The Raja of Vizianagaram (dead) and Another vs Mudunooru Sanyasiraju

Wadsworth, J.—This appeal is preferred by the first defendant representing the Vizianagaram Estate against the decision in a suit for an

injunction to restrain the first defendant from altering the course of the channel to the detriment of the plaintiff. It seems to be established on the

findings of the Courts below that the channel marked DD in the plan attached to the plaint and also in the Commissioner''s plan flowing west to

east, has been diverted by means of an embankment so that it flows southwards along the path marked EE-1 on the plan and that an incidental

consequence of this diversion has been damage to the plaintiff''s land which is situated to the west of the diversion. It is contended for the appellant

that the duty imposed upon a Zamindar to construct and maintain irrigation works gives him a right to create any new works which he finds to be

necessary in the interests of irrigation and imposes an obligation on third parties to construct such protective works as may be necessary to prevent

damage to their lands resulting from the new works. It seems to me that this is an overstatement of the legal position of the Zamindar with reference

to irrigation. It is true that this Court held in Gajapathi Krishna Chandra Deo v. Raja of Vizianagaram (1930) 60 M.L.J. 662, that the rule in

Rylands v. Fletcher (1868) 3 H.L. 330, is not applicable to Indian irrigation conditions. The storing of water in an agricultural tank is a natural and

lawful user and is not actionable for damage in the absence of negligence. This is quite another matter from holding that either a Zamindar or

Government are entitled to construct new irrigation works so as to damage the lands of others without any liability for the damages so caused. It

was held by a Bench of this Court in Sankaravadivelu Pillai v. Secretary of State for India in Council (1904) 15 M.L.J. 32 : ILR 28 Mad. 72 that

The rights of Government, in connection with the distribution of water, did not include a right to flood a man''s land because, in the opinion of

Government, the erection of a work which has this effect is desirable in connection with the general distribution of water for the public benefit.

I know of no principle upon which the rights of a Zamindar can be placed any higher than the rights of the Government with reference to

irrigation. It is one thing to say that the Government or the Zamindar has the right to restore an irrigation work to its former condition without

regard to the fact that the restoration will result in the submersion of lands which, owing to the disrepair of the work, had for sometime been

immune from submersion. It is another thing to say that the controlling authority has the right to construct the new work so as to submerge the lands

of third parties not hitherto liable to submersion without compensation for the damage thereby caused.

To my mind it is the duty of the controlling authority when constructing a new work in the interests of irrigation facilities generally to take such

reasonable precautions as are obviously necessary to prevent damage to others. This is not to say that the irrigation authority is prima facie liable

for the consequence of any escape of water from an irrigation tank owing to an act of God or to some unforeseen and improbable rush of water;

but that there is a duty to provide such protection against the ordinarily anticipated flow of water, as would safeguard third party''s lands from

damage as a result of the new work of irrigation. Applying this principle to the present case, it would appear that the estate has diverted the flow of

water along a pathway without any precautions to prevent the water from damaging the plaintiff''s land which lies adjacent to that pathway. The

plaintiff has, in my opinion, a right to require the estate to construct such protective works as may be necessary to prevent damage to the plaintiff''s

lands from the flow of water which may ordinarily be expected in the channel and the plaintiff has a right to demand that the pre-existing course of

the channel shall not be altered except after the completion of the protective works necessary. I do not think that the plaintiff has the right to require

the defendant to maintain the course of the channel for ever in one particular bed. But he has the right to insist that any alterations which the

controlling authority may find necessary, shall not work to his detriment. In this view it seems to me that the injunction granted by the lower

appellate Court goes too far and requires modification. The modification which I propose to introduce will make it unnecessary to go into the

question whether the injunction cannot be granted for want of the presence of the owners of the land through which the old course of the channel

passed from the record of the case.

But I observe that the plaintiff asserted that the eighth and ninth defendants were the owners of that land, that this assertion was not traversed in

the written statement and that in the absence of an issue regarding non-joinder or of any plea to substantiate such an issue it is not proper to non-

suit the plaintiff for want of other parties. In the result the appeal is allowed and the injunction granted will be modified, the first defendant being

restrained from damaging the plaintiff''s land by the diversion of the course of the channel marked DD in the plaint plan so as to flow along the path

marked EE-1 in that plan and the first defendant being required to construct such an embankment as may be sufficient, or so to alter the course of

the channel, as to prevent such damage. The appellant having substantially failed will pay the costs of the respondent in this Court.

Leave refused.