government cannot succeed in their prayer for injunction unless obstruction to navigation is proved, which has not been proved in the cases ; (3) that, in any event, even if the Government has succeeded in proving a slight obstruction to navigation, it will not constitute a cause of action ; and (4) that the delay of the Government in bringing the suit disentitles it to any relief. Mr. A. B. Mahamud Hussain, the senior Government Pleader, who appears on behalf of the respondents in all the appeals, on the other hand, contends that the disputed lands on which the revetments have been built are part and parcel of the bed of the river Buriganga and, as such, belong to the Government and Government has every right to complain of encroachments on its property, and delay in bringing Suit No. 22 of 1942 has not been such as to create any prescriptive right in favour of the defendant. The main stress of Mr. Roy is on the first point taken by him on which he devoted most of his argument. He contends that once it is found that the disputed lands on which the revet ments have been built by the plaintiffs of Suits Nos. 2 and 3 of 1939 and the defendant of Suit No. 22 of 1942 (whom we will hereinafter call the Das proprietors) are within their Touzi, there is no principle of law which can destroy the title of the Das proprietors to the same. He claims that even if the river Buriganga swallowed up the lands in 1858, the Das proprietors did not lose their title to the same thereby and, as soon as the river again yielded it up in 1916, they had every right to possess the same and use it in any way they liked. According to Mr. Roy, once it is found that the disputed lands are lands of the Touzi of the Das proprietors, it remains their property, whether it is above or under the water of the river. The land, he says, is really reformation in situ of the lands of the Touzi of Das proprietors and their title to the same cannot be defeated by Government claiming the lands as part of the bed or foreshore of the river. Mr. Roy builds his argument on the principles of law laid down in the Privy Council case of Lopez v. Muddun Mohun Thakoor (13 M I A 467). He relies particularly on the following passage in the judgment of their Lordships of the Judicial Committee of the Privy Council :‑ "This principle is one not merely of English law, not a principle peculiar to any system of Municipal law, but it is a principle founded in universal law and justice ; that is to say; that whoever has land, wherever it is, whatever may be the accident to which it has been exposed, whether it be a vineyard which is covered by lava or ashes from a, volcano, or a field covered by the sea or by a river, the ground, the site, the property, remains in the original owner". As Mr. Roy relies too strongly on this case, it is necessary to examine the facts of the same to see how far the principles laid down therein can be made applicable to the facts of the case before us. The facts in the case of Lopez v. Muddun Mohun Thakoor, in the words of their Lordships of the Judicial Com mittee of the Privy Council, are follows :‑ "The plaintiff in this case, Felix Lopez, was the proprietor of a very considerable estate, a mouzah, on the banks of the Ganges. By the year 1840, by reason of the continued encroach ment of that river, it was wholly submerged, and it was, to adopt an expression used in this class of cases in India, "diluviated" ; that is, the surface soil, the culturable soil, was wholly washed away. After the lapse of some years and after one temporary recession and re‑encroachment which has occurred in the interval, the water has ultimately retired, and the land, having been for some time in a state described as admitting of only temporary cultivation by 'land‑sowing, has become hard and firm soil, capable of being cultivated to the usual manner". It will be noticed from the above narrative of facts that the land had become hard . and firm soil, capable of being cultivated in the usual manner. On these facts, their Lordships of the Privy Council applied the doctrine of "reformation on‑ original site". The principle laid down in Lopez's case has subsequently been reaffirmed by the Privy Council in a number of cases, the case of Nogendra Chunder Ghose and another v. Mahomed Esoff, the Collector of Chittagong, and others (88 W R 113), to which also Mr. Roy refers, being one of them. The proposition that when a navigable river swallows up hard and firm soil capable of being cultivated in the usual manner and subsequently yields up the same in more or less the same condition of soil, it can be claimed by the original owner as reformation in situ is not disputed. The facts which are not disputed before us are that the river Buriganga covers up in normal course the disputed lands during the months of the rainy season every year and the stretch of the land left .dry during the winter months, including the disputed lands, is not such firm and hard soil as to be capable of being cultivated in the usual manner. It is also not, disputed that the lands are slopes‑ much, lower 'than the"‑ bank 'of the river. The doctrine of reformation in situ cannot, in our opinion, be attracted to such `soil. When the river habitually covers up this land every year during the, wet season and' the land is not capable of cultivation in the usual way, even when dry during the dry season, it is for all purposes the bed of the river and it cannot be said that the river hats yielded, up and abandoned the land. The height which the formation of land, which is claimed as reforma tion in situ, has attained is also one of the tests helpful in an enquiry whether such formation of land has ceased to be part of the public domain so that private proprietory right. may attach to it. The following passage from the Tagore Law Lectures on the "Law of Riparian Rights" delivered by Lal Mohan Dass, who was also a Judge of the :Calcutta High Court;; may usefully‑;be quoted here. The learned lecturer says at page ,186 