1. This second appeal raises the question whether the Government are entitled under the Madras Irrigation Cess Act to levy penal assessment in respect of the irrigation of land registered under a particular Government work, by reason of the fact that the ryot has stored the water flowing from that work on to his land in a private reservoir.
2. The facts are simple. The plaintiff-appellant owns land S. No. 72 registered as wet land under the Mallu Dora tank. Within the boundaries of S. No. 72, there is a small private reservoir which has been in existence for many years. It receives water, flowing through the fields higher up, from the Mallu Dora tank. Below S. No. 72, there is another Government source called the Timmaraju Cheruvu which receives the drainage water flowing through the fields irrigated by the Mallu Dora tank. The plaintiff is admittedly entitled to irrigate his crops in S. No. 72 with water flowing from the Mallu Dora through the fields above. He has however been prohibited by the Government from using water stored in his private reservoir and has been penalised for irrigating his crop with such water. The question is whether this penalty is correct. The Government claim the right to penalise this irrigation on the ground that it is 'using without due authority water from a Government source different from or in addition to that which has been assigned by the Revenue authorities as the source of irrigation of the land' - see the second proviso to Section 1(b) of the Act. Clearly in this case, the source which has been assigned to the land is the Mallu Dora tank. The question is whether the use of water from a private reservoir fed from the authorised source is the use of water from a source different from or in addition to that authorised. There is no direct authority on this point, it has been pointed out in a recent decision, Rathnammal v. Secretary of State for India in Council (1939) 3 M.L.J. 380, that in order to justify a penalty imposed upon land which is entitled to Government water, it must be proved that there has been a taking from a source different from or in addition to that assigned. The Courts have recognised that the word 'source' covers not merely the river, stream, channel, tank or work, but would include the particular passage by which the water leaves the source. Hence we have the case in which irrigation from a sluice from which the shutter has been forcibly removed has been treated as irrigation from a source different from the authorised source - Kanniappa Mudaliar v. Secretary of State for India : AIR1936Mad42 . There is also the case in which irrigation from two pipes inserted in a Government work when only one pipe was authorised, has been held to be irrigation from a source additional to or different from the authorised source - Krishna Row v. The Collector of Krishna : (1914)26MLJ210 . Our attention has not been drawn to any case in which it has been held that the term 'source' must be taken to include not only the Government work and the passages in that work by which the water is taken to the private land, but also the distributory system upon the private land.
3. An argument has, been built upon the words in Clause (b) to the effect that
whenever water flows into a reservoir and is thereafter used for irrigating any land under cultivation,
the irrigation is taxable; but it must be remembered that this clause is supplementary to the main Clause (a) which refers the power of claiming cess to the supply of water from a work belonging to or constructed by Government. Under Clause (b) water flowing through a privately owned reservoir is taxed not because it emanates from the reservoir, but because it emanates from a Government source. It is therefore difficult to hold that the authorised source the supply from which warrants the charge, is the Government work plus the private reservoir. It is contended that the construction of a storage arrangement on private land in this case does have some detrimental effect on the flow of drainage water into the Government tank lower down. But it is difficult to see how this fact alone would justify the imposition of penal water rate. The charge is leviable not by reason of the detriment to others caused by taking the water, but by reason of the source from which the water is taken. Here, the plaintiff undoubtedly has taken no water other than that which comes from the registered source. We find ourselves unable to hold that the impounding of water on the plaintiff's own land, flowing on to that land from the registered source in the authorised manner, can be held to create a different or additional source other than that assigned by the revenue authorities.
4. In this view, we allow the appeal and give the plaintiff a decree for the refund within three months of the amount collected as penal water rate with costs throughout. No injunction is necessary.
Patanjali Sastri, J.
5. I agree. The language of Section 1(b) read with the second proviso to that section is by no means happy or free from ambiguity. But as pointed out in Rathnammal v. Secretary of State for India in Council : AIR1939Mad963 , the Act is one entailing penal consequences and should not be applied to any one who is not brought within it in express language. I am not satisfied that the language used is so clear as to bring the appellant before us within the mischief of the Act.