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Madras High Court
Sri Raja Venkata Rangayya Appa Rao … vs The Secretary Of State For India In … on 18 December, 1912
Equivalent citations: 19 Ind Cas 227, (1913) 24 MLJ 680


1. The appellant is one of the Nuzvid Zamindars whose judicial history will be found in Raja Venkata Bow v. Court of Wards(1878)I.L.R. 2 M. 128 and Sri Raja Venkatanarasimha Appa Row v. Sri Baja Rang ay ya Appa Bow, and others(1905)I.L.R. 29 M. 437. The Zamindar alleged that the defendant, the Secretary of State, constructed in 1863 the Ellore canal to carry the anicut water through the Zamindari and thereby obstructed the flow of water into one of his tanks Voddu cheruva from his other three tanks, and since that time, the Government have been supplying him with water free of charge for the cultivation of his lands about 507 acres 14 cents, which depended on these tanks for their irrigation from 1889 they allowed supply free of charge only for 427 acres, 91 cents, and on his appeal from such redaction it was still further reduced to 202 acres 67 cents. He prays for declaration of his right to the supply of water as before and for certain reliefs consequential on such declaration. The Government filed their written statement and issues were framed which covered all the questions of factrelied upon by the plaintiff. But without taking any evidence, the question whether the plaint discloses a cause of action was first argued and decided against the plaintiff.

2. The Subordinate Judge held that no express ‘engagement’ under Act VII of 1865 having been alleged, all lands irrigated by Ellore canal water must pay cess. The Judge in appeal held that a promise by the Government in 1863 to supply water may perhaps be implied in the plaint though the issues according to him show that the claim was based on a letter of a Deputy Collector of May 1891 which, it may be remarked, however, is not referred to in the plaint. He was of opinion that unless there was an express agreement, the Government are entitled to levy water cess at pleasure.

3. The decisions of the Lower Courts go beyond the claim set up by the Government, who concede the plaintiffs right to water free of charge for 200 odd acres in their written statement. The Subordinate Judge states that plaintiffs’ pleader in agrument before him relied on a contract with the Government and the Judge states that the plaint apparently implies it. Issues 1 to 4 were necessary only if an implied agreement formed the basis of the claim. They certainly included it. In these circumstances as the evidence had not been taken and the plaintiffs relied only on the facts alleged in the plaint and raised by the issue, an amendment of the plaint setting forth that the plaintiff relied on an ‘engagement’ with government should have been allowed if necessary. I do not think the omission to mention it is fatal to the suit. However to remove any difficulty we have allowed the plaint to be so amended. The question whether the facts set forth disclose a cause of action has been fully alleged before us. As the plaintiff relies upon on ‘engagement’ in 1863 with the government in the sense in which that term is used in Act VII of 1865 it is necessary to refer to the events which led to the passing of that Act. We assume that the facts on which the plaintiff relies are true. When it was proposed in 1856 or thereabouts to undertake a general survey and reassessment of the lands in the Madras Presidency, the question arose how those lands irrigated from the Godavari and Ristna anicuts were to be assessed. Till that time the practice in the Presidency when water was supplied from irrigation works was to charge a consolidated wet assessment when water was permanently available and to levy a water rate only when it was temporarily required for cultivation. The lands were classified as either ‘irrigated’ or ‘non-irrigated’. The Secretary of State suggested that this classification of lands according as they were capable of irrigation or otherwise from the Government sources should be abolished and all land should be classified with reference to its soil and productiveness without irrigation; a water rate being charged when water is used or permanently available.

