Author Name:   kazim

Water is major constituent of all living matter, it is indispensable for survival. It must be allowed to find its own levels....

Water Rights

WATER is without doubt the most important common resource of the people. A major constituent of all living matter, it is indispensable for survival. Water must be allowed to find its own levels. At the same time it cannot be left unregulated and uncontrolled, for it may descend upon us as rain or floods causing misery.

The uses of water are multifold. Flowing water when used legitimately benefits, but when it overflows and results in flood, it damages the abutting properties. Using water in a manner detrimental to others creates a cause of action which is redressable in a court of law. Regulation and control of water by the state creates rights and obligations between state and subjects as also between states inter-se. Any violation of such rights gives rise to a variety of litigation – civil and criminal.

The remedies against violation of water rights are both statutory as well as common law. The statutory remedies are found under the Environmental (Protection) Act, 1986; the Water (Prevention and Control) of Pollution Act, 1974; the Indian Penal Code, 1860; and the Criminal Procedure Code, 1973. A writ petition can also be filed under Article 32 in the Supreme Court or under Article 226 in the High Court for seeking remedy against violation of water rights.

The common law remedies are in the nature of a tort action against the violator of the water right. The term ‘common law’ is derived from the Latin word lex communis. It is a body of customary law of England based upon judicial decisions. In fact, common law remedies were available against violators of water rights even before statutory laws came into force.

The Indian law of torts is based on English common law. The rules of tort law were introduced in India during the British rule. The term ‘tort’ is the French equivalent of the English word ‘wrong’ and the Roman law term ‘tortum’, which implies conduct which is tortuous or twisted. Tort law has grown over a long period around the concept of right and duty and the manner of enforcement of the right and duty by a court of law. A tort or a wrong is said to have been committed whenever there is a violation of the right of a person or breach of duty by another person for which the appropriate remedy is ‘civil action’. For an injury caused to his water right, the affected person must first and foremost establish the existence of a legal right which has been violated and second, a breach of legal duty by the person against whom damages are claimed.

Remedy available for a tort action is either preventive or punitive. The court has jurisdiction to award damages in the form of pecuniary com-pensation or to grant injunction, preventive or mandatory. The judiciary awards pecuniary compensa- tion in cases where it is found that the injury is (i) small; (ii) capable of being estimated in money; (iii) can be adequately compensated by money and (iv) where the case is one in which an injunction will be oppressive.

Damages may be either substantial or exemplary. Substantial damages are awarded to compensate the plaintiff for the wrong that he has suffered. The purpose of awarding substantial damages is to restore the plaintiff to the position he or she would have been had the tort not been committed. Exemplary damages are awarded with an intention to punish the defendant for the outrageous nature of his act, as for example, when the defendant persists in causing a nuisance after being convicted and fined for it.1

Injunctions are granted at the discretion of the court. They are of two kinds, temporary and perpetual. Temporary injunction is regulated by Section 94 and 95 as well as Order 39 of the Code of Civil Procedure, 1908. Perpetual injunctions are regulated by Sections 37 to 42 of the Specific Relief Act, 1963.

Most of the water cases in tort law fall under the categories of nuisance, negligence and strict liability. The act of negligence may also constitute a nuisance if it interferes unlawfully and for a considerably long period of time with the enjoyment of another’s right in land or it occasions on the highway a dangerous state of affairs as constructed with a single isolated act.2The rule of strict liabi- lity as laid down in the case of Rylands v. Fletcher3 is usually dealt with as a separate tort, but depending upon the circumstances of each case it can also be considered as an extension of the law of nuisance.

The present article is limited to focusing on how the law of nuisance can be used in, first, restoring the water rights of the people in India and second, in preventing and controlling water pollution.

The roots of modern environmental law are found in the common law concept of nuisance. The word ‘nuisance’ is derived from the French word ‘nuire’ which means to injure, hurt or harm. The term nuisance is incapable of a precise definition, but its concept is well comprehended. Nuisance may be described as an ‘unlawful interference with a person’s use or enjoyment of land or of some right or in connection with it.’ For an interference to be an actionable nuisance, the conduct of the defendant must be unreasonable. A nuisance may be caused by negligence and there may be cases where the same act or omission may comprise a certain element of either kind, but generally speaking these two classes of action are distinct.

