1. The plaintiff alleged that a certain calingula which regulated the supply of water for irrigation to his land had fallen into disrepair and the Government officers being bound to repair it failed to do so, in consequence of this failure, his land received no water and his crop was lost: ha sued for compensation to the extent of the value of the crop which but for the failure of the water-supply he might have grown.
2. Both Courts below have considered the question whether the-plaintiff has a cause of action against the Government, and though the written statement does not distinctly raise this question, we-have dealt with it in the circumstances. We are of opinion that the District Munsif was right, and that the Government is not under an obligation with regard to each individual ryot to repair irrigation works whenever they require repair. There is no case, so far as we know, in which a claim like the present has ever been mada in India, whether against the Government, or against a zemindar, though opportunities for such claims have been sufficiently frequent ever since a system of irrigation works was inaugurated in the country.
3. The Courts in this presidency have held that a ryot is entitled to prevent the Government from doing any act resulting in a material diminution of the usual supply of water for irrigation to his land, but it has never yet been held that an action will lie for mere failure to repair, when repair is required to enable the ryot to receive the usual supply. For the respondent, reliance is placed on the case of the Madras Railway Company v. Zemindar of Carvetinagaram , but that case does not help him. It may very well be--it is a question which we need not decide--that the Government when handing over large tracts of the country to zemindars at the Permanent Settlement laid upon them an obligation to preserve and repair the irrigation works handed over to them at the same time, and consequently, that there may lie on a zemindar an obligation more onerous than any that is upon the Government, and that what is discretionary in the Government had been made by the Government obligatory in the case of the zemindar. But however that be, we have to remember that what the Privy Council had to decide was not a question as to the extent of the obligation if any to maintain the works, but a question whether the rule laid down by the House of Lords in Fletcher v. Bylands L.R. 3 H.L. 330, could properly be applied so as to make a zemindar liable for damage done by the breaching of an irrigation tank maintained by him. In discussing this question, their Lordships observe that, the Government of India have undertaken the public duty of maintaining what may be called a national system of irrigation essential to the welfare of a large portion of the population, and that this public duty has in some cases, devolved upon zemindars, who cannot do away with the irrigation works in which many persons are interested, but are charged by Indian Law, by reason of their tenure, with the duty of preserving and repairing them. These considerations are advanced to demonstrate the difference between the position of a zemindar and that of the defendants in Fletcher v. Rylands L.R. 3 H.L. 330. That is to say, because the zemindars are under an obligation to preserve and repair these tanks as a part of the public duty undertaken by the Government, they cannot be held liable for damage caused by the accidental destruction of one of those tanks. The zemindar's position is further likened by their Lordships to that of a person or Corporation on whom statutory powers are conferred and statutory duties imposed.
4. Their Lordships had not to decide, and did not decide, the extent of the duty undertaken by the Government and cast upon the zemindar, and if we consider the suggested analogies we find that it has never been held that a person bound by reason of his tenure to keep a way in repair is liable to an action by individuals injured by his failure to do so [vide Young v. Davis 7 H.N. 772 and Rundle v. Hearle (1898) 2 Q.B. 83], while, as regards persons and Corporations on whom statutory powers have been conferred and statutory duties imposed, the rule derivable from the English cases seems to be that in the absence of a common law liability as regards individuals, no such liability arises in eases of non-feasance, merely because 'the statute imposes a duty: the statute must impose the liability expressly or by clear implication [vide Saunders v. Holborn District Board of Works (1895) 1 Q.B. 64, and the cases therein cited; also The Municipal Council of Sydney v. Bourke (1895) A.C. 433].
5. It is clear then, that there is nothing in their Lordships' judgment which requires us to decide that a zemindar is under an obligation to a ryot to keep a tank in repair or failing that to pay the value of the crops which the ryot might have raised. That question was outside the case before their Lordships and if their observations are to be taken as dealing with it at all, they amount only to this, that the extent of the public duty which lies on the zemindar is to be ascertained on the analogy of those public duties cast upon persons or Corporations by reason of tenure or by statute, and the analogies as we have shown do not assist the respondent.