4. After a long correspondence which showed that different views were put forward and various difficulties pointed out among them the practical impossibility of fixing the assessment to which the land which has been long under wet cultivation would be liable as unirrigated land, it was finally resolved to accept the suggestion of the Secretary of State and orders were issued by the Government of Madras on 12th March 1858 that “a water cess calculated with reference’to the additional irrigation canal communications, drainage and embankments is to be levied invariably on all lands irrigated from the Godavari and Kistna channels from the 2nd year of irrigation, without any reference to whether they are Government land, Inam lands or belonging to properietors, and if in the latter two cases, the acting collector (Masulipatam) has neglected to take engagements, and opposition is made, he is forthwith to stop the supply.” These instructions received the sanction of the Secretary of State and one of his reasons was that this would be the easiest and most equitable mode of obtaining a fair contribution from the Zamindars towards the re-payment of the expenditure incurred in the construction of “drainage irrigation and other works undertaken by Government and benefiting the lands of those proprietors as well as of Government.” This is how the term ‘engagement’ (see proviso to Section 4 of Act VII of 1865 of which the draft bill was then under consideration) was used so far as I know for the first time.

5. These instructions were communicated to the Revenue Board and officials to be carried out.

From this the following conclusions may-tie deduced.

6. Water rate was intended in re-payment of the cost of those irrigation works which supplied the water. It was not intended to assess lands which received their supply from sources, as in this case, completely under the Zamindars’ control with which the Government had nothing to do. No ‘ engagements’ with ryots were contemplated obviously for the reason that it could be included in land revenue, the only mode at that time of recovering the water charge from proprietors as distinguished from ryots of Government lands was to enter into engagements with them, and if they refused to do so, the remedy suggested was to stop the supply of water. It is clear that the Zamindar was not bound to enter into any engagement with Government to take water when he was the owner thereof as when it was confined in tanks or reservoirs or in virtue of this riparian or easement right from rivers, as it was not open to Government to prevent him from doing so. The Government were not in those cases supplying him with water; nor could they therefore stop the supply.

7. It is probable therefore that where the Government continued the supply it was under some engagement.

8. With reference to these two clauses there was no difficulty. In the first class of cases in which the irrigation was carried on without any” cost to Government and in exercise to the proprietors’ rights of easement by vicinage, of ownership, no water cess levied, or in fact, could be claimed. In the second class of cases where irrigation was carried out with water supplied from the anicuts and only by means of Government irrigation works, channels etc., the Government were entitled to dictate their own terms for the supply of water. If they were not accepted, they were entitled to stop the supply. The result was, between the construction of the anicut and the passing of the Act of 1865, water was supplied to the proprietors on terms.

There were, however, other cases which it was more difficult to deal with.

9. Inams were exempted from permanent sanads and the Nanja inams were irrigated from Government sources. Similarly where there were Zamindaries (and those formed out of Havelli lands in which water sources were retained under Government control would be such) which were irrigated from Government sources.’ As they were entitled to Government water, the following rule for water assessment was passed for their benefit on, the 26th October 1861:

Lands granted as nanja inams and fully irrigated accordingly at the Government cost will not be charged with water assessment.” The same rule was applied to Zamindars.

10. There was a fourth class. Water from the Government anicut works was often carried to ryotwari lands by means of the old channels which passed through Zamindaries and were for that purpose improved, enlarged and extended by the Government. The Zamindar who obtained his water through these channels naturally claimed the anicut water which flowed through his channels. Some of the Government channels flowed through the tanks or reservoirs which were Zamin property, and the Zamindar was thus deprived of his tank water. Some channels of the Ellore canal in the case before us, cut off the supply to the tanks on which the cultivation of Zamindari lands depended. It is obvious that the Zamindar in all these cases had a just grievence. The Government however considered that the water supply before the days of the anicut was precarious and irregular and they issued the following rule on the 26th October 1861:

No. 12. Such nanja inams as were formerly imperfectly irrigated and have since been fully supplied with water from the anicut works, will be charged at half the above water rates.” The rule was made applicable to Zamindaries also. There was a proposal sometimes afterwards that even the rule which allowed the full supply without any charge should be altered to allow half rate on the ground that there was never any adequate supply before. On account of the strong protest of the Board of Revenue the Government altered the half rate rule and allowed water free of charge even where the half rate had been levied in lands which “owing to the construction of several anicut channels and other works connected therewith were found to have lost wholly or partially their pre-existing sources of supply.” See G. O. No. 101 Rev. dated the 16th January 1864. For determining what lands lost their sources of supply, the order states “the real criterion is the rate of assessment which the account shows the land is liable to.” The order further says “If this indicates the title of the land to water or if other reasonable pr oof can be adduced, then no charge should be made for irrigation as the engagement to supply water manifestly implied a full and not an imperfect supply.

