J&K Riparian Rights or Politics?

Mr. Sachida Nand Jha (Former Chief Justice of Kashmir) was the target subject for our article today. Mr. Jha is a first-generation lawyer turned judge in his family. Justice S N Jha joined the bar in 15.07.1969, practiced as an Advocate at the Patna High Court until he was elevated as a judge of the same High Court (he was appointed as the judge of the high court of Patna at the tender age of 42) He was elevated as the 23rd Chief Justice of Jammu and Kashmir High court on 04-02-2004(The offer for the post of the Chief Justice of J&K was given by Mr. Khare (Former Chief Justice of India) to Mr. S.N Jha. ) and Chief Justice of Rajasthan High Court on 12.10.2005, from where he retired on 15.06.2007. Upon his retirement, Justice Jha was appointed as the President of Customs Excise and Service Tax Appellate Tribunal (CESTAT). He resigned from CESTAT in service of humanity and joined as the founder chairperson of the Bihar State Human Rights Commission from where he retired in November 2014. Mr. S N Jha has never shied away from any opportunity presented to him and has faced them all headstrong.

We were supposed to interview a Judge/Lawyer and ask them about their careers and cases. Mr. Sachida Nand Jha was kind enough to take time out of his tight schedule and sit down with us over zoom and answer questions and give advice for aspiring law students and children. When asked about the most exhilarating case he has worked on, he answered with a kind voice that like every child is dear to a mother, every case he has worked on is dear to him. When asked about his thoughts on Kashmir’s law and order, he said that every place has its own problems and features, and so does J&K. He made a comparison between J&K and Patna and gave us a conclusion that Patna has criminal cases that go on for many pages but J&K does not but Patna does not have a lot of terrorism while J&K does. He shared his code of conduct that helped him reach the level of success he has attained today with us, he told us that if your conscious is clear, you know who you are, what you have to do, and are aware of your duties then you must not deviate from your path even when the offer before you is tempting, you must stay true to yourself and should have a sense of commitment towards your path. What makes you healthy is your commitment, integrity, and honesty is something that’s been imprinted in our minds by him.

He gave voice to a thought we all have but are too scared to say aloud, He said that when you are a part of an institution, you are going to be given perks, salary, job security, etc but in return, it is your duty to give back to the institution and he believes that he has given way back more than what the system granted him with god’s grace. He is delighted to say that the political system and laws we see are a part of his contribution to the institution and this nation thus he has no regrets. He believes that not passing the civil services exam was a blessing in disguise because if he had become a civil servant, he would not have been able to reach where he is today. He said that he wasn’t approached by any political parties because everybody wants an honest person but nobody likes an honest person.

Advice he had for aspiring law students is that they should not avoid joining corporate and join the bar, serve the country in any way they can, and don’t just go for the money. Work diligently and the money will flow in.

“Both sides know the truth, it is the judge who is on trial “ - Mr. Jha

Mr. Jha was extremely humble in the interview but he has served this institution with his whole heart and soul. He’s a true inspiration as to how one can better themselves each day along with the peppering of “sometimes we serve just to serve, rather than get returns and that’s okay, that’s social service”. He truly felt emotional reminiscing the good ole’ days which have a reputed stature. From riparian rights to the new “pegasus” snooping, he has quite a legal impact on our judicial society. When asked about this, he answered with such humility that he felt he had a guiding hand from god. Questions about the memorable case in his career were answered by him in which he could give the apt and appropriate judgment regarding the 150-year-old Jammu and Kashmir's riparian rights.

The universally accepted principle of riparian rights was reiterated in Entry 19 of the Seventh Schedule (Provincial Legislative List) of the Government of India Act, 1935.

A riparian owner is one who owns property along the bank of a watercourse, including a lake, and whose boundary is the water in that course or lake. Riparian Rights are natural results that occur as rights because of residence in a specific area. These are rights that belong to persons who live on a shore, bank or a river, ocean, or lake because they live there. However, these rights are limited. The rights which fall within the purview of riparian rights may be enlisted as follows:

Authority to use the bank of a watercourse as well as a water bed
Access to and from water
Protection of the property from soil erosion
Rights of certain uses such as drinking and other domestic purposes.
Swimming
Boating
Navigation
Fishing
Erection of structures
Use of water

In India, water law or the following doctrines fall within the purview of the Indian Easements Act of 1882. In the Indian Constitution, water is in the state list as Entry 17 subject to the provisions of Entry 56 of List I i.e. Union list. One of the major judgments regarding such rights in Indian law is the “GANGA RIVER POLLUTION CASE”.

