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Judgment
Miller, J.—The learned Advocate-General argued only two questions at the Hearing of the appeal--
(1) Whether the suit is barred by limitation and
(2) Whether the water-cess was properly levied by reason that the Vamsadhara river is a river belonging to the Government.
As to the first question, it is not denied that if the suit id a suit to establish a periodically recurring right, a suit, that is, to which Article 131 of the
second schedule of the Limitation Act of 1877 is applicable, then it is barred; but it is contended that that article does not apply and that a cause of
action arises on each occasion on which the cess is demanded.
This contention is supported by Sriman Madhabushi Achamma v. Gopisetti Narayanasawmy Naidu ILR (1910) Mad. 171 and the case therein
referred to, Gopaladasu Garu Vs. Perraju, in fact, it seems to me that if those cases are rightly decided the respondents contention must prevail.
The Advocate-General did not succeed in satisfying me that Sriman Madhabhushi Achamma v. Gopisetti Narayanasawmy Naidu ILR (1910)
Mad. 171 can be distinguished. Following that case I must hold that the suit is not barred.
On the second point Munro, J., and I in Kandukuri Mahalakshmamma Garu, Proprietrix of Urlam v. The Secretary of State for India ILR
(1911) Mad. 295, have held as a matter of law on the facts put before us in that case that the Vamsadhara is a river belonging to the Government:
Mr. Nagabhushanam did not on this point lay before as any facts which were not before the Bench in Kanduhuri Mahalakshmamma Garu,
Proprietrix of Urlam v. The Secretary of State for India ILR (1911) Mad. 295 but argued as a matter of law that the decision in tmat case is
wrong. It has however been followed by another Bench and has not yet been overruled by a Pull Bench or a Higher Court; till that is done it is in
authority which I ought to follow, and I follow it.
Mr. Nagabhushanam presented for our consideration some evidence as to the repair and control of the Mobagam channel by the Urlam
zamindar. That evidence, it seems to ''me, does not affect the case; it might perhaps be evidence in favour of the zamindari of a contract with the
Government, but does not help the plaintiffs, who do not allege any contract with the Government for the supply of water.
I would allow the appeal and dismiss the suit with costs in both courts.
Sankaran Nair, J.
This is an appeal by the Secretary of State for India in Council from the judgment and decree of the District Judge of Ganjam, by which, it Was
declared that the Government are not entitled to levy any water-cess from the plaintiffs for having cultivated their lands with the waters of the
Vamsadhara river and the Mobagam channel. The plaintiffs are the inamdars of the village of Varahanarasimhapuram paying a quit-rent to the
Zamindar. Their case is that the lands iu their village were irrigated by the Mobagam channel which convoyed water to their lands from the
Vamsadhara river. They alleged that they have been cultivating their lands from time immemorial with this water and that the Government have
illegally collected from them since 1894 water-cess under Act VII of 1865 for the water from this channel used for converting dry lands into wet
and for raising second wet crops on lands which were already under wet cultivation. They therefore prayed for a declaration of their title alleged
and an injunction to enforce such declaration, and also for the recovery of the amount illegally collected from them. The Government pleaded that
the Vamsadhara river is a Government source of irrigation and that the Mobagam channel is the property of Government. They also pleaded that a
right to the free use of water supplied from a Government source cannot be acquired by immemorial user bill; can be acquired only by virtue of an
engagement with Government and that there was no such engagement with the plaintiffs. The defendant also pleaded that the payments made by
the plaintiffs were voluntary and not therefore recoverable and that the suit was barred by limitation. The District Judge held that the payments
were not voluntary and there was no limitation bar; on the merits, he held that the plaintiffs have failed to prove that the Mobagam ^channel was
constructed by their ancestors as alleged by them; and that before 1803 it was the property of Government but that in 1803, when the Urlam
estate was granted to the predecessor-in-title of the present Zamindar, the Mobagam channel was also granted to him. As to the Vamsadhara river
he found that the Government had failed to prove that it was tidal and navigable, and he was further of opinion that, even if it was a tidal and
navigable river that would make no difference with reference to the claims advanced by the plaintiffs. On the questions of law which were raised,
he held that the plaintiffs were only entitled to claim any rights relating to the irrigation of the lands which were recognized by the title-deeds and
according to them their right to irrigation must be limited to a single wet crop on the wet lands. He also held that, even if the plaintiffs had acquired
a prescriptive right to the use of water as against Government, this would only debar the Government from interfering with the supply of water but
would not affect the right of Government to charge water-rate for wet crops, as he was of opinion that such right is only limited by any engagement
with Government under Act YII of 1865, and the title-deed showed no such engagement in this case. However, on the finding that neither the
Vamsadhara river nor the Mobagam channel was a Government source of supply he decreed the plaintiffs'' claim. Against this decree the
Secretary of State appeals.
The appeal was first argued before Munko, J., and myself by the then Advocate-General, Mr. Sivaswami Ayyar. The questions of law in this
case were argued before me and Abdur Rahim, J., in another Second Appeal by Advocate-General Mr. Napier and finally the appeal was again
re-heard by Miller, J., and myself when the Advocate-General Mr. Rosario argued the case on behalf of the appellant.
As to the voluntary nature of the payment, I cannot help expressing my regret that the Government ever put forward the plea that the plaintiffs
are not entitled to recover the amount paid-by thorn and which would have been collected from them by the Revenue Officials by coercive
processes if they had not ''.paid, even if they establish their title alleged by them and the illegality of the demand on the ground that it was a
voluntary payment. It was given up in this Court as the question , had been decided in. Kanduhuri Mahal akshmamma Gam, Proprietor Urlam v.
the Secretary of State for India ILR (1911) Mad. 295, following Sriman Madhabushi Achamma v. Gopisetti Narayanaswamy Naidu ILR (1910)
Mad. 171. I also hold that the suit is not barred by limitation. I now proceed to consider the main question.
