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Madras High Court
Sri Rajah Vatasavaya Venkata … vs The Secretary Of State For India In … on 28 October, 1914
Equivalent citations: (1916) ILR 39 Mad 67
Author: Spencer
Bench: S Nair, Spencer


Spencer, J.

1. The simple question in these appeals is whether the respondents are liable to pay water-cess to Government for irrigating lands in excess of the area classed as wet at the inam settlement with the water of the Eti Koppaka channel. Similar questions arose in Appasami Aiyar v. The Secretary of State (1910) 1 M.W.N. 107 and in Kesari Venkatasubbiah v. The Secretary of State for India (1913) 14 M.L.T., the latter decision having been published after the filing of these appeals; and if those cases were rightly decided, as I think they were, these appeals must be dismissed.

2. Prior to the present suit, there has been litigation between the parties. In Original Suit No. 545 of 1885 on the file of the District Munsif’s Court of Ellamanchilli, it was decided that two sluices should be constructed at the entrance of the Koppaka channel, two feet in height, one being one and a half yards wide for the use of the Koppaka mokhasadars, and the other, three yards in width, for the use of the Government ryots and the ryots of the Darlapudi proprietor. The right of Koppaka mokhasadars was thereby recognised of arresting the whole water of the river, giving two-thirds of it to Government and taking one-third of it for themselves; and thus their title to one-third of the water of the river was established But in the settlement statement, Exhibit H, only 10 acres 12 cents of land were registered as wet in this mokhasa. It is contended on behalf of the Government the Inam Commissioner only allowed the above said area to be registered as wet land in spite of the mokhasa’s claim in that settlement to one-third of the water. Exhibit G is a letter from the Tahsildar of Sarvasiddhi, dated 1st October 1848, recognizing the mokhasadars’ rights for a flow of water in one turn through the Eti Koppaka channel as against two turns through the Pulaparthi channel and this latter is referred to as one of the documents mentioned in Exhibit H, as being in the possession of the mokhasadar. It is, therefore, argued that, though the mokhasadars are entitled to take one-third of the water, the Government is nevertheless entitled to impose a cess on the extent irrigated in excess of the registered wet area, as the arrangement come to at the mam settlement was a condition precedent.

3. The proviso to Section 1 of Act VII of 1865 declares that, where an inamdar is by virtue of engagements with the Government entitled to irrigation free of separate charge, no cess will be imposed under this Act for water supplied to the extent of such right. The question for our decision, therefore, resolves itself into the further question, what is the scope of the judgment in Original Suit No. 545 of 1885 which undoubtedly binds the parties. Is the right recognized in that suit limited by the prior settlement which fixed a definite area of land as entitled to water free of charge? And does the decree operate as an engagement, within the meaning of the Act?

4. In Appeal No. 188 of 1911, it was recently held by Wallis, C.J., and Seshagiri Ayyar, J., that the inam settlement did not override a previous arrangement with the Government by which an inamdar was entitled to water free of separate charge. If the arrangement is one subsequent to the settlement, I should foe inclined to hold that it governed the relations between the parties even more decidedly than an engagement prior to the settlement. In Kesari Venkatasubbiah v. The Secretary of State for India (1913) 14 M.LT., 191 a decree of Court passed after the inam settlement was treated as sufficient to establish an engagement of the kind referred to in the proviso to Section 1 of Act VII of 1865

5. If the Government had a right by virtue of the inam settlement to restrict the respondents to the area of irrigated land allotted to them under the settlement a demand might have been made when Original Suit No. 545 of 18 5 was decided, to have inserted in the decree a stipulation that the taking of one-third of the whole water of the river should be subject to the payment of assessment on the portion irrigated in excess of the registered area. But not only did Government recognize the mokhasadars unrestricted right to one-third of the water in this suit, but from time to time Government officials made similar unqualified admission in Exhibits G.L.M.P and O. I am, therefore, of opinion that the Subordinate Judge was right in his view that the plaintiffs are not liable to pay watercess so long as they do apt take more than their one-third share of the water in the stream.

