1. This Letters Patent Appeal arises out of a suit for recovery of water cess which the plaintiff alleges was illegally levied from him. The facts found are that the wet lands of the plaintiff who is a ryotwari holder received water for about 24 hours in August, 1926, through a breach in the channel while the source of irrigation assigned to these lands was a sluice in the channel and that the plaintiff had nothing to do with the breach and was not even aware of it. On these findings of fact, our learned brother Pandrang Row, J., before whom this second appeal came in the first instance followed the judgment of a Division Bench reported in Kanniappa Mudaliar v. Secretary of State for India : AIR1936Mad42 and held that the plaintiff was not liable to be charged water cess. This letters patent appeal was posted before a bench of three Judges as it was represented on behalf of the Government that the decision in Kanniappa Mudaliar v. Secretary of State for India : AIR1936Mad42 required further consideration.
2. The matter has now been argued before us fully by the Government Pleader; and we are indebted to Mr. Nambiar who had kindly agreed to represent the other side as amicus curiae. It is not disputed that the case is directly governed by the decision in Kanniappa Mudaliar v. Secretary of State for India : AIR1936Mad42 so far as the effect of the second proviso to Section 1 of the Madras Irrigation Cess Act is concerned. There are certain observations in that judgment bearing upon the relative scope of Clauses (a) and (b) of Section 1 of the Act and their relation to each other to which the learned Government Pleader took exception. It is not necessary for the purposes of this case for us to express any opinion upon the correctness or otherwise of those observations. Assuming for the moment that the present case falls under Clause (b) it is sufficient to say that we agree with the opinion of the learned Judges so far as their interpretation of the second proviso to the section is concerned, namely, the one relating to the immunity of ryotwari holders of land classified as wet.
3. The expression 'irrigated by using without due authority' can reasonably be held to contemplate a voluntary user, that is, with a preconceived purpose or at least an intention so to use the water. In substance, the provision in respect of unauthorised or improper user is one in the nature of a penalty and the mere, fact that Sub-clause (b) of the enacting portion of the section was intended to apply even to cases of involuntary irrigation will not justify putting upon the language of the proviso a construction which is wholly at variance with the implication of the word 'use' or the reference to 'due authority'. As pointed out by the learned Judges who decided in Kanniappa Mudaliar v. Secretary of State for India : AIR1936Mad42 a course of decisions in this Court had uniformly held that the word 'used' appearing in different portions of the Act clearly contemplated voluntary user. When in 1900 the legislature proposed to enable the Government to levy cess even in respect of involuntary irrigation, the legislature did not indicate its intention to depart from the proper or declared significance of the word 'used' but adopted different phraseology in Clause (b) to cover cases of involuntary irrigation. We are, therefore, of opinion that even the policy of the legislation of 1900 would not justify us in putting upon the expression 'using without due authority' a different interpretation from that adopted in the earlier cases. The letters patent appeal fails and is dismissed.