In M. C. Mehta v. Union Of India popularly known as the Ganga River Pollution Case, the Hon’ble Supreme Court of India recognized and revived the doctrine of riparian rights. The petitioner in the instant case, claimed to have a locus standi as he was a riparian owner and his riparian rights were violated by the nuisance caused by the pollution of the river Ganga. The Court admitted the Writ Petition as a Public Interest Litigation. The Apex Court accepted that the petitioner was a riparian and on the other side he was also a person who was ardent in protecting the lives of the people who make use of the water flowing in river Ganga. The Court while accepting the locus of the Petitioner maintained that the same shall not be disputed. The Court was convinced that the nuisance caused by the pollution of river Ganga was a public nuisance and that the same was widespread in range. The Court came to a conclusion that the said nuisance was indiscriminate in its effect and it would not be reasonable to expect any reasonable person to take proceedings to stop it as distinct from the community at large.

The experience of Jammu and Kashmir’s riparian rights is a very tricky case considering how the state has always been at a strategic position because of which India and Pakistan have been constantly fighting for this area. This geo-political area has always been under tight security and controversy at most. Kashmir’s major water body, The Indus has five main tributaries. The Jhelum, the largest of these, originates in the Valley of Kashmir. The Chenab, a second tributary, flows through the Jammu region of the state of Jammu and Kashmir before entering the Indian state of Punjab. The remaining three tributaries (Ravi, Sutlej and Beas) either originate or flow through India’s state of Himachal before entering Indian Punjab.

The Indus river is highly useful for both countries, in terms of agriculture or hydro-electricity. This water system has time and time again proven extremely valuable to both the countries, while in Pakistan, it is the only river system supporting the country, where more than 92 per cent of the land is arid or semi-arid. In India, it is one of two main river systems supporting the country’s northwest: Punjab, Haryana and Rajasthan (generally considered to be water deficient areas).

Given that over half of Pakistan’s population is employed in the agricultural sector and that Punjab produces more than 20 per cent of India’s wheat and is known as the “breadbasket” of the Republic of India, the importance of the Indus River to us in the media is a gross-oversimplification. During the 1947 border arbitration of Indian and Pakistan based on religion by Sir Radcliffe was extremely confused regarding the water bodies because it was crucial to both the countries. The biggest problem, of course, lay with the partitioning of the state of Punjab, as it contained a complex irrigation system built by the British to be run under a single administration. The task was eventually delegated to the Chief Engineers of East Punjab (India) and West Punjab (Pakistan) who agreed to allow the existing water sharing systems to continue until the following year. This Standstill Agreement between India and Pakistan expired on March 31, 1948. On the following day Indian Punjab cut off water flow to Pakistan.

Kashmir disputes and disputes over the sharing of water resources are intertwined. From independence to the present day, they remain the two biggest challenges when it comes to normalizing relations between the states of India and Pakistan. When we focus on the case, where former justice S.N. Jha could successfully acknowledge and give an appropriate judgment, is quite an emotional saga.

The plaintiffs filed the suit in a representative capacity in terms of Order 1 Rule 8 of the Civil Procedure Code claiming to represent the interests of inhabitants of 101 villages, compendiously described as Khulwalas, against the inhabitants of 25 villages described as Arahwalas, in Tehsil Budgam represented by defendants 1 to 25. Later defendants 27 to 62 were added in view of the dispute raised by the Arahwalas regarding the number of villages on their side. The State Government through Chief Secretary/Commissioner was impeached as defendant No. 26. The suit was for declaration that the plaintiffs alone are entitled to the water of Nalla Shaliganga and its four distributaries, namely, Lani, Jani, Sonmai, and Naukul Khuls in Tehsil Budgam in which defendants have no right, and for permanent injunction against the defendants that they should not in any way interfere with the exclusive enjoyment of water of the said Khuls by the plaintiffs, and effect cuts or other outlets in these Khuls for irrigating their lands.