11. There is only one further order to be referred to. The Secretary of State, in considering whether a cultivator should have the option to refuse Government water, said: (the 16th January 1864) “with reference to your question” ‘whether the ryotshould be allowed the security against an excessive charge which the option of deciding, by a stated period of each year, whether he will have water or not will give him,’ I am clearly of opinion that such option should be permitted. There is little ground for apprehension that the option would be exercised by the cultivator in the way of declining to use the means of irrigation when they are supplied to him at a moderate price, and the possession of it would in no respect limit the right which the Government, acting on your own behalf or on that of the irrigation Company, must retain, the right of declining to supply any particular tract of country with water, unless the cultivator should be prepared to enter into engagements to take the water at the stipulated rate in such numbers and for such terms of years as might warrant the required outlay. Although few would probably reject the opportunity, yet no compulsion to take the water must be exercised towards the dissentients and they must in no way be disturbed in the possession of their lands, so long as they desire to hold them, and continue to pay the ordinary rate of assessment. This despatch marks it clear that the Secretary of State wanted to give the ryots the same option of taking, anicut water as the Zamindars and Inamdars had. This order was communicated by the Madros Government to the officers concerned and it was pointed out by the Government that “as regards lands which have been fitted for irrigation by the owners and have actually been irrigated for at least one season it may fairly be held that such preparation and acceptance of water imply acquiescence with the usage ot the country which does not require any formal engagement.” That really means in other words, an engagement will be implied between the Government to furnish water and the ryots to receive this supply. In those cases where the water was found on the ryots the option was allowed and agreements were directed to be taken from them for any further supply of water. And they added, ” The same rule must of course apply equally to the holders of lands in Zamindaries–until the. zamindars come to terms with the Government and collected cess.” In accordance with those directions rules were framed in 1864; the bill which subsequently became Act VII of 1865 was directed to be prepared in accordance with these orders of the Secretary of State. I extract below two of the rules.”

12. Rule (7). “Where ryots desire to convert dry land into wet, application is to be made to the Collector either directly or through the Tahsildar on or before the 31st March, and the Collector Will arrange with the Public Works Department for the supply of water. Where the means of irrigation for such land already exist the ryot shall, as a rule, have the option of continuing or ceasing to use the water at his pleasure, provided that where water is taken etc.” This shows clearly no water-cess was intended where the ryot uses only the means of irrigation he already had.

13. Rule (10). These rules shall apply to zamindary and Inam lands except in the case of zamindaries, a composition shall have been made either for fixed yearly payment or according to the quantity of water supplied. Provided always that no charge whatever shall be made under these rules for a single crop for zamindary or Inam land where such lands are proved to have been customarily cultivated with wet crops under old tanks, channels or by any means of irrigation whatever prior to the construction of anicuts, or to have been charged in the accounts with such a rate of assessment as indubitably indicates the title of such land to water or by the terms of the grant to have been given as nanja Inam.”

14. There were thus three circumstances recognised as conferring a right to exemption from water rate otherwise leviable.

(1) The existence of any means of irrigation including tanks, channels whatever prior to the construction of anicuts;

(2) Lands being charged with Nanja assessment, and

(3) The title, deed showing that an Inam was granted as nanja.

15. Two conclusions follow : That it was not intended to levy any charge on cultivation carried on with any pre-existing source of supply, tank, channels and rivers; that in these instances the Government were only carrying out a legal obligation created by interference with such pre-existing source of supply which would have been enforced by the Courts.

