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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 1st question, it is not denied that if the suit is a suit 2nd Schedule of the Limitation Act of 1877 is applicable, then it is barred ; but it is contended that the 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 Narayanaswamy Naidu ILR (1909) M. 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 the case in Sriman Madhabushi Achamma v. Gopisetti Narayanasawmy Naidu ILR
(1910) M. 295 can be distinguished. Following that case I must hold that the suit is not barred.
On the 2nd point Mr. Justice Munro and I in Kandukuri Mahalakshmamma Garu v. The Secretary of State for India a 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 us any facts which were not before the Bench in Kandukuri Mahalakshmamma Garu v. The Secretary of State for India ILR (1910) M.
295 but argued as a matter of law that the decision in that case is wrong. It has however been followed by another Bench and has not yet been
overruled by a Full Bench or a higher Court; till that is done it is an 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 Zamindar 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 in their village were irrigated by the Mobagam channel which conveyed 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 but 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 land? 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 VII of 1865, and the title-deed shewed 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 Munro, J., and myself by the then Advocate General, Mr. Sivaswami Aiyar. The questions of law in this
case were argued before me and Abdur Rahim, J., in another second appeal S.A. No. 1831 of 08 by Advocate General Mr. Napier and finally
the appeal was again re-heard by Mr Justice Miller 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 ex"" pressing my regret that the Government ever put forward the plea that the plaintiffs
are not entitled to recover the amount paid by them 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 Sriman Madhabushi Achamma v. Gopisetti Narayanasawmy Naidu
ILR (1910) M. 295. Following Kandukuri Mahalakshmamma Garu v. The Secretary of State for India ILR (1909) M. 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 reported in Sriman Madhabushi Achamma v. Gopisetti Narayanasawmy Naidu ILR (1910)
M. 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 tankbeds, village sites and other poramboke lands passed; but the non-reservation of the beds did not shew
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 cess 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 full
rights of owner apart from the rights of ryots, if any, and the Sanad 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 fa>cts 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 Zamiudari it flows through ryotwari lands for a very small portion of its course. It passes then through the Urlara
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 8 or 9 villages. It irrigates about 11 villages. It has a total ayacut of about 4000 acres of which about 500 acres are ryotwari
lands. Four of the villages belong to the Urlam Zamindar, and there are seven inam villages irrigated by this channel. Of these 7 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 off 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 oft 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 Zamindari 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 others. This is the system of irrigation of the villages. 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 predecessor-in-title of the Urlam Zamindar, belonged to the
Government subject only to the claims of the ryots, if any. The lands through which the Vamsadhara and the channels flowed after leaving Jeypore
Zamindari also belonged to Government subject to the rights of the ryots. In 1803 the villages were constituted into three or four Zamindaries.
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 Sanads 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 (1894) M. 613. Some of them like the Parlakimidi Zamindar in the District of Ganjam were the
descendants of the ancient Hindu Sovereigns; as to this class of Zamindars in the Circars, 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 Telugu District were really Viceroys who exercised the delegated powers of their Sovereign in every respect. 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 Lekkamani v. Puchayya Naikar (1870) 6 M.H.C.R. 208. See also Privy Council judgment The Collector of
Trichinopoly v. Lekkamani (1874) I.I.A. 293 . Besides these two classes of holders a new class of Zamindars was created by the East India
Company.
They carved Zamindaries out of what were called Havelli lands in the Circars which were under their own control subject to the claims, if any,
of the ryots. In the north of the presidency, they were parcelled out and Sanads 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 Havelli 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 rights 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 interests in the land. 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 reported in The Collector of Trichinopoly v.
Lekkamani (1874) I.I.A. 293 . In that case the Judicial Committee say, ""The only difference between a Polliem and a 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 the power."" See The Collector of Trichlnopoly v. Lekkamani (1874) I.I.A. 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 Sanads. See the
4th clause of Lord Clive''s Permanent Sanads-appendix to the Standing Orders of the Board of Revenue, and Fifth Report, page 321. Waste
lands were specially referred to as having been granted to the Zamindars. There were claims which were generally included in the name Sayer
understood to refer to taxes generally. See Fifth report, page 321, paras. 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 specially
resumed and the purpose of the Regulation and the words in the permanent Sanad, there is very little doubt that they were confirmed in the
exercise 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 Rajas 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 on the Government to prove that these
Zamindars were deprived of them either expressly or by necessary implication under the Sanads granted under that Regulation : the new
Zamindaries were intended to be placed on the same footing. The Sanads 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 Sanads were granted, it is desirable to bear 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, a 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 these tanks are situated in Zamindari lands, it was not the intention of
Government entirely to part with their control to the Zamindars. 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, wherever 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 is secured
from other sources. But for cultivation 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 being filled with turf earth, often a wall with the same materials being put in front of the posts. This is washed away during the
monsoons leaving the posts alone standing. From these dams the water passes into the channels. The beds of these channels are kept high enough
for the water to flow by gravitation into the distributing channels or tanks. 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 defined 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 Sanads 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 transfering them to their Governor and other officials who took their place
and 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 Sanads 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 presupposes the continuance of the usual water supply. If the lands did not receive it, Government could not have expected the
Zamindar to pay. The 12th clause of the Sanads 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 Zamindaries 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, para 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 Sanads 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 Sanads declare that the assessment on the Zamindari lands should "" 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 Sanads to the ancient chiefs the Government
also came to the resolution of transferring the property which was at their disposal like the Havelli lands 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 Zamindaries, 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 iu 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 change 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, para 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 Zamindaries 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; where the Government do not prove that any such control was reserved there is
nothing to distinguish the case of these new Zamindaries from that of the old-See para 60, Fifth Report, page 331. This appears to me to be
decisive of the question in the case of old Zamindaries as well as in the case of the Zamindaries 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 Sanad 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 Zamindaries no such demands have ever been made. I am not aware that in cases of ancient
Zamindaries 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. The Collector of Madura (1869) 5 M.H.C.R. 6, with the
consent of the proprietor. Most of these Zamindaries were at some time or other under the Court of Wards. The Court of Wards, so far as I
know, never recognised 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 (1900) M. 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 Cauveri 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 Zamindaries 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 be ascertained. At that time British Government hoped to attract British
capital and enterprise to India in the construction of irrigation works in the 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 that was necessary in order to realize this. If therefore water-
cess was to be imposed and levied separately from land 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 Second Appeal No. 573 of 4911. 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, where 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 necessary 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
while in Zamindaries. A ""river"" is composed of bed, banks and water.-Angell, pages 3 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. He is therefore the owner
of the river who owns the beds, the banks and the water. It follows therefore that in Zamindaries where the Zamindars own the beds and banks of
rivers, as in Jeypore 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 recognized 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 Ex. Rep. 353."" 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 Zamindaries and Inams or adjacent to them. But 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 of the century, by mirasidars and landed
proprietors like Zamindars 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 Stddha Sadhya Jalanvitam 78
Acshiny Agami samyuctam ashta-bhoga samanvitam.
