The Secretary of State for India in Council vs Kannepalli Janakiramayya and Others

Oldfield, J.—This is an appeal from the decision of two learned Judges, given u/s 98 of the Code of Civil Procedure, in accordance with the confirming judgment of one of them, Sankaran Nair, J. The question is whether water-cess was legitimately levied by Government, the appellant, from plaintiffs for the water of the Vamsadhara river, which they have admittedly used in their inam village for the irrigation of (1) second crop, (2) wet (or irrigated) crops grown on dry (or ordinarily unirrigated) land. The decision of this question will be a sufficient adjudication on the plaintiffs claims to a refund of past collections and an injunction as to the future.

Plaintiffs did not dispute that they used the water of the Vamsadhara, as alleged. The dispute is, therefore, only whether it belongs to and can be charged for by Government. Government has relied on Section 2 of Act III of 1905 in support of its ownership of the water and Section 1, Act VII of 1865, in support of its right to charge for it. The material portion of the former is as follows:

(1) All public roads, streets, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark and of rivers, streams, nalas, lakes and tanks, and all canals and water-courses, and all standing and flowing water, and all lands, wherever situated, save in so far as the same are the property of any zemindar...or inamdar or any person claiming through or holding under any of them,...are and are hereby declared to be the property of Government except as may be otherwise provided by any law for the time being in force, subject always to all rights of way and other public rights and to the natural and easement rights of other land-owners, and to all customary rights legally subsisting.

And of the latter:

Whenever water is supplied or used for purposes of irrigation from any river, stream, channel, tank, or work belonging to, or constructed by, Government, it shall be lawful for the Government to levy, at pleasure, on the land so irrigated, a separate cess for such water, provided that where a zemindar, inamdar, or any other description of landholder not holding under ryotwari settlement is, by virtue of engagements with the Government, 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.

As regards the first of these enactments, it is not material that it was passed only during the pendency of this litigation in the Court of first instance. For it is, as regards the ownership of water, a declaratory Act, and such Acts have retrospective effect (Maxwell on Interpretation of Statutes, 3rd Edition, page 309). Plaintiffs demur to its application, on the grounds that the Legislature cannot be supposed to have intended (1) to confer a right of ownership in flowing water, a thing not capable of ownership, or (2) to confiscate existing rights of irrigation or to affect them at all, when the purpose of the Act is only to justify charges for the unauthorised occupation of water and land. These objections are invalid. For (1) it is only in the last resort, and for clearer reason than has been shown, that the meaning of the general provision declaring that water belongs to Government can be nullified. For, as regards (1) the Act statedly makes a general declaration that water belongs to Government; and it is only in the last resort and for clearer reason than has been shown that I can construe it by holding that flowing water can belong to no one. And as regards (2) there is no question of taking away existing rights, but only of reserving them and assigning the burden of proof regarding them. The reference to water would be pointless with regard to its occupation as by a boat on it, the example suggested, since nothing makes such occupation chargeable; whilst the inclusion of only a declaration of ownership as to water without a machinery for charging for its unauthorised use, such as is provided for land, is easily intelligible in view of the fact that the requisite machinery in the case of water had already been provided in Act VII of 1865. It will be necessary to return to the provisions of that Act in another connection. At present it is material only that plaintiffs allege no engagement exempting from water-tax the cultivation now charged for and admit that it is not included in the extent referred to in their title-deed as wet. They are, therefore, bound to prove that the water in question is not Government water, that is, that in the words of Act III of 1905, it is the property of a zemindar or inamdar, or a person claiming under one.

The plaintiff''s'' village, Varahanarasimhapuram, is not on the bank of the Vamsadhara river, and the water reached it by the Mobagam Channel which passes through the Urlam zemindari. The judgment of Sankaran Nair, J., refers throughout to the village as part of the zemindari, but mistakenly. For it is, it is admitted, an independent inam village, which was part of the Jalmur Estate and, having been bought in with the rest of that estate about 1808, is now held directly under Government. Mr. Rangachariar for the plaintiffs has accordingly attempted to establish that the water was either theirs or the property of Urlam. He at one time proposed to argue that plaintiffs had easement or other customary rights against Urlam, which would, in some way not explained, justify them in claiming the water against Government. But this corresponded with nothing in the plaint, or, so far as the judgments showed, in the arguments at earlier stages of the case, and we refused to hear it. His contention was then that the water, being the absolute property of plaintiffs or Urlam, was, in the latter alternative, used by plaintiffs in accordance with some arrangement or license by the Urlam proprietor, the nature of which could have no bearing on the material point that the water did not belong to Government and, therefore, was not material for the purpose of his argument. That case is intelligible. It is only to be borne in mind that, so far as it relates to Urlam, proof of nothing less than absolute ownership is essential in order to sustain it. For we have been shown no authority for holding that mere riparian rights, short of ownership of the water, extend to its diversion for the irrigation of land other than that belonging to the riparian owner himself. Section 7, illustration (f), Indian Easements Act, negatives the wider view of such rights. The Calcutta High Court refused in Belbhadar Pershad Singh v. Sheikh Barkat Ali11 C.W.N. 85 to apply the American doctrine on the subject to India. And this Court in Robert Fischer v. Secretary of State for India 2 Ind. Cas. 325 : 32 M.F 141 held that, if the English Law were applicable, the disability of a riparian owner to use water for non-riparian tenements was absolute and did not depend on proof that actual damage was caused by his doing so. Mr. Rangachariar put his case for the ownership of the river water by Urlam on two alternative foundations; and I shall now deal with the first of them.

It was stated by Mr. Rangachariar as follows: When a river, such as the Vamsadhara, flows by a zemindari, such as Urlam, half the river-bed adjacent to the zemindari, and the water thereon belongs to the zemindar, and the other half to the opposite riparian owner, subject to superior riparian rights in the water. The District Judge dealt with this, apparently with the consent of the parties, by a reference to his judgment, Exhibit M in this suit, in another litigation relating to the same river and estate, Original Suits Nos. 37 and 38 of 1904, his finding being that the bed and consequently the water did not belong to Government.

