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1917 Supreme(SC) 28
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BUCKMASTER, LORD PARKER OF WADDINGTON, LORD PARMOOR, MR. AMEER ALI, AND SIR WALTER PHILLIMORE, BART.
KANDUKURI BALASURYA ROW - Appellant
Versus
SECRETARY OF STATE FOR INDIA IN COUNCIL - Respondents
On Appeal From The High Court in Madras.
Decided On : May 3, 1917.
Solicitor for appellants: Douglas Grant.
Solicitor for respondent: The Solicitor, India Office.
Water rights via granted channels are measured by the physical capacity of the works, not historical customary usage. Under a permanent settlement, such rights are appurtenant to the land and exempt from separate water cesses to prevent an illegal increase in fixed land revenue.
Headnote:(A) Water Cess Act, 1865 - Section 1 - Permanent Settlement - Regulation XXV of 1802 - Levy of separate cess for irrigation water - First proviso protecting landholders entitled to irrigation free of separate charge by virtue of engagements with Government - The permanent settlement fixed a moderate assessment of public revenue not liable to be increased - Imposing a cess on water rights appurtenant to the land would effectively increase the fixed revenue, breaching the government's obligation. (Paras 15-18)
(B) Water Rights - Measure of easement - Right to take water from a river via a channel is measured by physical conditions, such as the size of the channel and the nature of sluices and weirs, rather than by the customary usage (mamul) prior to the grant. (Paras 26-27)
(C) Inam Lands - Rights of inamdars within a zamindari estate - Entitlement to use water under the same engagements as the zamindar. (Para 34)
Facts of the case:
A zamindar sought the recovery of water cesses levied by the government under a specific Act on zeraiti and inam lands. The government contended that the river was government property and that the right to use water was limited to the customary usage (mamul) existing at the time of the permanent settlement. The zamindar claimed protection under a proviso of the Act, arguing that the right to use water was appurtenant to the land under the permanent settlement and thus free of separate charge.
Findings of Court:
The court found that the irrigation channels and works were vested in the zamindars through the permanent settlement. The right to take water from the river is determined by the physical capacity of the channels and sluices, not by historical customary usage. Consequently, the zamindar was entitled to use the water for expanding cultivation or second crops within the physical limits of the works without being subject to a separate cess.
Issues: Whether the government is entitled to levy a water cess on zeraiti and inam lands when the right to use water is appurtenant to a zamindari estate under a permanent settlement, and whether such rights are limited to the customary usage (mamul) prevailing at the date of settlement.
Ratio Decidendi: The permanent settlement created an obligation not to increase the fixed annual revenue. Imposing a separate cess on water rights appurtenant to the land would effectively increase this revenue. The right to use water via granted channels is measured by the physical capacity of the works (size of channels and sluices) rather than historical usage. Thus, the first proviso of the Cess Act protects such holders from separate charges for water used within the physical limits of the irrigation system.
Result: Appeal succeeds; the zamindar is within the protection of the first proviso to section 1 of the Cess Act and is entitled to recover the amounts paid under protest.
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
