Sri Ekambareswaraswami Temple of Sirukarambayur and Another vs The Provincial Government of Madras and Others

Somayya, J.—The plaintiffs are the inamdars of the vilkge called Adambur in the taluk of Arantangi in the Tanjore District. There is a tank

called the Adambur tank situated wholly inside this village. This tank irrigates the lands which are situate in this village. On some of the wet lands

second crop was raised. The Government levied water cess for the reason that a channel known as Ammanam Kolakkal coming from north feeds

this tank and that that channel is Government channel. A further point was raised that the inamdars, the plaintiffs, have raised the level of the surplus

weir of that tank. It would appear that below the suit village there is a Government village called Sadayamangalam and that the Sadayamangalam

tank receives the surplus water of the Adambur tank. On these two grounds, namely, that the Ammanam Kolakkal was a Government channel and

that the height of the surplus weir of Adambur tank was raised, the levy of water cess is sought to be justified. It is not disputed, and there is no

reason to suppose that it is otherwise, that the Adambur tank being situate wholly within the inam village passed to the inamdars under the inam

grant. So also that portion of the channel which lies wholly within the Adambur inam village. The Ammanam Kolakkal admittedly comes from the

north and enters the suit village at a point on the northern boundary of the village and after flowing to some extent as a channel it enters the

Adambur tank. Another question was raised whether this channel did not take a south easterly bend and enter the Sadayamangalam tank. That

question has been found against the Government-respondent and there is no further question raised about it. The only grounds upon which the levy

of irrigation cess is justified are the two grounds mentioned above.

Under the decisions of this Court in Tahya Ally Saheb v. The Secretary of State (1940) 44 C.W.N. 665 and Secretary of State for India v.

Vidya Varada Thirtha Swamigal (1940) 44 C.W.N. 665, ordinarily the tank inside a village would pass to the inamdar and so also an irrigation

channel unless there is something in the circumstances of the case to enable the Court to draw an inference that on the particular facts of the case

there was a reservation by the Government in its own favour of the particular tank or channel. In this case there is no such suggestion and there is

no finding by the lower Courts that the tank has been reserved ""by the Government. So the tank and likewise that portion of the channel which is

situated wholly inside the limits of the inam village, pass to the inamdars. That being so, the inamdars are entitled to irrigate more lands by thrifty use

of the water that enters the tank and also to raise a second crop on what was till then a single crop wet land. Assuming that the Ammanam

Kolakkal channel is a Government channel before ''it enters the suit village,'' there is no justification for the levy of water cess because the channel

after it enters the village and the tank are the property of the inamdars. The only ground which would justify the Government in levying water cess

is that the channel Ammanam Kolakkal was interfered with at its entry in to the village or above and that a larger quantity of water is taken from

that channel than what was hitherto flowing into the suit village. There is no suggestion that the Ammanam Kolakkal has been in any way interfered

with. Under the first proviso to Section 1 of Madras Act VII of 1865, where a Zamindar or Inamdar or any other description of landholder not

holding under ryotwari settlement is by virtue of engagements with the Crown entitled to irrigation free of separate charge, no cess under the Act

shall be imposed for water supplied to the extent of this right; As pointed out by the learned Judges in Tahya Ally Saheb v. Secretary of State

(1940) 44 C.W.N. 665, basing their judgment on Mahalakshmamma Gam, Proprietrix of Urlam v. The Secretary of State for India (1940) 44

C.W.N. 665 it is only if there is evidence to show that more water was taken by the plaintiff than what was being taken before that water cess can

be levied by virtue of Section 1 of Act VII of 1865. In that case it was found by the District Judge that the plaintiffs had raised the height of the

bund of the tank, that the capacity of the tank had increased and that therefore more water was stored in it than before. Dealing with this finding

Madhavan Nair, J., stated this at page 778 :

I may state at once that, in my opinion, the finding of the District Judge that the storage of the tank had increased does not in any way affect the

decision of this question, in view of the admitted fact already mentioned that the plaintiffs have not in any way interfered with the supply channel of

the tank and, what is most important of all, the fact that there is no evidence to show that more water is now being taken by the plaintiffs for

irrigation.

The expression "" more water "" here means more water from the supply channel of the Government. As pointed out by the same Judge:

The law is well settled that permanent settlement sanads and engagements arising out of inam settlements are engagements contemplated by Act

VII of 1865. As regards the precise extent to which the Zamindars and inamdars were entitled to claim exemption under the cover of these

engagements, viz., as to whether the right of free irrigation extended only to the extents specified in these engagements and to nothing more, there

has been for a long time acute difference of opinion among the learned Judges of this Court.

The question was finally settled in Secretary of State for India v. Vidhya Varada Thirtha Swamigal and the Urlam Zamindari case2. In the case

before him, Madhavan Nair, J., pointed out that the same principles must apply to the case of inam villages. In the Swamigal case, decided by the

Judicial Committee the same principles were applied. For the reason that the supply channel Ammanam Kolakkal has not been interfered with and

that no more water is being taken from that channel which is Government channel into the suit tank the levy of water cess must be held to be illegal.

The mere fact that the storage capacity of the tank has been increased by either strengthening the bund or increasing the height of the tank bund, is,

as pointed out by Madhavan Nair, J., no ground for the levy of water cess.

The real complaint as put before me by the learned Government Pleader for the respondent is that the surplus weir has been increased in height

and that therefore the water which used to flow into the Sadayamangalam tank has been interfered with. It is said that, but for the increase of the

height of the bund and of the surplus weir the water in the Adambur Tank after it reached a particular level, would flow out into the

Sadayamangalam tank and that by increasing the height of the surplus weir some portion of the water is prevented from entering the

Sadayamangalam Tank. If that is so, the respondent may have other remedies. For example, it may have a right to compel the plaintiffs to restore

the surplus weir to its original height; but we are not concerned with all those questions in this case. It is enough to say that the levy of water cess is

not justified.

I reverse the decisions of both the lower Courts and grant a decree as prayed for with costs throughout. Time for the payment of costs three

months.

Leave to appeal is refused.