Abdur Rahim, Officiating C.J.
1. The answer to the questions asked in the Order of Reference depends on the interpretation of Section 1 of the Madras Irrigation Cess Act' VII of 1865. That section is as follows : (a) 'Whenever water is supplied or used for purposes of irrigation from any river, stream, channel, tank or work belonging to, or constructed by, Government and also (6) whenever water by direct or indirect flow or by percolation or drainage from any such river, stream, channel, tank or work from or through adjoining land irrigates any land under cultivation or flows into a reservoir and is thereafter used for irrigating any land under cultivation, and, in the opinion of the Collector, subject to the control of the Board of Revenue and of the Government, such irrigation is beneficial to, and sufficient for the requirements of, the crop on such land it shall be lawful for the Government to levy at pleasure on the land so irrigated a separate cess.' The preamble says 'Whereas, in several districts of the Madras Presidency, large expenditure out of Government funds has been and is still being incurred in the construction and improvement of works of irrigation and drainage, to the great advantage of the country and of proprietors and tenants of land : and whereas it is right and proper that a fit return should, in all cases alike, be made to Government on account of the increased profits derivable from lands irrigated by such works; it is enacted as follows'. It will be observed that the Madras Legislature bases the right of the Government to levy an irrigation cess, on account of the expenses incurred by the Government in the construction and improvement of works of irrigation and drainage, and on the benefit derived by the holders of agricultural land from such sources. But in the enactment itself, it confers on the Government the right to levy irrigation-cess even in cases where the particular source of irrigation is a natural river or stream and no expenses need have been incurred by the Government in the construction of any irrigation works in connection with them. It therefore goes farther than is justified by the policy as expounded in the Act itself. However that may be, we are concerned with the construction of the enacting words of the statute' and are bound to give effect to them. The first 'question asked in the Order of Reference must be answered in the negative in the sense that the duty imposed on the Collector to satisfy himself that the irrigation with respect to which cess is levied is beneficial to and sufficient for the requirements of the crop on such land is not of a judicial character liable to be reviewed by Courts of Justice. The act nowhere says that the Revenue Officer is to certify in writing that the irrigation in question is beneficial. His opinion is made subject to the control of the Collector, the Board of Revenue anil the Government and not of the Courts of Justice. The duty to be performed by the Revenue Officer seems to be of an executive nature, liable to be supervised only by the higher Revenue authorities and the Government. I find nothing in the Act to justify the Court in saying that because the Collector or any other Revenue officer entrusted with power in this respect has not recorded his opinion in the form of a certificate or otherwise, therefore the imposition of cess is illegal and liable to be set aside. This is the view taken in a recent decision of this Court, Secretary of State for India v. Swami Naratheeswarar I.L.R. (1911) M. 21 and I have no doubt it is correct. The answer to the first question being in the negative, the second and third questions do not arise.
2. The fourth question 'Whether the words 'irrigation by percolation' cover cases where subsoil water derived by percolation from a river or channel owned by the Government is taken by the roots of trees' is one of some importance. It must be admitted that the words used in Section 1 are of an extremely wide and comprehensive nature. It is contended however that the word 'irrigation' in Clause (b) (which is the clause applicable to this case) refers to cases where water from a river or channel owned by the Government actually comes upon the surface of the land upon which cess is sought to be levied whether by flow, direct or indirect, or by percolation. But the words used are 'whenever water...by percolation...irrigates any land' and not whenever land is irrigated by means of water derived from a river or channel owned by the Government. Here the word 'irrigates' seems to be used in the wider sense of 'waters', 'moistens' and not in the special sense of supplying (land) with water by means of channels or streams passing through it. It is strongly urged upon us by Mr. T.R. Venkatarama Sastriar who appeared for the appellant that such an interpretation will lead to great hardships, as it would enable the Revenue authorities to levy water-cess at their uncontrolled discretion on land, situated at a considerable distance from a Government river or stream. But the discretion of Revenue authorities is not quite so unfettered as is apprehended. Whether particular land is irrigated by water derived from a Government source or not is a question of fact which is to be tried by the Court and is not left to the opinion of the Revenue authorities. It is only when that is found, that the further question whether such irrigation is beneficial to, and sufficient for the requirement of the crop on that land, is left to the Revenue authorities to decide. It is also doubtful whether in ordinary cases, the water of a river or stream would extend by percolation to any great distance from the banks and the learned Government Pleader himself suggested that it would not extend farther than 50 feet or thereabouts. Besides the Board of Revenue by their Standing Order No. 6, page 8 have exempted private wells from taxation although they might derive water from a Government source. The answer to the fourth question must be in the affirmative.