of the ,publication of 1891 of the lectures, as follows :- "The key to the true criterion for determining the point at which an alluvial formation, either contiguous to the, bank or insular ceases to form apart of the public waste' or `public domain', and becomes susceptible of private proprietary right, maybe obtained from the following observations of the Privy Council in Lopez v. Muddhun Mohun Thakoor :‑ In truth, when the' words are' looked at, not merely of that clause, but of the whole Regulation, it is quite obvious that what the then legislative authority was dealing with was the gain which an individual proprietor might make in this way from that which was part of the public territory, the public domain not usable in the ordinary sense, that is to say, the sea belonging to the State, a public river belonging to the State ; this was a gift to an individual whose estate lay upon the sea, a gift to him of that which by accretion became valuable and usable out of that which was in a state of nature, neither valuable nor usable'. Interpreting the Regulation by the light reflected upon it by this passage, the inference is clear that the Legislature intended to confer on the adjacent riparian proprietor the alluvia formation as a gift only when it attained such height as to become, to use tile language of the Privy Council, valuable and usable to him . That the land must rise to such a height as to be fit for cultivation in order that private proprietary right may attach to it was also laid down in the case of "Maharanee Odhiranee Narain Koomaree v. The Nawab Nazim of Bengal and others (4 W R 41). The passage that we desire to read from that judgment runs as follows :‑ "The Bhaggurutes is a public navigable stream. The plaintiff is a riparian proprietor. The ground in dispute has partially formed opposite plaintiff's estate, and the Judge calls it an accretion. But he says that it is a worthless piece of land which is still in the bed of the river, which was found to be in the water in 1863, and which will be again submerged as soon as the river rises in the wet season. . This being so, we think that there is no accretion such as to make the land private property. Till the land rises beyond ordinary high water mark in such a way as to become fit for cultivation, it is part of, the river‑bed, and, as such, public property". In the case of Bibi Ahmadi Begum and others v. Tarak Nath Ghose arty others (18 C L J 399), a discussion similar to the one before us arose in a Letters Patent Appeal. The facts in that case were that during the hot. weather the river was one to two miles broad but during the rains the breadth of the river became ten miles. The question that their Lordships were invited to decide was whether the river bed was one to two miles in width or was it ten miles in width In other words, one of the questions that Arose for their Lordships' decision was when the river expands during the rains and attains a breadth of ten miles was that expanse still the ‑lowing waters of the river or was it merely flood or inundation. The decision of their Lordships is contained in tile following passage in the judgment of Sir Asutosh Mookerjee,‑ "But it has been strenuously argued on behalf of the appellants that the bed of the river is the channel in which the water flows continuously throughout the year. This contention cannot possibly be supported. It is indisputable that in the words of the Digest `that is considered to be the bank which contains the river when fullest' (Digest 43, 12, 3) ; Ware on Roman Water Law, section

41. Consequently, the bed of the river is understood to be the whole of what contains its waters when most swollen, in whatever time of the year, without leaving its channel and overflowing its banks. When the river is at its full flow, be that by the daily flow of the tide or by the natural increase of its waters occasioned by rain or the like cause, filling its natural bed to its highest reach of flow, it marks its high water, while its diminished range of flow by summer heat show's its low Water mark. In other words, as Grotius puts it (War and Peace, 2, 8, 9), the bank is the outermost part of the bed in which the river naturally flows at its fullest. On this, passage, Vinnius comments : this signifies that that space next to the batik, which is sometimes not occupied by the river, when reduced by heat in the summer season, is not a part of the bank'. This justifies the, statement of Houck (Navigable Rivers, page 6) that the bed of a river is the space between the banks occupied by the river at its fullest flow so that the bank of a river is no part of its bed, for the bank ends at the line to which the water, rises at its highest flow; and, though the space next below it is sometimes uncovered by the river, when reduced to its lowest flow, yet the space so uncovered is not. a part of the bank but of the bed of the river ; the bank is thus the border of the bed within which bed the river flows when in its fullest state naturally, that is to say, when riot temporarily overflowed by extraordinary rains. The subject was lucidly discussed by Mr. Justice Curtis in delivering the judgment of the Supreme Court of the United States in Howard v: Ingersoil (1851) 14 Howard 381 (427) : `The banks of a river' are ' those ' elevations of land which confine the waters when they rise out of the bed, and the bed is that soil so usually covered by water as to be distinguishable from the banks by the character of the soil or vegetation or both, produced by the common presence and action of flowing water. But neither the line of ordinary high water mark nor of ordinary low water mark nor the middle stage of the water can be assumed as the line dividing the bed from the banks. The line is to be found by examining the bed arid banks, and ascertaining where the presence, and action of the water are so common and usual, and so long continued in all ordinary years as to mark upon the soil of the bed a character distinct