Pandrang Row, J.
1. This second appeal arises out of a suit instituted by one Muniappa Chettiar, who died during the pendency of the suit and who is now represented by his legal representatives, the respondents in the second appeal. The suit was for a declaration that the plaintiff was entitled to irrigate his registered wet fields with water flowing from what may be briefly described as Sluice No. 3 and for refund of the penal water rate with interest that was collected from him by the revenue authorities for fasli 1339. The source of irrigation assigned to the wet fields in question was Sluice No. 2 and the plaintiff's case was that it was impossible to irrigate his wet fields in this manner, namely, from Sluice No. 2, for the simple but sufficient reason that the level of the sluice as well as the channel taking from it was lower than the level of the wet fields. The plaintiff's case also was that he had been irrigating his wet fields for many years past according to custom, that the assignment of Sluice No. 2 for his lands was objected to by him on several occasions and that the revenue authorities did not give him any redress. Both the Courts below have found that the substantial foundation of the plaintiff's case is true, namely, that he is entitled as of right to take water from Sluice No. 3, and that it is impossible to irrigate his registered wet fields with water from Sluice No. 2, which was assigned to him by the revenue authorities. These concurrent findings of fact have not been questioned in this second appeal.
2. The points argued on behalf of the Secretary of State for India in Council are (1) that no declaration should have been given in favour of the plaintiff because of the Crown's prerogative to alter and to assign sources of irrigation at its pleasure, and (2) that the respondents are not entitled to refund of the penal water cess collected from them because at the time the cess was levied the levy was legal as there had been no adjudication by a Civil Court as to the source of irrigation in respect of the plaint lands, and that at the most the respondents would be entitled only to damages. As regards the first point, there is really very little substance in it because the declaration given by the Subordinate Judge is not unconditional or absolute but subject to a condition, namely, that the respondents are entitled to take water from Sluice No. 3 only so long as the Government does not make an efficient alternative provision. This declaration is in my opinion in accordance with law. It is well settled - vide Fischer v. Secretary of State for India in Council (1908) 19 M.L.J. 131 : I.L.R. Mad. 141 Basavana Gowd v. Narayana Reddi (1930) 61 M.L.J. 563 : I.L.R. 1930 Mad. 793 and the Secretary of State v. Nageswara Aiyar (1939) 71 M.L.J. 268 - that while the Government is entitled to supply water from such source as it thinks proper, this right is subject to the condition that the ryot who is entitled to get water for his registered wet fields gets his accustomed supply of water. As was observed in Basavana Gowd v. Narayana Reddi (1930) 61 M.L.J. 563 : I.L.R. Mad. 793 :
Government by undertaking that the obligation to supply him with water also undertakes that it shall be at his disposal by the usual and customary method, that is, by channel constructed either by Government or by the ryot or both, until and unless some other method is adopted.
3. Then again at page 799 it was observed that
While the wet ryot cannot insist as against Government that he has any right to have his supply carried by any particular channel and cannot object to Government altering the channel of supply, he has a right as against other wet ryots and even, subject to Government's right to give him an equally efficient supply, as against Government to the protection of law for that supply once it has passed into the channel at present ear-marked for his supply.
4. I am therefore of opinion that the declaration made by the lower appellate Court, namely, that the plaintiffs are entitled to get water from Sluice No. 3 subject to the condition mentioned therein, is according to law.