The facts found by the District Judge were scarcely disputed in appeal by the Advocate-General on either occasion, and as to the questions of
law reliance was placed upon a decision of this Court in Kanduluri Mahalahshmamma Garu, Proprietor Urlam v. the Secretary of State for India
ILR (1911) Mad. 295. The suit out of which that appeal arose was also tried by the same District Judge. It had reference to the claims of certain
proprietors to irrigate lands from the same river and channel, i.e., the Vamsadhara and the Mobagam, and if the conclusion therein arrived at is
right, it is conceded that this judgment under appeal cannot be supported. As no further arguments were adduced on behalf of the Crown in
support of those conclusions than those contained in that judgment, I shall state briefly the grounds of decision in that case. The learned Judges
therein pointed out that u/s 2 of Act III of 1905, subject to easement and natural and customary rights of landholders, all standing and flowing
waters which are not the property of any one else are the property of Government. Vamsadhara river being undoubtedly a natural stream and the
waters of that river in their opinion not belonging to any one else, it followed that the body of water forming the river is the property of Government
and from that it followed that the river itself belongs to the Government.
They found on the evidence, agreeing with the District Judge on this point, that when the estate was granted to ""the predecessor-in-title of the
present Urlam zamindar the beds of the channels were not reserved by Government but passed with the lands to the proprietors to the same extent
and in the same way as tank-beds, village sites and other poramboke lands passed; but the non-reservation of the beds did not show anything
more than that Government fixed the revenue with reference to the extent of land then under cultivation and is no evidence of any agreement in any
particular case to permit free irrigation from Government source of water-supply. They further found that the fact that there was no water-cess
charged until the year 1901 is not evidence of a lost grant, as in this case before the Settlement in 1803 the Government had the fall rights of owner
apart from the rights of ryots, if any, and the sannad itself does not give the inamdars any right to take water free of any cess; and as they were of
opinion that the Government are entitled under Act VII of 1865 to charge water-cess if water is supplied from a river or channel belonging to
Government and there is no engagement between the parties that the irrigation is to be free of a separate charge, they held that the Government
were entitled to impose the cess.
It will thus be seen that in appeal the question was decided on grounds very different from those which were urged in the Court below ; and if
we are now to reverse the decree of the Lower Court in favour of the Government and justify their action in imposing the assessment, it will be on
grounds very different from those on which such assessment was ''imposed by the Government on the plaintiffs and by reason of an Act III of
1905, which was passed subsequent to the institution of the suit.
If the Acts III of 1905 and VII of 1865 enable the defendant to levy a water-cess when the water of a natural stream is used by a zamindar or
other landed proprietor for irrigating his lands, in the absence of any engagement with Government to the contrary, then the facts that the
Government had no such rights before, that the proprietor was entitled to use such water for irrigation without the leave of the Government, and
that the Government promised not to levy any cess, unless such promise amounted to an engagement, would make no difference.
In order to decide the questions in issue it appears to me necessary to state the facts in some detail. Vamsadhara river rises in the Jeypore
zamindari and after leaving the zamindari it flows through ryotwari lands for a very small portion of its course. It passess then through the Urlam
zamindari, and the Mobagam channel takes off from its left bank in the village of Mobagam in the Urlam estate. It has a course of about 7 miles
and passes through eight or nine villages. It irrigates about eleven villages. It has a total ayacut of about 4,000 acres, of which about 500 acres are
ryotwajri lands. Four of the villages belong to the Urlam zamindar, and there are seven mam villages irrigated by this channel. Of these seven
villages, Varahanarasimhapuram belonging to the plaintiffs is one. The plaintiffs'' village as well as certain other villages, mainly ryotwari, are
irrigated by channels which take off from the Mobagam channel. One of such channels is Merakabatti. It takes of from the Mobagam main channel
within the limits of the plaintiffs'' inam village and after partially irrigating it, enters the Government village of Madapam. This Merakabatti channel
has no head sluice or regulator and its control, as well as the title of the Secretary of State in it, is found by the District Judge to begin only at the
point where it enters ryotwari land, and the Judge finds that the Secretary of State has nothing to do with this channel from where it takes off from
the main Mobagam channel to where it enters the ryotwari village of Madapam. This finding has not been attacked before us in appeal. Mobagam
channel has a head sluice which was constructed in 1892 by the zamindar of Urlam, and the Judge finds that there is evidence to show that sums
have been expended by the Urlam zamindari from time to time on the channel. He also finds that the Revenue officials never exercised any control
over the distribution of water from the main channel and that no money has been expended towards its upkeep.
There is another channel, Lukulam, which also takes off from the left bank of the Vamsadhara river from what is now a ryotwari village. Its
head sluice is under the control of the Government; the Lukulam channel and the four branches which take off from the Mobagam channel to which
I have already referred also irrigate some of the same villages in addition to certain otters. This is the system of irrigation of the village The finding of
the District Judge that the Mobagam channel was not constructed by the plaintiffs'' ancestors was not disputed in argument before us. We must
therefore take it that the Mobagam channel, when the village was granted to the predeces sor-in-titlo of the Urlam zamindar, belonged to the
Government subject only to the claims of the ryots, if any. The lands through which the V amsadhara and the channels flowed after leaving the
Jeypore zamindari also belonged to Government subject to the rights of the ryots. In 1803 the villages were constituted into throe or four
zamindaris. Urlam, which includes the bed of the Vamsadhara river and the bank at the place where Mobagam channel has its head, was one of
them, and one of the important questions for decision is what were the rights acquired by the zamindar and conferred by the Government.
It must be remembered that in 1802 and in the subsequent years sannads were granted to three classes of landholders Some of them were
representatives of those who were really Ruling Princes. Within their small kingdoms they exercised all the powers of a ruler. They commanded
armies, they made wars on their own account and concluded treaties and they had their own coins. As an instance, I refer to the Ramnad
zamindar. See The Ramnad case ILR (1901) Mad. 295. Some of them like the Parlakimedi zamindar in. the district of Ganjam were the
descendants of the ancient Hindu Sovereigns. As to this class of zamindars in the Oircars see Fifth Report, page 35,-Another class was composed
of those who were chieftains under rulers exercising various degrees of authority. Some of them like the Telugu poligars of the south and the Hindu
zamindars of the Teluga district were really viceroys who exercised the delegated powers of their sovereign in every respeoc. Others were
originally only revenue officials or military commanders or police officers who usurped other functions. The history of this class of chieftains is given
in the judgment of this High Court in Lehhamani v. Puchaya Naikar (1870) 6 M.H.C.R. 208, See also Privy Council judgment in Collector of
Trichinopoly v. Lekkamani (1874) L.R. 1 IndAp 293 . Besides these two classes of holders a new class of zamindars was created by the Bast
India Company.
