John Wallis, C.J.
1. This appeal was heard in the first instance by Sir Arnold White, Chief Justice, and Mr. Justice Oldfield and after certain questions had been decided, the further hearing was adjourned to await the decision of the Letters Patent Appeal No. 39 of 1913 from the decree in A.S. No. 124 of 1906 in which owing to a difference of opinion between Miller and Sankaran Nair, JJ., the learned Judges who heard the appeal, the decree of the Lower Court was confirmed in accordance with the opinion of Sankaran Nair, J. His decision has since been reversed by Oldfield and Bakewell, JJ., dissentiente Sadasiva Aiyar, J., and the present appeal has now come before this Bench for further argument and disposal.
2. The important and difficult questions in these, appeals as to which there has been much difference of opinion, relate to the effect and construction of the. Madras Water Cess Act, VII of 1865 as amended and of the Madras Land Encroachments Act, III of 1905 and have nothing to do with any right of Government to control the distribution of water for irrigation, as to which see the saving in the Basements Act and the decision in Fischer v. The Secretary of State for India I.L.R. (1908) M. 141 with regard to the right of Government to charge separately for the supply of water the history of the question has been elaborately considered by Sankaran Nair, J. in The Secretary of State for India v. Janakiramayya I.L.R. (1913) M. 335 but the restrictive construction based upon this history which he placed upon the Act had not been accepted by any of the learned Judge's in the Letters Patent Appeal and it is unnecessary for me to refer to it. What seems to me perfectly clear from the terms of the Act itself is that it authorised the levy of statutory water cess on cultivation effected by means of water taken from a river belonging to Government subject to an exception in favour of Zemindars, etc., to the extent to which by virtue of their engagements with Government, they were entitled to irrigation free of separate charge. The question whether the plaintiff in this case is entitled to exemption, by virtue of an engagement with Government has been dealt with by the learned Judges in the judgments they have already pronounced, and I therefore refrain from discussing it and confine myself to the question whether, assuming there is no such engagement, Government are entitled to levy water cess by virtue of the fact that the river from which this irrigation channel takes off is a river belonging to Government within the meaning of the Act. Unfortunately the Act contains no definition as to what is a river belonging to Government. Where both banks belong to Government it is hardly disputed that, as Government owns the bed, the river at such places may be treated as belonging to Government. What however if one bank belongs to Government and the other to a Zemindar as in the case which gave rise to the Letters Patent Appeal No. 39 of 1915? It cannot be said there was any judicial decision on this point before the passing of Act III of 1905. Though the immediate object of that Act was to provide a method of dealing with encroachments on land belonging to Government and the immediate occasion of passing it was the decision in Madathapu Ramayya v. The Secretary of State for India I.L.R. (1903) M.P. 386 as to Penal Assessment, it does not in my opinion admit of doubt, having regard to the language and history of the measure that those responsible for it intended the declaratory clause to deal with running as well as standing water and to remove doubts which might exist as to the extent of the rights of Government over such water. The language of Section 1 was copied from the Bombay Act V of 1879 which, after in these terms declaring the ownership of Government among other things in standing and flowing waters, proceeded in Section 55 to authorise Government to fix rates for water the right to which vests in Government. It was probably considered that there was no necessity to insert a clause of that. kind in the Madras Act because under Act VII of 1865 Government already had power to impose water cess for water taken from a river belonging to Government, and it was thought sufficient to declare that running water belonged to Government. The saving clauses of the section in the Madras Act are not the same as the saving clauses in the Bombay section but more elaborate, and the new saving in favour of natural rights appears to have special reference to natural rights to the use of flowing water as defined in the illustrations to Section 7 of the Basements Act closely following the English law. I am therefore unable to agree with Sankaran Nair, J. that we are entitled to disregard the provisions of Act III of 1905 in construing Act VII of 1865. On the contrary I think the Legislature clearly intended that the declaratory section should be used in the interpretation of the words 'rivers belonging to Government' in Ach VII of 1865, and in any case I should feel bound to follow the unanimous decision on this point of the Full Bench in Secretary of State for India v. Janakiramayya (1915) 29 M.L.J. 389, until it is reversed by higher authority. I may further mention that in J905 the subject of the extension of irrigation and the terms on which it could be undertaken were engaging attention. 