1. This second appeal raises an interesting point with regard to the interpretation of the proviso to Section 1(b) of the Madras Irrigation Cess Act of 1865. The appellant here is a ryot owning certain land which has been classified as single crop wet. He has however been growing upon this land certain crops which have remained upon the land throughout the whole fasli and have received water during that period. The Government accordingly assessed him to penal water rate on the ground that he has taken water without due authority from a source in addition to that which has been assigned by the Revenue authorities to his land. Both the Courts below have dismissed his suit and he has now appealed to the High Court. The proviso in question runs as follows:
No cess shall be leviable under this Act in respect of land held under ryotwari settlement, which is classified and assessed as wet, unless the same be irrigated by using without due authority water from any source hereinbefore mentioned and such source is different from or in addition to that which has been assigned by the Revenue authorities or adjudged by a competent Civil Court as the source of irrigation of such land.
2. The decision of the appeal would obviously turn mainly upon the definition of the word 'source'. It is argued for the appellant that 'source' can only mean some such body of water as a tank, or a channel, and that in so far as the appellant in this case is taking water not from any unauthorised tank or channel, it cannot be said that he is taking water from an unauthorised source. It is however clear that some more extended meaning than this must be given to the word 'source'. For, if source were to be confined to, for instance, a channel, then the Government would be precluded from laying down any regulations which would define the quantity of water, or proportion of the water flowing in that channel, or the time during which the water of that channel might be utilised. A case very similar in principle came before this Court in Krishna Row v. The Collector of Kistna : (1914)26MLJ210 . There it appears that there were two pipes from which the water of a certain channel was taken to the lands of the ryot though the revenue authorities had authorised the ryot concerned in that case to take water through one only of those two pipes. The ryot however had taken water through both the pipes and it was held that the proviso to Section 1(b) of the Madras Irrigation Cess Act applied to that case. Clearly of course in that case the ryot had taken water from the channel from which he was authorised to take it. What he had done was to take a larger quantity of water than the Government permitted him to do. That, in my opinion, is clearly the situation in the present case. No doubt the appellant is entitled to the water of this particular channel for his field. But his land has been assessed as a single crop wet land and the rate of assessment is calculated on the assumption that he will require water only for the normal length of time required for the growing of an ordinary wet crop and not for the crop which was actually grown and which would require water throughout the year. If he has actually taken a year's supply of water instead of a more restricted supply which would have been available to him during a few months, then it seems to me quite clear that he has been taking without due authority water from a source which is in essence both different from and in addition to the source which has been assigned by the Revenue authorities for the irrigation of his land. I would accordingly hold that the decision of the Courts below is correct and dismiss this appeal with costs.
3. Leave to appeal is granted.