1. This Letters Patent appeal is from a judgment of Madhavan Nair, J. setting aside the lower appellate Court's decree and dismissing the plaintiff's suit with costs throughout.
2. The suit was by the plaintiffs as the representatives of certain ryots; and their case was that Government entered into an agreement with these ryots, and those of the adjoining villages through which the channel passes under which agreement Government is bound to clear the channel of silt and keep it in good condition, that the channel was formerly under the control of Government but later on was transferred to the Public Works Department, that the latter in neglect of its duty caused the channel to be silted up and that the villagers represented by the plaintiffs after giving notice to Government removed the silt from the channel in about August 1921 incurring expenses in so doing. They claimed that such removal was absolutely necessary for the purpose of irrigation and that they were entitled to claim from the Government a refund of the expenses incurred. The Government denied that there was any contract and also their liability to pay. The district Munsif dismissed the suit but the lower appellate Court set aside the District Munsif's decision and granted the plaintiffs a decree. In the lower appellate Court the following points were considered: (1) Was Government bound to maintain the suit channel free of silt? (2) whether the silt clearance was necessary in August 1921; (3) whether the plaintiffs cleared the silt from the channel, and (4) whether the plaintiffs were entitled to recover the cost of such silt clearance from Government. The lower appellate Court found all these points in favour of the plaintiffs. Points (2) and (3) being questions of fact Madhavan Nair, J. rightly accepted the findings thereon. The two remaining questions are questions of law; and our learned brother in second appeal formulated them as follows: (1) Whether a contract under which the Government undertook to clear the silt has been proved; and (2) whether the plaintiffs are entitled to claim a refund of the expenses incurred by them under Section 70, Contract Act. He answered question (1) in favour of the plaintiffs and question (2) against them.
3. On the first question our learned brother has given a short history of the matter. Briefly it is that there used formerly to be collected from the ryots a voluntary irrigation cess; and one of the objects for which the money so collected was spent, was silt clearance. This irrigation cess fund did not form part of the general revenues of the country. It was separately kept by the Government for the purposes for which it was to be used. We are told that there were also some channels in respect of which no irrigation cess was collected from the ryots because, they, in lieu of it, supplied the labour. In 1894-1895 there was a re-settlement of the district and, as this scheme had been found to be inconvenient, the Settlement Officer recommended to the Government that the voluntary irrigation cess should be abolished. At the re-settlement there was a re-classification of the wet lands irrigated by the channels from the Cauvery river and the assessment of these lands was substantially increased; and, although the voluntary cess continued to be collected till 1900, it was abolished in that year and the unexpended balance was refunded to the ryots. In substitution for the cess a sum of Rs. 25,000 a year was set apart in the Budget from general revenues for the purpose of maintaining the channels and the head works. Till 1907 this work continued to be done by the Revenue Department which had been doing it since the voluntary cess was instituted. In 1907 the management and upkeep of the channels was transferred to the Public Works Department.
4. In the earlier part of 1921 the suit channel had become very badly blocked with silt and the ryots who were anxious to have it cleared in order to raise a crop in the autumn, sent in petitions to the Collector and the Public Works Department. These are Ex. E-l, dated 21st March 1921 from the President of the Mirasdar's Sangam, Mahadhanapuram to the Executive Engineer, Public Works Department, Trichinopoly, pointing out that the standing crops were certain to wither if the water supply was not increased within a short period and requesting the Department to excavate the main channel at the earliest opportunity and Ex. D-l dated the 29th of the same month to the Collector of Trichinopoly to the same effect and again making an appeal for the repairing of the channel.
5. On 16th April 1921 another petition was sent to the Revenue Divisional Officer, Karur, and on 17th June 1921 a further petition Ex. D-3 was sent to the Collector of Trichinopoly again setting out the Mirasdars' grievances and expressing the fear that these might not be redressed in time to save the existing crops and asking (1) that the Government should give the Sangam Rs. 1,000 or such other sum as might be deemed proper as a discretionary grant for the year or (2) grant a loan of Rs. 1,000 to the Sangam as an agricultural loan to be recovered along with kist to collection at Re. 1 per acre or, (3) that the Government should equip the two surplus weirs with screw shutters at an early date, or (4) grant the Sangam the estimated cost therefor and the Sangam would carry out the work. None of these petitions appear to have met with any response whatever. On 9th August 1921 the President, Mirasdars' Sangam, wrote Ex. G-l to the Executive Engineer, Public Works Department, Trichinopoly, stating that the Kuruvai crops sown in June had completely withered in more than half the area, that it was absolutely necessary to clear the silt in the main channel before samba cultivation was begun it being proposed to raise samba crops in the field, that the season for doing so was nearing its close, that the Government, though bound to clear the channels, had failed to do it in time and that the mirasdars had resolved to do the work of silt clearance in the main channel from that day. The petition ends by stating:
Regarding the costs of silt clearance, enough if it is said that whoever is legally bound to do it will have to bear it ultimately.