Treasure trove. 2. property deposited in the land not claimed by another. 3. mountains, rocks and their contents, mines% minerals, etc. 4. all
land, etc., yielding produce. 5. all produce from such land, etc. 6. rivers, tanks wells and all other waters. 7, all privileges actually enjoyed. 8. all
privileges which may be conferred; these are expressed by the general terms Ashta-bhogam, the eight rights enjoyed by the owner of land."" See
Mirasi papers, page 206. These papers were compiled and the translation made 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 separately 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 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 grant in 1768 by the Tanjore Raja under which the properties
were held till recently was produced containing the same words "" Total of 60 velies of land including wet and dry lands, water, trees, stones, nidhi,
nicshepa (treasure), siddha, sadhya (whatever is and may be brought into existence) present and future patta, all banb and all kana with all
samudayams with water poured from the hand."" See Jeeyamba Bai v. The Secretary of State for India 12 M.L.T. Reports p. 542.
The right to water was therefore treated as a proprietory 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 he 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 upon the rains, not river water supplied by Government, and in those few and dwindling places in the eastern districts where the mirasi
right is recognized, the Government have asserted their claim to all waste and poramboke which include river bed and the banks; 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 Zamindaries.
Further, if the words ""rivers belonging to Government"" apply to Zamindaries, 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 Sanads 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 enlitled 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, of course> by Government. These terms have been explained in
Venkatappayya v. The Collector of Kistna ILR (1889) M. 407 followed in Krishnayya v. Secretary of State for India ILR (1895) M. 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 Zamindaries without it being ""supplied"" to them by Government. In their cases you
cannot imply a demand.
Moreover, if we are to presume an engagement to '' supply'' water by reason of the grant of permanent Sanad 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 assorting that a river like Vamsadhara is a Government, source of irrigation for
Zamindaries. 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 Farnine 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 Zamindaries of Venkatagiri, Kalahasti and Karvetnagar are among these. Their peshcush was
a proportion of the cost of the Zamindar''s military establishment inclusive of amirams 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 had nothing 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 Inams. 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 Zamindaries 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 assets or it was not possible to
find out whether it was so. In some of the important Zamindaries like Pittapuram the peshcush was fixed on certain accounts taken by the circuit
committee between 1776 and 1786. Are we to ignore the very probable increase in cultivation between 178B and the1 Spnad? 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 1/ke 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 having 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 (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 Lukulum 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 Sanad to the predecessors in-title of Urlam, the
quit-rent was included in the assets. The Sanad 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. Mr. Justice
Innes 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 permanancy 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 had been left open to Government by arrangements then made to
obstruct the flow at will at any future period."" 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 30th October 1869, the proceedings of the Madras Government and the despatch 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 knicut 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 that 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: no 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, 3rd June 1864. This seems decisive. See also the Commissioner''s
order quoted in my judgment in Second Appeals Nos. 1831 and 1834 of 1908.
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 Mr. Justice Innes 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 was 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 Mis., 29th July
1890. That this was the opinion entertained till then appears also from the records and the 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 ILR (1910) M. 295. It holds that, as the Government owned the lands before conversion into
Zamindaries, the Sanads 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 Sanads granted under a Regulation
with a particular object and it was intended with one possible exception to place the new Zamindaries in the same position, in which Zamindars had
full proprietorship before the grant, as the old. No distinction so far as I know has ever been recognized between the 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, Easements Act and M''nab v.
Robertson (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 to be well established. This must be done, if at all, by legislation.
The pleader in that case appears to have given up the ground on which the District Judge based his judgment that Mobagam channel was the
source of water supply. For these reasons, I am unable to follow that decision on these points.
It is contended, and the Urlam Judgment decides, that under Act III of 1905 all flowing waters which are not the property of any one else are
the property of Government, and therefore the waters in the Vamsadhara river and consequently the river itself belong to Government. I am clearly
of opinion that if under Act VII 1865, as it stood before this Act III 1905, the Government were not entitled to impose any water cess, this Act
coupled with the other Act does not give them the right to do so. Act III 1905 was passed to prevent encroachments on Governme