They carved zamindaris out of what were called Havelli lands in the (Jircars which were tinder their own control subject to the claims, if any, of
the ryots. In the north of the presidency, they were parcelled out and sannads granted to persons who became the proprietors of those estates
thenceforward. It is important to remember that, when these new estates were formed out of the Havolli lands, the purchasers of those estates,
thenceforward the proprietors, were placed on the same footing as the other classes of holders, viz., the descendants of ancient chiefs and rulers
who were already in possession of their own lands and to whom sannads were granted, with one exception in the case of rights to water which will
be noticed later. (See paragraphs 58 and 60 of the instructions issued to Collectors as to Permanent Settlement of lands, pages 330, 331, volume
II of the Fifth Report). They thus acquired by grant all the rights which the other two classes of the ancient rajas had before they obtained the
sannad and the immunity from enhancement of land revenue or rent which they acquired under the sannad. The sannads were in the same terms.
What were those rights ? These ancient rajas exercised all the powers of a sovereign over their raj as well as proprietary right over some of the
lands. They levied taxes; they received a share of the produce from those ryots who were bound to pay melvaram; they received the full rent of the
lands when they were cultivated not by ryots but by tenants who had no ryotwari interest in the hmd. It was in this state of things that Regulation
XXV of 1802 was passed and ""Sannads-i-Milkeut Istimirar or deeds of permanent property,"" as they were called, were given to some of them.
This Regulation has been fully discussed in'' the judgment of the Judicial Committee in Collector of Trichinopoly v. Lekkamani (1874) L.R. 1
IndAp 293 . In that case the Judicial Com-, mittee say,"" The only difference between a pollienf or zamindari which is permanently settled and one
that is not, is. that, in the former, the Government is precluded for ever from raising the revenue ; and, in the latter, the Government may or may not
have that power"". See Collector of Trichinopoly v Lekkamani (1874) L.R. 1 IndAp 293 . The policy of the East India Company''s Government at
that time was to take away from these chiefs or zamindars the rights which according to the western ideas should be exercised only by a ruling
sovereign and to leave to them all such rights as could be exercised by a private proprietor. There were some claims which apparently did not fall
clearly within the scope of the one or the other and they were dealt with by name. It was necessary that there should be no doubt on the question
and great care was therefore taken to enumerate the rights which were till then exercised by the rajas and which should no longer be exercised by
them. For instance, all salt and saltpetre revenue, duties of every description by sea or land, tax on liquor and intoxicating drugs, all taxes personal
and professional, all taxes and lands for Police establishments were expressly excluded in the saimads. (See the fourth clause of Lord Clive''s
Permanent Sannads--appendix to the Standing Orders of the Board of Revenue, and Fifth Report, page 321.) Waste lands were especially
referred to as having been granted to the zamindars. There were claims which were generally included in the name Sayar understood to refer to
taxes generally. (See Fifth report, page 321, paragraphs 13, 14,15 and 16.) As already stated, it was not intended to deprive these rajas of any
rights which they were at that time exercising as the proprietors of those lands. And looking to the items which were ""by name resumed and the
purpose of the regulation and the words in the permanent sannad, there is very little doubt that they were confirmed in the excise of those rights
other than those which were enumerated, and in the cases of zamindars of Government creation those rights were granted to them unless- specially
reserved. In my opinion, speaking generally, whenever the Government contend that these zamindars are not entitled to exercise any of the rights
which are capable of private ownership and that such rights are vested in the Crown, it lies oh the Government to prove that such zamindars were
deprived of them either expressly or by necessary implication under the sannads granted under that regulation the new zamindaris were intended to
be placed on the same footing. The sannads to which I refer are those which were granted by Lord Clive, a copy of which will be found in the
earlier editions of the Standing Orders of the Board of Revenue.
It now remains to consider how far these views may be acted upon in cases of water-supply. In considering what title to waters passed to
those to whom sannads were granted, it is desirable to boar in mind all the different forms of water-supply for the cultivation of lands. Except on
the western coast, throughout the Presidency the rainfall is moderate and insufficient for the satisfactory production of rice, the crop which is most
abundantly cultivated, so that the country depended a good deal upon the supply of water otherwise than by rain. In many districts there were
tanks for the conservation of water which depended for their supply mainly on the rains. They even now exist in vast numbers throughout the
Presidency for the irrigation of lands. Most, if not all, of them are of old native construction though some few of them have been kept under repair
by the British Government. It can scarcely be suggested that, where those tanks are situated in zamindari lands, it was not the intention of
Government entirely to part with their control to the zamiridars. There were also groups of rain-fed tanks connected with each other for cultivation
by means of channels. There is very little doubt that in their case also, whenever this group of tanks was situated in a zamindari, the control
completely passed over to the zamindars. Some of these tanks are large reservoirs which contain a good deal of water, and the supply of water
therefrom can be safely relied upon after the monsoon had commenced. The water supply, however, of a great number of these tanks is very
precarious, and the-cultivation often suffers from water not being sufficiently supplied and does not attain the general standard which it secured
from other sources. Greater dependence is placed therefore upon tanks supplied by river-water, Many tanks are supplied not only by the rains but
by the high freshes of rivers by means of channels unconnected with any dams. But in the majority of cases the level of the river is lower than that
of the adjoining fields and it is usual to put'' up an anicut or masonry dam right across the river bed in order to store water and raise its level.
