K. Kanniappa Mudaliar vs The Secretary of State for India-in-Council

Venkatasubba Rao, J.—The plaintiffs are ryotwari holders of lands registered wet, the source of irrigation assigned by the Government

being a shuttered sluice in a channel in the Periyar system. On 3rd July, 1925 a lascar of the P.W.D. discovered that the shutter of the sluice

intended to allow 2 1/2 inches of water to pass had been forced open, with the result that water 2 feet deep was passing into the distributory

channel irrigating the plaintiffs'' lands. It was found that the lock of the shutter had been removed, as also the cross bar. The plaint lands were then

partly under seedlings and partly ploughed. The next morning at about 11 A.M. the shutter was put back in place, the water having by then

irregularly flowed on to the plaintiffs'' lands for about 20 hours. The Government on the ground that there was unauthorised irrigation, collected

water-rate from the plaintiffs under the provisions of the Madras Irrigation Cess Act (VII of 1865). The plaintiffs brought the suits out of which the

present appeals arise, claiming a refund of the water-rate, which according to them was illegally collected.

The first question that arises is,'' did the water flow from a source which is different from or in addition to that, which has been assigned by the

revenue authorities as the source of irrigation of the lands in question? (Section 1, proviso 2) The lower Courts have answered this question in the

affirmative and in our opinion rightly. The source assigned to the plaintiffs'' lands was not the sluice but the shuttered sluice, and it can hardly admit

of doubt, that the sluice with the shutter removed is different from the sluice fitted with the shutter and regulated in a particular manner. It must

therefore be held that the water that flowed was from a source different from the assigned source.

We shall presently consider the applicability of the several parts of Section 1 to the facts of the case in hand; but we may at once mention that

Clause (b) requires as a condition precedent to the levy of the cess, that the irrigation is, in the opinion of the revenue authorities, beneficial to and

sufficient for the requirements of the crop. The lower Court''s view that such an opinion must be deemed to have been expressed, has not been

assailed and must be accepted as correct. Another fact which needs mention is, that the lower Courts have concurrently found that for the

occurrence in question the plaintiffs are in no way responsible, the shutter having been forced open, if by human agency, by some persons

unknown. On these facts the question arises, was the water cess legally levied from the plaintiffs?

For the Government it is first contended that the facts of the case bring it within Section 1(a) of the Irrigation Cess Act. That applies ""whenever

water is supplied or used for the purpose of irrigation"". It has not been suggested that any question of the water having been ""supplied"" arises in the

present case. When the providing of the water was not intentional on the part of the Government, to refer to the water as having been ""supplied

would be to distort the word from its true meaning. In Venkatappayya v. The Collector of Kistna I.L.R.(1889) 12 Mad. 407 it was held by a

Bench of this Court that the expression ""supply"" implies in its ordinary sense a previous request express or implied. Apart from that as we have

said, the word ""supplied"" necessarily connotes that the water was intentionally provided and makes the provision inapplicable when the water flows

of its own accord. Then the question arises, on the facts of the case, can it be said that the water was ""used""? In the same case, it was held, that

the use contemplated by the Act is a voluntary one and that it presupposes a freedom either to take or refuse the water. This view was affirmed by

another Bench in Krishnayya v. Secretary of State for India I.L.R.(1895) 19 Mad. 24 where it was clearly pointed out that where a person has no

choice in the matter, he cannot be said to have ""used"" the water within the meaning of the Act. According to these two decisions it would be wrong

to penalise a person when there has been augmentation of water even against his own wish. Subsequent to these rulings, the legislature has by

amending the Act in 1900 introduced very important changes. To appreciate the true effect of the amendment, the changes not only in the wording

but in the structure of the Act should be carefully noticed. The present Section 1(a) corresponds roughly to Section 1 of the Act prior to the

amendment and what appears now as the first proviso corresponds to the old Section 4. The point to note is, that in the old Sections 1 and 4 the

words that occurred were ""supplied"" and ""used"". These words, as interpreted by the two decisions above cited, had reference to voluntary and not

to involuntary user. The word ""supply"" under those decisions implied a previous request and the word ""use"" presupposed a freedom to refuse. The

legislature, while re-enacting the provisions in an amended form, has retained the two words ""supplied"" and ""used"" and it may be presumed that it

has been so done with the object of adopting the legal interpretation put upon those words by the Courts. (Maxwell on the Interpretation of

Statutes (1929) 7th Edn., p. 265).

