1. The dispute in this case relates to the right of Government to levy water cess on two acres of Inam land cultivated with the aid of water drawn from an alleged Government source. The plaintiff is the owner of an Inam village and the lands which have been assessed with the water cess have been classed as dry. The dry assessment constituted the Inam. Two-fifths of a sheet of water known as Tharuvai was included in the Inam. It is found by the Subordinate Judge on appeal that water from a Government source flows through the Mudalore Odai into the part of the Tharuvai which belongs to Government and thence onwards into the deeper part belonging to the plaintiff. The Tharuvai receives its supplv of water generally from direct rainfall, but in certain seasons and in certain years the Odai water makes the Tharuvai overflow and submerge some of the dry lands of the Inamdar. It is found that in Fasli 1312, the plaintiff was compelled to make the best of the situation by raising wet crops on two acres of his dry land, which had become unfit for dry crops owing to the inundation, with the help of the water which he enclosed in his adjoining land out of the flood water. The Subordinate Judge decreed the plaintiff's claim for refund of the assessment, holding that the water which came through the plaintiff's portion of the Tharuvai was his water and he was not liable to be charged therefor.
2. It is argued by the Government Pleader on behalf of the Secretary of State for India that the plaintiff is liable under Act VII of 1865, because the water comes from a Government source and the plaintiff's lands have been irrigated thereby and that it is immaterial that after leaving the Government source, it has passed through the plaintiff's portion of the Tharuvai. There is no question in the case as regards property in the water. Madras Act VII of 1865 is not based upon any theory of the ownership of the bed of a tank or water course being the foundation of a right to use the water free of charge. Section 1 of the Act specifies the conditions under which the cess is liable to be imposed. The water must come from a river, stream, channel, tank or work belonging to or constructed by Government. This condition is satisfied in this case--because three-fifths of the Tharuvai, the Mudalore Odai, the Oorani beyond, and the river which supplies it are all admittedly the property of the Government. The next condition is that the water from that source should, from or through the adjoining land, irrigate a land under cultivation or flow into a reservoir and be thereafter used for irrigating any land under cultivation. In this case water from the Government source flows through two-fifths of the Tharuvai, which is the adjoining land. It does not matter to whom that laud belongs. By flowing through plaintiff's two-fifths of the Tharuvai it does not cease to be water from a Government source. That water has admittedly irrigated the plaintiff's two acres of dry Inam land. It was first of all contended by Mr. Seshagiri Iyer for the respondent that the water became the Inamdar's by flowing through his portion of the Tharuvai. We need only answer this by saying that it has not ceased to be water from a Government source. He next relied upon the decisions in Venkatappayya v. The Collector of Kristna I.L.R. (1887) M. 407 and Krishnayya v. Secretary of State for India I.L.R. (1895) M. 24 which held that there could be no use for irrigation within the meaning of the section unless it was voluntary or in other words the person said to make use of it had an option to refuse it. It may be assumed that the same interpretation must be placed upon the phrase ' used for purposes of irrigation' in clause (a) of the section after the amendment as was done before it. But Mr. Seshagiri Aiyar's arguments overlook the fact that the old section of Act VII of 1865 was amended in order to get rid of the effect of those decisions and that clause (b) creates a liability to assessment where the water from, the Government source irrigates any land under cultivation and not merely 'is used for purposes of irrigation ' with or without the will of the person whose land benefits by the water, the water may irrigate the land. We must, therefore, overrule the argument based upon the employment of the word ' use' in the section. It was lastly urged that in the portion of the Tharuvai belonging to the plaintiff there was the rain water which had not come from a Government source, and although the flood water from the Government source poured into the Tharuvai, it could not be said that the water from the Government source was used by the plaintiff for cultivation, while it was not shown that the rain water in the Tharuvai was not sufficient for the cultivation which was carried on.
3. The overflowing of the Tharuvai in this case was the result of the flood and the flood was from the Government source. Although the flood water had got mixed with the rain water in the Tharuvai itself, it could not be contended that no portion of the water which irrigated the land consisted of the water from the Government source. We cannot admit that there is any force in the argument that in order to render the plaintiff's land liable to assessment it is necessary that the whole of the water used should be from a Government source. All that the section requires is that water from a Government source should irrigate the land in question, and in the opinion of the Collector ' the irrigation should be beneficial to and sufficent for the requirements of the cron. ' That other water has also been used is no ground for getting rid of the liability. The question as to the beneficial character of the water taken from the Government source and of its sufficency are not for the Civil Court but for the Collector subject to the control of the Board of Revenue and of the Government. The Collector in this case having imposed the assessment and he not having been overruled by the higher revenue authorities, we think the plaintiff is clearly liable to pay the assessment
4. A question was raised in the course of the argument as to the meaning of the word ' irrigation'--see Kinney on Irrigation, page 2--and whether in this case the plaintiff can be said to have irrigated his land with water from a Government source. Upon the facts found, however, it is clear that the water has irrigated the plaintiff's lands, in whatever sense that term is to be understood.
5. The Subordinate Judge has referred to the decision in Secretary of State for India in Council v. Permal Piillai I.L.R. (1900) M. 279 and Maria Susai Mudali v. The Secretary of State for India in Council (1904) 14 M.L.J. 350. They have obviously no application to the present case. There the proprietors were, by an engagement with the Government, entitled to the water free of separate charge. The estates were permanently settled and the proprietors were entitled to make what use they pleaded of the lands included in the settlemenet. The right to the water having existed at the date of the grant and the permanent settlement having been made so as to pass it the eye of the law all the rights which then existed, they were not liable to be charged with any water cess in respect of any cultivation which they carried on with the aid of water to which they were entitled. Those decisions, therefore, do not touch the decisions of the present case.
6. We must reverse the decree of the Courts below and dismiss the suit with costs throughout.