The Jammu and Kashmir Water Resources Act terminates all proprietary rights to water resources, vesting them in the Government, and mandates the Executive Engineer to regulate water usage.

JUDGMENT :

1. The dispute in these three petitions pertains to the distribution of water for irrigation from the two Nallahs i.e., Nallah Attobar and Nallah Bomibar. For the sake of convenience, the facts of each petition are set out separately herein below:-

OWP No. 673/2013 & CPOWP No. 418/2013

2. This writ petition in the representative capacity has been filed by the Zamindars/Inhabitants of village Chulichan, Kargil, in which the petitioners are seeking a writ, order or direction in the nature of writ of mandamus, directing the respondents not to construct any field water channel on Nallah Attobar and Nallah Bomibar for irrigating village Sharchay or anywhere else. The direction is sought by the petitioner primarily on the ground that as per ‘Riwaji Aabpashi’ and in terms of provisions of Irrigation Act, the villagers of village Chulichan, Kargil, alone have a right to utilize the water of Nallah Attobar and Nallah Bomibar, for irrigation purposes and that no other village, in particular, village Sharchay can divert the water by constructing any field / water channel as that would minimize the flow of water irrigating the land of Inhabitants of village Chulichan.

3. The entire case of the petitioners is built on their claim of continuous use of water for irrigation purposes from the two Nallahs aforementioned since time immemorial. The petitioners also place reliance on their customary right of irrigation commonly known as ‘Riwaji Aabpashi’. It is submitted that village Chulichan is situated downstream of the Nallahs in question, whereas the village Sharchay is situated upstream. The two Nallahs i.e., Nallah Attobar and Nallah Bomibar converge near village Sharchay. It is submitted that these two Nallahs have been catering to the irrigation needs of both the villages, but recently the villagers of Sharchay have created some ‘Nautod’ lands without permission from the Government and have illegally created certain field channels for irrigating such lands.

4. The grievance of the petitioners is that in case the villagers of Sharchay are permitted to divert a substantial portion of the water from the two Nallahs in question, the villagers of Chullichan who are living downstream would be left with no water to irrigate their lands. The writ petition is primarily based on an apprehension entertained by the petitioners, that the Revenue Authorities headed by the Deputy Commissioner, Kargil, are contemplating to create and construct new field channels to provide irrigation water to the ‘Nautod’ land of the villagers of village Sharchay.

5. The Deputy Commissioner, Kargil- respondent No. 5, has filed a detailed reply affidavit. It is submitted by the Deputy Commissioner, Kargil, that under Jammu and Kashmir Water Resources (Regulation and Management) Act, 2010, [for short “the Act “], right on water resources is vested with the Government from the commencement of the said Act, as such, any proprietary, ownership, riparian or usage right on such water sources vested in any person or body, shall from the date of commencement of the Act, be deemed to have terminated and vested with the Government.

6. It is, thus, submitted that the petitioners have no vested right on the water of two streams, that too, to the exclusion of other villagers upstream or downstream of the Nallahs. It is thus the unequivocal stand of the respondents that with the coming into force of the Act, all proprietary, ownership or customary riparian rights, stand terminated and vested with the Government. Along with his reply affidavit, the Deputy Commissioner, Kargil, has also placed on record a report submitted by the Tehsildar Kargil, who had deputed Nabi Tehsildar and Girdawar Qanango Halqa to visit the site and made a factual report. It is submitted that the Revenue Officers who visited the site did not find any new construction or expansion of water channels from Nallah Attobar and Nallah Bomibar. However, the traditional Khuls were found present from both the Nallhas,