ORDER
Mansoor Ahmad Mir, J.
1. The dispute involved in this writ petition is revolving around “Cheshma Aripal” Tral Pulwama. Government-State-Respondents have framed a Scheme Water Supply Scheme Bajwani, Tral for providing drinking water to the inhabitants of Tral town.
2. ‘Cheshma Aripal’ is a natural source of water is being used for providing drinking water to the inhabitants of Tehsil Tral in terms of the Scheme which was framed earlier. Due to increasing population and mushroom growth in the building constructions the existing Scheme was not enough to cater the need of the inhabitants/villagers which constrained the State to make additional alternatives for providing drinking water to the inhabitants of Tral town and, accordingly, Revised Project Report for Water Supply Scheme Bajwani Tral came to be framed.
3. Feeling aggrieved, the writ petitioners filed a suit before the Id. Principal District Judge, Srinagar with the prayer that the respondents be restrained from executing of the work of the Scheme and be prohibited from providing additional water supply to the public.
4. Respondents appeared and resisted the suit. During the pendency of the suit the learned District. Judge vide order dated 27-11-2006 commanded the respondents to constitute a committee in order to examine the need and purpose of the Scheme. It appears that committee came to be constituted and report came to be filed, that report is enclosed as Annexure A to this writ petition. It is profitable to reproduce relevant portion of the report hereunder as quoted in the writ petition:
As a prelude to the directions imparted by the Id. Court, the committee visited “Aripal Spring” on 6-12-2006 along with the field staff of the territorial divisions of Irrigation and PHE Departments. The findings at site in respect of the questionaaire put forth the Hon’ble Court of Ld. Pr. District and Sessions Judge, Srinagar is submitted ad-seriatim as under:
1. The discharge of Aripal Spring measured on the said date works out to 20 cusec (108.00 lac gallons) excluding the discharge already tapped through 3 Nos. pipes laid by the PHE department, which provide the drinking water facilities to the applicants/ villages.
2. The quantity of water already tapped works 0.74 cusec (4.00 lac gallons) which is supplied through different storage reservoirs as under:
i) Larow SR- 0.50 lac gallons capacity. ii) ChattergamSR- 1.00 lac gallons capacity, iii) NaiBastiSR- 0.50 lac gallons. The PHE Department proposes to tap an additional quantity of water as per proposed design to the extent of 0.7 Cusecs.
3. The main canal feeding the land of the Halqas takes off much below the Aripal Spring from the Aripal Nallah. The off take point of the canal (Pargamlar Canal) is 1.5 Kms. from the Aripal Spring and two more ozzing via, Zan Nag and Awrm Springs having discharge of the order of 10 cusec and 3 cusec respectively as measured by the committee on the visiting date, contributes upstream of the off take point of the canal from Aripal Nallah.
4. No. as illustrated vide para 3 supra there are two more oozing/springs and the Lam Nallah besides, the generation from the Bed of the Nallah which contribute to the Aripal Nallah from which off-takes the Pargan Lar Canal feeding the land of applicants of the halqas.
5. The total cultivable command area to the extent of 5913 acre requires the peak discharge of 346 cusecs, for irrigation purposes; an additional drawl of 0.7 cusec of water by PHE Department will at the most effect to the extent of 20 acres in totality which can be avoided by going in for Warbanid amongst the canals fed by the Aripal Nallah system.
The report is thus submitted for consideration by the Hon’ble Court.
5. It appears that petitioners after noticing the report left the suit halfway and filed an application for withdrawal of the suit. The writ petitioners filed this writ petition in this Court without obtaining order of withdrawal or otherwise from the said Court.
6. Grievances of the petitioners is that Aripal Spring-Cheshma is meant for only villagers-petitioners and the Government-State cannot execute the Scheme in order to provide water to the inhabitants/villagers mentioned in the Scheme because it will adversely affect the writ petitioners and their land will become barren. The said source of water is meant only for writ petitioners and for their land and it is their vested right as indicated in “Rawaj Aabpashi”. Further they have pleaded that the Government-State have no powers/competence to use the Aripal Spring-Cheshma for providing water to other villages and have no right to frame the Scheme relating the said Spring.
7. Respondents have resisted the petition on the grounds taken in the counter/ reply. They have stated that writ petition merits to be dismissed on the count that already a suit is pending before the ld. District Judge. No legal or fundamental right of the petitioners is infringed. The Scheme is of public importance and is aimed at to cater the need of the public in general-inhabitants of Tral town. The Water Supply Scheme Bajwani Tral is meant for providing the drinking water to the inhabitants of Tral Town who are suffering from scarcity of drinking water. The apprehension of the writ petitioners that their land will become barren, is not well founded and is replied by the report of the committee constituted by the District Judge-Annexure-A to the writ petition.