The case of the appellants is that the Khulwalas own 92,274 Kanals of irrigated land in their respective villages The lands of the appellants' villages are irrigated by Shaliganga and its four distributaries i.e. Lani, Jani, Sonmai and Naukul and they have been exclusively using its water since time immemorial. These lands are uneven, slopey and stony and, as such, require more water for irrigation. The water form these springs is so abundant that besides irrigating the lands of the respondents' villages, they help more than 100 rice husking mills and Ghandars run round the year. The land in the respondents' villages being even and soft, they convert some of their khushki lands into abi-lands and in this manner they need ever increasing quantities of water for irrigated and non-irrigated lands. Since some time passed, the respondents were trying to appropriate water from Shaliganga and its distributaries by making cuts and outlets. The revenue authorities on misrepresentation of facts by the Arahwalas took a decision regarding distribution of water of these Khuls between the appellants and respondents. However, the decision was never acted upon and Khulwalas continued to enjoy the water of these Khuls exclusively. The Arahwalas illegally made cuts at various places of the Khuls and tried to forcibly take water for irrigating their lands giving rise to apprehension of breach of peace and creating a cloud over the rights of Khulwalas to the exclusive use of water of the Khuls. The dispute arose between the parties in 1930 which was referred to the Governor for arbitration under Section 132 of the Land Revenue Regulation, 1980 (1923 AD). The Governor appointed two assessors, namely, Ghulam Nabi representing the Khulwalas, and Zaffar Mir representing Arahwalas. The assessors gave conflicting opinions. According to Ghulam Nabi, Khulwalas should be allowed water for five days and five nights while Arahwalas should get water for one day and one night.

According to Zaffar Mir, on the other hand, Khulwalas should get water for two days and two nights and Arahwalas should get water for one day and one night. In view of the conflicting opinion, the Governor sought opinion from the Tehsildar. The Tehsildar took the view that Khulwalas should get water for three days and three nights and Arahwalas should get water for one day and one night. Disagreeing with the opinion of the Tehsildar, the Governor referred the matter to the Irrigation Tehsildar, Kh. Salam Shah, who agreed with the Tehsildar. The finding was accepted by the Governor and he accordingly gave his award sometime in the month of Sawan 1991 BK corresponding to July 1934. The decision of the Revenue Minister was challenged before the Maharaja. Vide decision dated 22nd February 1938, the Maharaja declined to interfere. The Khulwalas filed a petition for review which was dismissed by order dated 12th August 1938. The matter remained dormant until 1953 when the aforementioned suit was filed in the court of Senior Subordinate Judge, Kashmir at Srinagar after serving notice under Section 80 of the Code of Civil Procedure.

On the basis of the pleadings, the trial court framed as many as twelve issues. The issues relevant for disposal of this appeal are:

Whether the Khulwalas and Arahwalas have been using the water of Shaliganga Khuls and its distributaries equally?
Are the lands of Arahwalas irrigated by spring water and seepage water of Shaliganga and its distributaries?
What is the judgment of the revenue officials regarding the distribution of water and how this had affected the present suit?
Has the judgment of the revenue officials been acted upon? If so, how and when?
Are the plaintiffs exclusively entitled to the use of water of Shaliganga and its distributaries?
Is not the civil court competent to decide this suit between the parties?

However, it is well known that the plaintiff can succeed on the strength of his own case and not on the weakness of the case set up by the defendant. Even if the respondents did not take such a plea, the court was/is not precluded from going into the question which goes to the root of the appellants entitlement.On appeal by the Arahwalas, the appellate court observed that there was no dispute that the lands of Khulwalas were irrigated by the water of Shaliganga and its distributaries. What is in dispute is their exclusive right to water. After referring to the evidence of some of the Patwaris, who were examined as witnesses on either side, and perusal of the records, the appellate court held that a considerable area of villages inhabited by Arahwalas had been getting water from Shaliganga and its distributaries for irrigation purposes since 1976 BK (1919 AD) and entries in the revenue records controverted the stand of Khulwalas that Arahwalas never got any water from the disputed streams. The appellate court went into the genesis of the dispute dating back to Hijri year 1227 i.e. about 160 years ago. General Hukuma Singh vide his order dated 10th Sawan, 1227 Hijri informed Arif Ali, Kanungo of Pargana Dandso (represented by Khulwalas) that they had stopped flow of water to Pargana Icchigam (represented by Arahwalas) Illaqa of Dewa Hardas resulting in drying up of the lands of Icchigam.