That judgment was, of course, given before the Act III of 1905 and the imposition of the burden of proof on the private claimant prescribed in it became law. It is sufficient that it was based on the rejection of an argument from the alleged tidal and navigable character of the river and an inference as to the ownership of its water from the ownership of the channels conveying them to the irrigated land, which I shall deal with later. It is not, in my opinion, clear that the English and American principles relied on by Mr. Rangachariar, as supporting the ownership by the riparian owner of half the bed adjacent to his holding, can be applied to India, where Government has special rights and as regards irrigation special functions. The Indian authorities dealing with accretion are not relevant, since they are concerned, not with ownership of the river-bed, but with a special method of acquiring ownership in formations in it above water. And I am inclined to share the doubt expressed by Sadasiva Aiyar, J., in Mukkassa Nair Veetiil v. Secretary of State for India 15 M.L.T. 247. A decision on this part of plaintiffs'' contention is however, unnecessary, because I do not think that ownership of the water will follow from the ownership of the bed, or the moiety of it adjacent to the holding.

It is evident that this principle must be scrutinised carefully, before it can be accepted. For its practical application would be most difficult. The right of Government, for instance, to control water for irrigation purposes has been recognised in Robert Fischer v. Secretary of State for India 2 Ind. Cas. 325. cited above, and other cases; but when that right is in question, whether it is general, as founded on authority, or it arises only from the ownership of the opposite bank, how is it to be exercised or limited to the control of only half the water? and how is such limitation to be imposed on opposite proprietors? It is significant that no decisions appear to have been given by the Courts on claims so likely to result in controversy. As regards authority, plaintiffs rely mainly on the early doctrine, embodied in the maxim "Cujus est solum, ejus est usque ad coelum," which is stated at page 78; Coulson''s "Law of Waters," 3rd Edition. But they neglect the learned author''s conclusion, that it is supported by modern authors only as regards standing and percolating water and running water which remains for the whole of its course on the land of a single owner, but that with regard to natural streams flowing through adjoining lands, the enjoyment of which is only usufructuary and not absolute, the right to use the water does not arise from the ownership of the soil on the stream, but from the right of access to it which land owners on the banks have by the law of nature." It will be observed that this statement of the English Law, which I adopt, since it has not been shown to be incorrect, attributes to individuals a right of user in certain circumstances, not of ownership; and I recall the fact that, as observed supra, the establishment of the right to such user will be insufficient to justify Urlam in supplying plaintiffs. The Law in England as regards ownership will be made clearer by a quotation from Embrey v. Owen (1851) 6 Ex. 369:

Flowing water is public juris, not in the sense that it is a bonum vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only that all may reasonably use it who have a right of access to it, that none can have any property in the water itself except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only.

On the English Law plaintiffs have relied almost exclusively, as regards this part o their case, and it does not support the plenary ownership of the water by Urlam, or more than its right of user for cultivation of its own adjoining lands, and not for any supply to the lands of others such as plaintiffs. That is sufficient to negative the case of private ownership, as based on the ownership of the bed and banks, and to authorise the application of the presumption referred to in Act III of 1905. It will be convenient to postpone dealing with the Indian cases, until plaintiffs alternative foundation for the ownership of the river water by Urlam has been considered.

It was stated by Mr. Rangachariar as being that in a permanently settled estate, such as Urlam, where a river flows through or by the estate, the river-bed and waters, to the extent to which they are in that estate, were granted with it to the zemindar in 1803, subject to superior riparian rights.

It is admitted that the Urlam Estate was formed out of haveli lands; that is, lands which, before the Permanent Settlement, were in the possession of no zeminda. There can, therefore, be no question of the existence of any rights, such as zeminiars enjoyed before 1802, in this case; and it can be said at most that rights identical with those of zemindars elsewhere were then conferred. The sanad containing the terms, on which the estate was granted in 1803, has not been exhibited. But it is agreed that it is in the standard form given at page 119, Volume II, Board''s Standing Orders (1907). It is conceded that it supports plaintiffs'' contention in no degree directly. For it refers only to land and land assessment and makes no reference to rivers, or other water-supply, in connection with the grant. The argument is accordingly that, as the references are to land and land assessment or revenue alone, no further payment was to be made on any other account in connection with cultivation and, therefore, none on account of river water. Particular reliance has been placed on Clause 4 by which provision was made for the liability of the estates for payments, in addition to the land tax, for various other articles of revenue, of which water-tax is not one, the inference being that, as such articles are enumerated and the enu meration must be supposed to be exhaustive, the omission to mention water-tax entails that none was leviable. These are the only grounds, on which it is proposed to imply a grant of all river, water for irrigation, past and future, from the terms of the sannad, itself; and they are, in my opinion, inadequate. No doubt ordinary existing irrigation was granted, since payment for one irrigated crop would, in accordance with usage, be included in the total consolidated land tax or peishkush, so far as it was for the wet land in the estate. That peishkush was, as Sankaran Nair, J., has shown in another connection in his judgment, fixed a bitrarily, and it is not possible to distinguish the portions of it payable for irrigation and land revenue proper. But that is the most that can be allowed, or with which authority and revenue practice are consistent. Extraordinary or second crop irrigation and extensions of irrigation are, no doubt, not mentioned in the sanad. But it is not a necessary inference that they also were included in the grant. For the intention may equally have been to charge for them separately, as has, it will be found in some cases at least, been done. As regards Clause 4, the enumeration does not seem to be either exact or comprehensive. It has not, for instance, debarred Government from levying a duty on the possession of arms in zemindaris, or a road and railway cess for the benefit of Local Boards, although neither of these imposts comes within the descriptions of those the right to which is reserved. In Vedanta v. Kanniyappa 9 M. K14 this Court dealt with the clause and the connected section of the Permanent Settlement Regulation XXV of 1802, holding that the dues, then in question, included in the sayer were not exigible by the owners of land as such, but by the Sovereign, and that, whatever the origin of their title, Government intended to treat the zemindars, with whom it effected a Permanent Settlement, as landed proprietors, and to ignore any rights which conflicted with its own sovereignty. And the judgment goes on:

Such a large proportion of the Crown revenues of India was derived from the land, directly or indirectly, that it was difficult for the early British Administrators to separate with precision the revenue which could conveniently be collected by the Crown from that the collection of which could more conveniently be left to those subjects who had exercised the functions of collection under native rule."

and later (page 25).