Generally, except in the cases under Government supervision, the dam consists of a row of granite posts of the necessary height, with the
interstices filled with turf earth--often a wall with the same materials being put in front of the posts, which is washed away during the monsoons
leaving the posts alone standing. The water whose level is thus raised passes into the channels. From these channels water, is taken or distributed
for cultivation. It is also stored in reservoirs and rendered available for purposes of irrigation often by channels from those reservoirs. The area of
land that can thus be irrigated according to the-customary methods is called the ayacut of the river, a well-known revenue term which is thus
denned in the Standing Orders 1820--1865 of the Board of Revenue: ""Ayacut.--The total area of land in a village ; when applied to irrigation
estimates, it means the land that can be watered by the tank or channel referred to."" Garden land is often, if not generally, cultivated with water by
cattle-power or manual power. With reference to the channels conveying waters from the river for irrigation and river-fed tanks, it cannot be
denied that the ancient chiefs who afterwards became zamindars under sannads were exercising every form of control subject only to the claims of
the ryots, if any. The central power seldom interfered with such exercise of control. Even when the Muhammadan rulers considered that such an
interference was necessary, it was done by depriving the old chiefs and mirasidars of those rights and transferring them to their Governors and
other officials who took their place who were also constituted zamindars by the East India Company. Agriculture and the wealth of the country
depended upon the water-supply, and it was scarcely likely that they ever meddled with it. After the grant of permanent sannads the supply of
river-water continued to be as necessary as before, for the cultivation of those lands which depended upon river-fed channels and tanks. There is
nothing to indicate that the Government ever desired to interfere with what was believed to be the ancient usage. Everything tends-to show that the
zamindars and the ryots were allowed to exercise rights of ownership and to use the river water as before. When the sharing system prevailed it is
possible that a Melvaramdar or Government did not take the trouble to ensure the necessary supply of water. But a Permanent Settlement with
peshcush or cash payment to the Government pre-supposes the continuance of the usual water-supply. If the lands did not receive it, Government
could not have expected tb e zamindar to pay. The twelfth clause of the sannads contemplates engagements by the zamindars with the ryots, Such
engagements for payments of rent show that the zamindari ryots were entitled to get the required supply. See also paragraph 37 of the Fifth
Report, page 326. The zamindars and the ryots therefore must have continued to receive the supply. It is obvious that in the zamindaris the
Government did not undertake to, and did not, supply water. The landholders therefore must have continued to take the water as before for
irrigation from the rivers. There is absolutely nothing in the volumes of papers relating to the revenue settlements to show that there was any
restriction placed upon them in using the waters of the rivers or exercising any right as before, assuming that it was open to the Government to
restrict it. The presumption is that they allowed it. The Government contemplated the cultivation of the waste lands--see page 324, paragraph 27,
Fifth Report. That is unlikely unless the right to take waters from the rivers was conceded. Any increase of revenue due to such increased
cultivation was certainly not contemplated any more than if such cultivation had been carried on by water from wells or tanks constructed at the
expense of the zamindar. If such an increase is claimed on account of the right of Government to take a share, it could be claimed quite as well in
the one case as in the other. We see in the ryotwari district the Government actually taking a share of the produce when waste lands are brought
under cultivation.
The Regulation and the sannads granted thereunder make it quite clear that the object was to give security to property; there is no security if at
the pleasure of Government any assessment not regulated by law, not under the control of the Courts, may be imposed for the use of what is a
necessity for cultivation. The sannads declare that the assessment on the zamindari lands should u never be liable to change under any
circumstances."" An unlimited power to tax a commodity indispensable for cultivation is undoubtedly against this solemn assurance.
I now refer to the one difference which was recognised in the case of Havelli lands which places this question in my opinion beyond all
reasonable doubt. I stated in a previous part of the judgment that besides granting these permanent sannads to the ancient chiefs the Government
also came to the resolution of transferring the property which was at their disposal like the Havelli lairds in the north, For that, purpose, they had to
divide the Havelli lands into various lots, such division being made with reference to the facilities of water-supply. In the case of these lands, unlike
the case of ancient zamindaris, the tanks and the water courses belonged to the Government. It was open to them to transfer them to the new
zamindars or to retain the control in their own hands; it was however distinctly stated then that the construction and repair of tanks and water
courses were to be left to the zamindars except in those cases where there may be works of great general importance to the country or too
extensive to be entrusted to the charge of individual proprietors or where there may be other reasons to make it advisable for Government to
reserve to themselves the right or duty of looking after these water sources. See page 331, paragraph 59 of the Fifth Report. It will be noticed that
the Government evidently did not consider it necessary to point out that in the case of ancient chiefs they proposed to transfer such rights or
obligations to them or to reserve any control to themselves as obviously such right of control was not with the Government and the zamindars were
entitled to it. In the case of these zamindaris formed out of Havelli lands, therefore, there may be cases in which the Government reserved control
of the water courses, but that has to be made out by Government j where the Government do not prove that any such control was reserved there
is nothing to distinguish the case of these new zamindaris from that of the old--see paragraph 60, Fifth Report, page 331. This appears to me to be
decisive of the question in the case of old zamindaris as well as in the case of the zamindaris formed out of these Havelli lands. The water courses
are generally of no use without the supply of water from the river.
If we look at the usage and practice that prevailed, it also tends to the same conclusion. In no estate from the time the permanent sannad was
granted up to 1865 when the Cess Act was passed is it the fact that the Government ever increased the land revenue--there was no law entitling
them to claim a charge otherwise--on account of water being taken from any natural stream, or imposed any separate charge from the zamindars
for taking water from the rivers themselves.
In the ryotwari districts, if a ryot used water from the river for other than the usual cultivation, they levied an enhanced revenue. If a second
crop was raised with additional water, there was a second crop assessment. If a well was sunk within the ayacut of a river and cultivation carried
on with the water of that well, it was usual even for years after the passing of Act VII of 1865 to impose additional revenue on the ground that he
had had the benefit of the river water. In the case of the zamindaris no such demands have ever been made. I am not aware that in cases of ancient
zamindaris any head sluice has ever been retained under Government control. Whenever the Government wished to interfere with any such sluice
for the benefit of their own lands, it was, as in the Vaigai case--Ponnusawmi Tevar v. Collector of Madura (1869) 5 M.H.C.R. 6--with the
consent of the proprietor. Most of these zamindaris were at some time or other under the Court of Wards. The Court of Wards, so far as I know,
never recognized such a claim on behalf of Government. The decisions till within the last few years assumed and, where necessary, held that where
there is no limitation in the grant itself the proprietor was entitled to unlimited water-supply. Secretary of State for India in Council v. Perumal Pillai
ILR (1901) Mad. 279 .
