KANDUKURI BALASURYA PRASADHA ROW Vs. SECRETARY OF STATE FOR INDIA

JUDGEMENT

(1.) These are consolidated appeals from a decree of the High Court of Madras, dated the 9th September, 1910 and made in three actions, in each of which Kandukuri Maha Lakshmamma (who has since died and is now represented by the appellants) was plaintiff and the Secretary of State for India was defendant. The plaintiff sought in each action to recover from the Secretary of State monies paid under protest in respect of water cesses which the Government of India had levied under the Madras Act No. VII of 1SG5, as amended by the Act No. V of 1900. The point to be determined was the right of the Government to levy these cesses. The cess the subject-matter of the first action was levied in respect of water used for the second crop on zeraiti lands, part of the estates of Urlam and Devadi, of which the plaintiff was owner. Devadi was originally part of Urlam and is hereinafter included in the expression " the Urlam Estate" or the Urlam Zemindari." The cess the subject of the second action was levied in respect of water used for (1) the first crop on so much of the irrigated zeraiti lands belonging to the Urlam Estate as the Government alleged to be in excess of the area so irrigated at the time of the permanent settlement; (2) the first crop on so much of certain inam lands situate within the Urlam Estate and of which the plaintiff was the inamdar, as the Government alleged to be in excess of the mamul or customary wet at the dates when such inam lands were respectively originally granted or subsequently settled; (3) the second crop on the whole of such inam lands. The cess the subject of the third action was levied in respect of water used both on zeraiti and inam lands for all the purposes above mentioned with respect to the cess the subject of the second action. It may be mentioned that the plaintiff succeeded in the High Court on the issue as to the Government s right to evy a cess in respect of water used for the second crop on all the inam lands except those situate in the village of Venkatapuram. The Government has not appealed to His Majesty in Council. It would seem therefore that the questions their Lordships have to decide are the following: first : Is the Government entitled under the Act to levy a cess for water used for the second crop on zeraiti lands parcel of the Urlam Estate ? Second: The same question as to inam lands in the village of Venkatapuram. Third: Is the Government entitled under the Act to levy a cess for water used for the first crop on so much of the zeraiti lands parcel of the Urlam Estate as may be in excess of the area of such lands irrigated at the time of the permanent settlement ? Fourth: Is the Government entitled under the Act to levy a cess for water used for the first crop on so much of the inam lands within the Urlam Estate as is in excess of the area of such lands irrigated at the respective dates when these inam lands were originally granted or subsequently settled? In order to answer these questions their Lordships must, in the first instance, examine the provisions of the Act itself.

(2.) The Act is intituted " An Act to enable the Government to Levy a Separate Cess for the use of Water supplied for Irrigation Purposes in certain Cases." It recites that in several districts of the Madras Presidency large expenditure out of Government funds has been and is still being incurred in the construction and improvement of works of irrigation and drainage to the great advantage of the country and of proprietors and tenants of land and that it is right and proper that a fit return should in all cases alike be made to Government on account of the increased profits derivable from lands irrigated by such works. By Section 1 of the Act as amended by the Madras Act, No. V of 1900, it is provided (inter alia) that whenever water is supplied or used for purposes of irrigation from any river, stream, channel, tank, or work belonging to or -constructed by Government, it shall be lawful for the Government to levy at pleasure on the land so irrigated a separate cess for such water and the Government may prescribe the rules under which and the rates at which, such water cess as aforesaid shall be levied and alter and amend the same from time to time. Then follow two provisoes, the first for the protection of zemindars, inamdar3, or any other "description of landholder not holding under Ryotwari settlement; and the second, for the protection of landholders under Ryotwari settlement. Under the first proviso, where a zemindar, inamdar, or other landholder, not holding under Ryotwari settlement is, by virtue of enagements with the Government, entitled to irrigation free of separate charge, no cess under the Act is to be imposed for water supplied to the extent of this right and no more. Under the second proviso, no cess is to be. levied under the Act in respect of land held under Ryotwari settlement which is classified and assessed as wet unless the same be irrigated by using, without authority, water from any source thereinbefore mentioned and such source is different from, or in addition to, that which has been assigned by the Revenue authorities or adjudged by a competent Civil Court as the source of irrigation of such land.

(3.) It cannot be denied that, with regard to the true meaning and construction of this Act, various difficulties arise. In the first place, it might have been expected from the recitals that the cess which the Government is authorised to levy would have been confined to a cess in the case of land irrigated from works constructed or improved by Government and would have been in some way proportional to the extra profits derivable by reason of such irrigation. But this does not seem to be the effect of the first section. The amount of the cess is discretionary and, as a matter of fact, it is levied on the basis of the area irrigated, irrespective of actual or possible profits. Moreover, it appears to be leviable whether the Government has or has not spent money in constructing or improving the source from which the water is supplied. If, for example, a riparian owner irrigates his land with water derived from a river or stream of which it can be truly said that it is a river or stream belonging to the Government, a cess would appear to be leviable even though the Government had never spent a single rupee in improving the source of supply. If, in order to avoid this result, reliance were placed on the first proviso, the question would arise whether it were possible, to imply some engagement with the Government arising out of the natural or prescriptive right of the riparian owner.