1. The suit out of which these second appeals arise were brought to recover penal water rate alleged to have been illegally collected from the plaintiffs for fasli 1317 in respect of certain Zemindari wet lands belonging to them. The District Munsif gave the plaintiffs a decree in three of the suits and dismissed the fourth. The District Judge on appeal dismissed the suits holding that the plaintiffs were liable to pay the penal water rate collected from them.
2. The lands admittedly were irrigated by means of Government water, and their liability to pay water rate under Section 1 of Act VII of 1865 is not disputed. The levy of penal water rate is regulated by rules framed under the said section and published at page 2 of the appendices to the standing orders of the Board of Revenue Rule 5 runs.
Double water rate will also be charged if water is taken from a sluice or channel or other source of supply other than that which is provided or approved by the responsible officers of the Public Works Department.
3. In the present case it is found that the authorised source of irrigation is a single pipe (or a row of pipes) leading from the 'Manager Kodu' channel and that the irrigation of the suit lands was actually effected by means of the water of the said channel passing through two pipes (or rows of pipes) the second having been inserted without the authority or approval of the Public Works Department. The effect of the insertion of the second pipe would be to double the supply of water available. It may be noted here that according to the plaints, the suit lands were irrigated and apparently entitled to be irrigated, not from the 'Manager Kodu ' channel, but from another source--altogether-- the Nibhanapudi channel. These allegations have been found to be false. It has however to be determined whether on the facts found the levy of the penal rate was legal.
4. The arguments of the learned vakil for the appellant have been practically devoted to showing that Rule 5 quoted above will not apply to these cases because it is not shown that the water used was ' taken ' by the appellants from an unauthorised source. It is not denied that the second pips was unauthorised or that water passing through it irrigated the suit lands. But it is urged that the pipe is situated a mile distant from the suit-lands that there is nothing to show that the plaintiff's inserted it or abetted its insertion and that the mere fact that the water passing through it flowed on to the plaintiff's lands will not bring the case within the meaning of the rule.
5. After careful consideration I do not think this contention can be accepted. The Act itself admittedly draws no distinction between the use of Government water with or without the active cooperation of the owner of the land irrigated. (Vide Secretary of State for India v. Swami Naratheeswarar I.L.R. (1910) M. 21 But it is suggested that the rules do: and that the adoption in the Rules of the word ' taken' in preference to ' used ' indicates that the penal rate is only to be charged when the person using the water had taken some active step to obtain the water. I can find no basis for such a distinction and in the connection in which it it used, I do not think any such special meaning as is suggested should be attached to the word' taken '. Where, as in the present case, the water proceeds through an open pipe, no active ' taking ' is necessary or indeed, practicable, after the pipe has been put in position for the water flows of itself. If the rule had been intended to bear the interpretation placed on it by the appellant's vakil case would have been taken to make it clear that the penal rate was only leviable from a person who took the water, instead of using the phrase ' is taken ' in the passive voice and impersonally.
6. It is argued that any wider interpretation of the rule would expose an innocent cultivator to an enhanced charge in consequence of an unauthorised augmentation of his water supply, which may have been effected without his knowledge or even against his wish ; and that it is unlikely that such could have been the intention of the framers of the rules. The answer to this is twofold. In the first place it does not follow that, because penal rate is legally leviable, Government will demand it from persons who have quite innocently become liable to it. In the second place if the probable intentions of the framers of the rules are to be looked to all the considerations presented to them must be borne in mind. As a matter of fact it is very seldom possible to prove who effects an unauthorised diversions of water for irrigation purposes. Such diversions are usually effected secretly and involve little time or labour, and, as in most cases they benefit not only the culprit himself but all those who hold land in the immediate vicinity including in many cases, the local village officials themselves, the chances of detection are small indeed. The main safeguard against such acts is the liability of everyone profiting thereby to be charged penal water rate. If this liability is to be limited to persons who can be shown to have actively co-operated in diverting the water, the rule will be simply nullified. Now the prevention of unauthorised interference with government irrigation sources is a matter of vital importance, not only to the public revenue but (what is even more serious) to the public peace.
7. Throughout this Presidency irrigation disputes are even now frequently the cause of riots and bloody affrays. As already stated where one or more ryots secretly divert water for the benefit of their own lands, their immediate neighbours usually share in the benefit but in almost every case, other ryots holding lands lower down will be prejudiced or will deem themselves prejudiced and the temptation to take the law into their own hands will frequently prove irresistable, and will produce lamentable consequence.
8. The desirability of preventing so far as possible unauthorised interference with Government irrigation sources is therefore a matter of vital importance and can hardly have been overlooked by the framers of the rules.
9. I do not suggest that these considerations of public policy are any reason for putting a strained interpretation on the rule but where the wording is consistent with what such considerations would dictate, and where it is argued that a word in the rule was deliberately selected as bearing a narrow meaning inconsistent therewith, I think they are not without weight.
10. In my opinion the penal water rate was legally leviable and I would dismiss the appeals with costs.
11. The question involved in this appeal is whether the plaintiff was liable to be charged a double water-rate for fasli 1317 under the following rule:
Double water rate will also be charged if water be taken from a sluice or channel or other source of supply other than that which is provided or approved by the responsible officer of the Public Works Department.' Vol. II of Standing Orders of the Board of Revenue page 4. The plaintiff alleged that his lands were entitled to take water from the Nibhanupadi channel, and that as a matter of fact the lands were irrigated by water from that channel in fasli 1317. On both these points the findings are against the plaintiff. It is found that the plaintiff's land is entitled to receive water from another channel the Manager Kodu, and that the water did come from that sluice, only one sluice being authorised. The plaintiff on these findings was held liable to the double water-rate. The plaintiff's case in the court of first instance was not that he had taken water from the Manager Kodu from which he is really entitled to take it and which is the source ' provided or approved by the responsible officer of the Public Works Department.' If this had been the plaintiff's case and if he had further pleaded that no act had been done by him or to his knowledge, or for which he was responsible by reason of which the source ceased to be so provided or approved, and that he was not in fact aware of the source having ceased to be provided or approved,--in that case some questions might have arisen on which I do not at present feel called upon to express any opinion. But on the allegations of the plaintiff and on the findings to which I have alluded, it seems to me to be clear that after two sluices had been made instead of one, the Manager Kodu as a matter of fact ceased to be a source approved by the Public Works Department. It is also clear, that the plaintiff's land was irrigated by water coming through this unauthorised channel; it seems to me that where it is proved that a certain piece of land is irrigated by water coming from a certain source, in the absence of some explanation being offered it may well be considered that the water has been taken (within the terms of the rule) by the person whose land is so irrigated. The rules ought, it is true, not to be strained in a penal sense, but neither ought they to be construed as though their object were to provide a variety of methods by which the sources of irrigation might be tampered with, without any one being responsible for such tampering by becoming liable for enhanced water rate. The object of the rules is just the reverse and within reasonable limits, it seems to me, that object ought to be given effect to. I quite agree, however, with my learned brother that it is assuming too much to proceed on the basis that the double water-rate would necessarily be levied by the Government in every case where the legal liability to pay it arises, though the person becoming liable may have acted in good faith, throughout and may not have unduly benefitted by water coming from an unapproved source.
12. For these reasons, I agree that the appeal should be dismissed with costs.
13. The judgments in second appeal Nos. 2074 to 2076 will follow.