Seshagiri Aiyar, J.,
3. In this case I have had the advantage of reading the judgment which my learned brother, Philips, J. has prepared. I am in general agreement with the conclusions at which he has arrived; but having regard to the fact that I was one of the Judges who referred the questions to a Full Bench as requiring definite pronouncements, I desire to say a few words.
4. I agree in thinking that in forming the opinion referred to in Section 1(b) the Collector is acting in his executive capacity and not judicially. It is true that the conclusion he has to come is binding on the parties and on the civil courts. Consequently, it is necessary that he should have before him all the materials, should himself examine those materials and if possible give an opportunity to the party likely to be affected to make his representations. But it is not obligatory on him to act judicially. I feel no doubt that as the opinion he is required to form will have far-reaching consequences, the Collector may be expected to give his best attention to the subject. The learned Government Pleader has satisfied me by contrasting the language used. in this Act with that used in other Acts which impose the duty of acting judicially on executive officers, that in the present instance no question of certifying by the Collector is contemplated. I therefore agree in answering the first question in the negative. The second and third questions do not arise for consideration, in this view.
5. On the fourth question, I felt doubts in the course of the argument whether the expression 'irrigation by percolation' can be applied correctly to underground watering. The definition of irrigation to which Mr. Venkatarama Sastriar drew our attention in his able argument seems to imply that there must be something visible and connective between the channel water and the field which is said to have been irrigated. At the same time, it has to be conceded that the language of the Act and the policy of the legislature in departing from the earlier decisions, as pointed out in Secretary of State for India v. Swami Naratheeswarar I.L.R. (1911) M. 21 show that the Act is intended to apply to all cases wherein the crop is nourished by percolation. It is not for us to say whether the legislature should have enacted a rule of this kind. We have to deal with the sections as we find them. A few other considerations have influenced me in accepting this view which was strenuously pressed upon us by the learned Government Pleader. One is that percolation as understood in scientific text-books cannot ordinarily reach a soil which is beyond 50 feet from the source of the water. See the Manual of Sanitary Science published by the Government. The second is the concession of the Government Pleader that wells etc., which derive their supply from springs (whether these springs are traceable to Government sources or not) would not be regarded as containing water coming by direct or indirect flow by percolation. This latter position derives strength from the Resolution of the Government of India passed with reference to attacks on the Government policy regarding land assessment, See page 225. The Standing Orders of the Board of Revenue, Order VI, in terms exempt private wells from the category of water sources which can be said to have derived their supply by percolation.
6. The practical result of these exemptions will be to affect only a small extent of land, namely, those which are on the immediate neighbourhood of running streams and the crops on which are patently nourished by the water flowing in the stream, I therefore agree with my learned colleague in answering question No. 4 in the affirmative.
7. The first question that has been referred to us must, I think, be answered in the negative. Section (1)(b) of Act VII of 1865 makes no provision for any certificate being furnished by the Collector, but says 'whenever...in the opinion of the Collector, subject to the control of the Board of Revenue and of the Government, such irrigation is beneficial to, and sufficient for the requirements of, the crop on such land, it shall be lawful for the Government to levy at pleasure on the land so irrigated a separate cess.' The only necessity here imposed is that the Collector shall be of opinion that the, irrigation is beneficial, and it has been observed both in Secretary of State for India v. Swami Naratheeswarar I.L.R. (1911) M. 21 and in Secretary of State for India v. Ambalavana Pandara Sannadhi I.L.R. (1911) M. 366 as follows: 'the question as to the beneficial character of the water taken from the Government source and of its sufficiency 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'. Also in Raja Ramachandra Appa Row v. Secretary of State for India. Sankaran Nair, J in his judgment appears to be of the same opinion. He says that Section 1(b) provides that the Collector has to satisfy himself that the irrigation is beneficial to the requirements of the crop and that this can only be properly done when the crop is on the land, and it appears that it was not contemplated that the Collector has to decide this question by taking evidence after the harvest is over, I think, therefore, that the learned Judges who referred this question are not right in saying that the discretion given to the Collector under the section is a judicial one. It is immaterial on what grounds he forms his opinion so long as he satisfies himself in any way that he thinks best, that the irrigation is beneficial. If that is so, no certificate is required under the Act, and therefore the question must be answered in the negative. In this view, it is unnecessary to consider questions 2 and 3.