He was directed to restore the water supply as per the old practice. Report of the then Tehsildar Budgam, R.C. Razdan, referred to another order of Atta Mohd Khan issued in Sawan 1227 Hijri directing Wazir Janki Nath to allow flow of water to Pargana Icchigam in keeping with old practice. On the basis of references contained in the report of R.C. Razdan, the appellate court came to the conclusion that Arahwalas had been using water of Shaliganga and its distributaries for the purpose of irrigating their lands since long. Having recorded these findings, negating the Khulwalas' claim of exclusivity, the appellate court considered the question as to whether water of the rivers and streams can be exclusively claimed to the exclusion of others. The court held that it is the sovereign right of the state to regulate distribution of water of the rivers and natural streams and channels. It observed that a citizen can acquire, by prescription, proprietary rights but no easement can be acquired against the sovereign. The appellate court further held that the decision of the revenue authorities upheld by the Maharaja cannot be called in question in civil courts. The decision of the Maharaja has the force of law which is not justiciable in the civil court.

Shri M.A. Qayoom learned counsel for the appellants i.e. Khulwalas submitted that the finding regarding distribution of water of rivers and natural streams being sovereign function of the State is beyond the pleadings and in any case appellate court committed error in holding that the decisions of the revenue authorities and the Maharaja are not justiciable. As a matter of fact the decision of the Revenue Minister permitted the appellants to approach the civil court and seek cancellation of the decision on the basis of custom. In any view, it was open to the appellants to approach the civil court and seek declaration of their rights. Under Section 9 of the Code of Civil Procedure a person can file suit in respect of any type of dispute of civil nature unless the suit is expressly or impliedly barred by some law. Section 139 of the Jammu and Kashmir Land Revenue Act, 1996 B.K. (1939 AD) excludes the jurisdictions of civil court with respect to matters specified therein. The suit of the present nature does not find mention therein. No such issue in fact was framed. Counsel submitted that the appellants had approached the court seeking declaration of their customary right to exclusive use of water of the Shaliganga and its distributaries. The appellants do not wish to obstruct utilization of overflowing water by the Arahwalas but they cannot interfere with the appellants' rights by effecting cuts and breaches to appropriate the water. The appellate court, it was submitted, failed to appreciate the appellants' case in correct perspectives.

Shri Qayoom further submitted that the impugned decision of the revenue authorities remained a piece of paper and was never acted upon. In 1953 when there was less rainfall the respondents started interfering with the appellants exclusive utilization of water. It was pointed out that even the respondents do not seem to accept the decision as in their written statement they did not take the plea of sharing of water as per the decision. They rather claimed equal rights to utilize water half and half. Shri Qayoom also submitted that the appellate judgment is fit to be set aside on a short point that the appellate court did not consider the oral or documentary evidence on record and without assigning reasons reversed the findings of the trial court.

The crux of the dispute, it would appear, lies in the question as to whether inhabitants of the riparian villages can claim exclusive right in the use and appropriation of flowing water of the rivers and natural streams. It is true that the question whether the right to collect, retain and distribute water of the rivers and natural streams is sovereign function of the state or not was not gone into by the trial court. The suit was decided as an ordinary run-of-the-mill civil suit on the basis of evidence adduced by the parties, mostly oral evidence of the local Patwaries who spoke about their respective segment. The larger issue as to whether a group of persons being residents of villages abutting the rivers and natural streams can claim exclusive right of use the water in law at all, was not gone into. The respondents apparently were not correctly advised to take such a plea and no issue was framed. However, it is well known that the plaintiff can succeed on the strength of his own case and not on the weakness of the case set up by the defendant. Even if the respondents did not take such a plea, the court was/is not precluded from going into the question which goes to the root of the appellants entitlement. The findings on the issues apart, the court has to finally decide as to what relief/ reliefs the plaintiff is entitled to. No error in the circumstances can be found with the findings of the appellate court regarding the sovereign right of the state in the distribution of water in the rivers and natural streams on the ground that it was not part of the pleadings of the respondents or an issue in the suit. The relevance of the issue cannot be doubted. The question is whether the finding is in accordance with law or not.