In common law, nuisance is of two kinds: (a) private nuisance and (b) pub-lic nuisance. Private nuisance is the using or authorizing the use of one’s property or of anything under one’s control, so as to injuriously affect an owner or occupier of property by physically injuring his property or by interfering materially with his leisure, comfort or convenience. Private nuisance affecting water rights includes acts leading to wrongful disturbance of easements, e.g. disturbance of a right to use water from a particular water channel or tank, wrongful escape of water into ano-ther’s property and so on.4

A public nuisance can be defined as an unreasonable interference with a general right of the public. Public nuisance is first and foremost a crime because, ‘it is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect a person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the res-ponsibility of the community at large.’ Public nuisance is a crime which can be tried summarily or on an indictment which can lead to civil liability towards anyone suffering special damage, while private nuisance is a tort.

In order that an individual may have private right of action in respect of a public nuisance: (i) He must show a particular injury to himself beyond that which is suffered by the rest of the public. He must show that he has suffered some damage more than what the general body of the public had to suffer. (ii) Such injury must be direct, and not a mere consequential injury; as where one way is obstructed, but another is left open. (iii) Injury must be of a substantial nature.

In nuisance action, a plaintiff has a choice between injunction and remedies. It is common for a plaintiff to seek an injunctive relief to stop the defendant from continuing his acti-vity. The defendant, on the other hand, would be more than willing to pay damages rather than give up his acti-vity. The granting of injunctions, being a discretionary remedy, is usually more suitable for balancing conflicting interests.

This act of balancing conflicting interests, however, has given rise to innumerable difficulties and uncertainties in practices, which are particularly apparent in water cases dealing with pollution. In private nuisance, damages are awarded when there is interference with the right to the use or enjoyment of land and in some cases both are awarded. Public nuisance, on the other hand, affords protection to persons other then those with an interest in land. In public nuisance damages for personal injury as well as economic loss can be recovered, while in private nuisance it is primarily damage to land and goods which is compensated.

In cases of continuing nuisance, it has usually been held that an injunction should be granted in some form unless the injury complained of is trivial. Thus, in Nirmal Chandra Sanyal v. Municipal Commissioners,5 the discomfort caused to the plaintiff by the construction of the pucca hackney carriage stand in front of his pro-perty, which had no proper drain or channel to drain off the excreta of his horses, with the result that the offensive matter drained into and accumulated in a long strip of land in between the pucca stand and the plaintiff’s land, was not considered to be a proper relief. In this case, the commissioners of the municipality were directed to keep the strip of land in between the hackney carriage stand and the plaintiff’s land clean by providing a suitable pucca drain within six months from the date. The court also held that if the commissioners failed to provide a suitable drain, the plaintiff could get such a drain constructed and the costs recovered from the commissioners of the municipality.

Whether an individual would prefer seeking an injunctive relief or pecuniary relief or both in case of a public nuisance depends on the facts and circumstances of each case. In Syed Muzaffar Hussain v. Administrator of the Lahore Municipality,6 there was an old storm water channel in the area known as Gowalmandi which was constructed before that area become densely populated. With increase in population, the need for sanitation grew acute and the municipality adopted the simple expedient of discharging sullage water into the old storm water channel. The plaintiff claimed that this led to two distinct nuisances from which he in particular suffered.

The first nuisance was that during the rainy season water overflowed into his house with unpleasant results. The second nuisance was created when the water in the channel became stagnant and gave off a stench so offensive that his house became uninhabitable. The plaintiff sought an injunction to restrain the municipality from discharging sullage water into this channel, or in the alternative to compel it either to convert the channel into a suitable drain or to have proper drainage laid down everywhere.

It was held that the plaintiff was entitled to an injunction since damages alone would not have given him the desired relief. Strangely, the court in this case held that an injunction could not be given to interfere with the working of government departments and that the committee could not be compelled to make satisfactory drainage arrangements, though it could be restrained from making arrangements which would be negligent or dangerous to health or even interfere with the ordinary comfort of an individual. Finally, considering that the administrator of the Lahore municipality had pleaded separately, an injunction was issued to him to restrain from discharging sullage water into the storm water channel.

