Judgement

Consolidated Appeals from a judgment and three decrees of the High Court (September 9, 1910) as to the first affirming, and as to the second and third varying, decrees of the District Judge of Ganjam.

The appeals arose from three suits instituted in the District Court of Ganjam by the Zamindar of Urlam (since deceased, and represented by the appellants) against the respondent. The plaints claimed certain declarations as to the plaintiffs right to use water from artificial channels connecting with the river Vamsadhara for irrigating his zamindari and inam lands, and for a refund of sums levied as irrigation cess under Madras Act VII. of 1865, as amended by Madras Act V. of 1900.

The facts and the effect of the decisions of the Courts in India appear from the judgment of their Lordships at pp. 175 to 180. The appeal to the High Court is reported at I. L. R. 34 Madr. 296.

1917. March 9, 12, 13, 15, 16, 19, 21, 22. Upjohn, K.C., and Sir W. Garth, for the appellants. The general law in India as to rights in flowing water is the same as that in England Rameshur Per shad Narain Singh v. Koonj Behari Pattuk (( 1878) L. R. 6 Ind. Ap. 33.); Kali Kishen Tagore v. Jodso Lal Mullick (( 1879) L. R. 6 Ind. Ap. 190.); Perumal v. Ramasami (( 1887) I. L. R. 11 Madr. 16.); Deevi Pershad Singh v. Joynath Singh (( 1897) L. R. 24 Ind. Ap. 60.); Indian Easement Act (V. of 1882), s. 7, illustrations (/), (j). The duty of the Government to regulate irrigation does not entitle the Government to interfere with the water rights of private individuals Ponnusawmi Tevar v. Collector of Madura (( 1869) 5 Madr. H. C. 6.); Kristna Ayyan v. Vencatachella Mudali (( 1872) 7 Madr. H.

C. 60.); First Assistant Collector of Nasik v. Shamji Dasrath Patil (( 1878) I. L. R. 7 Bomb. 209.); Ramachandra v. Narayanasami (( 1892) I. L. R. 16 Madr. 333.); Sankaravadivelu Pillai v. Secretary of State for India (( 1904) I. L. R. 28 Madr. 7.); Ambalavana Pandara v. Secretary of State for India. (( 1905) I. L. R. 28 Madr. 539.) The arguments for the appellants fall under three heads. First, the Act of 1865 has no application in the present case. It applies only when the Government has constructed a complete work of irrigation for the public benefit. This appears from the preamble, and is supported by s. 1 (b). The channels were not constructed by the Government, and any expenditure by the Government after their purchase of the three zamindaris was for the benefit of their own estates. Secondly, the river Vamsadhara is not " a river belonging to Government." Flowing water cannot be the subject of property apart from legislation. The High Court misconstrued Madras Act III. of 1905, s. 2, sub-s. 1. Upon its true construction that sub-section refers only to the beds of rivers and not to the flowing water itself ; the Act is declaratory as to land only. The channels do not belong to the Government within the meaning of the Act of 1865. Thirdly, the appellants are within the first proviso to s. 1 of the Act of 1865 as amended in 1900. The four zamindaris were settled with the channels upon them, the Government reserving no interest. There are to be implied from the sanads grants of rights to use the water to extend the wet cultivation, or for any purpose of the land, subject to the rights of other owners Watts v. Kelson (( 1870) L. R. 6 Ch. 166, 175.); Secretary of State for India v. Perumal Pillai (( 1900) I. L. R. 24 Madr. 279.); Chidambara Rao v. Secretary of State for India. (( 1902) I. L. R. 26 Madr. 66.) [Reference was also made to Mudaliar v. Secretary of State for India (( 1904) 14 Madr. L. J. 350.), Lutchmee Doss v. Secretary of State for India (( 1909) I. L. R. 32 Madr. 456.), Secretary of State for India v. Swami (( 1910) I.

L. R. 34 Madr. 21.), Secretary of State for India v. Ambalavana (( 1910) I. L. R. 34 Madr. 366.), and Madras Regulation XXV. of 1802.]

P. O. Lawrence, K.C., Sir Erle Richards, K.C., and Kenworthy Brown, for the respondent. The Vamsadhara is a r