6. The work of silt clearance commenced then and continued until the 17th when it was suspended till the 21st and was resumed on the 22nd; and Ex. G-2 from the President of the Mirasdars' Sangam to the Collector of Trichinopoly dated 26th August 1921 states that the mirasdars had commenced to do the work and that whoever should be liable to do it would ultimately be held liable for the costs of the silt clearance. It also states that the Tahsildar of Kulitalai inspected the silt-cleared portion on 20th August and that muster rolls of the labourers were being kept regularly in the course of the business and concludes by inviting inspection of the amount of work done in the matter of silt clearance and a check-measurement also at an early date if deemed advisable and necessary. The work was completed on 2nd December 1921 and the Executive Engineer inspected the channel on 26th November 1921 when the work was incomplete. On 27th August 1921 the Tahsildar of Kulitalai wrote Ex. P-l to the Revenue Divisional Officer, Karur Division, reporting that the suit channel had been neglected long enough, that it was necessary that the channel should be cleared of silt and the weirs provided with shutters and that the crops were young and poorly and some lands were lying waste because the channel had not received a sufficiently steady supply of water. On 21st September 1921 the Collector wrote Ex. P-2 to the Executive Engineer, Trichy Division, as follows:
I invite your attention to this Office R. C. No. 7417/21 A 6, dated 22nd June 1921 and 2nd September 1921, and request that the main channel may be cleared of its silt, and the shutters to the two weirs in the channel may be repaired at once as the ryots consider them to be very urgent;
and on 12th January 1922, a report (Ex. C) was sent by the Executive Engineer, Trichinopoly, to the Superintending Engineer, VI Circle, submitting a copy of the Sub-divisional Officer's report, from which it appears that he inspected the channel with the President of the Sangam and other mirasdars and was forced to the conclusion that 'there is much truth in the complaint contained in the petition dated 14th July 1921.' In view of this it is not surprising that the lower appellate Court found as a fact that the work of silt clearance was necessary and that otherwise the crop would have been lost.
7. The question before us is whether the Government was under such an obligation to carry out the work of silt clearance as is enforceable in law. Madhavan Nair, J. agreed with the lower appellate Court that
the undertaking to clear the silt in consideration of the enhanced assessment in G.O. No. 794 of 1900 would thus amount to a binding contract which can be enforced against Government.
8. If there was no enforceable contract, then the appellants could not succeed under Section 70, Contract Act, as it is clear from the plaint that their claim is based on that section only. Para. 14 of the plaint reads as follows:
The plaintiffs having lawfully done the work of silt clearance in the said channel for the defendant who is bound to have done it and the latter is bound to make compensation to the former in respect of the same. The plaintiffs in clearing the silt were actuated by a real desire to avert loss both to themselves and to the Government and their action is bona fide. They have done so after repeated requests and notices both before and after they commenced the work. They never intended to do so gratuitously.
9. It was contended for the appellants that the increase in assessment at the settlement of 1895 was imposed on the distinct understanding that these river channels should in future be maintained by the Government out of general revenue; in other words that the land revenue payable by the ryots was increased on the footing that they would not have to pay anything separately towards the cost of repairing the channels. But this is not strictly true. The assessment of these lands lying in the basin of the Cauvery and irrigated by channels from that river was raised in accordance with general principles, namely, the rise in the price of food grains which had taken place in the 30 years that had elapsed since the last settlement, and the increased marketing facilities that had accrued to this tract in the interim by the construction of railways and roads. The settlement was introduced in May 1895 and resulted in an average increase of Rs. 2-2 10 per acre: see p. 231 of the District Gazetter. Now the incidence of the voluntary cess ranged from Re. 0-1-0 to Re. 0-12-0 an acre. This alone shows the increased assessment was not intended to be the equivalent of the cess. Again though the settlement was introduced in 1895 and the new rates came into force in that year, the collection of the cess continued till 1900. If at the time of settlement there had been any understanding that the increase of assessment was wholly or even partially to be compensated for by the abolition of the cess the ryots would have ceased to raise the cess -which it must be remembered was always voluntary-and would have called upon the Government to maintain the channels.