6. As pointed out by Subrahmania Aiyar, J., in Sankaravadivelu Pillai v. Secretary of State for India in Council I.L.R. (1905) Mad. 72, the rights and obligations of the Government in the matter of irrigation works in this country have to be ascertained from unrecorded custom and practice rarely brought before the courts--and as we, have-already said, we have no case in which a ryot has claimed payment for his crops lost owing to non-repair of an irrigation work. The ryot's payments of revenue being based on a division of the crop between him and the Government, when the crop fails there is nothing to divide, and so far as we know, no ryot has hitherto-thought of claiming more than this, that when the crop fails for want of water, the land tax shall be remitted.
7. It is unnecessary to decide whether a ryot has a right to claim this remission, when the failure of water supply is due to neglect to maintain a work of irrigation: but it cannot be denied that there is no custom or practice recorded or unrecorded in this presidency, under which a ryot receives compensation from the State or a zemindar measured by the value of the crop lost owing to defects in the irrigation works which command his land.
8. The application therefore of Subrahmania Aiyar, J.'s test is of no assistance to the respondent, and we have to see whether without the aid of custom or practice we can hold that there is in any way imposed on the State the liability which the respondent seeks to enforce.
9. It is argued that in the case to which we have referred, [Sankaravadivelu Pillai v. Secretary of State for India in Council I.L.R. (1905) Mad. 72] ' Subrahmania Aiyar, J., has decided that the duty of the Government to maintain existing works of irrigation is an ' imperative ' as opposed to a ' permissive ' obligation, and that the liability to compensate individual ryots is to be inferred from the imperative nature of the duty But the observations of the learned Judge are not to be considered without referance to the case which he was deciding when he made them and it is clear from the context that his use of the word 'imperative' was intended only to show that in maintaining existing irrigation works the Government in the absence of negligence are not responsible for injury caused by the execution of the operations undertaken in pursuance of the duty.
10. In the English cases to which reference has already been made, learned Judges have remarked on the inconvenience which would be caused if every person injured by non-feasance on the part of a body or a person entrusted with a public duty were entitled to come into Court with a demand for compensation for his own particular grievance, and this argument is particularly applicable to the present case where the public duty is that of maintaining out of public funds a national system of irrigation over an area so extensive as British India. It is true that only a limited number of persons own land under any given tank or other irrigation work and the case is therefore not entirely on all fours with highway cases where the number of possible sufferers is unlimited, but the difference is merely one of the degree of inconvenience, and does not make the argument inapplicable generally.
11. It was also argued for the respondent that the Government is liable as for breach of contract, and in support of this contention reliance was placed on Chinnappa Mudaliar v. Sikka Naicken I.L.R. (1901) Mad. 36. That case no doubt decides that the ryot's right to a supply of water for irrigation is founded on contract, but that decision has been doubted in Sankaravadivelu Pillai v. Secretary of State for India in Council I.L.R. (1905) Mad. 72 by Subrahmania Aiyar, J., who holds that it goes too far in treating the irrigation rights of ryotwari owners as rights in personam and that those rights ought on principle and authority to be held to partake of the nature of rights in rem.
12. The learned Judges in Chinnappa Mudaliar v. Sikka Naicken I.L.R. (1901) Mad. 36 cite Krishna Ayyan v. Venkatachella Mudali (1871) 7 M.R.C.R. 60 in support of their view, but that decision is based on a view of the relationship between the Government and the ryots which is not now generally accepted--the view that the ryot holds his land of the Government as a tenant from year to year. The other case referred to in the same judgment, Ramachendra v. Narayanasami I.L.R. (1893) Mad. 333, suggests that the view taken by Subrahmania Aiyar, J., was that held by the Court, though the nature of the liability of the ryot who then interfered with the irrigation channel is not expressly laid down.
13. Chinnappa Mudaliar v. Sikka Naicken I.L.R. (1901) Mad. 36 does not lay down the conditions of the supposed contract, and as the authorities stand we are not prepared to hold that the Government is bound by a contract with the plaintiff to maintain a supply of water for the irrigation of his land.
14. We think the plaintiff has no cause of action, and we reverse the decree of the District Judge and restore that of the District Munsif dismissing the suit. The plaintiff must pay the defendant's costs throughout