(Tatiparti) Veeraswami and Others vs (Sanam) Kanakayya

Curgenven, J.—The petitioners in these two criminal revision petitions, fourteen in number, have been convicted of forming members of an

unlawful assembly and committing mischief, under Sections 143 and 426, I.P.C., and sentenced each to pay a fine of Rs. 30. The convictions and

sentences have been confirmed on appeal.

The complainant works a rice mill and the drainage water from the mill flows into a bodi or channel which in turn empties into a main bodi. The

petitioners obstructed the flow of the water in the former bodi, and the question which arises is whether in so doing they committed mischief. That

question depends upon the more specific question whether they intended to cause or knew that they were likely to cause, wrongful loss or damage

to the complainant. The learned Sub-Divisional Magistrate who tried the appeal answered that question affirmatively, holding (a) that the

complainant had a right so to discharge the drainage water, and (b) that the accused in obstructing that right, were not acting in good faith in the

belief that they had a right so to obstruct.

Although the complainant has been discharging the drainage water only for 3 or 4 years, so that no question of custom or prescription can arise,

the appellate Court considers that he has a right so to do because the main bodi is a public channel. There is some doubt whether this finding is

correct, and certainly the reasons given, that the bodi irrigates the lands of about 60 ryots, and that it also acts as a drainage channel, are not

conclusive. Bat even assuming that it is a public channel, it does not follow that the complainant has a natural right, which is the only sort of right

which in the circumstances he could have, to let out his refuse water into it. The extent of that right is that the water naturally draining from his

property should be allowed to flow in the course in question. I do not find that the learned Judges who decided Doraiswami Muthiriyan v. Muttachi

[1918] M.L.T. 210, go in principle further than that, because they decline to base their decision on the contention that an upper holder has a

natural right to discharge on to adjoining land water which has come artificially, i.e., brought for purposes of irrigation, on to his land. That was no

doubt a case of drainage on to private property; but it has not been shown me that his natural right to discharge into a public water course would

be more extensive. The finding that the complainant has not proved the right which he says was violated by the petitioners is sufficient to dispose of

this case. But if the view I take upon that point is incorrect, there are other reasons why, in my view, the convictions should be set aside. The

ostensible ground of the petitioners'' action was that the water draining from the mill was polluting the water supply and so damaging the crops and

rendering the water unfit for drinking. I think a"" perusal of the complainant''s own deposition as P.W. 1 will show that this objection to his action

was not unfounded. He says:

We boil rice. We soak paddy both in ordinary cisterns and filtered cisterns. In the water which is not filtered old paddy remains for two days. New

paddy remains in water for four days. No bad smell will come from the boiled rice water. Neither cattle nor man can drink this drainage water. The

water becomes green. The drainage water will not emit any smell. If the drainage water stagnates it will emit bad smell. If that water mixes with

pure water both man and cattle can drink.

The theory that undrinkable water, if diluted with pure water, is rendered drinkable, is not, I conceive, in accord with approved sanitary

principles. It can at least hardly be doubted that the petitioners, in taking steps to prevent the contamination of their drinking water supply, to say

nothing of damage to seedlings and crops, were acting under colour of a right so to do.

I am told that the matter is now under litigation in the civil Court, and I need scarcely say that no conclusions at which I have arrived upon

evidence which is in several respects defective should influence the judgment of that Court.

The Criminal Revision Petitions are allowed, the convictions and sentences set aside, and the fines, if paid, will be refunded.