10. It remains to explain exactly how the cess came to be abolished. These Cauvery channels in the Trichinopoly District take off from the river at a point higher up in each case, than the village or villages which they irrigate. At times of flood when the river is flowing from bank to bank, the water flows along the channels without any artificial aid. When the flood ceases, temporary korambas or dams are built out into the river bed to turn the water to the mouth of the channel. These korambas are washed away when the flood comes again, and have to be rebuilt. When the Deputy Commissioner in charge of settlement, as the Settlement Officer was then called, started his inquiries he found that the cess was being expended: (1) On the construction and repairs of korambas. (2) On the pay of establishments and head sluices and at the heads of minor channels. (3) On silt clearance in the main channels upto the points where the village channels branched off.
11. While the settlement operations were in progress the Board of Revenue on 4th January 1895 recommended to the Government that the re-valuation and revision of assessment of the lands on which the irrigation cess is collected should proceed on the assumption that the work on which the voluntary contributions were expended would thereafter be done at the cost of the state. The Government did not accept this recommendation unreservedly. Its order was that in its opinion the voluntary cess should be discontinued but that the question should be carefully investigated, namely, as to what portion of the work, on which the cess collections had been hitherto spent, should be done by the Government, and what portion by the ryots; and it called for further information on the subject. That order is dated 1st April 1895: see Ex. Q, para. 2. The new settlement was introduced in May 1895 without further reference to this matter and the Settlement Officer left the District without making the report on the proposed abolition of the irrigation cess. It does not appear that the ryots were apprised of the intention of the Government to assume some portion of the expense of maintaining the leading channels, in consideration of the increase in assessment. If they had been so apprised they would most certainly have discontinued their contributions or clamoured for a reduction in the assessment, neither of which things happened. It was not till over a year after the introduction of the settlement, namely, on 10th July 1896, that the Settlement Officer made his belated report and for reasons into which it is not necessary to enter the Board of Revenue did not forward this report to the Government till after a further delay of two years, namely, on 4th August 1898. The Board observed:
At the re-settlememt, the lands under these channels have been re-classified and assessed as (for the most part) under first class irrigation, a classification which is incorrect, unless Government accepts the cost of keeping up the water supply to and in the main channels, under the exceptional and peculiar circumstances of the locality.
12. The order of the Government passed, after a reference to the Central Government on 8th August 1900, was:
The first proposal is that the cess should be discontinued on such of the lands under irrigation channels as have been re-classified at the re-settlement and that the work hitherto carried out from the cess fund should be undertaken by Government. As already indicated this proposal has the approval of the Government and the Board will be directed to discontinue the levy of the cess, any balance remaining to the credit of the cess fund being refunded to the ryots concerned.
13. It will be observed that the Government do not, in this order, signify their acceptance of the Board's opinion that the lands must be regarded as having been incorrectly classified at the re-settlement except on the hypothesis that the ryots were to be relieved of the maintenance of the channels. An examination of the circumstances shows that the Board's view was not well founded. In the extract from its proceedings cited above it declares, in effect, that the river channels should not have been classed as first class sources unless the ryots were to be relieved of the burden of maintaining them. The meaning of this depends on the fact that the rate of assessment of wet land varies with the nature of the irrigation sources. Irrigation sources are divided into classes according to the regularity and sufficiency of supply. A field which was assessed, say at Rs. 8, if irrigated from a first class source would have been assessed at Rs. 7 if irrigated from a second class source: see p. 229 of the District Gazetteer. But a reduction of Re. 1 per acre in this riparian tract would amount to over Rs. 50,000 a year which is more than twice the sum raised annually by the voluntary cess. It is difficult to believe that in order to benefit the ryots to the extent of Rs. 25,000 the Government would have been willing to forgo Rs. 50,000 every year in the shape of land revenue. The real reason why the Government assumed the expense of maintaining these river channels in the Trichinopoly District appears to have been that, taking the presidency as a whole it is unusual, for ryots to be saddled with the upkeep of distributary channels outside the limits of their own villages.
14. It is an unwritten law that upkeep of the head works and the leading channels is a charge on the public revenue: see paras. 23 and 24, Settlement Officer's letter No. 228-B dated 10th January 1896; and para. 6 of the Boards' Resolution No. 280 dated 4th August 1898. In their final order the Government has declared its intention of maintaining these channels and head works. But this was an act of the sovereign power and not the acknowledgment of a contractual obligation. The learned Government Pleader contended that there was no contract which was enforceable by the ryots, that the Government in undertaking the maintenance of the channels was merely doing an executive act, that the failure to carry out the work was not a matter which could be questioned in a civil Court, that assessments cannot be open to scrutiny nor can the basis of them be, and that civil Courts are not entitled to go into any questions of the abolition of the water-cess to balance the enhancement of the assessment. On a re-settlement Government no doubt have a number of factors to consider; but it cannot be supposed that if Government took into consideration the relief of the ryots of the payment of the water cess and a consequent enhancement of the assessment because Government instead of the ryots was to do the work, it was intended by Government that there should be a contract between Government on the one hand and the ryots on the other. We think that there is much force in this argument.