It cannot be denied that in sanads issued in virtue of the Permanent Settlement Regulation the Government dealt ordinarily only with the land revenue. The insertion in sanads issued by the Government of Madras of a clause repeating the declaration contained in the Regulation as to the exclusion of items of revenue other than the land revenue was surplus sage.... Had the clause been omitted, it could not have been contended that the zemindar was entitled to collect revenue other than the land revenue, because of its omission.

All this enunciates what the wording and matter of sanad and Regulation indicate, that the Settlement proceeded on general lines and that a grant of one item of revenue is not to be inferred from silence regarding it. Such an inference, it must be added, is intrinsically improbable. For whatever the actual irrigation in 1802 under the great deltas of the Kistna and Godavari, it cannot be supposed that their potentialities were overlooked or dealt with by implication, or that, if they had been transferred, there would have been no attempt in the sanad and Regulation, or by some other contemporaneous enactment, to provide for responsibility for their control, or the decision of conflicting claims to their waters. The grant under construction was made by the Crown; and the Rule of construction in point is not, as it was in Balbir Singh v. Secretary of State 22 A. F 96 that applicable to the grants of a particular description of property, but the general rule, that grants by the Crown must be on strued beneficially to it. Vaman Janardan Joshi v. Collector of Thana and the Conservator of Forests 6 B.H.C.R. 191; Collector of Ratnagiri v. Antaji Lakshman 12 B.J 534 and Adusumulli Suryanarayana v. Acchutta Potanna 22 Ind. Cas. 339 : 26 M.L.J. 99. These, the direct and in my opinion, the only legitimate grounds for a decision, because they alone are available from the actual terms of the grant, entail that no grant of the river water to the Urlam proprietor in 1803 is established.

Direct construction of the grant yielding nothing favourable to the plaintiffs, they have endeavoured to support their case further by collateral considerations; and they have, it will be found, made similar attempt in connection with their proposed interpretation of Act VII of 1865. Those considerations consist in the alleged opinions and intentions of Government and its officers at the time of the Settlement, as expressed in various publications. I do not think that they are a legitimate ground of decision with reference to Section 93, Indian Evidence Act, o the general principle that, if "the language of the Statute admits of no doubt or secondary meaning, it is simply to be obeyed, without more." Maxwell on Interpretation of Statutes, 3rd Edition, page 72. Here the fact that the sanad makes no reference to a topic to which it might have referred, does not render its language ambiguous or defective; and the Regulation and Act are, in my opinion, susceptible of a reasonable interpretation as they stand. I, therefore, enter on this branch of the argument solely because it has bulked largely here and in the judgment of the learned Judge.

It is a difficulty of a different kind that the matters in question were (as plaintiffs learned Vakil admits) never relied on at the trial in the District Court or the hearing of the appeal, when Government might have dealt with them by explanation or counter-citation, but were first referred to in the learned Judge''s judgment. The learned Advocate-General has, however, waived objection to them on that ground, claiming only the right to file documents in reply in case, we think, that such reply is required, and filing Civil Miscellaneous Petition No. 1862 of 1915 for their admission. We have not thought them necessary; and we need only add that we felt bound to refuse to allow plaintiffs Vakil to make further references for the first time at this stage in the case to other publications, including Baden Powell''s "Land Tenures" and Volume LXV of "Records printed for the Madras Government."

It is not necessary to reproduce the extracts relied on, as the greater part of them are given in the learned Judge''s judgment. The inference from them must be weak, since they consist in the broadly expressed opinions and pious expectations of bodies so diverse as the Select Committee and the Famine Commission of 1880. The general argument in Court and in the learned Judge''s judgment, so far as it is distinguishable from that based on the terms of the sanad already dealt with, seems to me to require more definite support from evidence than it has been given. In particular the assertion that some zemindars had rights over rivers before the Settlement of 1802 and retained them after it and the attempt to corroborate that by reference to the transfer to other zemindars, of which Urlam is one, of the duty of maintaining and constructing tanks and water-courses in haveli lands, are open to question. For the present dispute which relates only to rivers, which are not mentioned in connection with haveli lands and the ownership of tanks, to which (for all that appears) the water-courses referred to may have been appurtenant, and of the water in them would be subject to quite different considerations, with which we are not concerned. For the rest, only three conclusions, which, in my opinion, require notice, have been drawn from these materials and I do not think that they in any way probablise the grant of river waters alleged. They are that (1) renters were expected to develop the lands entrusted to them by improving the channels and other works transferred to, or left in, their control; (2) it was hoped that cultivation would be extended over land waste at the time; (3) there was an impression that the existing supply of water would be continued. But as regards (1) it has still to be decided, with reference to the authorities to be referred to, whether the assignment to renters of the duty of maintaining channels would involve any exemption of water flowing through them from charge, or any transfer of its ownership; (2) if an extension of cultivation was anticipated, it did not follow that the renter''s profit was to accrue from his charging for water and not merely for the land and, unirrigated cultivation being common throughout the Presidency it need not have been assumed that the new cultivation would be irrigated or would be irrigated gratuitously; and (3) if the continuance of existing irrigation was secured, that did not entail the grant of free additions to it. On the other hand, if evidence of this description is to be considered, it is significant that no more direct reference to anything approaching a plenary grant of the river water has been found, if one in fact was made, and that the one statement regarding irrigation works in the Instructions to Collectors, that at page 331, Fifth Report, refers only to tanks and water-courses, not to rivers, or works on them. In these circumstances I do not think that this line of argument, if admissible, assists plaintiffs appreciably.