16. An Act was necessary to collect the cess in the same way as land revenue and perhaps to remove the difficulties that might be caused by taking water through Zamindari and Inam lands. It was first intended only for the districts which used the Godavery and Kistna water and power was reserved in the original draft to extend it to other Districts, But finally the bill was drafted for the Presidency.

17. Before considering what the relations of the parties were or whether there was an engagement between the parties at this time i.e., in 1863 and 1864, I shall finish my review of the proceedings which led to the Act.

18. In forwarding the draft Act to the Government Pleader, the Government asked his opinion whether it was necessary to specify Zamindary and Inam lands in order to enforce the special cess ” on land newly irrigated from Government sources at Government expense.” The opinion of the Government Pleader was in the affirmative and he drafted the section in these terms : ” This Act shall extend to all lands held by Zamindars or Inamdars for the irrigation of which water may be, after the passing supplied or used from any such river, stream, channel, tank or work as specified in the section.” On its being pointed out that this might preclude the levy of any water rate for irrigation newly supplied to such lands since the construction of the anicut but prior to the passing of the Act and which supply may hereinafter be continued, the Govern-ment modified it by omitting the words ” after the passing of this Act newly ” and the sections then ran in the form in which it was finally passed by the Legislative Council thus ” This Act shall extend to all lands held by Zamindars, Inamdars or any other description of landholders for the irrigation of which water may be supplied or used from any such river, stream, channel, tank or work as is specified in section, provided always that where a Zamindar or Inamdar by virtue of engagement with the Government is entitled to irrigation free of separate charge no cess under this Act shall be imposed for water supplied to the extent of such right and no more.”

19. In the case before us the water is supplied to the lands in suit from a Government source to wit, Ellore canal and Government anicut works, and therefore unless the plaintiff proves the ‘ engagement ‘ that he sets up the Government are entitled to levy water tax. The word ‘ engagement’ in the section is no doubt used in the same sense in which it was used in the proceedings to which I have already drawn attention. Now what was the state of things when the Act was parsed. When the Government intercepted the flow of the water from the other three tanks mentioned in the plaint into Vodu Cherava, they undoubtedly inflicted an injury upon the plaintiff and if the plaintiff had enforced his claim in a civil court he would have obtained a decree for compensation payable to him for such interference which would probably have been a direction to supply him with that water which his tank was usually getting before the interruption or some equivalent compensation. Now it is not to be presumed that the Government did a wrongful Act if the facts are consistent with any other supposition. The natural presumption is that they compensated him in some form. We find that the Government had issued orders that where their irrigation works had interfered with a pre-existing source of supply, water was to be supplied free. We see here there was such interference and the consequent free supply. The orders also show that in other codes water was to be supplied to Zamindars under engagements to pay at certain rates. We see here no such payment received or demanded. We further find that even as to the ryotwari lands the Government proceedings directed that engagements should be entered into and that the Government presumed that, when the ryots prepared their lands for irrigation sources an engagement might be implied. Under these circumstances unless the free supply of water from 1863 is explained by Government it appears to me the presumption, not only natural but almost irresistible, is that there was an implied engagement between the parties for the free supply of water. The Judge rightly observes, “The Act was an embodiment of the Government Order”; but he holds that ” it was for the Zamindar to have entered into an engagement with Government as to the extent of irrigation to which he was entitled.” In my opinion he is wrong in holding that an express agreement is necessary. That the plaintiff was irrigating the lands in suit with Government water free of charge is clear evidence that he was entitled to water sufficient to irrigate them either because they were then being irrigated with his tank water or could have been so irrigated with his tank water or it was only on those conditions that he permitted any interference with his property.