I now come to the change in the law introduced by Act VII of 1865. In 1802 and for some years afterwards, it was not the policy of the
British Government to embark upon any irrigation projects. The irrigation works of the Oauveri river and of the Godavari and the Kistna rivers in
the Godavari and Kistna districts were completed before 1855, when the general survey and settlement of the Presidency was undertaken. They
entailed an enormous expenditure and the Government looked to increased revenue to recoup them. So far as the ryotwari lands were concerned,
they could get over the difficulty by increasing the land revenue on those lands which profited by these irrigation works, and it appears that, when
lands were permanently irrigated from such sources, a consolidated assessment was imposed leaving it to the ryot to occupy or throw up that land.
If only a temporary use of such water was made, a water-rate was added to the dry land rate and the aggregate formed the revenue demand.
In the case of zamindaris and inams to which water was supplied, it was open to the Government to impose conditions before supplying them
with water. But the Secretary of State suggested for the consideration of the Madras Government, in considering their proposals for a general
survey and settlement, whether a separate water-rate might not be charged when water*'' from these sources was used or was permanently
available so that the profits derived on account of these irrigation works could he ascertained. At that time British Government hoped to attract
British capital and enterprise to India in the construction of irrigation works as in Railway undertakings. The Madras Irrigation company started in
1858 was the result of this policy. It was given up only some years after the passing of Act VII of 1865. If British capital was to be attracted to
India it was necessary to recognize the principle of a separate charge to be levied for water supplied in order to realize this. If therefore water-cess
was to be imposed and levied separately from laud revenue, legislation was necessary to recover it in the same way. I have referred in some detail
to the proceedings which led to the passing of Act VII of 1865 in my judgment in Kapileswaraupram Zamindar v. Secretary of State ILR (1914)
Mad. 355. They show in my opinion beyond all doubt that the object the Government had in view was to obtain a return for the cost incurred by
the Government and not to realize increased revenue where none was incurred and where the ryots and the zamindars were only utilizing such
facilities of irrigation as existed before. This return was to be obtained out of the increased profits which would naturally be derived by the ryots.
They show further that when the Government interfered with any pre-existing source of water-supply, they supplied water free of charge from
Government sources. See in particular G.O. No. 101, Revenue, dated 16th January 1864 and G.O. No. 986, Revenue, dated 11th May 1865,
which contain ""the drafts of a bill and of rules for the levy of a water-cess in localities where the Government may see fit to adopt that mode of
realizing the revenue from works of irrigation in preference to levying a consolidated assessment.
The preamble of Act .VII of 1865 points out that ""large expenditure out of Government funds has been and is still being incurred in the
construction and improvement of irrigation and drainage to the great advantage of the country and of proprietors and tenants of the land,"" and then
states that ""it is right and proper that a fit return should be made to the Government on account of the increased profits derivable from the lands
irrigated by such works."" So far the preamble makes it quite clear that under the Act -what was intended was that there must be works of irrigation
or drainage constructed or improved by the Government and that there should be increased profits derivable from lands irrigated by such works.
There was no idea that, whore water was taken as before by a zamindar or ryot without having recourse to any such works, any revenue was to
be imposed. Then Section (1) empowers the Government to levy a cess in certain cases; u/s 1 of Act VII of 1865 it is a neceasary condition that
the ""water is supplied or used for purposes of irrigation from any river, stream, channel, tank or work belonging to or constructed by Government.
The question for decision is whether these words ""river, stream belonging to Government"" apply to natural streams like Vamsadhara. A ""river"" is
composed of bed, banks and water-- ""Angoll,"" pages 8 to 5 ; ""Farnham,"" volume II, pages 1462, 1557. The bed of the river is the part between
the banks. The banks are the elevations of land which confine the water to a definite course, lie is therefore the owner of the river who owns the
beds, the banks and the water. It follows therefore that in zamindaris where the zamindars own the beds and banks of rivers, as in -leypore and
Urlam, they cannot be called "" rivers belonging to Government."" It has been contended that"" all tidal and navigable rivers, and they only, belong to
Government. I do not think so, as such an interpretation will exempt from the operation of the Act many natural streams to which the Act is
evidently intended to apply and also, as the Judge points out, hitherto no difference has been recognised so far as irrigation rights are concerned
between tidal and navigable rivers and others. The English law when the Act was passed was laid down in Embrey v. Owen (1851) 6 Exch. Rep.
""Flowing water is publici 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
possession only....But each proprietor of the adjacent land has the right to the usufruct of the stream which flows through it."" It is possible that the
words "" river, stream belonging to Government"" were used in the section to indicate only this kind of ownership. I am satisfied it certainly includes
that right. The river therefore may be said to belong to Government when they have got the proprietary interest in the bed or adjacent land which
gives them access to it and power to exclude others. This reason limits the ownership to the part of the stream adjacent to the land and excludes
therefore rivers and streams in zamindaris and inams or adjacent to them. Bat I think the section includes other claims as well. The riparian right
above referred to depends upon vicinage and consequent right of access. This power does not generally vest in the Government or zamindars. It
vests often, perhaps'' generally, in the ryots, Moreover this riparian right will not entitle Government or zamindar to use the water for the cultivation
of tenements not in the vicinity while it is undoubted that they have been doing so from time immemorial. The customary law of the country may
throw some light.
So far as the old customary law in the Madras Presidency is concerned, the question appears to be clear. In the deeds of conveyance before
the days of British rule and in conveyances executed even afterwards, at least in the early years 01 the century, by mirasidars and landed
proprietors like zamindars, inamdars, etc., which have come before the Courts it is generally stated that the lands are conveyed with the eight
incidents of ownership;
The eight incidents of ownership in land are stated in the following verse:
1 2 3 4 5 6
Nidhi nicshepa pashanam siddha sddhya jaldnwitam
7 8
Acshiny'' agami'' sarnyuctam ash''ta''bhogS samanwitam.