8. The fourth question whether the words 'irrigation by percolation' cover cases where subsoil water is taken by the roots of trees, has been argued at some length, and the learned vakil for the respondent urges that irrigation by percolation cannot mean irrigation by water which reaches the ground irrigated beneath the surface of the soil. However, turning to the definition of these two words in the dictionary, for they are not defined in the Act, we find 'irrigate' defined as follows : to supply with moisture, to moisten wet. A special meaning is given (i.e.) (1) to supply land with water by means of channels or streams passing through it, (2) to water. It is contended that, here, we must apply the first of these two special meanings and that, unless channels or streams pass through the land, there is no irrigation. The definitions in the various dictionaries are not always worded in exactly the same way and consequently cannot be applied too literally. We have the general definition under the special head, namely, 'to water.' If we take this latter meaning, which is after all the usual meaning of the word any means whereby land is watered, that is to say, has water supplied to it, must be irrigation. In the present case, the water percolates from a Government source, and as percolation' itself means 'passing through a porous substance or medium, or filtering, oozing, or trickling through' as defined in the Oxford New English Dictionary, we must take it that irrigation by percolation is equivalent to watering by means of water which oozes through the subsoil and passes to-the land to be irrigated. There is nothing in this definition which supports the learned vakil's contention that irrigation cannot be effected unless the water which irrigates comes on the surface of the land. To show that this cannot be correct, it is only necessary to state that when water passes into the subsoil, a certain portion of it must come to the surface of the soil owing to the process of evaporation, and whether it comes to the surface at the last stage, or whether it starts on the surface and gradually filters through the subsoil is quite immaterial. The reason for putting forward this argument is apparently, because, if we adopt the view that percolation through the subsoil is irrigation, any water which passes to the subsoil or to wells on lands would be liable to be charged under Section (1)(b). Whether it can be so charged or not is not a matter which need be decided now, but it may be observed that all the water which comes into a well owing apparently to rainfall or floods in an adjacent river or stream does not necessarily come by means of percolation from a Government source of irrigation. It must depend on the distance at which the well is situated from the source of irrigation. The water in the source can only percolate to a certain distance, and beyond that the supply probably comes from subterranean springs or underground channels of water, and this supply would, of course, depend on the nature of the strata below the surface of the soil. If we were to allow the contention that, in order to irrigate by percolation, the water must first come to the surface of the land, it would debar Government from charging assessment on what is most certainly water taken from a Government source. It is a question for the decision of revenue authorities in each case to decide whether any land is irrigated by percolation from a Government source, and if it is so irrigated, then it is chargeable under the Act. We have been referred to the Board's Standing' Orders and a resolution of the Government of India regarding the levy of water-cess to show that it was not the intention of the Government to charge cesses on all water which passes through the soil and benefits the adjoining lads, and it is suggested that this has been done because the Government realised that this water could not be taxed under the Act. It is not necessary I think, to draw this inference from these two orders. Another inference would be that, although the Government think that they have the right to tax such water, yet on grounds of public policy, they think it is advisable to order their officers to abstain from doing so. It is the policy of Government to encourage the sinking of wells, and therefore they have decided that, even though they might charge for the water taken into such wells on the ground that it percolates through to them from a Government source, not to make any charge for the same. As I have said, the whole question depends on the interpretation of the words 'irrigation by percolation.'
9. Another argument, I think, that may be addressed to the contention raised is that, if the percolation is merely through the bund of a Government source and then flows on the surface of the land, it might very easily be said to be irrigation by direct flow from that source, for, as soon as it leaves the limits of the Government irrigation work, it is a flow of water and then there would be no necessity for providing a condition, that irrigation by percolation is also liable, There is no doubt that water which percolates into the subsoil is as beneficial to the growth of plants as the water which is poured down into the subsoil from above, and there is no reason why the one should not be liable to tax rather than the other.
10. For these reasons, I am certainly of opinion that, where water percolates from a Government source into the subsoil of a neighbouring land, and is beneficial to such land it is chargeable under Section (1)(6) of the Act. I would, therefore, answer this question in the affirmative.