Basdeo Singh and Others vs King-Emperor

Adami, J.—The petitioners have been convicted under Sections 147 and 430 and have been fined Rs. 20 each under the former and Rs. 15 each under the latter.

It appears that the river Morhar divides into two branches at a place called Paibigha, the western branch retaining the name Morhar and the eastern being called Dardha. About eighteen miles north from Paibigha the 9 annas Tikari Estate has a village called Kalpa Mahal, whose only source of irrigation is the western branch of the Morhar river, but sufficient water for the purpose can only be induced to flow down this branch if a dam is constructed at Paibigha across the Dardha so as to bring all the water of the Morhar river down this western branch. Accordingly the nine annas Tikari Estate constructed a dam at considerable expense. Bat ween Kilpa and Paibigha there are other villages which do not belong to the Tikarij Estate which are entitled to irrigate their fields from the river and one of them is Punhada.

The villages along the stream in turn construct dams across the river and irrigate their fields by pynes, and when all the intermediate villages have got sufficient; water, Kalpa takes the amount necessary for its fields and then the Paibigha bandh is removed.

The evidence in this case shows that there is no definite arrangement or custom of parabandi regarding the period for which each village may take the water, though the defence alleges that a period of 36 hours is recognised. This is not proved.

From the Settlement Officer''s decision it is clear that the villages have the ordinary rights of riparian owner, namely of taking so much water as is necessary for full irrigation provided they do not deprive villages lower down of the supply they need. When the water in the river is low and scarce, each village has to regulate the amount of water taken having regard to that scarcity, otherwise it will deprive the lower villages of their rights.

The Morhar river and the Morhar branch are natural water channels and the fact that the nine-annas Tikari Estate has met the expense of erecting the bandh at Paibigha in order to ensure a supply of water to Kalpa gives no superior right to Kalpa in the matter of the amount of water the village is entitled to. Its rights are subject to the rights of villages further up.

The facts found by the lower Courts in this case are that on the 30th of September, the Punhada villagers, having constructed a dam across the river, began to take water to their fields through pynes. That evening some of the petitioners, who are residents of Kalpa came to the Punhada dam and told the Punhada people to out the bandh so that the water might come to Kalpa; the Punhada people refused and there was probably abuse and threats, which caused the Chaukidar to go to the Police Station and give information that there was likely to be trouble. Early next morning a Sub-Inspector came with constables to the bandh, and, after inquiry, left the constables there to prevent any breach of the peace. On the evening of October 1st, the petitioners with a large mob came armed with lathis, spades and orowbars, to the bandh and demanded that it should be out. The Punhada people were collected there but not in sufficient numbers to repel the Kalpa men. The constables ordered the mob to go away and not to touch the bandh, but the petitioners, paying no heed out the bandh and let the water through and then departed.

On these facts the petitioners have been convicted and sentenced as mentioned above, the common object of the unlawful assembly charged being to deprive by means of force the tenants of village Punhada and Nangarh of the right to use the water of the Morhar for irrigation.

It is contended now that in coming with a large force in order to prevent the Punhada people from taking more than their share of this water and to ensure the supply to themselves to which they were entitled, the petitioners were committing no offence. It is argued that as the nine annas Tikari Estate erected the Paibigha bandh, the intermediate villages ware not entitled to deprive Kalpa of its full supply of water. Further that as water was scarce at the time the Punhada people were not entitled to take water for 36 hours, but bad taken as much as they were entitled to when the petitioners out the bandb.

These contentions cannot be supported as I have pointed out the erection of the Paibigha bandh gave Kalpa no superior rights over the intermediate villages; and it has been found that the defence allegation that where there is a full supply of water in the river, there is a parabandi of 36 hours, has not been proved. In fact it is found that there had been no special arrangement made between the villages in 1923. It has not been shown that the Punhada villagers had taken more than the maximum of water they were entitled to even in time of scarcity, nor has it been shown that if the bandh bad not been cub when it was, the Kalpa villagers would not have got their due share. Until these two points were proved the petitioners could not claim to be maintaining a right to out the bandh.

On the other hand it is shown and found that the Punhada people were at the time of the interference by the petitioners exercising a right, and it is not shown that they exceeded it.

It is contended that the mere fact that the petitioners came with a large number of others to out the bandh, which they thought they were entitled to do, could not convert the assembly into an unlawful one. It has to be remembered, however, that they had asked the Punhada people to out the bandh the day before and when refused bad gone away with threats; it is quite clear that it was their intention to carry out their object by force. They paid no heed to the remonstrances of the eon-stables, and it was due to the fact that the Punhada people retired before show of greater force that no actual fight occurred. In my opinion the finding on the facts that the assembly was an unlawful one was altogether correct, and the conviction u/s 147 was justified. The sentence is lenient because no bodily violence was used.

With regard to the conviction u/s 430, Mr. Gour Chandra Pal has referred to the case of Ram Krishna Chetti v. Palaniyandi Kadambhar (1876) 1 Mad. 262, but I cannot see how that decision can help the petitioners. It was there laid down that "under Section 430 of the Penal Code the physical "requisites of the act are the doing of an act "which causes, or to the doer''s knowledge "is likely to cause, a diminution of supply. "He also fulfils the mental requisites when "he does thing with intent to cause wrongful "loss, and the intention is properly held to "be such when he takes it without any sort "of right, and it matters not that he claims "to set up such a right, if the facts are so "clear that the claim is manifestly only an "additional wrong. It is for judicial tact to "distinguish where the case is sufficiently "doubtful to prevent the inference of a wrong intent." In the present case there is no doubt that the petitioners knew that by their act they were causing a diminution of the water supply of Punhada tillage; they have not substantiated a right to take the water on October 1st, nor shown that the Punhada people had no right; they cannot contend that they had a bona fide claim to take the water then.

I uphold the convictions and sentences u/s 430.

The result is the application is rejected.