20. The “Government Pleader contends that, though there may be an engagement, it is only to the effect that the Zamindars are entitled to receive from the Government water necessary for the old customary irrigation of their lands, that is to say, they are not entitled to water sufficient to irrigate that area which is entered as wet in the permanent settlement accounts and in the absence of any allegation in the plaint that the land for which they claim free supply of water is land so entered as wet in the old accounts, the plaintiff is not entitled to maintain the suit. If the argument is that the engagement in 1863 with reference to this estate had reference only to the old settlement accounts to the knowledge of both the parties, it is open to the Government to plead it and prove the same. That would be an express agreement. Otherwise it cannot be used to limit the plaintiff’s claim based on the state of things in 1863. For, the Zamindar may have improved the capacity of his tank or increased the area of his wet cultivation since the sanad and the supply of water must have been made to compensate him for his loss then sustained. If the argument is that an ‘ engagement ‘ referred to is to be implied from the conditions that existed at the date of the permanent sanad it is not answer to the plaintiff’s claim; because if the facts imply an engagement in 1863 when the supply was obstructed, that there was another engagement in 1802 or afterwards when the permanent sanad was granted, unless it is shown that is the only engagement which is intended by the Act of 1865, is not material. The section itself is not restricted to any engagement at the time of the permanent settlement. And I have no doubt it was open to the parties to enter into any engagement at any time they liked. The plaintiff may be entitled to say that if the old Gudigat wet area according to the permanent settlement accounts entitled him to more land than what he now claims then he should be entitled to the free cultivation of lands to that extent in addition. He may also be entitled to say, if he was getting water sufficient to cultivate more lands than the area he now claims, he is entitled to such quantity of water and cultivate more lands with it as it is reasonable to presume that the Government could not have intended to deprive a man of his property without compensation. This is apparently the effect of G. O. No. ‘^416, 17th June 1895 ” where the mamul wet areas to be allowed are found to be in excess of the highest recorded areas under wet cultivation in the village concerned, the maximum area irrigable should be allowed.” It is necessary however to consider this question as he makes no such claim in the plaint. The rules, already extracted, in force at the time the Act was passed, support this conclusion. He is entitled to exemption if his pre-existing source of supply is interfered with or if the accounts show a nanja assessment or if the title deed supports the claim. The one is not exclusive of the others. The Act, as rightly pointed out by the Judge being only an embodiment, so far as this matter is concerned, of the pre-existing rules, an engagement will be implied if any of these grounds exist. The tanks, if. any, in the Zamin undoubtedly belonged to the Zamindar. The Government lay no claim, to them. It is not probable that there was therefore any engagement by the Government to supply water for the irrigation of such lands under tanks. From where could the Government supply such water? Not from these tanks with which they had nothing to do so, and it is not shown there was any other source of water supply. No engagement can therefore be implied. An engagement can only be implied in those cases in which it was in the power of the Government to stop the supply of such water themselves. Otherwise I see no reason for any implied contract so far as the lands irrigated with any pre-existing source of supply which did not belong to the Government are concerned. For these reasons I am unable to accept the Government Pleader’s argument that the engagement to be proved has reference only to the wet area shown in the permanent settlement accounts. If, however, it is necessary to prove what area was so entered, then, the fact that these lands were under cultivation from 1863 to 1889 and it is not shown by the Government that the lands were brought under cultivation only sometime after the permanent sanad was granted, would be evidence to show that they were mamool wet even at the date of the Permanent Settlement. The Permanent Settlement accounts are with the Government and if the extent of wet cultivation under these tanks is referred to in those accounts, it is for the Government to produce them if it is material.

21. The only case that has been cited in argument before usc against the Government Pleader’s contention, (Appeal No. 182 of 1904) was a similar case and the learned Judges, (Benson and Miller JJ.) stated the question for decision in these terms : ” The question for decision in this appeal is, in effect, what is the extent of land in the village of Ravipad which was irrigable from the irrigation works existing before the construction of the Godavari anicut irrigation system.” I entirely agree. It appeared that various accounts showed the various extent of land under cultivation but they adopted the greatest area irrigated which no doubt showed those lands were capable of irrigation works before the days of anicut. They did not put the plaintiff to proof of what the settlement area was. I am therefore of opinion that, if the facts relied upon by the plaintiff are proved, a cause of action is disclosed. The Judge is therefore directed to return findings on the issues in the case. It will be open to him to direct the Subordinate Judge to submit findings to himself.

