1998 (9) TMI 655 - SC - Indian Laws

Summary

Issues Involved:

1. Applicability of the Orissa Irrigation Act, 1959.
2. Determination of whether the intake point is within the Hirakud reservoir.
3. Definition and scope of "irrigation work" under the Act.
4. Legality of levying water rate and penal rates.
5. Riparian rights and historical usage of water by the appellant.

Issue-wise Detailed Analysis:

1. Applicability of the Orissa Irrigation Act, 1959:
The appellant contended that the Orissa Irrigation Act, 1959, and the rules framed thereunder did not apply as they were drawing water from the flowing stream of the river Ib and not from any irrigation work as defined under the statute. The High Court, however, held that under Section 21(2) of the Act, the supply of water for purposes other than irrigation is also covered. Therefore, the contention that the appellant draws water for purposes other than irrigation and thus the statute does not apply was deemed untenable.

2. Determination of whether the intake point is within the Hirakud reservoir:
The Irrigation Officer, upon re-enquiry, determined that the intake point from which the appellant was drawing water lies within the Hirakud reservoir area. This finding was affirmed by the Appellate Authority and the Revisional Authority. The High Court upheld this factual determination, noting that these aspects were questions of fact and could not be re-examined by the High Court.

3. Definition and scope of "irrigation work" under the Act:
The appellant argued that the definition of irrigation work under Section 4(9) of the Act would not cover the area in which the reservoir lies. The authorities, however, concluded that the area within the contours of 630 R.L., compounded by the artificial dam, constitutes a reservoir, which is an irrigation work. The consistent view was that the intake point lies within the reservoir area, and thus, the appellant was drawing water from an irrigation work.

4. Legality of levying water rate and penal rates:
The appellant contended that even if they were liable to pay water rates, the levy of penal rates was uncalled for. The authorities, however, determined that the appellant was liable to pay for the unauthorized use of water and assessed the levy at the maximum rate applicable for unauthorized use. The High Court modified the penal rates, directing that the appellant would be liable to pay water rates at the usual rate of Rs. 10 per lac gallons, and instructed the Irrigation Officer to revise the demand accordingly.

5. Riparian rights and historical usage of water by the appellant:
The appellant argued that they had acquired rights to enjoy the free flow of water from the river Ib since 1939 and that this right could not be abridged under the law. The High Court, however, reflected on the contention that the appellant had any riparian right to use water from the river free of charge and held that the appellant was liable to pay water rates as long as they drew water from the reservoir.

Conclusion:
The Supreme Court found no merit in the appeal and dismissed it, affirming the consistent view taken by the authorities that the intake point lies within the reservoir area, making the appellant liable to pay the water rate. The Court also dismissed a related appeal arising from a review application as it did not survive for consideration following the dismissal of the main appeal. The parties were directed to bear their own costs.