In the above mentioned case, the court gave no reason why an injunction could not be issued to interfere with the working of a government department and why the government could not be compelled to make satisfactory arrangements. With an increase in the needs of society, the law should also develop accordingly and impose a moral duty (which would take the shape of a legal duty) on the state (in this case the committee) to meet the essential needs of its people. It is possible in certain cases that the comfort of a private individual to an extent suffers in the public interest. But an individual should suffer only when no other arrangement can possibly be made. In the case under discussion it was not shown that no other arrangement for drainage could possibly be made. In fact, it was stated that more satisfactory arrangements for drainage were already under contemplation.7

In Khurshid Hussain and others v. Secretary of State8 it was held that for private individuals to establish a cause of action with regard to a public nuisance, special damage must be proved, but it may not be essential in all circumstances. The court observed that ‘special damage’ in cases of nuisance is that damage which an individual has suffered over and above the inconvenience faced by other members of the public. And in an action for damages in such a case, ‘the mere fact that persons did not give any details of the damage which they suffered in no way detracted from the right to succeed in the action if their success or failure depended upon that point.’

Briefly, the facts of that case are as follows: A bundh was created by the government parallel to the railway line on the Futwah Road, south of Patna, to prevent the city and its bazaar from being inundated by water due to an overflowing Poonpoon river. In times of flood the construction of the bundh prevented the water from draining away to the north and the district in which the plaintiffs houses were situated was thereby flooded. The plaintiffs sought a mandatory injunction against the Secretary of State to remove the bundh. They also claimed damages for the loss suffered.

The court held that to establish a cause of action against the defendant it was essential for the plaintiffs to prove that they had a prescriptive right9 to drain off flood water towards the north and that the erection of the bundh by the defendant had interfered with their right. It was further observed that the plaintiffs had no absolute right to have their land kept free from flood water by draining it to the north and flooding these lands. Their right, if any, was subject to drain water through certain defined channels.’

Because the plaintiffs could not show that they had a prescriptive right to drain flood water in defined channels, the court negated their claims for injunction and special damages. Similarly, a person cannot claim a right to foul an ordinary drain by discharging into it what was not intended and then place on other persons an obligation to alter the drain in order to remedy the nuisance that he has caused.

It has been held that where a person comes to court complaining of a private nuisance injuriously affecting his property and health then he has a genuine cause of action which in law is based on the maxim sic utere tuo ut alienum non laedas.

In Manumal Shamdas v. Sahsa-nomal10 the defendant dug a well in his courtyard for the purpose of obtaining water from an artesan well by means of a boring pipe. After inserting the pipe he left the well unfilled, which was continually being filled in with water from the boring pipe. The well and the boring pipes were in close proximity with the wall of the plaintiff’s house, which were affected injuriously. The plaintiff filed a suit for a mandatory injunction directing the defendant to close up the well and also claimed damages. The court held that there was definitely a want of care on the part of the defendant who was responsible for the damage incurred by the plaintiff. Accordingly, a mandatory injunction was granted to the plaintiff. To succeed in an action for private nuisance it may not be necessary to prove special damage.

In Maung Thit Sa v. Maung Nat11 the court held that where a person is in the enjoyment of a right and another deliberately infringes that right, the person injured can succeed in an action for damages without proving special damage, i.e. whether any damage has been proved to have accrued to him or not. In that case the parties were lessees of adjoining fisheries, the fishery of the plaintiff-appellate being the lower one. For 22 days of the season the defendant-respondent continued placing illegal obstructions to the passage of the fish which reduced the plaintiff’s catch. The plaintiff sued the defendant for damages. The court overruled the allegation on the ground that proving special damage was an impossible task in a situation like the present one. Strangely enough, though the action of the defendant in the present case was considered a tort, the word ‘nuisance’ as such was not mentioned.

Reflecting upon the cases mentioned above it is apparent that the tort of nuisance in water cases has been considerably underplayed by the judiciary. In several old cases where an interference in the right of enjoyment in land or otherwise has been held to be a tort there has been no mention whether the particular tortious act was a nuisance or not. This uncertain position taken by the judiciary has adversely affected the growth of tort of nuisance. Or having been guided by the principle that not every ‘fleeting or evanescent’ interference will be an actionable nuisance except one which is substantial and unreasonable, the courts have been hesitant in recognizing the efficacy of this area of tort. Thus, where water flowed over the plaintiff’s land but only caused ‘trivial injury’, the claim of nuisance was rejected. Such an approach taken by the judiciary may not be wise today.

The term ‘pollution’ has been differently described in different acts. Some describe it as ‘nuisance’ while others define it either as ‘neglect to carry away rubbish’ or causing ‘water to be corrupted’; some statutes define ‘pollution’ as ‘poisoning’ of water.

