Oldfield, J.

1. This is an appeal from the decision of two learned Judges, given under Section 98 of the Code of Civil Procedure, in accordance with the confirming judgment of one of them, Sankaran Nair, J. The question is whether water-cess was legitimately levied by Government, the appellant, from plaintiffs for the water of the Vamsadhara river, which they have admittedly used in their inam village for the irrigation of (1) second crop, (2) wet (or irrigated) crops grown on dry (or ordinarily unirrigated) land. The decision of this question will be a sufficient adjudication on the plaintiffs claims to a refund of past collections and an injunction as to the future.

2. Plaintiffs did not dispute that they used the water of the Vamsadhara, as alleged. The dispute is, therefore, only whether it belongs to and can be charged for by Government. Government has relied on Section 2 of Act III of 1905 in support of its ownership of the water and Section 1, Act VII of 1865, in support of its right to charge for it. The material portion of the former is as follows:

(1) All public roads, streets, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark and of rivers, streams, nalas, lakes and tanks, and all canals and water-courses, and all standing and flowing water, and all lands, wherever situated, save in so far as the same are the property of any zemindar...or inamdar or any person claiming through or holding under any of them,...are and are hereby declared to be the property of Government except as may be otherwise provided by any law for the time being in force, subject always to all rights of way and other public rights and to the natural and easement rights of other land-owners, and to all customary rights legally subsisting. And of the latter Whenever water is supplied or used for purposes of irrigation from any river, stream, channel, tank, or work belonging to, or constructed by, Government, it shall be lawful for the Government to levy, at pleasure, on the land so irrigated, a separate cess for such water, provided that where a zemindar, inamdar, or any other description of landholder not holding under ryotwari settlement is, by virtue of engagements with the Government, entitled 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.

3. As regards the first of these enactments, it is not material that it was passed only during the pendency of this litigation in the Court of first instance. For it is, as regards the ownership of water, a declaratory Act, and such Acts have retrospective effect (Maxwell on Interpretation of Statutes, 3rd Edition, page 309). Plaintiffs demur to its application, on the grounds that the Legislature cannot be supposed to have intended (1) to confer a right of ownership in flowing water, a thing not capable of ownership, or (2) to confiscate existing rights of irrigation or to affect them at all, when the purpose of the Act is only to justify charges for the unauthorised occupation of water and land. These objections are invalid. For (1) it is only in the last resort, and for clearer reason than has been shown, that the meaning of the general provision declaring that water belongs to Government can be nullified. For, as regards (1) the Act statedly makes a general declaration that water belongs to Government; and it is only in the last resort and for clearer reason than has been shown that I can construe it by holding that flowing water can belong to no one. And as regards (2) there is no question of taking away existing rights, but only of reserving them and assigning the burden of proof regarding them. The reference to water would be pointless with regard to its occupation as by a boat on it, the example suggested, since nothing makes such occupation chargeable; whilst the inclusion of only a declaration of ownership a