Treasure trove. 2. Property deposited in the land not claimed by another. 3. Mountains, rocks and their contents, mines, minerals, fyc. 4. All
land, &c, yielding produce 5. All produce from such laud, etc. 6. Rivers, tanks, wells and all other waters. 7. All privileges actually enjoyed. 8. All
privileges which may he conferred; these are expressed by the general terms Ashtabhogam.; the eight rights enjoyed by the owner of land."" See
Mirasi papers, page 206. These papers were compiled and the translation mado by Mr. Bayley, who was a member of the Board of Revenue, and
they were finally corrected by Mr. W. Hudleston, secretary. It will be noticed that the conveyance carries with it "" Jalam,"" i.e., "" rivers, tanks, wells
and all other waters."" These rights were possessed by mirasidars and other proprietors of land. The deeds, printed in Mr. Hudleston''s Mirasi
papers were executed by the mirasidars. The various water sources are therein mentioned in some deeds separably and also under a general term.
Where the landed proprietors known by different names like mirasidars and others in different districts were dispossessed of their ancient rights by
Hindu and Muhammadan Chiefs and Governors, such rights were vested in these latter. But when lands were granted to favourites, etc., by rulers,
these rights were conferred upon them. In a case reported after this case was heard, a grantin 1768 by the Tanjore Eajah under which the
properties were held till recently was produced containing the same words ;w Total of 60 velies of land including wet and dry lands, water, trees,
stones, Nidhi, Nicshepa (Treasure), Sid aha, Sadhya (whatever is and may be brought into existence) present and future patta all banb and all
Kana with all Samudanavw with water poured from the hand."" See Jeeyamba Bai v. The Secretary of State for India (1912) 12 M.L.T. 541.
The right to water was therefore treated as a proprietary right and ownership in it was recognised as in land, treasure trove, etc.
The ownership ceased when the water left the land. There is no reason to think this rule was discarded. The right which the proprietor has to
''use the water for agriculture is obviously not the right of easement as there is no dominant or servient tenement. Nor is it, as already pointed out,
the natural right of a riparian proprietor. Both the Government and the zamindar claim and concede in this case the right of landholders, in no way
riparian proprietors, to the use of river water. The right claimed by Government is not to prevent the zamindar from using such water but to impose
a water-cess, even if be is entitled to use it for irrigation and this is the right upheld by the District Judge.
In the ryotwari districts, villages which are not adjacent to the natural stream use river water for irrigation. The right to prohibit such use has
never been recognised.
If I am right in my view of the customary law of the country that the proprietor of the land is the owner of the water thereon, then those rivers
or streams of which they own the bed and the banks on either side belong to Government. Except on the west coast where the cultivation is
dependent up6n the rains, not river water supplied by Government, and in those few and dwindling places in the eastern districts where the mirasi
right is recognised, the Government have asserted their claim to all waste and poramboke which include river bed and the banks j and any channel
therefore could be constructed only by Government or with their leave. I have therefore little doubt that the Legislature, which only carried out the
behests of the Executive Government, intended this section to refer to all rivers and streams in those ryotwari districts where no mirasi or any
corresponding right prevailed. For the same reason, it did not apply to rivers running through or by zamindaris.
Further, if the words "" rivers belonging to Government"" apply to zamindaris, it will be open to Government to impose water-cess on zamindari
lands in the exercise of their natural rights for irrigating their lands with river water as before the permanent settlement. This is clearly against the
Regulation of 1802 and, as the amount of the water-cess is not open to discussion in the Civil Courts, practically repeals the Regulation and
cancels the gannads in this respect and involves such gross breach of faith that the Courts should not, if possible, adopt a construction which will
have that effect. But to escape from this consequence, reliance is placed on behalf of Government on the exemption clause. It runs thus: "" where a
zamindar or inamdar by virtue of engagements 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"". It will be noticed that u/s (1) the water cess may be imposed when water is
supplied or used, but the exemption applies only to cases where water is supplied, s of course, by Government. These terms have been explained
in '' Venkatappayya v. The Collector of Kistna ILR (1889) Mad. 407, followed in Krishnayya v. Secretary of State for India ILR (1896) Mad.
24, and since the amendment of the Act in 1900 on account of those decisions retained '' this word as before, the judicial interpretation may be
taken to have received legislative sanction. This exemption therefore does not apply to those zamindars and proprietors who themselves take and
are entitled to take the water for irrigation from the rivers and streams in their zamindaris without its being ""supplied"" to them by Government. In
their oases you cannot imply a demand.
Moreover, if we are to presume an engagement to ""supply'''' water by reason of the grant of permanent Sannad then the Government are
bound to supply the zamindars with water, but such is clearly not the case. I am therefore unable to accept this argument. It is only advanced to
meet the untenable position in which the Government find themselves in asserting that a river like the Vamsadharais a Government source of
irrigation for zamindaris. That the exemption clause does not apply is conclusive to show that the section itself does not apply to such rivers.
If however the word "" supplied "" only means ""used "" and the section, with the exemption clause applies, I am clearly of opinion that the
engagement "" to be implied is one to allow the proprietors to irrigate all their lands which could be irrigated, i.-e., all those comprised in the ayacut,
without any fee and without any charge. There is nothing to suggest in any Government papers that the unqualified power which the old zamindars
had to cultivate waste lands with river water was taken away and such right was confined to the cultivation of those lands then under wet
cultivation. The usage till 1865 tends to the same conclusion. The object of Act VII of 1865 was only to collect '' a cess for water supplied from
Government works. Further to hold that the "" engagement"" was to allow water for the cultivation of lands then under wet cultivation is to ignore the
history of the permanent settlement. In some cases a comparatively small peshcush alone was fixed as a pledge of submission to Government
without any reference to assets--Ami, for instance, a jaghir of ancient days. It was a complaint of the Famine Commission in 1880 that, receiving
substantial benefit from Government works, the proprietor declined to contribute and could not be compelled by law to pay any cess. See Madras
section of the Report, page 164, Section 61. In a few others the peshcush was simply an equivalent for the military services formerly rendered by
them without any reference to their assets. The great zamindaris of Venkatagiri, Kalahasti and Karvetnagar are among these. Their peshcush was a
proportion of the cost of the zamindar''s military establishment inclusive of amarama and kattubadis less the revenue from salt, abkari dues, etc.