In tort law the act of polluting water is termed as a nuisance. Filthy or dirty water, whether flowing or standing, is hazardous to nearby residents. The situation becomes worse if the concerned authorities do not take any steps to drain off the water from residential localities. The right of throwing filthy water on a neighbour’s land is an easement, which can be acquired either by grant or under Section 15 of the Easement Act by prescription. If such right is not acquiesced, the act of polluting amounts to actionable nuisance.12 A right to pass filthy water and other water on the land of another, can be acquired by long and immemorial user13 but a right to flow dirty water towards the house and well of a neighbour can- not be acquired as it amounts to nuisance.14

In Pakkle v. P. Aiyaswami,15 the courts held that the villagers had an ancient common right to the use of water in the suit tank for their drinking and catering purpose as well as for the use of cattle. In that case the plaintiff brought an action under nuisance to restrain the defendants from laying salt pans in the bed of the suit tank which had made the water in it useless for bathing, drinking and other purposes. The suit tank belonged to the government. The contention of the appellant that the suit tank being government property was not the property of the villagers and, therefore, there could be no injunction restraining the defendants from converting the bed of the suit tank into salt pans was negatived by the court.

The polluter-defendants also alleged that it was the government alone that could prevent them from doing anything on their property. Basing its decision on the evidence admitted, the court concluded that this action of the polluter-defendants amounted to a nuisance and the plaintiff-villagers were entitled to the injunction prayed for. It also stated that because the plaintiff-villagers had a common right over water in the tank, any interference with that right gave them a cause for action even though the interference was not in respect of the land belonging to the plaintiff.

In common law, every riparian owner is entitled to the continued water flow of a natural stream in its natural condition, without any obstruction or pollution and undiminished in quantity and quality. Every landowner has a natural right to water of natural surface streams which pass his lands in defined channels, and to transmit the water to the land of other persons in its accustomed course. This right belongs to the proprietor of the adjoining lands as a natural incident to the right to the soil itself. Riparian owners are entitled to use and consume water of the stream for drinking and household purposes, for watering their cattle, for irrigating their land, and for the purpose of manufacture subject to conditions that: (a) the use is reasonable; (b) it does not destroy or render useless or materially diminish, or affect the application of the water by riparian owners below the stream in the exercise of natural right or their right of easement if any.

The pollution of a natural stream is a wrong, actionable at the instance of any riparian owner past whose land the water so polluted flows.16

Though the Indian legal system recognizes a common law riparian right to unpolluted water, it is rarely invoked in contemporary litigation concerning water pollution. In M.C. Mehta v. Union of India, the Supreme Court acknowledged the existence of such a right by stating that, ‘In common law the municipal corporation can be restrained by an injunction brought by a riparian owner who has suffered on account of the pollution of the water in river caused by the corporation by discharging into the river insufficiently treated sewage from discharging such sewage.’17

In case of violation of rights affecting non-riparian owners, the rules of English law continue to apply. The aggrieved party is provided a remedy under the tort of ‘nuisance’. Unlike ‘negligence’ where taking of ‘reasonable care’ is a defence for the defendant, no such defence is necessarily available to a defendant under nuisance.

Water pollution caused by industry and factories is rampant in India today. In earlier times, when the impact of industrial pollution was not so severe, the courts tended to uphold the rights of industrialists to pollute water. The penal sanctions were also not strictly adhered to.18 But with an increase in industrialisation, water pollution became a major problem, which could not be handled through criminal or penal sanctions. As the government became more aware of the magnitude of the problem, it restricted the right to pollute by enacting legislations such as the Water (Prevention and Control of Pollution) Act, 1974 (Water Act) and the Environment Protection Act, 1986.

It has been seen that most judicial decisions dealing with water pollution before the enactment of the Water Act were in favour of the polluters. The reason for this could be attributed to the fact that most polluters were economically and socially well-off. Even when the Water Act came into force, the maximum number of notices and litigation launched by the Central Water Control Board has been against small factories.19

As a consequence, all big polluters continue to pollute. Looking at the ineffectiveness of the statutory provisions in prosecuting the big polluters, the Supreme Court in a recent case of Vellore Citizen Welfare Forum v. Union of India20 gave relief to the victims of water pollution caused by tanneries by recognising the act of polluting water as causing nuisance to the people.

