The Province of Madras vs The District Board of Tanjore

Satyanarayana Rao, J.—The Province of Madras, represented by the District Collector, Tanjore, is the appellant in this second appeal and

the respondent is the District Board of Tanjore by its President. The suit raises a dispute regarding water rate demanded by the Government. The

management of certain inam villages belonging to a chatram is vested in the District Board. The chatram in question is Mohanam-balpuram

Chatram situated at Rajamatam. The villages were granted in inam to the chatram by a late Rajah of Tanjore. The grant of these inams was

recognised at the time of the inam settlement, and the grant was confirmed. The channel known as Puttuvanachi Vari, is the source of supply of

water for the irrigation of the inam villages, and the channel is admittedly situated within the limits of the inam villages. From time immemorial, the

water from the channel was drawn for the purpose of irrigation of the lands in the villages without any liability to pay water cess to the Government.

This was the state of affairs both before and after the inam settlement. It would appear that in one of the villages there is also a tank to which the

water is taken from Puttuvanachavari. After the construction of the Cauveri-Mettur projects, the flow of water in these channels became more

certain and perhaps larger in volume. On this ground the Government levied irrigation cess from the plaintiff, the District Board of Tanjore, and

therefore the plaintiff was obliged to institute the present suit for declaration that the lands were entitled to free irrigation rights and also for a refund

of the water cess collected from the plaintiff. The suit was successful in both the Courts. Hence this second appeal.

The only question for consideration is, whether the fact that more water is made to flow into the Puttuvanachivari channel by the Government in

consequents of the construction of the Cauveri-Mettur project, is the Government justified in the levy of water cesa,

It is now well-established law that the extent of the free irrigation right of a zamindar or that of an inamdar in respect of lands in his estate is

governed by the decision of the Uralam case; Bala Surya Prasada Rao v. Secretary of State, 40 Mad. 886: A. I. R. 1917 P. C. 42. The principle

of this decision is that the permanent settlement with a zamindar constitutes an engagement within the meaning of the proviso to Section 1, Madras

Irrigation Cess Act. On the same analogy, it is established now that the inam settlement is also an engagement within the said proviso. The extent of

the rights of free irrigation has to be measured not with reference to the area of the land irrigated at the time of the settlement but by a reference to

the physical conditions of the channel and its size. If at the time of the engagement the inamdar or the zimindar was drawing water to his lands from

a channel of particular dimensions, the dimensions of that channel provide the measure of the right of free irrigation. This has been decided by the

Privy Council in the Swamigal''s case; Secretary of State v. Vidhya Varadi Thirtha Swamigal, I. L.R. (1942) Mad. 893 : A. I. R. 1912 P. C. 21.

In some cases it may be that the zamindar or the inamdar not only took the water through the channel, but also stored it in an irrigation tank to

facilitate continuous supply of water to his lands. The increase in the dimensions of the tank by raising, for example, the F. T. L. would not make

him liable to pay water cess on the ground that he had exceeded his right by increasing the storage capacity of the tank so long as he does not alter

the dimensions of the channel which is situate in his inam village; see Tahya Ally Sahib v. Secretary of State, 63 M. L. J. 769: A. I. R. 928 Mad.

97 My attention was drawn by the learned Government Pleader to an observation of Somayya J. in Sri Ekambareswaraswami Temple of

Sirukarambayur and Another Vs. The Provincial Government of Madras and Others, , where the learned Judge at p. 818 observed :

the only ground which would justify the Government in levying water cess is that the channel Ammanam Kolakkal was interfered with at its entry

into the village or above, and that a larger quantity of water is taken from the channel than what was hitherto flowing into the village.

If one considers the facts of that case, the importance of that observation of the learned Judge would be evident. In the inam village there was a

tank which irrigated the lands of the village. The water to this tank was supplied by a Government channel known as Ammanam Kolakkal, which

entered the village from the North, and after supplying water to the tank, passed on the village lower down. The Government attempted to justify

the levy of water cess on the ground that the inamdars raised the level of the surplus weir of the tank and therefore stored more water in the tank

than they were entitled to. The learned Judge pointed out, after referring to the decision in Yahya Ally Sahib''s case, 53 M L. J. 769 A. I. R. 1928

Mad. 97 and the AIR 1942 21 (Privy Council) that the tank and the channel situate within the limits of the village passed to the inamdars under the

grant, and that the inamdars were entitled to irrigate more lands by the water of that tank, and were entitled even to raise a second crop on what

was a single crop land. In the context the observations of the learned Judge mean, in my opinion that so long aa the dimensions of the channel were

not increased and were not interfered with either above or in the village, it would not be exceeding the right recognised under law, and under the

engagement the Government would not be justified in levying water cess. It is not certainly authority for the position that if more water waa brought

into a channel whose dimensions remained unaltered, the Government are entitled to levy water cess on the ground that the free irrigation right

recognised by an engagement at the time of the inam settlement was exceeded. The expression ""more water"" used in some of the decisions no

doubt on first impression, appear to be ambiguous; but in the context of the decisions it only means more water in the sense that the measure of the

rights recognised under the law was exceeded and that therefore the water taken over and above the right was more water. From such expression

in some of the judgments, and divorcing them from the context it cannot be inferred that merely because the Government have constructed the

Cauveri-Mettur project, as a consequence of which more water flowed into the channel, the Government was justified in the levy of water cess in

the present case. In my opinion, therefore, the conclusion arrived at by the Courts below is correct, and the second appeal fails, and is dismissed

with costs. (No leave.)