S.T.P. Marimuthu Pillai vs Province of Madras

Kuppuswami Ayyar, J.—The plaintiff is the appellant. His suit for an injunction restraining the defendant from collecting irrigation cess in respect of his lands survey fields Nos. 21 and 16 in Vadakkuvali village and for recovery of the cesses collected for faslis 1343 and 1344, was dismissed by both the Courts. These lands are irrigated with water taken from a tank or kuttai formed in the patta land of the appellant himself, survey field No. 22. But the Government case is that water flowing through a vari or, channel belonging to the Government is the main source of water-supply for this kuttai and that therefore the Government is entitled to levy irrigation cess u/s 1(b), Madras Irrigation Cess Act.

The lower appellate Court has found that it is a vari which enters the tank from the north that is the main source of supply of water and that it starts from the Government village of Gollapatti which is north of Chokkanadapuram and therefore it is water flowing through a channel belonging to the Government that is stored in the tank and used for irrigation purposes and therefore the appellant is liable to pay the irrigation cess levied. It is a pure finding of fact that the tank or the reservoir from which the water is used by the appellant for irrigating his lands gets its water from a vari which belongs to the Government and it is not open to this Court to go behind it. If that be so, u/s 1 (b), Madras Irrigation Cess Act, Government is entitled to levy the cess. The case reported in Veeraraju v. Secy. of State AIR 1940 Mad. 521 has no application to the facts of this case. That was a case in which this Court had to deal with the proviso to that section. There an owner of a ryotwari land who was entitled to irrigate his land from a Government source and who stored up the water and used it for the cultivation of his lands, was held not liable to pay the irrigation cess levied by the Government, and that he was saved by the proviso to the section. The facts of that case are entirely different and that decision cannot be said to govern the imposition of cess in a case like the one in question in this suit. It is not the appellant''s case that he is entitled to take the water flowing through that vari and irrigate his lands and therefore the storing of the water in his tank would not justify the imposition of the irrigation cess. It has not been his case nor has it been found that the water flowing through the channel which empties itself into the tank is a recognized source of irrigation for his land. Hence the decision in that case has no application to the facts of this case. In the result the second appeal fails and is dismissed with costs. (Leave refused).