In this case, a writ petition was filed against the large-scale pollution caused by the tanneries and other industries in the state of Tamil Nadu. The petitioners alleged that untreated effluent was being discharged into agricultural fields, waterways and open land, which ultimately reached the Palar river which is the main source of water supply to the residents of the area. The effluents had spoiled the physico-chemical properties of the soil and had contaminated the groundwater by percolation.

After carefully examining the facts of the case, the Supreme Court, while recognizing the common law right of the people to a clean and heal-thy environment, awarded compensation to the victims of pollution on the basis of the ‘precautionary principle’ and the ‘polluter pays principle’ – two of the several salient principles of ‘sustainable development’.

The ‘precautionary principle’ when applied by the courts to Indian condition means: (i) that environmental measures taken by the state and the statutory authorities must anticipate, prevent and attack the causes of environmental degradation; (ii) that where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for posting measures to pre-vent environmental degradation; and (iii) that the ‘onus of proof’ is on the actor or the developer/industrialist to show that his action is environmentally benign.

The polluter pays principle as interpreted by the court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but includes the cost of restoring environmental degradation.21

By regarding the two afore-mentioned principles as part of the environmental law of the country, the Supreme Court has to some ex- tent conceptualized the common law remedial measures of awarding compensation to the victims of a tortious action in water pollution cases.

The decision given in the Vellore citizen’s case shows the potential of controlling water pollution through the tort of nuisance. It also reveals the power of the judiciary to compensate victims where their water rights have been affected.

It is submitted that in order that a tort, like nuisance, is effective in protecting water rights and preventing and controlling water pollution, the legislature must make the tort of nuisance more specific. It has been observed that in all water cases falling under tort of nuisance there has been no emphasis on the application of the duty principle. The courts have largely been concerned with restraining the defendant from interfering with the plaintiff’s right. The tort of nuisance in water law is still in the evolutionary stage. It may cover a variety of situations or just a few specific ones. It may comprise an element of fault, negligence or strict liability or none of these.

Therefore, it is suggested that to increase the utility of tort of nuisance in resolving water-related disputes, the legislature should enact a law of nuisance so that specific forms of nuisance could be placed under specific laws. It is also suggested that if the requirement of proving special damage on the part of the injured party were dispensed with in case of public nuisance then the efficacy of the tort of nuisance in curbing water pollution would be considerably enhanced.

Footnotes:
1. J.C. Galstaun v. Dunia Lal Seal, (1905)9 CWN 612, 617.
2. See, Bottom v. Stone, (1951) AC 850 HC.
3. (1868) LR 3 HL 330.
4. See, Dhanusao v. Sitabai, ILR 1948 Nag. 698; Becharam Choudhary v. Puhubnath Jha (1862) 2 Beng. LR (Appx) 53; Baldeo Das v. Secreatary of State (1883) PR No. 30 of 1883.
5. AIR 1936 Cal. 707.
6. 198 I.C. 773.
7. See Ratlam Municipal Council v. Vardichand, AIR 1980 SC 1622, where the court held that it was mandatory for the municipal corporation to provide adequate drainage and sewage system to the public and that the municipal corporation could not shirk its responsibility by stating that it did not have enough financial resources to provide people with a functional drainage system.
8. AIR 1937 Pat. 302.
9. A prescriptive right to commit nuisance may be acquired if a person has continued with an activity on the land of another per- son for 20 years or more.
10. 159 I.C. 1103.
11. 74 I.C. 41.
12. Air 1937 Mad. 823.
13. (2 Bom. L.R. 89).
14. Air 1979 All. 71.
15. AIR 1969 Mad. 351.
16. The common law doctrine of riparian rights has been codified in India by the Indian Easements Act, 1882. Illustrations (f) and (h) of Section 7 of the act deal with pollution of waters.
17. AIR 1988 SC 1115.
18. See Deshi Sugar Mills v. Tupsi Ram Kahar [AIR 1926 Pat. 506; Empress v. Holodhan Pooroo (ILR Cal. 383); Emperor v. Nana Ram (6 Bom. LR 52, 1904)]; Reg v. Partha (Cr.R.1885).
19. See Water Law, in Law in India, edited by Chhatrapati Singh, ILI (1992).
20. AIR 1996 SC 2715.
21. See, Indian Council for Enviro-Legal Action v. Union of India AIR 1996 SC 1446, where the ‘polluter pays’ principle was held to be sound by the Supreme Court.

The  author can be reached at: kazim@legalserviceindia.com

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