5. As regards the second point, stress is laid by the learned Government pleader on the words 'has been' found in the second proviso to Section 1, Sub-section (b) of the Madras Irrigation Cess Act. It is contended that the use of the perfect tense indicates that so long as there has been no actual adjudication by a Civil Court as to the source of irrigation for any particular wet land, the levy of a penal water cess would be legal even though it is subsequently decided by a competent Civil Court that what the ryot had done was merely to act according to his rights. Reference may be made in this connection to the observations in Athlumney, In re (1898) 2 Q.B. 547 regarding the partiality of legal draughtsmen for the use of the perfect tense. If this contention is accepted it would mean that during the pendency of a suit in the Civil Court the ryot, who is found later on to have been merely exercising the right given to him by law, namely, of irrigating his lands from the customary source, would be legally liable to pay penal water cess, and his only remedy would be to institute a suit for damages, after his right, has been declared in a previous suit; if the decision of the previous suit takes more than the time allowed by the law of limitation for the suit for damages even this remedy would be lost to him. The further result would be that the ryot would either have to raise a dry crop or leave the land waste if a dry crop cannot be grown and there would be loss to the public by reason of the less production of food grains, and the Government would certainly have to pay damages subsequently thus causing another and an additional loss to the public. Moreover, it appears to me prima facie that penal cess was not intended by the legislature to be allowed to be levied in cases where the ryot is only exercising his undoubted rights; in other words, that the ryot was to be penalised for doing nothing more than exercising his undoubted rights. It is, however, not quite necessary for me to decide this question definitely and I shall assume for the purpose of this second appeal that the contention of the learned Government Pleader is right and that at the time the cess was levied it was not illegal. Even then it is not contended that the plaintiff would not be entitled to damages; in fact, the law as laid down by Wadsworth, J., in Secretary of State v. Narayanaswami Pillai : AIR1936Mad692 (which decision was no doubt reversed on appeal on another ground altogether) has been accepted by the learned Government Pleader. Wadsworth, J., was of opinion that:
The words adjudged by the competent Civil Court in Section 1(6), proviso 2 of the Madras Irrigation Cess Act, refer to an adjudication prior to the use of the water, and that it is not open to a Civil Court to say that, though there has been an unauthorised user of water, the revenue authorities ought to have authorised this user and therefore a decree will be passed against the Government.
6. He was of opinion that if as the result of a change in the source of supply made by the Government there was a diminution in the accustomed supply, the remedy of the plaintiff was not to take water in defiance of the order of the Government but by a proper proceeding to seek redress for the damages done by the change in the prescribed manner of irrigation. It is therefore conceded that the plaintiffs are entitled to damages. On the question of the amount of damages there is no finding by either of the Courts below, and in these circumstances the learned Government Pleader after addressing the Collector of Madura states that the damages payable to the plaintiffs would be Rs. 675-8-0 and no more. This amount is no doubt less by a small amount than the amount of the penal cess, the refund of which has been allowed by the lower appellate Court. The learned Advocate for the respondents has agreed to accept this amount of Rs. 675-8-0 as the correct amount of damages caused, as he thinks it is not worthwhile to have the matter sent down for a finding. As the respondent's advocate has agreed to this amount, I shall allow only this amount instead of the amount allowed by the lower appellate Court, though, in my opinion, the attitude taken up on behalf of the Government is hardly to be commended. In fact, the suggestion made by the learned Government Pleader was that the refund of Rs. 719 which was allowed by the lower appellate Court might be affirmed provided the plaintiffs are made to pay the costs of the Government both in the original Court as well as in the lower appellate Court and in this Court. This suggestion is, if I may say so, quite unreasonable because there is no reason why the plaintiffs should not only not get their own costs but be made to pay the costs of the Government when they have succeeded and when it is clear that they have been the victims of arbitrary action by the revenue authorities who have assigned to them a source of irrigation from which no water can possibly flow to their fields, and who have given them no redress whatever in spite of the petitions addressed to them. It can hardly be doubted that the Legislature never intended that the powers given to the revenue authorities to levy penal water cess should be exercised in an arbitrary and unjust manner. However, as the respondent's advocate has agreed, in order to avoid further trouble to accept the amount of Rs. 675-8-0, which according to the Government's case is the amount of damages, the decree of the lower appellate Court will be modified by allowing this amount instead of Rs. 719 allowed by the lower appellate Court. Subject to this modification, the second appeal fails and is dismissed with costs.
7. Leave to appeal is refused.