There is, next, a contention that Act VII of 1865 is either inapplicable to charges for river water in zemindars and inam, villages, or that its wording is consistent only with a grant of rights of ownership in river water to zemindars and inamdars before its date, on the grounds that (1) the Act was passed in view of the necessity for realising returns from the lately constructed Kistna and Godavari anicuts and not in order to charge irrigation from private sources, where no improvement in or addition to those sources had been made; (2) it applies to rivers in ryotwari tracts only, not in zemindaris.

As regards (1) I do feel at liberty to interpret an Act the body of which is clearly and comprehensively expressed, with reference to the alleged motives of the Legislature. We have been referred to the preamble; but it can be treated as indicative of the scope of the Act, only when legitimate doubt regarding the latter arises from the uncertainty of its terms; and I feel none here. Moreover, it is not clear that the preamble in this case justifies any conclusion. It, no doubt, refers to the necessity for "a fit return" being made to Government "on account of the increased profits derivable" from works constructed or improved by it. But the reference to both drainage and irrigation works, as the preliminary to provisions which authorise a charge only for irrigation, makes it doubtful whether any accurate statement was attempted; and in the absence of any subsequent provisions for the calculation of the charge to be imposed with exclusive reference to the expenditure on some new work or improvement with which the irrigation can be connected, it is impossible to hold that the right to charge is restricted to cases in which such connection can be established, or that other cases were intended to be exempt because of a previous grant of river water or for any other reason.

Then as to the alleged restriction of the operation of the Act to charges for river water in ryotwari tracts, that again is based solely on inference, though it would have easily been susceptible of direct expression. It is urged that Section 1 must not be read as applicable to zemindar is and inams, because, but for its proviso, it would authorise the charging even of irrigation in respect of which an engagement with Government exists, a result so unjust that the Legislature cannot be supposed to have contemplated it, and that the proviso is useless to exclude this result, because it cannot apply to irrigation in zemindaris and inam villages, since the term "supplied," which is used in it, not "supplied or used" as elsewhere in the sections, is inappropriate to those tracts, inasmuch as it connotes a previous request for water which zemindars and inamdars do not and need not make. This attenuated line of construction must be distrusted, if only because its acceptance would leave it doubtful what class of cases the proviso was framed for. But in fact it rests entirely on the distinction between supply and use drawn in Venkatappayya v. Collector of Kistna 12 M. K 407 and Krishnayya v. Secretary of State 19 M.K 24. It is not necessary for the present purpose to consider whether those decisions were correct. For they dealt with ryotwari cultivation in the Kistna District. In that district, as I shall show immediately, Government was at that date insisting on its rights, and under the rules for levy of water cess on zemindari and inam lands in the Kistna and Godavari deltas at page 2, Board''s Standing Orders, Volume II (1907), land-holders or the cultivators under them immediately concerned were being required to submit previous applications for the use of water. The interpretations of the term "supply" and the distinction now relied on between it and "use" would, therefore, have had no such implication in the district in which these decisions were given as that now suggested; and it may be doubted whether they would have been adopted if the cases had come from other districts, such as Ganjam, than now in question. I, therefore, find no difficulty in applying the proviso generally to land irrigated under an engagement and the Act, as a whole, to river irrigation in zemindaris and inam villages.

Something has been said, in this and other connection in argument and in the learned Judge''s judgment under appeal, of the history of the relations between Government and the zemindars. It is argued, for instance, that the "engagement" in the proviso just referred to cannot have been merely for the exemption of lands cultivated wet in 1865, because it would have been impossible to distinguish for that purpose the extent of wet cultivation on which,'' with other assets, the peishkush was fixed in 1803. In some cases again it is known to have been fixed then on the extent of cultivation as ascertained before 1786; and it is not to be supposed that the increase between that year and 1802 would have been left out of the calculation, if the extent in 1802 had been intended to bind the zemindar or Government in future. And similarly, to quote the learned Judge, "if the zemindar is now made to pay cess for the excess area(over that allowed as wet at the Settlement), he cannot now localise the area, if any, then under cultivation, so as to demand their contribution from the tenants of the excess area." And reference has also been made to the failure of Government in this case to make any demand for many years up to 1894. These arguments, however, are not relied on as supporting any plea of prescription or estoppel against Government, but as relating to conduct which will throw light on the meaning of the sanad, Regulation and Act and the meaning of "engagement" in the last mentioned; and I deal with them only on that basis, and, as before, rather because the learned Judge has relied on them than because they are, in my opinion, admissible. Firstly, as to peishkush, the particular facts referred to by the learned Judge appear to have been among those imported into the case in his judgment. But, accepting them as given, I cannot, with all respect, see how they prove more than that the peishkush was fixed in some zemindaris in more and in others in a less arbitrary way; and I cannot, even in the case of the latter such as Pittapur, draw any inference from the omission to bring sixteen years'' wet cultivation into the calculation. It is common ground only that at least wet cultivation existing before 1802 was included in it and became exempt from separate charge. When the calculation was, it is admitted, in all cases inexact and differed only in the degree of its inexactitude, it is conceivable, as matter of conjecture, that either, as plaintiffs contend, the potential right to the use of water in the future was included in the grant, or that it was reserved to be the subject of future arrangement, which was never made. But the choice between these two theories must then be made on the considerations already set out. It would appear to be true that no effort was made contemporaneously with the Permanent Settlement to identify and register, that is to localise, the particular fields entitled to irrigation at its date. The omission was, no doubt, unfortunate and has led to litigation, and the hardship may, no doubt, be real as between the zemindar and his tenants, when the former has to select from the latter the individuals from whom he will recover what he has paid to Government. But similar hardship must ensue and presumably is taken into account in connection with every Statute by which the burden of proof is placed on the subject against Government and has to be discharged after the lapse of years; and that fact cannot justify the Court in presuming, or accepting inadequately supported inferences in support of a grant, of which direct evidence is wanting.