8. Heard. Considered.
9. The writ petition merits to be dismissed only on the ground that during the pendency of the suit, the writ petitioners have filed the instant petition. No doubt they have filed an application under Order 23 of Code of Civil Procedure for withdrawal of the suit but that was still pending on the date when this petition came to be filed. The Apex Court in Sarguja Transport Service v. S.T.A. Tribunal, Gwalior held that without withdrawing the suit or writ petition, fresh suit or writ petition is not maintainable. It is profitable to reproduce paras 7 and 9 of the judgment hereunder:
7. The Code as it now sands thus makes a distinction between ‘abandonment’ of a suit and ‘withdrawal’ from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission referred to in Sub-rule (3) of Rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. The principle underlying Rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter against after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandance or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in Sub-rule (3) of Rule 1 of Order XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code which provides that no Court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or betweenTparties under whom they are any of them’ claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prayer adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in Sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in Sub-rule (3) in order to prevent the abuse of the process of the Court.
9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao’s case (supra) AIR 1961 SC 1457 is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extra ordinary writ jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of the writ petition filed in High Court without permission to file a fresh petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution since such withdrawal does not amount to res judicata. The remedy under Article 226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving personal liberty to an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however, leave this question open.
10. The writ is liable to be dismissed on the other grounds also. It appears that writ petitioners after noticing the report of the committee left the suit midway and thereby have not allowed the Civil Court to decide the matter. Keeping in view the averments contained in the writ petition and the reply, it appears that disputed questions of facts are involved in the writ petition which cannot be gone through in this writ petition.
11. The Cheshsma “Aripal Spring” is a natural source. No person/villagers/inhabitants can claim any interest vis-a-vis natural source. This Curt in Ghulam Mohammad Numberdar v. Mohd. Bhat reported in 2005 (1) SLJ 325 while discussing the Sections 2 & 7(f) to (i) of Easements Act and Provisions of Canal and Drainage Act, 1906 held that no person or a group can have a right to claim water of natural resources. It is profitable to reproduce paras 23 and 28 of the judgment as under:
23. If a riparian State cannot exclusively claim water flowing in rivers across the State to the exclusion of lower riparian States, I fail to understand as to how the lower riparian villages within the same State can be denied the right to use water of rivers and natural streams. Rivers/streams are natural resource-a gift of the nature and no persons or group of persons can claim exclusivity to it simply because they are more advantageously placed. When a dispute arises in this regard, it becomes the function, nay, duty of the State to make equitable distribution by allocating water between the contending villagers. What will be their respective share will depend on the facts and circumstances guided by considerations of equity and reasonableness.
28. In Secretary of State v. P.S. Nageswar Iyer AIR 1936 Madras 923, it was held that the relationship between the plaintiff and defendant No. 1 i.e., Secretary of State precluded any claim based on prescription and though plaintiffs were entitled to the accustomed supply of water for irrigation of their lands, yet they cannot acquire any exclusive right to the detriment of the paramount right of Secretary of State to regulate and control all supply of water in public streams and channels. Dwelling upon the nature of customary right and prescriptive right, the Court observed that though there are some common factors, there is a fundamental difference between the two. The customary right might give the plaintiffs all they really wanted but it may not give them an exclusive right to all the waters of the channel to the extent of preventing Government from using the water of the channel for other purposes even without prejudice to the plaintiffs accustomed user. Prescriptive might in certain circumstances support a claim of exclusive right, though the extent of a prescriptive right must generally be measured with reference to the user made by the claimant and not with reference to the mere flow in the channel. The Court further observed:
…A right may by prescription to water in channel can be acquired as against the proprietary right of another, but not as against the sovereign right, which under the Indian Law the State possesses to regulate the supply of water in public streams so as to utilize it to the best advantage….
In the aforesaid case, the plaintiffs had brought a suit claiming exclusive right to all the waters flowing in a particular channel on the basis of customary right and also on the basis of prescription. From the above observations, it is clear that the custom cannot confer exclusive right to the detriment of State. Prescriptive right may confer exclusive right but vis-a-vis only proprietary right of another and not the State. The State in any case is empowered to regulate and control the supply of water in public streams and channels.
12. The argument of learned Counsel for the petitioners that the State has no power to regulate the water of Spring, is devoid of any force for the reasons that it is a natural source and Government has every right to regulate water for public purposes and while keeping in view the need of public. It is the paramount right of the State to regulate water of any natural source. This Court in case supra laid down the same ratio. It is profitable to reproduce paras 29 and 31 of the judgment hereunder:
29. 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 natural channel etc. for public purposes and it was submitted that right of the individuals to user 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.
31. From a bare reading of the above provision, it is clear that the easementary rights under Section 7 of the Easements Act are | subject to the right of the Government to regulate collection, retention and distribution of water of the rivers and streams flowing in natural channels and also, any customary or other right (not being that of a licence) in or over immovable property which the Government, the public or any person ‘ may possess. The appellants, therefore, cannot claim any exclusivity to the user of the water of the Shaliganga and its distributaries as an easement to the extent of curtailment of rights of the respondents in particular the right of the State to regulate its distribution. The decision of the Governor affirmed by the Revenue Minister and finally by the Maharaja, therefore, it would follow, was in accordance with the general principles and statutory provisions.
The State-Respondents have specifically pleaded that the Scheme-subject-matter of the writ petition in no way affects the rights of the petitioners and that gets corroboration from the contents of the Scheme, copy of which was produced in the open Court-made part of the file and also corroborated by the report submitted by the committee before the District Judge.
13. Having glance of the above discussion, there is no merit in this writ petition which is accordingly dismissed.
