ORDER:- The petitioner owns lands in Singampattl village, Bhavani taluk, Coimbatore District, and the lands are comprised in patta Nos. 18, 30, 413 and 416. The land revenue payable for the lands comprised in the said patta numbers is Rs. 1.94, 2.93, 22.17 and 2.10 respectively and the water cess payable on them under the Madras Irrigation Cess Act, 1865 is Rs. 19.90, Rs. 32.10, 256.25 and Rs. 22.95 respectively.

2. By Government Order Ms. No. 1475, Rural Development and Local Administration dated 1-8-1970, the rate of levy of local cess surcharge under Section 116 of the Tamil Nadu Panchayats Act, 1958, was made subject to a maximum of Rs. 1.50 on every rupee of land revenue. On the basis of the said G. O., the respondent had claimed a sum of Rs. 702.77 from the petitioner under the provisions of Sections 115 and 116 of the said Act. The petitioner questions the validity of the said demand in the writ petition on the ground that the water cess collected under the Madras Irrigation Cess Act, 1865 will not come within the term of 'land revenue' used in Sections 115 and 116 of the Tamil Nadu Act 35 of 1958, that the explanation to Section 115 (1) which seeks to include water cess also within the term of land revenue is unconstitutional and as such invalid, and that the water cess which is only a fee payable to the Government for the water supplied cannot be taken to be a tax on land, leviable under Section 115 (1). The petitioner, therefore, seeks a writ of prohibition from this court to prohibit the respondent from enforcing the said demand.

3. According to the petitioner the water cess which is levied under the provisions of the Madras Irrigation Cess Act, 1865 is only a fee and that it is not within the competence of the State Legislature to levy any tax on the consumption of water in the irrigation of land by owners thereof. It is also stated that the explanation to Section 115 (1) of Madras Act 35 of 1958 which includes within the definition of 'land revenue' water cess payable to the Government for water supplied or used for the irrigation of land, which is not a tax, is beyond the legislative competence and is, therefore, invalid and unconstitutional.

4. The learned counsel for the petitioner refers to Entry 17 and Entry 66 of List II of the VII Schedule to the Constitution of India in support of his contention that no tax can be levied on the water supplied by the Government and that only a fee can be levied under Entry 66 of List II. Reference is also made to Section 1 (2) of Madras Irrigation Cess Act 1865 as amended by Madras Act 3 of 1945 which declares that water cess leviable under the said Act is not a tax on land but is only a fee for the water supplied or used for the irrigation of land. It is said that in view of the said section water cess can never be treated as a tax, and that land revenue which is a tax falling under Entry 49 of List II can never be taken to include water cess which is a fee, and, therefore, it is not open to the Legislature to include water cess within the definition of Land Revenue.

5. The respondents, however, counters the petitioner's contention that the said explanation is invalid and unconstitutional, by saying that the State Government is competent to define land revenue as it has done under the explanation to Section 115 (1) as including water cess, that though water cess is not treated as land tax proper for certain purposes under Section 1 (2) of Madras Act 7 of 1865 it is still a tax levied in respect of the land, and that water cess which is charged with reference to land in one's occupation may clearly fall within the ambit of land revenue.

6. For a proper appreciation of a rival contentions of the parties it is necessary to note briefly the statutory provisions. Section 115 (1) and the explanation thereto and Section 116 of the Madras Act 35 of 1958 are as follows:-

"There shall be levied in every Panchayat Development Block, a local cess at the rate of 45 naya paise on every rupee

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