There is, moreover, evidence available, which, if this line of argument is legitimate deserves consideration, since it consists in rules published by Government, which are, it is to be presumed in the absence of anything to the contrary indicative of the extent to which Government has claimed and zemindars and inamdars have acquiesced in a restriction of free irrigation, irreconcilable with these arguments. The theory of a grant of free irrigation from rivers in 1803 was, no doubt, stated by Mr. Rangachariar, as I gave it above, as confined to those zemindar is through which the river in question flows. But that restriction was frequently lost sight of in argument and does not appear to have been recognised in the judgment under appeal, the contention dealt with in it being for a general grant in 1802 of existing irrigation and such further irrigation as might ever be made available, without reference to the proximity of any part of the zemindari to the source. And naturally so. For the restriction can have no logical foundation when the grant is not supported with reference to riparian ownership and every argument for it which has been adduced would be equally valid, if the broader statement in the learned Judge''s judgment had been in question before us. It will then be materially against plaintiffs, if it can be shown that some zemindaris have been subjected to the charge for water for many years inconsistently with the grant which they allege as made to all and with their interpretation of Act VII of 1865. That, however, his been the case as regards the large zemindaris, including Nuzvid and Pittapur in the Kistna and Godavari Districts, under rules published originally, in 1861, and re-published last in 1906, which are printed in the judgment of Sankaran Nair, J., in Zamindar of Kapileswarapuram v. Secretary of State 26 Ind. Cas. 590 Board''s Standing Orders Volume II (1907). Rule 10 of the original rules and Rule 6 of the later, no doubt, restrict liability to water-tax payable on lands charged as irrigated at the time of, or possessed of means of irrigation before, the construction of the anicuts. But the reason for this restriction, the effect of which was discussed in the case above mentioned, is presumably to be found in the difficulty, already referred to, of determining what land was nd was not irrigated at the date of the Permanent Settlement, not in any consciousness that land newly irrigated since it would not have been liable to charge in consequence of the zemindar''s ownership of the river water. For if that ownership had been tacitly admitted, it would have been impossible to do what the rules certainly provide for; that is, to treat zemindars as liable for any charge for river water at all. It is not, it should be pointed out, possible to regard the charge under the rules as made in consideration only of the part played by the anicut in making the water available and as supplementary to a water rate imposed and retained by the zemindar on account of the water itself. For, it is not suggested and it is not, I believe, the case that any such payment is made to the zemindar by the actual cultivator, though evidence of such a payment should have been available to support plaintiffs'' argument, if it corresponded with facts. Moreover, the tenancy law in force at different times in the Presidency, Section 11(4), Act VIII of 1865, and Section 30(3) and 33, Act I of 1908, would discountenance such a pretension on the part of the zemindar; vide also Bachu Ramesam v. Nukala Bhanappa 7 M.K 182 and Narasimha Naidu v. Ramasami 14 M.K 44. When, as is the case, the grant in 1803 is alleged as founded throughout the Presidency in the same manner, the fact that it has been formally negatived by practice in two districts, in which the rights of Government have been continuously asserted, is against its validity in others, where they have not.

The conclusions reached are against the establishment of the alleged grant in 1802 either directly or indirectly with reference to the wording of Act VII of 1865, or, if the evidence is admissible, the conduct of Government and the expressions of contemporaneous opinions and expectations relied on. It remains to deal shortly with the cases, so far as they are in point, with reference to each of the foundations on which plaintiffs'' claim has been argued, the ownership by Urlam of the river-bed and the grant. I have reserved both classes of cases for treatment together, because both are subject to the same observation, that they rather show the vexed nature of the questions in issue than support the existence of a current of affirmative authority in respect of them. For the earlier really decide very little and the later contain hardly any attempt to reconcile the conflicting opinions, which have been expressed.

The only early case as to the claim based on ownership of the river-bed is Narasimha Sastrial v. Secretary of State 1 M.L.J. 167. In it the claim, as originally made, was as wide as plaintiffs''. But in second appeal that was abandoned, and the decree allowed merely the right of a riparian proprietor to a reasonable use of the water. The legitimate extent of such reasonable use was not defined; there is nothing to suggest that it included what plaintiffs here require, the right to irrigate the land of others; and the fact that Government claimed only the right of a lower riparian proprietor is immaterial, since a wider claim would have resulted in no more favourable decision. On account, it may be, of some systematic and novel attempt by Government to assert its rights, the other decisions on this part of the argument and the majority of those relating to the grant date from 1908. Robert Fischer v. Secretary of State for India 2 Ind. Cas. 325 : 32 M.K 141 : 5 M.L.T. 149 : 19 M.L.J. 131 recognised the paramount right of Government without reference to Act III of 1905, not only to regulate river water, but also to ownership in it, since, after deciding that any surplus of water after the zemindar''s customary requirements had been satisfied was at the disposal of Government, the learned Judges held that the paramount right of Government under the law of the Presidency was independent of the ownership of the bed of the stream, In Secretary of State for India v. Nautheswarar 6 Ind. Cas. 199 : 7 M.L.T. 407the plaintiff was an inamdar, but it is admitted that his rights would be identical with those of a zemindar; and it was held immaterial that the natural stream, which was in question, had been swelled by rain water. The conclusion was in favour of Government, and it was observed that Act VII of 1865 is not based on any theory of the ownership of the bed of a water-course being the foundation of a right to use the water free of charge. Kandukuri Mahalakshmamma Garu v. Secretary of State for India 8 Ind. Cas. 67 was decided in appeal against the judgment in the case already referred to, as containing the District Judge''s finding on this point, and is statedly dissented from by Sankaran Nair, J. in his present judgment. The conclusion in favour of Government is based on Act III of 1905 and a statement that the owners of land on the river banks do not own its water. So far the current of authority is clearly in favour of Government. But in Secretary of State v. Kannapalli Vencataratnammah 15 Ind. Cas. 594 : (1912) M.W.N. 771 the Court decided for plaintiff, on the ground that the ownership of water from a Government source followed the ownership of a branch channel by which it was conveyed. Ambalavana Pandara Sannadhi v. Secretary of State 15 M.L.J. 251 was referred to, but in it the ownership of the branch channel was not established and it was unnecessary to consider what its effect on the ownership of the water would have been. So far as Secretary of State v. Kanuapalli Vencataratnammah 15 Ind. Cas. 594 : 23 M.L.J. 109 : (1912) M.W.N. 771 is in point (for it refers only to a channel carrying Government water, not to a river), its authority is impaired by the fact that it does not take account of Act III of 1905, or the reference to water, as well as water-courses, in it and makes no reference to other cases already mentioned. In Secretary of State v. Ambalavana Pandara Sannadhi 18 Ind. Cas. 37 M.K 369 note the judgment adopted the positions as to the effect of Act III of 1905 and the connection between ownership of the river-bed and water now under consideration, though it may be observed that the finding as to the plaintiffs'' right to water sufficient to fill his tanks would have been ground for a decision in his favour. Vide Maria Susai Mudaliar v. Secretary of State 4 M.L.J. 350. Lastly, there is the judgment of Sankaran Nair, J, in Secretary of State v. Simhadri Jaghapathiraju 26 Ind. Cas. 692 to the same effect, whilst the other learned Judge concerned, Spencer, J., did not, if I understand him correctly, express a definite opinion on either point. The safe conclusion from these authorities is, I think, only that the theory of a connection between the ownership of the river-bed and water is of recent, growth and that the affirmative reasons which are necessary in order to support it and to displace the earlier decisions have not been given.