from that of the banks in respects to vegetation, as well as in respect to the nature of the soil itself Whether this line, between the bed and the banks, will be found above or below or at a middle 'stage of water, must depend on the character of the stream.. The height of a stream during much the larger part of the year may be above or below a middle point between the highest and the lowest flow. Something must depend also upon the rapidity of the stream and other circumstances. But, in all cases, the bed of a river is a natural object, and is to be sought for, not merely by the application of any abstract rules but as other natural objects are sought for and found, by the distinctive appearance they present the banks being fast land, on which vegetation appropriate to such land in the particular locality grows wherever the bank is not too steep to permit such growth and the bed being soil of a different character, and having no vegetation, or only such as exist when commonly submerged in water. To the same effect is the statement in Alabama v. Georgia (1859) 23 Howard 505 (515) : It is the running water of the river that makes its bed ; for, it is that and that only which leaves its indelible mark to be readily traced by the eye ; and wherever that mark is left, there is the river's bed ; it may not be there to‑day, but it was there yesterday ; and when the occasion comes, it must and will‑un obstructed again fill its own natural bed'. This view was substantially accepted in Hindson v. Ashby (1896),

1. Ch. 78 and Thames Conservatory v. Smeed & Co: (1897) , 2 IQ B

334. Judged from this point of view, the contention of the ,appellants cannot be accepted as sound. It is indisputable upon the, evidence that, from year to year, during the rains the river attains a breadth which varies from 8 to 10 miles and this state of things continues during a period of at least two months. There is no room for suggestion that this is an accidental phenomenon, a flood or an inundation, a temporary overflow due to extra ordinary rains or some similar exceptional cause. The, evidence consequently tends to, support the view that the disputed jalkars stand on land which is included in and is part of the river bed". Keeping the principles laid down in the above cases as also the admitted features: and character of the land in view, we have hot the least hesitation in holding that the disputed lands on which the revetments were built by .the Das .proprietors during the dry season, is part of the bed of the river Buriganga and, as such, public domain. The fact that before, 1,$58 the land might have formed part of the lands of the Touzi of the Das proprietors does not help them in their claim. So long as, it remains part of the bed of the river, no private ownership can attach to it. In, this view of the law, we hold that there is no substance in the first and main contention of Mr. Roy. As regards the rest of the contentions of Mr. Roy which have been set out above, they, do not arise in two of the appeals before jus, namely, First Appeals Nos. 196 and 197 of 1944, as the suits out of which these; two appeals arise were instituted by the clients of Mr. Roy as plaintiffs praying for declaration of their title and for injunction against the Govern ment. The Court below has only dismissed these two suits of the Das Proprietors. Strictly speaking, there is no decree for injunction passed in Suit No. 22 of 1942 either. The right of the Provincial Govern ment to the disputed land as forming part of the bed of the river has been declared by the decree, and the decree then goes on to say that "the defendant will be bound to remove the encroach ments and the structures thereon without any compensation whenever its removal is considered necessary by the Crown in the interest of the public". There is no present decree for any injunction against the defendant. We do not also find any substance in any of these other contentions of the learned Advocate. As regards the second and third contentions of the learned Advocate plat the Government has either failed to prove obstruction to navigation or has proved slight obstruction and, as such, are not entitled to succeed, the shortest answer is that the fact that the defendant had to build such a high revetment wall in order to prevent the waters of the navigable river flowing over his land is sufficient proof of obstruction to navigation. A substantial structure on the bed of the river covering an area of 1487 square feet is certainly not a slight obstruction. Apart from the nine questions of law raised by Mr. Roy as to the nature of obstructions that will give the Crown the right to sue the person who creates the obstruction, which we do not think necessary to discuss, we hold that the building is considerable obstruction to navigation and, as such, the Government has a right to sue. As regards the last point of the learned Advocate for the appellants regarding the delay in filing the suit which, according to the learned Advocate, disentitles the plaintiff to relief, the facts are as follows : On 20th March 1931, the defendant filed a petition before the Collector of Dacca for permission to build the revetment. The Permission was not granted. Immediately thereafter the revetment was built by the defendant. On 14th October 1934 a notice was served on the defendant asking him to take out a license for his unauthorised construction on payment of an annual fee of Rs.

70. Then another notice was served on him on 8th July 1936. The present suit was brought on 1st December 1938. We fail to see where is the inordinate delay in bringing the suit. It is not contended that the delay has created any prescriptive right in favour of the defendant. So, there is no, substance in this point either. The result, therefore, is that all the three appeals are dismissed with costs. As all the three appeals were heard‑together, he respondent will get only one set of hearing fee. AMIN AHMED, C. J.‑I agree. Z. A. S. Appeals dismissed.