Some were settled without any enquiry into their resources. Sivaganga is one of the most important of them. A few of these estates, when they
passed under British rule, had to pay a certain proportion of what they were paying to the old Rulers-- Kangundi for instance.
In all these instances the obvious intention of Government was to leave it to the zamindar to exercise all the proprietary rights as before. The
extent of wet cultivation or the assets hadnothing to do with the peshcush. The conditions under which the peshcush was imposed rebut any other
presumption.
In the district of Ganjam, with which we are now immediately concerned, no proportion of the jamma was adopted, but the peshcush was in
each case in point of fact fixed by the Board of Revenue at their discretion on a consideration of all the circumstances and accounts before them.
When the Act was passed the Government had these facts before them, because about that time another important operation to afford security
of title was going on--the enfranchisement of mains. The Inam Commissioner, the Board and Government had to consider the circumstances under
which every estate was held to decide whether they had the right to the reversion and therefore to enfranchise the inams therein. It also appeared at
that time that the accounts on which the settlements of some zamindaris like Ramnad may have been based were lost in the Government offices.
How is it possible in all these various cases to assume that the word ""engagement"" in the exemption clause in Section 1 of Act VII of 1865 had
reference to the ""wet land"" at the time of the permanent settlement when it had either nothing to do with asset8 or it was not possible to find out
whether it was so. In some of the important zamindaris like Pittapuram the peshcush was fixed on certain accounts taken by the circuit committee
between 1776 and 1788, Are we to ignore the very probable increase in cultivation between 1786 and the Sannad ? It seems to me to raise a
strong presumption that the extent of wet cultivation was not the determining factor. In those other cases, where the peshcush was a proportion of
the fixed assets, it was the average of certain years before the permanent settlement that was adopted. Is it then seriously contended on behalf of
the Crown that a zamindar like Urlam was entitled to cultivate wet land to the average extent but must pay cess if he cultivates lands of the larger
extent cultivated in the other years ? No zamindari was then surveyed. The wet area was never localized. If the zamindar is now made to pay cess
for the excess area, he cannot now localize the area, if any, then under cultivation so as to demand their contribution from the tenants of the excess
area; and where the wet area, if any, adopted as the basis of the settlement is less than the actual extent of wet cultivation before the settlement, as
it well might happen on account of the average area haying been adopted, it would be impossible for the zamindar to localize the wet area. I am
therefore unable to accept the view that the zamindar was entitled to cultivate only the mamool wet free.
I am therefore of opinion that under the Act as it stood unaffected by the subsequent legislation (Act III of 1905 to which I shall presently
refer) it was not competent to the Government to levy any cess for any water taken from the Vamsadhara river, of course, without the aid of
Government works. I make this reservation to exclude Lakulum with reference to which I express no opinion.
We have now to consider the plaintiffs'' position as inamdars. The village was granted to their predecessors-in-title in 1764 by the zamindar of
Parlakimidi. When the Havelli lands along with this village were granted under a deed of permanent Sannad to the predecessors-in-title of Urlam,
the quit-rent was included in the assets. The Sannad is not before me but if the general practice was adhered to the reversion was in the
Government, and accordingly the Crown enfranchised the inam afterwards. As I have pointed out already, the evidence is not clear as to the
circumstances under which the Mobagam channel was constructed; but as it was in the Havelli land at the time of the permanent settlement it may
be presumed to have belonged to Government. The inamdar was undoubtedly irrigating his -lands from the Mobagam channel at that time as it was
his source of irrigation. The general policy of the Indian Governments was against any restriction on irrigation as they shared in any increase in
produce. There is no reason to suppose that"" this inamdar was entitled to use only a certain quantity of water or to irrigate only a certain extent of
land. Innes, J., rightly states the principle applicable to such cases: "" where a channel has been constructed by Government acting as the agent of
the community to increase the well being of the country by extending the benefit of irrigation and in pursuance of that purpose a flow of-water is
directed to the villages designed to be benefited, it becomes simply a question upon the circumstances of the case whether there has not been a
conveyance to such villages in perpetuity of a right to the unobstructed flow of water by the channel. Looking at the permanency of such works
and to the permanency attaching to the object, that there was a transfer in perpetuity would seem an almost necessary conclusion, unless there
were other circumstances to lead to one of an opposite character. It might of course be capable of being shown that the privilege was granted as a
mere license and that before the water was allowed to flow to the villages, it Lad been left open to Government by arrangements then made to
obstruct the flow'' a\t will at any future period ""--Ponnuaswmi Tevar v. Collector of Madura (1869) 5 M.H.C.R. 6. Any arrangement between the
zamindar and Government at the permanent settlement cannot prejudicially affect him. After the enfranchisement, it is said that he is, only entitled to
irrigate the land then declared "" wet."" But we cannot imply an engagement between the Government and the inamdar, as the ,Mobagam channel
and the Merakabatti channel which takes water from it to irrigate the inam are not under Government control and they cannot control the
distribution of water therefrom. The fact that the Government has control over the Merakabatti channel only after it leaves the inam is significant.
Moreover there is nothing in the title-deeds or proceedings to show that the inamdar is only entitled to cultivate with channel water those lands
entered as wet free of charge and that even those lands are entitled to exemption only for the first crop. Neither in the despatch from the
Government of Madras to the Secretary of State, Revenue, dated 9th August 1859, with the enclosures thereto giving full information of the
intended proceedings to enfranchise inams, nor in the final report of Mr. Blair on the operations of the commission, dated 3Qth October 1869, the
proceedings of the Madras Government and the dispatch of the Secretary of State thereon, dated 10th August 1871, nor in the mass of records
relating to the enfranchisement of inams, is there any indication that it was the intention of Government to advance any claim on account of any
excess cultivation or that the inamdar''s right was confined to the wet area mentioned in the title-deeds. If it was so, the Government could very
easily prove it without asking the Courts to upset a practice upon theories. The available records support the contrary conclusion; when water was
supplied from Government anicut works, no cess was levied on the mamool wet presumed to have been under wet cultivation at the time of the
permanent settlement or the enfranchisement of the inams, but cess was levied on water taken for the irrigation of the rest. That the claim was so
restricted to water from Government works is not without significance. The copies of the inam title-deeds show tha the inam is only "" claimed to be
of acres of dry land and acres of wet land."" All information had to be given in the registers as the assessment was fixed at the discretion of
Government; not inference can be drawn therefore that any fact therein mentioned was the basis of any contract. In asking the Government to
cancel their order that inams limited to a limited number of lives should not be interfered with, the Inam Commissioner said ""It is superfluous to add
that in all such settlements every care is taken that the interests of Government do not suffer. A fair addition is made to the present value of the
village on account of the prospective improvement from the cultivation of waste lands.
