SECRETARY OF STATE Vs. SRIMATH VIDYA SRI VARADA THIRTA SWAMIGAL

JUDGEMENT

(1.) This case comes from the Ambasamudram taluk in west of the Tinnevelly district of Madras. In this taluk are the principal sources of the Tambraparni river, and its irrigation system is both ancient and extensive. Numerous anicuts or dams cross the Tambraparni and its affluents, supplying channels and tanks in a manner which is acknowledged to reflect the highest credit upon the skill and energy of the ancient governments who constructed them.

(2.) The two suits out of which this appeal arises were brought in the Court of the District Munsif of Ambasamudram against the Secretary of State for India in Council for recovery of certain sums paid as water cess under the Madras Irrigation Cess Act (Madras Act 7 of 1865). Both suits had reference to the village of Vagaikulam in Tinnevelly, and the plaintiff in each case was a lessee from the head of a math situated in Mysore which claims to have held the village ever since 1753. The first suit was numbered 412 of 1921 and was brought on 21 December 1921, by the math's lessee for the years 1912 to 1921 to recover Rs.584-5-6 paid for the year 1920. The second suit was numbered 383 of 1924 and was brought on 26 November 1924, by the math's lessee for the years 1922 to 193 to recover Rs.707-3-8 paid for the year 1923. These sums had been levied on the footing that the plaintiffs are entitled to free irrigation of the village lands only in respect of the extent recognised as wet at the inam settlement of 1864; hence that water cess is payable in respect of wet land on which two crops have been raised where one only was raised in 1864, and also where a wet crop has been raised on land which was dry land in 18G4. The figures of 1864 are: dry land, 67.91 acres; wet land, 329.60 acres. Save that in the first suit, the head of the math was added as a second plaintiff, the only parties are his lessees on the one hand and the Secretary of State in Council on the other. No ryots or other cultivators of the village lands were at any time before the Court as parties. The suits succeeded before the District Munsif who heard them together, and on 21 December 1925, made decrees negativing the Secretary of State's contention as to the measure of the plaintiffs' right and ordering him to refund the monies paid with interest. The Subordinate Judge of Tinnevelly dismissed the Secretary of State's appeals on 10 November 1927, and on second appeals being brought to the High Court at Madras these also were dismissed on 29th March 1935. Vagaikulam village is irrigated by water drawn from the Tambraparni into a channel called the North Kodai Melalngion Kal("the N.K. channel"). The water is drawn from the river into this channel by a dam or anicut of ancient date-not a permanent or masonry structure but one erected by Government each year by means of palmyra posts and logs-and the water so led into the channel is regulated by a sluice which Government control. The channel is known to have been in existence in the seventeenth century. It leaves the river at a point which is said to be some ten miles from the village of Vagaikulam and it runs northwards until it comes to the western boundary of the village. It crosses the boundary and runs for a considerable distance within the confines of the village but alongside the western boundary. Thereafter its course takes it into a Government village called Manarkoil where it ends in a tank. From that part of its course, both inside and outside the village, where it runs along or is near to the western boundary of Vagaikulam, several branch channels with open heads lead water into the interior of the village. Either directly or by means of tanks the water is then taken to irrigate the lands of this village and of other villages as well; so that Vagaikulam must be regarded as bound in respect of these channels to pay respect to the rights of riparian owners lower down the stream. The Government village of Manarkoil, which gets its water from the N.K. channel after this channel has in its northward course recrossed the western boundary of Vagaikulam, has in the past shared the water of the channel with Vagaikulam village by a system of turns (murai). According to this system Vagaikulam has taken all it can get for three days, and Manarkoil for two days has taken all it can get save that a small fixed quantity of water is allowed to flow into Vapaikulam - the month being thus divided into 18 days for the inam and 12 for the Ayan (Government) village. The plaintiffs make this murai system a separate ground of objection to any claim for water cess, saying that they are entitled by custom to the quantity of water which they have been enjoying irrespective of the extent of cultivation for which it has been used. Their Lordships do not find it necessary however to deal with this contention. The right of Government to charge the inamdar with water cess in these circumstances depends upon the terms of the Madras Irrigation Cess Act 17 of 1865 as amended by later Acts. By the first section of that enactment as it now stands, the inamdar is prima facie chargeable in such a case as the present, subject to two provisos, of which the first is of substantive importance for the present appeal : Provided that where a zemindar or inamdar or any other description of landholder not holding under ryotwari settlement is by virtue of engagements with the Government entitled to irrigation free of separate charge, no cess under this Act shall be imposed for water supplied to the extent of this right and no more.' The plaintiffs have therefore to make out an engagement between Government and the inamdar entitling the latter to water free of separate charge; but as it is not contended by Government that water cess can be charged in respect of wet crops taken into account at the inam settlement of 1864 the disputed question between the parties is not whether there was any such engagement but what that engagement was - in other words. What is the measure of the right to water which the inam title confers upon the math?

(3.) The plaintiffs say that the principles applied by the Board in the Urlam case, 44 IA 166 1are applicable to this case notwithstanding that Urlam was a zemindary vested in the zemindar as his permanent property by the Permanent Settlement Regulation 25 of 1802, whereas Vagaikulam is an inam village. They contend that the N. K. Channel so far as it lies within the village boundary is vested in the inamdar, as also are the subsidiary channels from which the water is taken to irrigate the village lands: hence that the limit or measure of the inamdar's right to water is not the extent of land cultivated as wet, but is set by the physical conditions such as the size of the channels and the nature and extent of the sluices or weirs, if any, governing the amount of water which enters the channels. This is the view which has been unanimously accepted by the Courts in India.