The first case relied on as supporting a grant in 1803 is Ponnusawmi Tevar v. Collector of Madura 5 M.H. C. R. 6; and there is, no doubt, some language used, particularly in the judgment of Innes, J., which implies that a transfer of the right to use the water in a channel was the basis of the decision. But he connected that transfer, not with the Permanent Settlement, but with the acquiescence of Government in the plaintiff''s enjoyment of what had become a customary right. And there is a caution to be observed in the application of this and other cases to the question before us, that references to and findings in favour of a right to water do not necessarily relate to water free of charge, or deal with more than the right to water from a particular source or provided in a particular way. Thus in the case under consideration the plaintiff''s right to free irrigation was never disputed, Government alleging that other sufficient provision had been made for it; and the decision is, therefore, irrelevant to the present argument. In Maria Susai Mudaliar v. Secretary of State for India in Council 4 M.L.J. 350 and Secretary of State for India v. Ambalavana Pandara Sannadhi 8 Ind. Cas. 357mittahs, parts of zemindaris granted in 1803, were in question, the irrigation being by artificial channels taking off from rivers; and these cases are relied on by the plaintiffs, though the estates were not riparian. But the rule laid down in general terms gave no support to their contention, since it was that the only undertaking to be implied from a grant of land by Government is one to supply water free of charge to the extent of the accustomed flow at its date, that flow in the earlier case being measured by the capacity of tanks, which the proprietor was entitled to fill, and in the later by the extent of land irrigated. In Secretary of State v. Ambalavana Pandara Sannadhi 18 Ind. Cas. 294 note there is nothing to show whether this principle was referred to in argument; and it is not referred to in the judgment, parts of which appear inconsistent with it. The argument based on a grant in 1803 made its first clear appearance in Kandukuri Mahalakshmamma Garu v. Secretary of State for India 8 Ind. Cas. 67 in which in fact the Urlam proprietor was plaintiff; and it is significant that it was postponed so long. It was rejected shortly, the Court describing the only engagement involved in the Permanent Settlement as it was described in Secretary of State v. Ambalarana Pandara Sannadhi 18 Ind. Cas. 37 M. 369 note and as it has been earlier in this judgment, "that the peishkush being fixed with reference to the area under irrigation, no further charge for the use of water should be made in respect of that area." There is next the judgment of Miller, J, in the case before us in favour of Government. Zamindar of Kapileswarapuram v. Secretary of State 26 Ind. Cas. 590 note relates to the Kistna District and has already been discussed. My conclusion is that the recognition of a grant in 1803 is of recent date, though it is not clear how far the earlier decisions incompatible with one were given after any such full argument for the contention as has subsequently been put forward. In the circumstances I can only hold that authority, if it does not support, is no obstacle to the decision I have come to.

The result is that neither the right of Urlam to the river water, whether as founded on ownership of the river-bed or on grant in 1803, nor plaintiffs'' right, so far as it is alleged to be derived from Urlam, has been established. The presumption in favour of Government ownership, authorised by Act III of 1905, must, therefore, be made.

The remaining ground, on which Mr. Rangachariar argued the case, was an assertion of plaintiffs'' direct ownership of the water. In consequence of the misapprehension of their position by the learned Judge, it is not distinctly referred to in his judgment; but it was stated before us as being that, where there is a channel taking off from a river and it is at the time of Settlement part of the irrigation system of the estate, then, whether or no that channel runs entirely through the estate, it and all the water in it belong to the estate, subject to the customary right of others. In the present case the Mabagam channel, that in question, no doubt, runs through the plaintiff''s inam village after running through part of the Urlam Zemindari and before running through a Government village. But then we have the finding of the learned District Judge, which we have been shown no reason for dissent from, that there is practically no evidence to show that the channel was dug by plaintiffs'' ancestor, or that any repairs were executed by them or their fellow-inamdars on it, or of any title of plaintiffs or their ancestor to it. In these circumstances it is impossible to hold what plaintiffs'' argument requires, that the channel is part of the irrigation system of their village. Further, if any part of the channel were plaintiffs'' property, the conclusion already reached, that the river water is the property of Government, would be valid against them; and we have been shown no reason for holding that Government water becomes the property of any individual who succeeds in bringing it into a channel on his land. That position would, no doubt, be justified directly by the case of Secretary of State v. Kannapalli Venkataratnammah 15 Ind. Cas. 594: (1912) M.W.N. 771 already referred to, and indirectly perhaps by other cases which I have declined to follow. It is, however, negatived by the statement in Kandukuri Mahalakshmamma Garu v. Secretary of State for India 8 Ind. Cas. 67:

It does not follow, because the zemindar provides the necessary channels to enable the irrigation of the zemindari lands, that although those channels carry water supplied from a river or channel belonging to the Government, the irrigation is nevertheless exempt from, watercess; and the same conclusion is also supported by other cases among those already dealt with. It is to be observed that the plaintiffs have not and probably could not have based their right to water without charge as distinguished from mere supply of water, on custom. The decision on plaintiffs'' claim, as based on their own independent right to free water, must also be against them.