Before considering the correctness of the findings I may deal with the finding about the nature of the decisions of the revenue authorities and the Maharaja. The dispute, as seen above, was dealt under the provisions of the Land Revenue Regulation, 1980 BK = 1923 AD. It was initially referred to the Governor as Chief Revenue Officer who referred it to Ghulam Nabi and Zaffar Mir for arbitration under Section 132of the Regulation. The ultimate decision of the Governor was challenged before the Revenue Minister/Member. After the Revenue Minister gave his decision the dispute was taken to the Maharaja by way of appeal. The question is what was the nature of the decision of the Maharaja. Whether it was a 'law' which could not be challenged in an ordinary court of law.

Mr. Qayoom submitted that the plaintiffs do not deny the riparian rights of the Arahwalas, if any. What the Arahwalas did was that they affected cuts and breaches in the stream, and thereby appropriate water. Counsel submitted that the plaintiffs had approached the court for enforcement of their customary rights for the question of riparian rights of the lower riparian villages not involved in the case. The submission that the Arahwalas i.e. defendants were affecting cuts and branches to enable them to divert flowing water of Shaliganga or its distributaries was not an issue in the suit and no finding was returned in plaintiffs' favor even by the trial court. The plaintiffs suit in essence and substance was for declaration of exclusive rights to use water of the river and its distributaries on the basis of custom. They also claimed to have acquired right by prescription

On behalf of the respondents attention was drawn to the Canal and Drainage Act 1963 (1906 AD) which empowers the Government to regulate the water of any river or stream flowing in nature channel etc. for public purposes and it was submitted that right of the individuals to use of water of any river or natural stream etc. is subject to paramount right of the State to regulate the use, otherwise in public interest.

On behalf of the appellants reference was made to Section 7 of the Easement Act 1977 (1920 AD) -- particularly Clauses (f) to (j). These clauses are illustrations of the casementary rights which the Act defines to mean "exclusive right of every owner of immovable property subject to any law for the time being in force to enjoy and dispose of the same and all products thereof, and accessions thereof and further to enjoy without disturbances by another the natural advantages arising from its situation." The submission based on Easementary rights in my opinion is totally misconceived in view of the saving clause appended to Section 2 of the Act which provides: -

Nothing herein contained i.e. the Act shall be deemed to affect any law not hereby expressly repealed; or to derogate from:

Any right of the Government to regulate the collection, retention and distribution of the water of rivers and streams flowing in natural channels, and of natural lakes and ponds, or of the water flowing, collected, retained or distributed in or by any channel or other work constructed at the public expense for irrigation.
Any customary or other right not being a license in or over immovable property which the Government, the public or any person may possess irrespective of other immovable property.

On whatever grounds the right to exclusive use of the water of Shaliganga and its distributaries may be claimed -- based on custom, easement or prescription, basically, the dispute revolves around the riparian rights of two sets of villages. The dispute as raised in the instant case does not relate to apportionment or sharing of water. Decision to this effect had already been taken by the authorities of the State which held the ground for fifteen years. The appellants' superior claim vis--vis that of the respondents was recognized. That is how they were allowed to use water for 3 days and 3 nights against respondents who were allowed to use it for only one day and one night. The suit was brought claiming exclusive right to the exclusion of the respondents. Neither the appellants can deny the rights of the respondents to use water except to the extent required by them, being owners of upper riparian rights, nor can they deny the right of the state to regulate and distribute the water and thus regulate its user. In the result, the appeal is dismissed but without any order as to costs.

This report which implies the significance after it was done with an extensive interview with the former chief justice of Jammu and Kashmir talks about the riparian rights in detail, which is a much-needed perspective to the rest of the states.

We thank the judge turned lawyer Mr. SN Jha for giving us this wonderful opportunity to interview and have a totally new perspective towards this case or Water politics in Kashmir and people’s reflections for giving this wonderful topic to expand our knowledge.

Thank you.

. . .

(Report written by Sree Lasya and Pakhi Narain)

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