There is a well known principle of construction that where the Legislature uses in an Act a legal term which has received Judicial interpretation, it

must be assumed that the term is used in the sense in which it has been judicially interpreted; that is to say, unless the contrary intention appears.

Statute Law by Craies (1923) 3rd Edn., p. 153.

The Legislature would have made its meaning clear by the rise of apt words, had it intended to depart from the construction placed by the

Courts on the words in question; on the contrary, as Sankaran Nair, J. points out in The Secretary of State for Indian in Council by the Collector

of Ganjam Vs. Kannepalli Janakiramayya and Others, from the retaining of Clause (a) in its original form (so far as this matter is concerned), it may

be fairly inferred that the judicial interpretation of the terms ""supplied"" and ""used"" received legislative sanction. See also an observation to the same

effect in The Secretary of State for India in Council Vs. Swami Navatheeswarar, . While, however, the legislature gave effect to the view judicially

expressed, that in cases falling within Clause (a) the liability arose from voluntary enjoyment alone, it provided by enacting a new provision in

Clause (b) that even in respect of involuntary enjoyment, if certain conditions were satisfied, water-cess was leviable. Clause (b) consists of two

parts (i) whenever water by direct or indirect flow or by percolation or drainage from any such river, stream, channel, tank or work from or

through adjoining land irrigates any land under cultivation, or (ii) flows into a reservoir and is thereafter used for irrigating any land under cultivation.

The word ""used"" has been carefully omitted from the first part and the expression ""irrigates any land"" in that part stands in marked contrast with

used for irrigating any land"" in the second part. The inference is irresistible that the first part deals with involuntary enjoyment, whereas the second

with voluntary enjoyment,, although it may be mentioned that even in the second part, the preliminary process of the water flowing into the

reservoir, is independent of the volition of any person. In short, the effect of the amendment may be thus stated: Clause (a) was retained and it

refers to voluntary enjoyment alone; under Clause (b) in certain cases of involuntary enjoyment the tax may be imposed, provided the irrigation is

beneficial to the crops. The argument that Clause (a) refers to involuntary enjoyment also, is untenable. If that argument were sound, it would

follow that in the case of involuntary enjoyment the Government can at its pleasure rely either upon Clause (a) or Clause (b) irrespective of the

question of the benefit to the crops. Had the intention been to wipe out the distinction between the two kinds of enjoyment, the proper and natural

course would have been to remove Clause (a) altogether when the amendment of 1900 was made. The resulting position is both clear and logical.

Where a ryot enjoys the water voluntarily, nothing further need be shown and his liability directly arises under Clause (a); but where the enjoyment

is involuntary, he can be made liable provided the conditions in Clause (b) are satisfied, the chief condition being that the irrigation has proved

beneficial; this statement is subject to the reservation already noticed, that even under Clause (b) which refers to the flow into a reservoir, the

second part contemplates voluntary user; but in the main what distinguishes Clause (b) is the involuntary nature of the enjoyment.