Six months are allowed for findings and seven days for objections.

22. Sadasiva Aiyar J. I concur in the decision just now pronounced by my learned brother and if I add a few words in my own language it is merely on account of the importance of the questions involved in this case. This is one of those cases arising out of the Government’s having constructed anicut, channels and other works connected therewith in the Godavari and Kistna deltas. Some of these channels interfered with the sources of irrigation to the lands of certain landholders or interfered with the flow of water to the tank which formerly supplied water for irrigation to such lands. The Proceedings of the Board of Kevenue dated the 11th February 1898 cbntain the following:

When the system of anicut irrigation was introduced into the Godavari and Kistna deltas, Government allowed free irrigation from the anicuts to all lands which, owing to the construction of the several anicut channels, and other works connected therewith, were found to have lost, wholly or partially, their pre-existing sources of supply (G. 0. No. 101, Eevenue dated 16th January 1864.)

23. This shows that about 1864, the Government offered to allow free irrigation from the anicuts to such lands as were deprived of their former sources of supply. The owners of such lands who did not enter into litigation with the Government in order to prevent Government from interfering with the old sources of supply and who took the water supplied by the Government anicuts must be taken to have accepted the offer of Government as satisfaction of their claims against Government. The fourth paragraph of the plaint in this case says that the Government supplied the plaintiff’s land with water from the year 1863 to 1900 and that the plaintiff accepted such water. There was in my opinion, therefore, a clear completed engagement between the Government and the plaintiffs set out in the plaint and hence the plaint shows a good cause of action. Suits similar to this were instituted by the proprietrix of the village of Ravipad, the proprietors in Chinchinada and by two other proprietors in 1902 in the District of Godavari. Mr. Hamnett, the learned District Judge who decided those suits acted upon the Government Order of 1864 and found an implied engagement between the Government and the proprietors of those estates and gave effect to that engagement as against the Government. On appeal to the High Court by the Government, it was contended as the very first ground in the appeal memorandum (see the appeal memo in Appeal No. 182 of 1904) that the District Judge erred in law in finding that there was an implied contract between the plaintiffs and the Government to allow free irrigation for the extent of land, the irrigation sources of which had been cut off by the anicut works. The learned Judges {Benson and Miller JJ.) who decided that appeal and connected Appeals Nos. 183 and 184 of 1904 saw nothing in that contention and begin their judgment at once with the sentence. ” The question for decision in this appeal is, in effect what is the extent of land in the village of Ravipad which was irrigable from the irrigation sources existing before the construction of Godavari anicut irrigation system.” Following the decision in those appeals, we must in this case set aside the decision of the Lower Courts which held that the plaint discloses no cause of action. I may add that in A. Section No. 182 of 1904 it was assumed that, if there was an engagement between the Government and the proprietor that engagement was to supply water free of tax on the extent of land which was irrigable from the irrigation works existing just before the construction of the Godavari anicut irrigation works, and not merely on the lands which were irrigable as wet lands at the time of..the permanent settlement. The contention of the learned Government Pleader before us that the engagement mentioned in Act VII of 1865 Section 1 (a) relates to the engagement at the time of the permanent settlement cannot be accepted in the face of the decision in Appeal No. 182 of 1904. If seems unreasonable to hold that after a land holder has improved his zamindari and brought between 1802 and 1862 a large extent of land under wet cultivation by improving his irrigation sources, when the Government by their new anicut system cut off the sources of irrigation supply to those large extents of lands, they intended to arrange with the zamindar to supply him water free of charge only to the wet area, which existed in 1802 but not to the area which had begun to be permanently cultivated as wet at the time when they constructed the anicut channels. The Government Order of 1864 and the Board’s Proceedings of 1898 already referred to are against the contention that the Government did not undertake liability to supply water free to all those lands whose then existing irrigation sources were interfered with by the Government’s constructions. In the result I agree in the order proposed by my learned brother.

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