1. The dispute in this case relates to the right of Government to levy water-cess on two acres of inam land cultivated with the aid of water drawn from an alleged Government source. The plaintiff is the owner of an inam village and the lands which have been assessed with the water cess have been classified as dry. The dry assessment constituted the inam. Two-fifths of a sheet of water known as Taruvai was included in the inam. It is found by the Subordinate Judge on appeal that water from a Government source flows through theMudalore Odai into the part of the Taruvai which belongs to Government and thence onwards into the deeper part belonging to the plaintiff. The Taruvai receives the supply of water generally from direct rainfall; but in certain seasons and in certain years the Odai water makes the Taruvai overflow and submerge some of the dry lands of the inamdars. It is found that in Fasli 1312, the plaintiff was compelled to make the best of the situation by raising wet crops on two acres of his dry land, which had become unfit for dry crops owing to the inundation with the help of the water which he enclosed in his adjoining land out of the flood water. The Subordinate Judge decreed the plaintiff's claim for refund of the assessment holding that the water, which came through the plaintiff's portion of the Taruvai, was his water and he was not liable to be charged therefor.
2. It is argued by the Government Pleader on behalf of the Secretary of State for India that the plaintiff is liable under Act VII of 1865, because the water comes from a Government source and the plaintiff's lands have been irrigated thereby and it is immaterial that after leaving the Government source, it has passed through the plaintiff's portion of Taruvai. There is no question in the case as regards property in the water. Madras Act VII of 1865 is not based upon any theory of the ownership of the bed of a tank or water-course being the foundation of a right to use the water free of charge. Section 1 of the Act specifies the condition under which the cess is liable to be imposed. The water must come from a river, stream, channel, tank or work belonging to, or constructed by, Government. This condition is satisfied in this case, because three-fifths of the Taruvai, the Mudalore Odai, the Oorani beyond and the river which supplies it, are all admittedly the property of the Government. The next condition is that the water from that source should from or through the adjoining land irrigate, a land under cultivation or flow into a reservoir and be thereafter used for irrigating any land under cultivation. In this case water from the Government source flows through the two-fifths of the Taruvai which is in the adjoining land. It does not matter to whom that land belongs. By flowing through the plaintiff's two-fifths of the Taruvai, it does not cease to be water from a Government source. That water has admittedly irrigated the plaintiff's two acres of dry inam land. It was first of all contended by Mr. Seshagiri Iyer for the respondent that 'the water became the inamdar's by flowing through his portion of the Taruvai.' We need only answer this by saying that it has not ceased to be water from a Government source. He next relied upon the decision in Venkatappayya v. The Collector of Kistna 12 M. 407, and Krishnayya v. Secretary of State for India 19 M. 24, which held that there could be no use for irrigation within the meaning of the section unless it was voluntary or in other words the person said to make use of it had an option to refuse it. It may be assumed that the same interpretation must be placed upon the phrase used for purchase of irrigations' in Clause (a) of the section after the amendment as was done before it. But Mr. Seshagiri Iyer's argument overlooks the fact that the old section of Act VII of 1865 was amended in order to get rid of the effect of those decisions and that Clause (b) creates a liability-to assessment when the water from the Government source irrigates any lands under cultivation and not merely 'is used for purposes of irrigation.' With or without the will of the person, whose land benefits by the water, the water may irrigate the land. We must, therefore, overrule the argument based upon the employment of the word 'use' in the section. It was lastly urged that in the portion of the Taruvai belonging to the plaintiff there was the rain water which had not come from a Government source, and although the flood water from the Government source poured into the Taruvai, it could not be said that the water from the Government source was used by the plaintiff for cultivation, while it was not shown that the rainwater in the Taruvai was not sufficient for cultivation which was carried on. The overflowing of the Taravai in this case was the result of the flood and the flood was from the Government source. Although the flood water has got mixed with the rainwater in the Taruvai itself, it could not be contended that no portion of the water which irrigated the land consisted of the water from the Government source. We cannot admit that there is any force in the argument that in order to render the plaintiff's land liable to assessment it is necessary that the whole of the water used should be from a Government source. All that the section requires is that water from a Government source should irrigate the land in question, and in the opinion of the Collector 'the irrigation should be beneficial to and sufficient for the requirements of the crops.' That other water has also been used is no ground for getting rid of the liability. The question as to the beneficial character of the water taken from the Government source and of its sufficiency are not for the Civil Court but for the Collector subject to the control of the Board of Revenue and of the Government. The Collector in this case having imposed the assessment and he not having been overruled by the higher Revenue authorities, we think the plaintiff is clearly liable to pay the assessment.
3. A question was raised in the course of the argument as to the meaning of word 'irrigation.' [See Kinney on Irrigation, page 2] and whether in this case the plaintiff can be said to have irrigated his land with water from a Government source. Upon the facts found, however, it is clear that the water has irrigated the plaintiff's lands, in whatever sense that term is to be understood. The Subordinate Judge has referred to the decision, in Secretary of State for India in Council v. Perumall Pillai 24 Ma. 279, and Maria Susai Mudaliar v. The Secretary of State for India in Council 14 M.L.J. 350. They have obviously no application to the present case. There the proprietors were, by an engagement with the Government, entitled to the water free of separate charge. The estates were permanently settled and the proprietors were entitled to make what use they pleased of the land included in the settlement. The right to the water having existed at the date of the grant and the permanent settlement having been made so as to pass in the eye of the land all the rights which then existed, they were not liable to be charged with any water-cess in respect of any cultivation which they carried on with the aid of water to which they were entitled. Those decisions, therefore, do not touch the decision of the present case.
4. We must reverse the decrees of the Court's below and dismiss the suit with costs throughout.