The Government accordingly cancelled their Order No, 945, Revenue, dated 3rd June 1�64. This seems decisive. ''See also the
Commissioner''s order quoted in my judgment in Secretary of State v. Amnbalavana Pandara Sannadhi ILR (1914) Mad. 369.
Further the inamdar as such is only entitled to Government revenue. The title-deeds have been declared by legislation not to interfere with the
mirasidars or ryots. Any engagement would probably have been with them. I am therefore of opinion that in each case it is for the Government to
prove that the right of cultivation is limited as alleged by them; otherwise the so-called engagement will be taken to be in accordance with usage or
with the conclusion arrived at by Innes, J., already referred to.
After the passing of the Act, the practice continued the same as before, the Government claiming a cess only when water was taken from
Government works. The first note of dissatisfaction was that of the Famine Commission in the report presented by them to the houses of
Parliament in July 1880. They pointed out what they deemed to be an abuse, that the zamindari lands, which on the introduction of canal irrigation
were in the enjoyment of any means of irrigation however inferior and precarious, were supplied with canal water without any additional charge,
with the consequence that the zamindar gets a continuous and unlimited supply for the whole of the area he had ever brought under cultivation.
They thought there is no reason why this benefit should be conferred. The Government supplied this water in consequence of their having interfered
with the zamindar''s channels. Many of these channels supplied him with river water. His right to irrigate with such water was thus assumed. From
this time began the efforts ever since continuously maintained to carry out the above suggestion. Among the suggestions were that the proprietors
should be required to prove with reference to every field that it was being fully irrigated to entitle them to claim Government canal water; that they
must prove what extent they were cultivating according to the permanent settlement accounts, which were in Government custody and which they
are not bound to produce and which the Government condemned as inaccurate when they were against their contention; see. G.O. No. 844,
Revenue, dated 18th September 1902. An Irrigation and Navigation Bill was introduced in 1884 (No. I of 1884) which assumed the law as I have
stated it. The local officers continued the old practice. In 1886 the Collector stated the usage correctly when he directed his Assistant Collector
that no cess should be levied for water taken from rivers by lifts or by channels dug and repaired by private proprietors (Exhibit XIV). In 1889-90
there was an inquiry, and the Revenue Board came to the conclusion that, as nothing was spent on the channel by Government, the Government
had nothing to do with the regulation or distribution of water in the Mobagam channel--Board''s Proceedings No. 3014, Miscellaneous, dated 29th
July 1890. That this was the opinion entertained till then appears also from the records andthe judgment in the Full Bench Case decided by the
Chief Justice Munro, J., and myself. The question is not whether these orders or opinions are binding on the Government but whether they do not
supply strong evidence of the usage till then prevailing.
I may now refer to the Urlam judgment--Kandukuri Mahalakshmamma Garu, Proprietrix of Urlam v. The Secretary of State for lndia ILR
(1911) Mad. 295. It holds that, as the Government owned these lands before conversion into zamindaris, the sannads must expressly or by
necessary implication convey the irrigation rights claimed; otherwise they must be taken to continue with the Crown. This is perhaps so in the case
of ordinary Crown grants. But, as I have pointed out, these are sannads granted under a Regulation with a particular object and it was intended
with one possible exception to place the new zamindaris in the same position, as the old zamindars who had full proprietorship before the grant.
No distinction so far as I know has ever been recognized between tb.6 two classes. It is stated in the judgment that it was ""not contended that the
water is their property""""--i.e., of those who own the banks of the river; and ""it follows it is the property of the Government,"" but ""water"" is their
absolute property for ordinary uses. It is limited property for extraordinary uses. It is further pointed out that as the water is Government property,
the stream also is Government property and the explanation to Section 7, Basements Act, and M''Nab v. Bobertson (1897) A.C. 129 are referred
to. The explanation throws no light on the question before us. It is intended to show that permanency or tidality is not an indispensable element. It
says however there must be a "" known course "" which implied definite bed and banks. The case cited illustrates this. There a lessor let two ponds
to a tenant "" together with right to the water in the said ponds and in the streams leading thereto,"" and the question was whether the word ""stream
was used in the ordinary sense of a rivulet or course of running water or any water which found its way into the pond even by percolation through
marshy ground. The majority of* the Lords held in favour of the former view. The decision had nothing to do with the question before us. The
word "" stream "" no doubt is also used to indicate water in motion. But this use is exceptional. Lord Halsbury who took this view says it ordinarily
means definite stream within definite banks. In Act VII of 1865 it is used after the word ""river "" to mean a little ""river"" if it means anything else it has
no bearing on the case as Vamsadhara is a ""river"" and not a stream. It is assumed in the judgment that the assessment was fixed with reference to
the extent of land under irrigation at the time, not with a view to any possible extension of cultivation; as a general proposition applicable to all
zamindars and inamdars, this is obviously incorrect as I have already shown. The Permanent Settlement accounts are with the Government. They
seek to alter the existing practice. It is for them therefore to prove that the assessment was so fixed. ''""I seriously doubt whether the Government
will be able to prove it, as my experience is that, where the assessment was based on the assets, it was the average demand and the average
collection for a series of years that formed the main element in the consideration of the question. No Court is justified in raising a ""presumption or
proposing a theory to upset a usage that has prevailed for a long time. The proper function of a theory is to explain or to find a legal origin for a
long-standing practice; it should not be used to get rid of it and to unsettle the claims which have long been deemed