1903 was the year of the Irrigation Commission and of the Peranai Dam suit, the appeal in which was decided in 1905 and the Irrigation Bill to enable the execution of general projects which was subsequently introduced was then under consideration, and at the same time Government was asserting its claim to levy water cess in such a way as to give rise to all those more or less connected suits. In these circum stances I can see no reason for refusing to give full effect to the statutory declaration the Act contains as to Government ownership of running water not the property of any body else, or for refusing to construe Act VII of 1865 which had left it doubtful what was meant by a river belonging to Government in the, light of the provisions as the Courts at once proceeded to do. In Kandukuri Mahalakshmamma Garu v. The Secretary of State for India I.L.R. (1910) M. 296 Miller and Munro, JJ. held that the effect of Act III of 1905 was to declare that all rivers are the property of Government, running water not being the property of anybody else, and Oldfield, J. would appear to have accepted this view in the Letters Patent Appeal. But in Venkataratnamma v. Secretary of State for India I.L.R. (1913) M. 361, Benson and Sundara Aiyar, JJ., as I read the judgment held, applying the provision of Act III of 1905, that as the channel in that case belonged to the Inamdar the running water in it also belonged to him and not to Government and that there was no case for levying water cess under the Act of 1885. Sankaran Nair, J. has given his reasons at great length for putting this construction on Act III of 1905, and Sadasiva Aiyar, J. has agreed with him in the Letters Patent Appeal. So too Bakewell, J. observed as to the words 'river belonging to Government' in Act VII of 1865, that the English authorities showed that the owner of the river bed has a qualified ownership in the stream of water which flows over it by virtue of which the river and the stream may be said to belong to him a proposition which was supported in the argument before us by reference to the language of James, L.J. in Bush v. Trowbridge Water Works Co. (1875) 10 Ch. App. 159 and to Lyon v. Fishmonger's Co. (1876) 1 A.C. 662. He was however apparently of opinion that where only one bank and the bed ad-medium filum acquae belonged to the. Zemindar the river must be treated as belonging to Government, by virtue of Act III of 1905. In the present case however both banks and the whole bed at the place in question belong to the Zemindar and not to Government and therefore on this view as I understand it the river is not the property of Government. The balance of authority appears to me to be against the extreme view taken by Miller and Munro, JJ. in Kandukuru Mahalakshmamma Garu v. The Secretary of State for India in Council I.L.R. (1910) M. 296 that the effect of Act III of 1905 was to vest all running water in the Presidency in Government on the ground that there was no other owner. Construing Act VII of 1865, I think this much is clear that at places where the whole bed belonged to Government it was a river belonging to Government, and at places where none of the bed belonged to Government as here, it was not a river belonging to Government. If this part of the river belonged to the Zemindar before the passing of Act III of 1905, his ownership, is preserved by the saving clause of the section and is unaffected by it. Admittedly Government does not own the banks or any part of the bed of this river until far below the point where the channel in question takes off. It cannot therefore be considered a river belonging to Government so as to warrant the levy of water cess under Act. VII of 1865. This is the only question which has been argued before this Bench and I confine myslf to it. The result is that the appeal must be dismissed with costs.
Seshagiri Aiyar, J.
3. I agree. If the ancient doctrine that flowing water is publici Juris is to be abandoned, proprietorship over it can only be based on the right to the bed and banks of the stream through which it runs. This was recognized by Lord Justice James in Bush v. Trowbridge Water Works Co. (1875) 10 Ch. App. 459 and by the Lord Chancellor in Lyon v. Fishmongers' Co. (1876) 1 A.C. 662. Lord Blackburn in Orr Ewing v. Colquhoun (1877) 2 A.C. 839. stated that: 'The Lord Advocate admitted that he understood the law of Scotland to be that if the same person is proprietor of the ground on both sides of a river, in which there is no right of navigation, he can change its channel as he pleases, provided he restores it to its old channel before it leaves his ground'. On this principle, the Government who owned neither the bed nor banks of the river in question up to the point where the diversion took place can lay no claim to the water. It was argued that the view will be inconsistent with Act III of 1905. If that Act is only declaratory of existing rights, the declaration would cover not only the substantive proposition enunciated in Section 2 Clause (1) but also that contained in the saving Clause (a). As no question of either part ownership of the banks or of the water belonging to Government being mixed up with water belonging to the respondent arises, no rights under Act VII of 1865 arose. I agree 'that the appeal should be dismissed with costs.