1. S.A. No. 1352 of 1921:- Appeal from the decree in A.S. No. 396 of 1919 on the file of the District Court of Chingleput (O.S. No. 468 of 1918 on the file of the' Court of the District Munsif of Poonamallee).
2. The plaintiff is a ryot holding certain lands which at the last Revenue Settlement in Chingleput District were assessed as dry. Since then, the assessment has been enhanced under orders of the Board of Revenue and the plaintiff has brought this suit against the Secretary of State for India for a declaration that such enhancement is illegal, for the recovery of the amount so levied, and for a permanent injunction restraining the defendant from levying such enhanced rates in future. The original Court and first Court of Appeal have decreed the suit as prayed for by the plaintiff and the defendant brings this Second Appeal.
3. The lands in question are of the sort described as ' Achukattu.' They are surrounded by high bunds which in the wet season retain sufficient water for raising a' paddy crop. At the settlement in 1909, the bulk of these lands was classified as ' Manavari ' or ' rain fed ' and charged rather more than ordinary dry, and less than ordinary wet. But certain numbers lying within the catchment area of tanks were held to be objectionable as interfering with the supply of water, and they were still classed as ordinary dry. Had they too been transferred to ' Manavari, ' Government would practically have conceded the claim of these lands to enjoy additional water facilities, when that claim was held to be objectionable. The Government Order No. 2240 (Revenue), dated the 14th August, 1909 (page 36 of the printed documents) lays down that those which lie so close to the foreshore of a Government tank as materially to interfere with its supply should be entered in a special list and left to be dealt with by the Collector in accordance with this 'existing district practice as embodied in G. O. No. 573 (Revenue), dated 24th June, 1905. In this G. O. (page 17 of the printed documents) the procedure enjoined is that water-rate should be charged if the Achukattu intercepts water which would otherwise flow into a Government irrigation work. Accordingly in the settlement notification, dated 1st June, 1910, Ex. A (at page 45 of the printed documents) it is declared that Achukattus which materially interfere with the supply of a Government irrigation work will be retained as ordinary dry, and Avill be dealt with by the Collector in accordance with the practice obtaining in the District.
4. The Collector proceeded to levy water-rate upon these lands and several appeals were preferred to the Board of Revenue. The Board acting under confidential instructions from Government ruled that such water-rate was not leviable under the Irrigation Cess Act, but the lands concerned were in accordance with the orders of Government liable to;en-hanced assessment. An appropriate enhancement would be the difference between the wet and dry rates. ' The water rates levied will be refunded but an enhanced assessment will be charged for the wet 'Achukattu' cultivation and this should be the corresponding wet assessment minus the dry assessment already levied '-Ex. I (page 49 of the printed documents). In conformity with this resolution the Collector enhanced the rates on the plaintiff's lands as set forth in para. 7 of the plaint.
5. The point for determination is whether such enhancement is legal.
6. The defendant contends that the provision in the notification, Ex. A, ' will be dealt with by the Collector in accordance with the practice obtaining in the District ' allows a large discretion. The practice, no doubt, was to charge water-rate if a paddy crop was raised; but since such charges are not rightly leviable under the Irrigation Cess Act, an enhanced assessment practically amounts to the same thing, and can be described as ' in accordance with the practice obtaining in the District. ' The short answer is that such practice never did obtain nor could obtain. Once a settlement has been duly notified by Government, the Collector acting under the orders of the Board of Revenue cannot vary the rates of assessment. The defendant relies upon para. 36 of the notification, Ex. A.
7. The thirty years' limit does not apply to lands the irrigation of which may be improved by Government subsequent to the settlement nor to lands which may be converted from dry-to wet or ' Manavari' conversion here of course refers to physical conversion. It does not mean that Government reserve to themselves the right at any time to convert the classification of a land as dry to one of wet. If that were so, there would have been no settlement.
8. It is claimed, however, apart from the notification that Government are at liberty to revise any assessment within the settlement period of 30 years (4th Ground of Appeal, etc.). But in the light of the Privy Council ruling in Prasad Row v. The Secretary of State for India ILR (1917 M 886 : 33 MLJ 144), this claim was not seriously pressed in argument. The Judicial Committee rules that ' the annual payment is incapable of increase during the period for which the settlement is made '
9. It is useless to say for all practical purposes the enhanced assessment is the same as the water rate or to urge chat of the settlement is allowed to stand unrevised and unobjectionable. 'Achukattus' classed as ' Manavari' will actually pay a heavier assessment than objectionable Achukattus which are classed as dry. An executive act may be based on logic and common sense and yet be none the less illegal. The finding of the lower Courts must be upheld that when once these lands have been assessed as dry at the Revenue Settlement, they cannot within the period of 30 years during which that settlement remains in force be re-assessed as wet. Such assessment being illegal and ultra vires, the plaintiff is not debarred from bringing this suit by the provision of Section 58 of the Revenue Recovery Act.
10. The appellant further complains that no decree should have been issued in regard to the collections for Fasli 1326 for which no notice was given and no injunction should have been granted. In cases of this sort, Government does not resort to technicalities and may be trusted to see that justice is done in regard both to Fasli 1326 and to subsequent faslis. There is no necessity, therefore, to modify the decree of the lower appellate Court as regards Fasli 1326, nor any need to grant an injunction. The decree, therefore, will contain no injunction and is otherwise confirmed. The appeal in the main fails. Appellant will pay costs of the respondent in this appeal.
11. The other Second Appeals Nos. 1353 to 1357 of 1921 follow with costs to respondents.
12. I agree.