I would for the foregoing reasons allow the appeal, dismissing plaintiffs'' suit with costs throughout.

Sadasiva Aiyar, J.

It is unnecessary for me to state in detail the facts and contentions fully set out in the judgment of Sir Sankaran Nair, J., under appeal.

I might begin by saying that when two very learned Judges (Sir Leslie Miller and Sir Sankaran Nair have differed on a question of law, after each of them had bestowed an extraordinary length of consideration to the matter, it is with great diffidence that I express my own opinion on the question on which they have differed.

I wish in the first place to clear the ground by a few short remarks on questions which are not either relevant or very remotely relevant to the points to be decided in this case and also on certain arguments advanced on both sides, which, to my mind, are of dubious soundness.

(A.1). The proviso to Section 1(b) of the Madras Act VII of 1865, which refers to engagements with the Government by zemindars, inamdars or other landholders, need not be considered in this case. [What the engagement of a zemindar or inamdar with the Government is, how it is to be ascertained, whether the area mentioned in an inam title-deed as wet is binding on the inamdar or the Government and several similar questions connected with this matter have been considered in numerous cases, of which the latest was decided by my Lord the Chief Justice and Mr. Justice Srinivasa Aiyangar about ten days ago in Secretary of State v. Sri Perarulala Ramannja Geer Swamigal 30 Ind. Cas. 605.

(A.2). A historical retrospect of the relations between the Government and the zemindars, between the Government and their ryotwari tenants, between zemindars and inamdars, between zemindars and their ryots, between the inamdars and their tenants, of the conflicting claims as to the ownership and proprietary rights over the soil made by each of these parties, of the claims to communal lands and so on and so forth, seems, in my opinion, to be of little assistance in arriving at a true view of the provisions of the Statute and Case-Laws which now mostly govern the rights of these parties. Historical deductions almost always differ according to various idiosyncracies, syampathies and prejudices of the students of historical data. Further, the rights of zemindars, as they once existed or are alleged to have existed, cannot affect for better or worse their present rights. I am, therefore, unable to agree with the argument of the Advocate-General based on historical data that a zemindar has now no proprietary right in the soil of the lands enclosed within his zemindari limits, the argument being that as at onetime he was a mere farmer of revenue under the old indigenous Governments, his claim to proprietorship of the soil of poramboke lands should be now negatived. Nor do I attach much weight to the contentions of Mr. Ranga chariar based on the sovereign rights which are alleged to have vested once upon a time in zemindars, such sovereign rights being alleged to include absolute powers of disposal of all lands within their territories. Regulation XXV of 1802, Section 2, vests the proprietary right over the land within a zemindari in the landholder, although that proprietary right may be subject to the communal rights of the villagers and to the occupancy rights of ryots, all which rights are now protected by Statute Law, that is by the Estates Land Act and other Acts. Numerous cases both in this Presidency and in Bengal) where permanent sanads were issued in practically the same form as in Madras) decided by the Privy Council and by the High Courts of Madras and Calcutta have established the rights of the owners of permanently settled estates over the beds of the rivers passing through their zemindari, over the forest lands and hills, and over the mines and minerals found within the zemindari, and over the tanks and the fisheries in the tanks and over the waters therein, that is, they have, in my opinion, established the rights of the zemindars as proprietors of the poramboke lands within their zemindari limits. The inam title-deeds for whole inam villages granted by zemindars prior to the Settlement and confirmed by the Government (both prior to and at the time of enfranchisement) also vest the proprietary right in the poramboke lands (in inam villages, subject, of course, to the customary rights of the ryots and residents) in the inamdars; and the Case-Law has, in my opinion, uniformly recognised that right, of the zemindars and inamdars. The judgment in Kandukuri Mahalakshmamma Garu v. Secretary of State for India 8 Ind. Cas. 67 has accepted this position, so far as proprietary rights over poramboke lands are concerned. See also Po nusawmi Tevar v. Collector of Madura 5 M.H.C.R. 6 and Narasimha Sastrial v. Secretary of State 1 M.L.J. 167.

(A.3). The consideration of the questions whether the Government could have intended to be guilty of so much harshness and oppression as would result if a particular Statute were to be interpreted in one way, and whether the Legislature could have intended such a sudden change in the law as would result from a particular interpretation, the consideration of these questions, in my opinion, is of doubtful utility unless the words of the Statute are so very ambiguous that it is legitimate to resort to such extraneous considerations. Speaking for myself, I am not satisfied that there is in this case justification for resort to such extraneous considerations. Further, what might be deemed harshness and oppression on the part of the Government by a mind holding conservative views as regards the sacred rights arising from individual property in land might be considered by a mind with socialistic leanings (socialism, except of the very extreme kind, not being a heretical doctrine in these days) as the proper beneficial exercise by the Government (representing the public communal interests) of its right to get the benefit of unearned increments and of the performance of its duty to utilize the sacred inalienable claims of the people as a whole to the common enjoyment of the benefits arising from all the lands within a State. I shall, therefore, dismiss from my mind the arguments of Mr. Rangachariar based on the alleged glaring iniquity and injustice of trying to get some more revenue out of zemindars and inamdars after the solemn promises alleged to have been made to them by high officers of Government several decades ago.

