Venkata Papayya Row vs The Secretary of State for India in Council

Prior to and in the, year 1846, when the village of Vellathur and certain .other villages forming part of the Zemindary of Mailavaram were

brought to sale for arrears of revenue due to Government, and purchased by Government, the wet lands in question in that village used to be

irrigated from a tank belonging to the Zemindar of Mailavaram, situate in the Zemindary village of Kuntamukkala, which was not included in the

sale. At that time, the wet lands in question were the home farm lands of the Zemindar, and he continued inoccupation of the same after the

purchase by Government of that and other villages. In consequence of the villages having been purchased by Government, they became, ryotwari

villages and the persons in occupation of the lands therein, including the Zemindar, became ryots under Government. By the sale the melwaram

right in the villages brought to sale passed to Government, and the Government became entitled to levy wet assessment on the lands in question

which were then in the occupancy of the Zemindar as a ryot and consequently to have the same irrigated from the then existing source of irrigation,

viz., the Zemindar''s tank in Kuntamukkala village. Fide Section 13, Clause (b), Indian Easements Act. The Government as Melwaramdar of the

village of Vellathur in question was thus entitled only by way of easement to the use of the water of the tank in Kuntamukkala village for the

irrigation of the wet lands in question, and the Government, therefore, could not under Madras Act VII of 1865 levy a cess for supply of water to

the lands in question from the Kuntamukkala tank which did not belong to it. Its right was only to levy wet assessment and supply water by way of

easement over the Kuntamukkala tank to its ryot in occupancy of the lands in question. The action of the Settlement Department in 1866 in

assessing the lands in question with a consolidated wet rate was right; but in 1869 the Head Assistant Collector in charge of the Division, without

any authority whatever, virtually upset the settlement made in 1866 and issued instructions to the subordinate revenue officers to hand over to the

Zemindar the difference between the dry rate on the lands and the settlement consolidated wet rate fixed in 1866, some time before which the

Zemindar sold the iands in question to one K. Seshayya, with whom the settlement was made in, 1866 and from whom''- the consolidated wet rate

has since been collected by Government. The instructions issued by the Head Assistant Collector in 1869 were carried out till 1892, and on a

reference made to the Board of Revenue, that authority disapproved of the action of the Head Assistant Collector in crediting the Zemindar yearly

with the difference between the consolidated wet rate and the dry rate and upholding the settlement made in 1866, directed in 1894 that no portion

of the assessment should be paid over or credited to the Zemindar. If the plaintiff had not transferred the holding in question to K. Seshayya, but

continued in occupancy thereof, it would be difficult to suggest any principle on which it could be contended that he would be liable to pay only dry

rate to Government and claim exemption from payment of wet rates, though by the sale to Government in 1846 the melvaram right in these lands

as wet lands became vested in Government. By merely transferring the holding to a third party, the melvaram right of the Government cannot be

prejudiced and the Zemindar cannot become entitled to the difference between the melvaram in respect of these lands as dry lands and the

melvaram in respect of the same as wet land. The plaintiffs'' claim therefore to a declaration that he is entitled to compensation for the use of the

water of his tank for the irrigation of the lands in question is entirely unsustainable ; and his claim for payment to him of the difference between the

dry and wet rates since and subsequent to 1892, from which year the payment was discontinued, is equally unsustainable. The learned pleader for

the appellant also contends that the plaintiff is entitled to the relief claimed on the ground that a contract should be implied, from the action of the

Head Assistant Collector in 1869, and the payment to him of the difference between the dry and wet rates up to the year 1892. It is not pretended

that the action of the Head Assistant Collector was authorised by Government or that the same was subsequently ratified. Even if from the fact of

yearly payments having been made to the Zemindar since 1869 or even prior thereto, an agree-merit could be implied to continue such payments

for ever, it is clear that it cannot be binding on the Government for the simple reason that it is not within the scope of the authority of Divisional

officers or of the Collector to bind the Government by any such agreement which sacrifices the legitimate interests of Government and has neither

been authorized nor ratified by it.

The second appeal, therefore, fails and is dismissed with costs.