6. The respondent’s pleader has attempted to base his claim also on the position that the bed of the stream belongs to the mokhasadars. It is unnecessary for us to deal with this question as there was no finding in the lower Court as to the ownership of the entire bed of the stream. The Sub-Judge has found that the river belongs to the Government and is under its control and I find no evidence to lead me to a different conclusion. In Original Suit No. 545 it was only founi that the dam itself was situated in that part of the bed of the river which belonged to the mokhasadars. Such being the findings of fact in the present case a very few words are necessary to distinguish the decisions cited in support of the respondent’s contentions. Secretary of State v. Janakiramayya (1914) I.L R., 37 Mad. 322 and Kandukuri Mahalakshmamma Garu v. The Secretary of State for India (1911) I.L.R. 34 Mad. 295, turned on a question whether the ownership of the bad of channels which take off from the Vamsadhara river claimed by Government to belong to them carried with it a right to use the water of the channel free of charge. Secretary of State for India v. Swami Naratheeswarar (1911) I.L R., 34 Mad. 21 at p. 94 and Secretary of State for India v. Ambalavana Pandara Sannadhi (1911) T L R., 34 Mad. 366 are cases depending on the question whether the main source of supply was a Government source–a question it is unnecessary to consider in detail in the present appeals, as the attention of the parties was not directed to it in the lowar Court. In Kesari Venkatasubbiah v. The Secretary of State for India (1913) 14 M.L.T. 131, Sadasiva Ayyar J., has distinguished the case in Secretary of State for India v. Swami Naratheeswarar (1911) I.L R., 34 Mad. 21 from the facts of the case before him and the same reasons may be used against applying that decision to the facts of the case before us.

7. In Appeals Nos. 22 and 23, the respondents have filed objection petitions in which they seek to have it further declared that they have a right to dispose of their one-third share for any purpose and in any manner they think fit, subject to any rights that any other riparian owners, axcept the Government, may have; in other words, they claim an absolute right over the one-third of the water that they appropriate and keep in their control, to utilise it in any way they may choose, and in support of this they rely on certain expressions in the judgment of BRAMWELL, B, in Nuttall v. Bracewell (1866) L.R. 2 Ex., 1 at p. 11 and on the observations in Holker v. Porritt (1875) L.R. 10 Ex., 59, where it was stated as regards the diversion of a portion of a certain stream into a separate course : “The water “which came down to him at the farm was his own to use it as “he pleased. There was no one entitled to share with him in “its use, and no one who could call him to account for any use “which he chose to make of it there. In this respect his “position was different from that of a riparian owner, who only “shares the use of the water in common with other riparian “owner.” In Maria Susai Mudaliar v. The Secretary of State for India in Council (1904) 14 M.L.J., 350, there is a similar observation following the remarks of Sir G. Mellish, L.J. in Watts v. Kelson (1870) L.R. 7 Ch. Ap., 166, that when the water arrived in the plaintiff’s tanks he could do what he liked with it.

8. The question of ownership in running water, never a simple one, is here beset with such uncertainty about the source and course of the stream owing to the want of full evidence on these points that it would be dangerous to make a wide pronouncement about the mokhasadars’ right to exercise absolute ownership over the water. On the point whether water in a stream can be owned, in Chockalingam Pillai v. Emperor (1912) 3 M.W.N. 119, Sundara Ayyar, J., observed: “In England, water flowing in a river is regarded as not owned by any person. The right; of the riparian proprietor is to use it. He is not the owner of the water which he is entitled to use;” again in Secretary of State v. Janakiramayya (1914) I.L.R. 37 Had., 322 my learned brother observed that the ownership of water ceased when the water left the land, In the present case, the rights that the respondents claimed in paragraph 3 of their plaint were rights based on ownership of the bed of the river where the regulating sluices were constructed and the natural rights appertaining to riparian owners. This at least may be said. The respondents have, in addition to their rights as riparian owners, the rights accruing to them by virtue of the decree in Original Suit No. 545 and by certain admissions made by the Government. They have been given such a declaration as they are entitled to by reason of their right to a third share of the water. I would not give them any declaration defining more exactly what the rights of riparian owners are than what has been already declared in their favour in this suit.