15. It would, it seems to us, lead to an impossible position if the reasons for an increased assessment could be made the subjects of suits in the civil Courts claiming damages for breach of contract or based upon a contract. The cases referred to relating to assessment do not really assist the appellants. One of these is Secy. of State v. Ramanujachariar 1925 48 Mad 282 a decision of Devadoss and Jackson, JJ. following a decision of the Privy Council in Bala Surya Prasad Row v. Secy. of State 1917 40 Mad 886. In the former case, it was held that when once ryotwari lands are classed as dry under a settlement for a period, say 30 years, they cannot during that period be reclassified as wet and a demand by the Government of increased assessment on that footing is illegal and ultra vire3 and a suit to declare such assessment illegal and ultra vires and for a recovery of the increased amount levied is not barred by Section 58, Revenue Recovery Act. The most that that case decides is that at the settlement there is an engagement not to change the classification for 30 years from the date of the classification. In Bala Surya Prasad Row v. Secy. of State 1917 40 Mad 886 it is stated that:
The annual payment is incapable of increase during the period for which the settlement is made.
16. In Kelu Nair v. Secy. of State 1925 48 Mad 586, Bala Surya Prasad Row v. Secy. of State 1917 40 Mad 886 and Secy. of State v. Ramanujachariar 1925 48 Mad 282 were followed and it was held that a notification by which the Government makes a settlement of certain ryotwari lands for 30 years fixing for that period the revenue payable by such lands at a certain rate, is an engagement with the owners of such lands binding on the Government and the Government is not entitled to enhance such rate during the 30 years. Secy. of State v. Ramanujachariar 1925 48 Mad 282 went up to the Privy Council and is reported in Secy. of State v. Ramanujachariar 1928 51 Mad 611. There, the question as to whether there was a binding engagement or not was not argued because the learned Counsel who appeared for the Government disclaimed on the part of Government any desire to depart from the terms of the settlement and refrained from arguing that point and elected to stand or fall upon the question of whether the additional settlements were in breach of the settlement. Upon the latter point the Privy Council held in favour of Government because in their Lordships' opinion the raising of wet crops on the land registered at the settlement as- dry was a conversion within the meaning of the reservation in the notification which was as follows:
The 30 years limit does not apply to lands the irrigation of which may be improved by Government subsequent to the re-settlement nor to lands which may be converted from 'dry' to 'wet' or 'manavari.'
17. These cases, in my view, are distinguishable from the present case because there was a definite notification to all liable to pay land revenue that the rate fixed would not be altered for 30 years which it seems to me is a different thing from saying that the rate is fixed for 30 years at such and such a rate because Government has taken into consideration certain matters such as the relief to the ryots from the burden of payment of the water cess and the taking over of the maintenance of the channels by Government. We are unable to agree with Madhavan Nair J.'s view that Ex. Q is a contract between the Government and the mirasidars. As there was no contract, the appellants did not do anything which Government was under legal obligation to do, and therefore, in our view, the appellants could not succeed under Section 70, Contract Act; but even assuming that there was a contract, in our opinion, the appellants did not bring their case within the section. Section 70 says:
Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.
18. The appellants therefore must have (i), lawfully done something for Government (ii) not intending to do so gratuitously, and (iii) Government must have enjoyed the benefits of it. On the assumption that Government was legally bound to clear the silt, the appellants satisfy condition (i), and we think it is clear (ii) also because they did not intend to do the work gratuitously. Condition (iii) however is the difficulty which, in our opinion, the appellants are unable to get round. The silt was cleared for the purpose of enabling the appellants' land to get the necessary supply of water for their cultivation and it was primarily for their benefit that the work was done. How has the Government been benefited It is contended that Government has been saved the cost of clearing the channels and that to that extent Government has benefited. In our opinion, the benefit that is meant in Section 70, Contract Act, is the direct and natural benefit of what has been done. If the object was to clear the silt for the benefit of the appellants' lands, that was the direct and natural result of the work. The benefit to Government has merely been in consequence of the direct benefit to the mirasdars and, in our view, the latter is an indirect benefit and upon this part of the case we agree with Madhavan Nair, J. This Letters Patent appeal is dismissed with costs.