Alfred Henry Lionel Leach, C.J.
1. These two appeals arise out of different suits but they raise the same question. The suits were filed by the Mother Superior of the Lady of Dolours Convent, Cantonment, Trichinopoly, to recover from the Government of Madras moneys which the Convent had been compelled to pay by way of water cess and road cess as the owner of certain lands in the Trichinopoly District. The suit out of which S.A. No. 1064 of 1939 arises was filed by the Mother Superior for the recovery of amounts collected in respect of the faslis which correspond to the years 1931-32, 1932-33 and 1933-34. The suit out of which S.A. No. 1047 of 1939, arises was filed by her for the recovery of similar exactions in respect of the fasli corresponding to the year 1934-35. The appeals are concerned merely with the question of the liability for water cess.
2. The plaintiff's case is that under an arrangement with the Government the lands in suit are held free from land tax and that a cess which is levied in respect of water used for irrigating land is a land tax. The lands originally formed part of the private properties of the Nabob of the Carnatic. In 1801, under the terms of a treaty entered into by the Nabob with the East India Company, his sovereign rights terminated but he was allowed to retain his private properties free from taxation. The Nabob of those days died soon after the treaty had been signed and was succeeded by another Nabob, who, according to the judgment of the Subordinate Judge now under appeal, died on the 7th October, 1855. He and Ms predecessor had incurred large debts and in 1858 the Legislative Council of India passed an Act (Act XXX of 1858) for the administration of these private lands in order that the debts might be discharged and suitable provision made for the children and the relations of the Nabob as the result of proper management. The Act vested the private properties of the Nabob in a receiver, who was given power to sell. The receiver having decided to sell the properties in suit, he applied to the Government of Madras for a certificate that they were permanently exempt from all demand on account of quit rent, assessment, or other land tax. A certificate was granted on the 1st March, 1866, and is one of the Exhibits in the present suits. It reads as follows:
Whereas the receiver of the Carnatic property under Act XXX of 1858 has produced good prima facie evidence of the title of His Highness the late Nabob of the Carnatic to the premises hereunder specified, now held free of quit rent OOF other land-tax and not justly liable to any such payment according to the custom of the district or the regulations of the Government, and has applied for a certificate, I hereby declare accordingly under the authority of the Governor in Council of Madras, that the said land is permanently exempt from all demand on account of quit rent, assessment or other land tax.
3. It is common ground that the Government of Madras has never imposed water cess in respect of water supplied for the cultivation of the first crop raised on the lands in suit. The water used for irrigation is supplied from the Uyyakondan channel, which is connected with the river Cauveri. The Court has been told that this channel has been in existence from time immemorial. The exactions of which the plaintiff complains were made because the tenants cultivating the lands had taken water for the purpose of raising a second crop. Prom the Inam register of 1866, it is to be gathered that the area held by the plaintiff's predecessor in title measured altogether 59-50 acres, of which 50 .59 acres were single crop wet lands and 8 .91 acres double crop wet lands. The receiver appointed under Act XXX of 1858, sold these lands to the Rev. A. De Rochely, who was then the Superior of the Catholic Mission at Trichinopoly. On the 26th June, 1867, the Rev. A. De Rochely wrote to the Collector claiming that 45 cawnies (about 60 acres) were held free of 'all kinds of taxation by virtue of the Government certificate', but that 6 3/4 cawnies (roughly 9 acres) had been by mistake classed among the Government lands 'that pay tax for irrigtion, roads, etc.' Accordingly he asked the Collector to issue an order that these 6 3/4 cawnies were also held free of all taxes. On the 6th July, 1867, the Collector passed an order in which he has declared that the lands were liable only to village cess and road cess. On the 7th September, 1930, the Collector directed that the lands should be registered as being held free of assessment or quit rent.
4. The present suits were tried by the District Munsif of Trichinopoly, who held that the plaintiff was entitled to the refund in respect of the 8.91 acres, but not in respect of the remaining lands. The basis of his decision that the 8.91 acres were entitled to water for a second crop was apparently the fact that this area had been classified in the Inam register as double crop lands and therefore the plaintiff was entitled to complete exemption from the water cess to this extent. Both sides appealed to the Subordinate Judge of Trichinopoly, who held that the Government was not entitled to levy water cess at all.
5. The Madras Irrigation Cess Act, 1865, came into force some six months before the Governor of Madras in Council gave to the receiver appointed under Act XXX of 1858, the certificate which has been quoted. Section 1 of the Madras Irrigation Cess Act confers power on the Government to levy water cess in. addition to land assessment, but the first proviso to this section says that where a zamindar or inamdar or any other description of land holder; not holding under ryotwari settlement is by virtue of engagements with the Crown entitled to irrigation free of separate-charge, no cess under the Act, shall be imposed for water supplied 'to the extent of this right and no more.' The plaintiff says that this provision read in conjunction with the exemption certificate makes it clear that water cess. is not chargeable even when water is taken for a second crop.
6. A charge for water supplied for the purpose of cultivation; is a charge on the land. The Madras Irrigation Cess Act levies the cess on the land. In delivering the judgment of the Privy Council in Kandakuri Bala Surya Prasad Row v. The Secretary of State for India in Council (1917) 33 M.L.J. 144 : L.R. 44 IndAp 166 : I.L.R. 40 Mad. 886 in which the appellants sought to recover from the Secretary of State for India sums paid under protest in respect of water cess levied under the Act of 1865, Lord Parker of Waddington said that the cess under the Act, is leviable on land which is irrigated and therefore is in the nature of a land tax. In view of this judgment there can be no doubt that the exemption certificate applies to water cess, it being a form of land tax.
7. By virtue of the treaty with the Nabob of the Carnatic in 1801, the East India Company had no right to levy a land tax and therefore no right to levy a water cess, The Uyyakondan channel was then in existence and if the Nabob took water from it he could not, by reason of the treaty, be taxed in this respect The plaintiff stands in his shoes. Moreover, the exemption certificate granted to the receiver says that these lands are permanently exempt from all demand on account of land tax. These words are free from ambiguity and even if the plaintiff's case were merely based on the certificate obtained by her predecessor in title there would be much to be said for her contention, but reading that certificate in the light thrown by preceding events it is clear that the plaintiff's case is well founded.
8. The learned Government Pleader has argued that the plaintiff cannot claim exemption in respect of the 8.91 acres which were shown as double crop lands in the Inam register, because the area held by the plaintiff is admittedly only 40.25 acres and in the settlement of 1898, the register shows an area of 30.80 acres, all of which are single crop lands. On this footing he argues that the 8.91 acres must have been disposed of. This may very well be so, but it does not affect the plaintiff's case. She contends that the Government has no power to levy a water cess at all, and for the reasons given this contention must prevail.
9. Whether the Government can be compelled to supply the plaintiff or her tenants with water for the raising of a second crop is another matter, but as it is not necessary to decide it in this case it must be left open. All that the Court is here concerned with is whether the Government can levy water cess in respect of the lands in suit and the answer must be that it cannot, whether it be in respect of the first or the second crop.
10. The appeals fail and will be dismissed with costs, which will be paid within three months.