The learned Government Pleader further contends that the facts of the present case even bring it within the first part of Clause (b). The trial

Judge points out that this clause does not apply as the water does not flow to the lands in question ""from or through adjoining land"". The question

is, is the entire part qualified by that phrase or are we to leave that phrase out of account in the case of ""direct flow""? The learned Government

Pleader urges that ""direct flow from or through adjoining land"" involves a contradiction and there is a good deal to be said for that position; but we

must say that grammatically the phrase ""from or through adjoining land"" governs and qualifies the entire part. To give effect to the learned

Counsel''s contention, the first part should be split up suitably in such a manner as to show that the words ""direct flow"" have no reference to any

adjoining land"". The desired result may be achieved by adding the word ""direct"", but unless the clause is recast, there will still remain some

ambiguity. Next, the Government Pleader contends that even the facts here disclose the existence of an adjoining land, for the water before it

reaches the land in question, is necessarily led along a small distributory channel kept up by and belonging to the ryots themselves (the plaintiffs)

and the soil of that channel answers the description of ""adjoining land"" in the section. According to the learned Government Pleader, it was such

land only that was treated as ""adjoining land"" in The Secretary of State for India in Council Vs. Swami Navatheeswarar, In regard to the

contentions noted above dealing with ""adjoining land"" in Clause (b), it is unnecessary for us to express our final opinion, in the view we take of the

second proviso to the section with which we shall now proceed to deal.

The object of both the provisos is to lay down that where the enjoyment can be traced to a legal right, no liability arises; as regards landholders

other than those holding under ryotwari settlements, such as Zamindars and Inamdars, they are protected to the extent of their engagements with

the Government and the first proviso deals with exemption from cess in the case of such landholders. As regards holders under ryotwari

settlements, it would obviously be wrong to tax them for their enjoyment of water from an authorised source, i.e., a source specially assigned and

the second proviso is intended to protect their rights to that extent; but the point to note is, that under this proviso which relates to ryotwari holders,

it is specially enacted that no cess shall be leviable, unless the land be irrigated by ""using"" the water without due authority. The employing of the

word ""use"" negatives the idea that the user here intended may be involuntary. ""It is a sound rule of construction,"" said Cleasby B. in Courtauld v.

Legh (1896) L.R. 4 Exch. 126 ""to give the same meaning to the same words occurring in different parts of an Act of Parliament"" (cited at p. 153

of Crates on Statute Law already referred to). This rule is by no means inflexible and if special reasons exist, may be departed from; but

unquestionably the interpreter is bound in general to disclaim the right to assign different meanings to the same words on the ground of a supposed

general intention of the Legislature"", per Lord Denman in R. v. The Poor Law Commissioners (1838) 6 A and E 56 : 1838 112 E.R. 21 cited in

Maxwell on the Interpretation of Statutes, 7th Edn., p. 273. Further, how can there be user ""without due authority"" unless the user is voluntary?

This, in our opinion, clinches the question. The result is that except in the case of voluntary enjoyment, the ryotwari holders coming within proviso

(2) are not liable for water cess under the Act.

Before concluding, we must point out that the judgment of Ayling, J. in Kopalli Krishna Row Garu Vs. The Collector of Kistna on behalf of the

Secretary of State for India in Council, on which the learned Government Pleader relies, does not really help him much. In the first place, that case

was concerned with Zamindari lands and not with ryotwari holdings. Secondly, the decision proceeded upon an admission wrongly made, that the

Act draws no distinction between involuntary and voluntary user and thirdly, that admission having been made in regard to the Act itself, the only

question that Ayling, J. considers is as regards the meaning of the word ""taken"" in the rules, as distinguished from the Act. We must respectfully

dissent from the view, if this is what is involved in Ayling, J.''s judgment, that every provision of the Act applies to both voluntary and involuntary

user alike. Our attention has also been called to the following observation of Sadasiva Aiyar, J.,

The amendment of 1900 fully established the rights of the Government to levy assessment in respect of water even involuntarily supplied to such

ryotwari lands

in The Secretary of State for India v. Janakiramayya (1915) 29 M.L.J. 389 but for the reasons already stated, we must express our respectful

dissent from it.

In the result, in each of these Second Appeals, the lower appellate Court''s decree is reversed and that of the First Court is restored and the

suit is decreed with costs throughout.