(A.4).Further, I do not feel much pressed by the wide language used in old English cases and relied on by Mr. Rangachariar as to no individual human being being entitled to claim, ownership of flowing or standing waters, as water standing on or flowing over land (in this respect resembling the air of the atmosphere) cannot be made the subject of ownership until it is separated in vessels or solidified into ice and severed and appropriated as a moveable Mr. Rangachariar quoted English text-books and cases in support of his contention. Under the old English Common Law, it seems that as water is neither land nor tenement, it cannot be sued for separately in a real property action under the name of water or by measure, so long as it is standing on or flowing over land, although the land which underlies it may be the subject of a Common Law action. I think that references to the technicalities of English Common Law actions merely tend to confuse the mind when it has to decide on the rights of Indian litigants. I shall, therefore, not deal with the arguments based on antiquated forms of action. The Indian Legislature in Madras Act III of 1905 has made reference to the "property" rights not only of Government but of zemindars, inamdars, Government ryots, Malabar jenmis, etc., in standing and flowing water, and Indian Courts must recognise such "property" rights so far as they are recognised by the Indian Legislature. Further, the use of the wide words "owner", "property" and "proprietor" even in the case of lands has led to great confusion in the determination of occupancy and other rights, as pointed out by Sir Subrahmania Aiyer, J., in the Cheekati case Cheekati Zemindar v. Ranasooru Dhora 23 M.K 318.

(A.5). There were some arguments advanced at the Bar on the question whether the words "river," "stream" "channel," and "tank," found in Section 1(a) of the Madras Act VII of 1865 meant (1) the bed, banks and the volume of waters taken together in the river, stream, channel or tank, or (2) whether it meant the bed alone, or the bed and banks alone of the river, stream, channel or tank, or (3) whether it meant only the collection of the waters in the river, stream, channel or tank. I think Clause (b) of Section 1 of that Act which speaks of water from any such river, stream, channel or tank," clearly indicates that the words "river, stream, etc.," are used in the sense of the collective body of waters which are called river, stream, channel, or tank according to the respective configurations of the receptacles. The judgment in Kandukuri Mahalakshmamma Garu v. Secretary of State for India 8 Ind. Cas. 67 also takes the above view.

(A.6). The question whether, in a case where the irrigating waters, though flowing over or standing on zemindari or inam land, have been assisted in their beneficent work of irrigation by a work belonging to or constructed by Government" (see the preamble and Section 1(a) of Act VII of 1865), the Government can impose water-cess does not arise in this case (while it arose, though only very partially, in the Urlam case, as pointed out in the judgment under appeal). The finding of the District Judge in this case (not disputed before us) is that no such work has been constructed by Government in connection with the Mobagam Channel, or with the branch channel, till it leaves the inamdars limits.

(A.7). Lastly, on the view I take of the facts of this case, it is also unnecessary to decide on the meaning of the word "supplied" in the first proviso to Section 1, Clause (b), of Act VII of 1865. I might, however, say that I do not agree with the interpretation of that word given in Venkatappayya v. Collector of Kistna 12 M.K 407 and Krishnayya v. Secretary of State 19 M.K 24 namely, that the word "supplied," when used in connection with water-supply, implies a previous request by the owner of the land which is supplied with water. As far as water-supply is concerned, rivers, streams, channels and tanks are usually spoken of as supplying fields irrigated under them with water for such irrigation and the idea of a request to the source of supply is inadmissible in such cases. The argument based on the Legislature not having, in the Amendment Act of 1900, changed the word "supplied," judicially interpreted as above in Venkatappayya v. Collector of Kistna 12 M.K 407 and Krishnayya v. Secretary of State 19 M.K 24 does not convince me that the Legislature adopted that interpretation, as those cases related to water supplied to ryotwari lands and the amendment of 1900 fully established the rights of Government to levy assessment in respect of water even involuntarily supplied to such ryotwari lands. One other question may be shortly considered here. Assuming that the beds of streams and rivers, flowing between banks, both of which belong to a zemindar or an inamdar, are the property of the zemindar or inamdar and assuming that the waters standing on or flowing over such beds within the limits of the zemindari belong to the zemindar or the inamdar (subject, of course, to the rights of lower riparian ryot in natural rivers and streams, and subject to the ownership over those waters ceasing to exist in the proprietor; on the waters leaving such limits by evaporation or by flowing away) the question is whether, when one of the banks alone of a stream or river belongs to a zemindar or an inamdar, he is entitled to half the bed of the river or stream on his side. The rule of English Law no doubt is that such half along the length bounded on that one side by the riparian owner''s land belongs to that riparian owner, provided of course the river is not a tidal or navigable river. But is that also the Indian Law in all cases P In the case in Mukkassa Nair Veettil v. Secretary of State for India (1914) M.W.N. 521. I ventured to express an opinion that the Indian Common Law did not recognise this alleged right of the owner of the land in ryotwari tracts or in Malabar which are not under the Permanent Settlement to half the breadth of a highway, or to half the breadth of the bed of a river adjoining such land. I am still inclined to hold that the historical incidents and peculiar feudal tenures connected with English real property law (which was probably further affected by notions derived from the Roman Law) may have had much to do with the establishment of the doctrine that the soil of highways and of the beds of natural waterways belong in equal half-breadths to the owners on both sides. I think that the Indian Common Law vested such rights in the village community as a whole within the village limits and in the Sovereign power as representing the community in other places. However, I think it is too late to question the applicability of this English Law so far as the beds of non-tidal and non-navigable rivers and streems bounded by zemindari and whole, inam lands are concerned as the case-law has established such rights in favour of the zemindar and inamdar.

Mr. Rangachariar, if I understood him aright, would not admit the right of the Government even to beds of rivers bounded by ryotwari'' lands on both sides. I can only say that I have never in my pretty long experience come across any case in which a ryotwari tenant-owner under Government has ever disputed the right of Government to dispose of islands thrown upon the bed of the river bounding his land, or to make reclamations by planting with reeds (nanal) or otherwise from the bed of the river close to its banks and to grant such reclamations to anybody they like, Ryotwari lands stand on an entirely different footing from zemindari and inam lands, as Government has not lost proprietary rights over ryotwari lands. That ryotwari land cont