CIEL Ltd and another v Central Water Authority (Mauritius)

River and stream water is public property under the Rivers and Canals Act 1863. A borderer has a regulated right of use, not private ownership. Such a right cannot be sold or transferred, detached from the relevant land, or acquired by prescription. Rights to water in a canal do not remove the need to prove lawful abstraction from the public river. A water authority may charge under an independent statutory power to receive money properly accruing from any other source, even where the water is not supplied through its waterworks. A three-year prescription period for periodic payments applies only where fixed periodic sums were pre-agreed; otherwise the general ten-year period applies.

CIEL Ltd owned land formerly forming part of an estate with water rights, while TKL occupied the land and used river water in its knitwear business. The water was diverted through a private canal. The Central Water Authority claimed charges for that use.

The first-instance judge held that the appellants had not proved an enforceable private water right but rejected the Authority’s claim because it had not supplied the water. The Supreme Court of Mauritius (Court of Civil Appeal) reversed that conclusion, relying on section 24(c) of the Central Water Authority Act 1971. The appeal concerned the appellants’ alleged river and canal rights, prescription, the Authority’s charging power, and whether CIEL itself was liable.

Appeal dismissed. The Board refused the appellants’ application to adduce a 1918 index because it did not contain the lost 1888 order or the underlying report and added nothing material.

1. River rights. The appellants had to prove the terms of the lost 1888 order. Its absence did not justify assuming that the grant was unconditional. Under the Rivers and Canals Act 1863, river and stream waters are public property. A borderer has a right of jouissance regulated by the Act, not an absolute proprietary right. Public water rights cannot be acquired by prescription.
2. Land, transfer and use. In the absence of prescription, water rights could not be detached from the original estate. A borderer’s share was proportionate to the extent of irrigable land. The principles stated in Rougé v Feillafé [1871] MR 112, Maingard v The Médine Sugar Estates Ltd 2004 SCJ 310 and Ex p Colin [1891] MR 61 supported that conclusion. The right could not be sold or transferred as private property. Section 12 did not permit an absolute or exclusive claim, and industrial use required a special provision in the Supreme Court’s order.
3. Canal water. Section 32 recognised that water in a canal belonged to those who paid for its construction, but that did not establish a lawful right to abstract water from the public river feeding the canal. The position was indistinguishable from Maingard v The Médine Sugar Estates Ltd 2004 SCJ 310. Section 33 provided a mechanism for resolving canal disputes; it did not create ownership.
4. Charges. Although sections 24(a) and 49 of the Central Water Authority Act 1971 and the relevant regulations concerned water supplied through Authority waterworks, section 24(c) was an independent source of power to charge for money properly accruing from any other source. The Court of Civil Appeal was therefore plainly correct.
5. Prescription and orders. The three-year period in article 2279 of the Civil Code applied only to periodic payments in pre-agreed fixed amounts. No such agreement was proved, so article 2270’s ten-year period applied and covered the claim. As only TKL had consumed the water, judgment on liability was entered against TKL alone. Any dispute about the amount payable was remitted to the Supreme Court of Mauritius.

• Privy Council. Appeal dismissed. Liability was imposed solely on TKL, with any dispute about quantum remitted to the Supreme Court of Mauritius.
• Supreme Court of Mauritius (Court of Civil Appeal). The Court allowed the Central Water Authority’s appeal and held that section 24(c) of the Central Water Authority Act 1971 entitled it to charge for the water.
• Supreme Court of Mauritius. The first-instance judge rejected the claimed private water rights but held that the Authority had not supplied the water and therefore could not charge under section 24(a).