9. In Appeal No. 310, there is an objection petition that Rs. 705 collected by the Government as water-cess for fasli 1305 and disallowed by the lower Court as barred by limitation should have been allowed to be recovered, It is conceded that there was an order for attachment and that the suit was brought more than six months after the date of payment. Section 59 of Act II of 1861 prescribes a limitation period of six months for applying to the Civil Courts for redress to parties aggrieved by proceedings under that Act. As the cause of action is stated in the plaint as being the payment of this sum of money made under protest and under threat of attachment, I think that an application for redress of the plaintiff’s grievance should have been made within six months and that the lower Court, therefore, rightly decided that the claim was time-barred. These appeals must therefore be dismissed with costs. The objection petition will also be dismissed with coats,

Sankaran Nair, J.

10. I concur in dismissing the appeals and memorandum of objections with costs and propose to add a few words on the question of law. Disregarding those instances in which a person could not have got his water but for some work constructed by Government, in all other cases the decisions are uniform that where a right to take water is proved, even though no express agreement on behalf of Government not to levy any charge is proved, an engagement under Act VII of 1865 will be implied and no cess can be levied [Lutchmee Doss v. Secretary of State for India (1909) I.L.R. 32 Mad.456. at p. 460-the Chief Justice and Miller, J.; Appasami Aiyar v. The Secretary of State (1910) I.M.W.N. 107–Benson and Krishnaswami Ayyar, JJ.; Kesari Venkatasubbiah v. The Secretary of State for India (1913)14 M.L.T., 131–SUNDARA AYYAR and SADASIVA AYYAR, JJ.; Secretary of State v. Ambalavana Pandora Sannadhi (1911) I.L.R. 34 Mad. 366–RAHIM, J., and myself, subsequently followed by MILLER and RAHIM, JJ.; Secretary of State for India in Council v. Perumal Pillai (1901) I.L.R. 24 Mad. 279 and Ritraj Koer v. Sarfaraz Koer (1905) 15 M.L.J., 349]. In the cases of zamindars and inamdars some of the decisions put it on the ground that when the zamindari or inam was granted, an agreement will be implied against the Government, to allow the natural facilities for rights of irrigation which the landholder then had–Secretary of State for India v. Swami Naratheeswarar (1911) I.L.R. 34 Mad. 21 at p. 24: others put it also on the ground that as the owner of the bed of the river, the zamindar had a right to use the water.

11. There is a conflict of judicial opinion on the effect of Act III of 1905. I am of opinion that it did not take away any rights which existed at the time the Act was passed and the Government were not by reason of that Act coupled with Act VII of 1865 entitled to impose a cess upon those landholders who were before that Act not liable to pay cess for their, using the water. See Kandukuri Mahalakshmamma Garu v. The Secretary of State for India (1911) I.L.R. 34 Mad. 295 at p. 300–Urlam judgment, Benson and Sundara Ayyar, JJ., also before whom this Act was pressed declined to hold the landholder liable; Venkataratnammah v. Secretary of State (1914) I.L.R. 37 Mad. 366. On the other hand Miller and Munro, JJ., in the Urlam judgment approved by the Chief Justice and Ayyling, J., in Secretary of State v. Ambalavana Pandara Sanna-dhi (1911) I.L.R. 34 Mad. 366 held that the Act makes the river Government property and entitles the Government to apply Act VII of 1865. In this case it is true the river is found to belong to Government and under its control. The Government may therefore possibly regulate the supply of water without prejudice to the respondents, by constructing sluices, etc. But as the right to the supply of water without liability to pay any charge existed already, it is not dependent on the work constructed by Government and no cess under Act VII of 1865 may be levied. The respondent’s right to the water has been declared by a judicial decision. No cess is therefore leviable. He cannot get anything more.

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