G. Ramanujam, J.
1. The petitioner owns lands in Singampatti Village, Bhavani Taluk, Coimbatore District and the lands are comprised, in patta numbers 18, 30. 413 and 416. The land revenue payable for the lands comprised in the said patta numbers is Rs. 1.94, Rs. 2.93, Rs. 22.17 and Rs. 2.10 respectively and the water cess payable on them under the Madras Irrigation Cess Act, 1865 is Rs. 19.90, Rs. 32.10, Rs. 256.25 and Rs. 22.95 respectively.
2. By Government Order Ms. No. 1475, Rural Development and Local Administration, dated 1st August, 1970 the rate of levy of local cess surcharge under Section 116 of the Tamil Nadu Panchayats Act, 1958 was made subject to a maximum of Rs. 1.50 on every rupee of land revenue. On the basis of the said Government Order the respondent had claimed a sum of Rs. 702.77 from the petitioner under the provisions of Section 115 and 116 of the said Act. The petitioner questions the validity of the said demand in the writ petition on the ground that the water cess collected under the Madras Irrigation Cess Act, 1865 will not come within the term ''land revenue' used in Sections 115 and 116 of the Tamil Nadu Act XXXV of 1958, that the Explanation to Section 115(1) which seeks to include water cess also within the term land revenue is unconstitutional and as such invalid, and that the water cess which is only a fee payable to the Government for the water supplied cannot be taken to be a tax on land, leviable under Section 115(1). The petitioner, therefore, seeks a writ of prohibition from this Court to prohibit the respondent from enforcing the said demand.
3. According to the petitioner the water cess which is levied under the provisions of the Madras Irrigation Cess Act, 1865 is only a fee and that it is not within the competence of the State Legislature to levy any tax on the consumption of water in the irrigation of land by owners thereof. It is also stated that the Explantion to Section 116(1) of Madras Act XXXV of 1958 which includes within the definition of 'land revenue' water cess payable to the Government for water supplied or used for the irrigation of land, which is not a tax, is beyond its legislative competence and is, therefore, invalid and un constitutional.
4. The learned Counsel for the petitioner refers to Entry 17 and Entry 66 of List II of the Seventh Schedule to the Constitution of India in support of his contention that no tax can be levied on the water supplied by the Government and that only a fee can be levied under Entry 66 of List II. Reference is also made to Section 1(2) of the Madras Irrigation Cess Act, 1865 as amended by Madras Act III of 1945 which declares that water cess leviable under the said Act is not a tax on land but is only a fee for the water supplied or used for the irrigation of land. It is said that in view of the said section water cess can never be treated as a tax, and that land revenue which is a tax falling under Entry 49 of List II can never be taken to include water cess which is a fee, and, therefore, it is not open to the Legislature to include water cess within the definition of land revenue.
5. The respondent, however, counters the petitioner's contention that the said Explanation is invalid and unconstitutional by saying that the State Government is competent to define land revenue as it has done under the Explanation to Section 115(1) as including water cess, that though water cess is not treated as land tax proper for certain purposes under Section 1(2) of Madras Act VII of 1865 it is still a tax levied in respect of the land, and that water cess which is charged with reference to land in one's occupation may clearly fall within the ambit of land revenue.
6. For a proper appreciation the rival contentions of the parties it is necessary to note briefly the statutory provisions. Section 115(1) and the Explanation thereto and Section 116 of the Madras Act XXXV of 1958 are as follows:
There shall be levied in every Panchayat Development Block, a local cess at the rate of 45 naya paise on every rupee of land revenue payable to the Government in respect of any land for every fasli.
Explanation. - In this section and in Section 116 'land revenue' means public revenue dues on land and includes water cess payable to the Government for water supplied or used for the irrigation of land, royalty, lease amount or other sum payable to the Government in respect of land held direct from Government on lease or licence, but does not include any other cess or the surcharge payable under Section 116, provided that land revenue remitted shall not be deemed to be land revenue payable for the purpose of this section.
Section 116 provides:
Every Panchayat Union Council may levy on every person liable to pay land revenue to the Government in respect of any land in the panchayat union a local cess surcharge at such rate, as may be considered suitable as an addition to the local cess levied in the panchayat development block under Section 115 provided that the rate of local cess surcharge so levied shall be subject to such maximum as may be prescribed.
The maximum rate of local cess surcharge referred to in Section 116 has been fixed at Rs. 1-50 on every rupee of land revenue by G.O.Ms. Nos. 1475, Rural Development and Local Administration dated 1st August, 1970. It is on the basis of the above provisions a demand has been made from the petitioner towards local cess surcharge as provided by Section 115 and 116 of Act XXXV of 1958 read with Explanation to Section 115(1). Entry 17 of List II of Schedule 7 of the Constitution runs as follows:
Water, that is to say water supplies, irrigation and canals, drainage and enbankments subject to the provisions of Entry 56 of List 1.
Entries 49 to 63 relate to imposition of various kinds of taxes. Entry 49 relates, to taxes on lands and buildings. There is no entry enabling the State Government specifically to levy a tax on water supplied. Entry 66 of the same List : reads thus:
Fees in respect of any of the matters in this list, but not including tees taken at any Court.
According to the petitioner water cess levied under Madras Act VII of 1865 can be justified only as a fee falling under Entry 66 of List II read with Entry 17 which corresponded to item 54 read with item 19 of List II of the Government of India Act, 1935. It is said that the position will be clear by a look at Section 1(2) of Madras Act VII of 1865 which is as follows:
For the avoidance of doubt it is hereby declared that water cess leviable under this Act is not a tax on land but is a fee for the water supplied armed for the irrigation of the land.
It is with reference to the above provisions the petitioner's constitutional attack against the Explanation to Section 115(1) has to be considered.
7. In Madras Province v. Dolours Convent : AIR1942Mad719 , a Division Bench of this Court ruled that a cess levied in respect of water used for irrigating land is a land tax. In that case it was contended by the owner of the lands that as under an arrangement with the Government the lands are held free from land tax, a cess which is levied in respect of water used for irrigating the land being land tax it cannot, therefore, be levied on his land. The Court held, following the decision of the Privy Council in Balasuryaprasada Rao v. Secretary of State I.L.R. (1917) 40 Mad. 886 : 44 I.A. 166 : 1917 33 M.L.J. 144 : 41 IND.CAS. 98 : A.I.R. 1917 P.C. 42, that the cess payable under Madras Act VII of 1865 is a form of land tax. In the said Privy Council case, Lord Parker has held that cess collected under the said Act is leviable on land which is irrigated and therefore is in the nature of a land tax. It is with a view to get over the said decisions, Section 1(2) was introduced in Madras Act VII of 1865 by Madras Act III of 1945. The statement of objects and reasons for bringing in Section 1(2) are given as follows:
The Madras Irrigation Cess Act, 1865 (Madras Act VII of 1865) provides for the levy of water cess for the use of water supplied from a Government source for irrigation purposes in certain cases. In. the case of lands granted tax-free under inam title deeds and permanently settled estates granted under sanads, the practice has been to charge water cess in respect of all irrigation except to the extent to which the inamdar, zamindar or landholder in virtue of any engagement with the Crown is entitled to irrigation free of separate charges. That is to say, water cess was being levied in all cases which are not covered by the first proviso to Section 1 of the Act. In a recent case, the Madras High Court has held that the water cess under the Act is levied on land which is irrigated and it is therefore a form of land tax and that consequently the cess is not leviable in the case of lands held free of all land tax. The Government consider it necessary to amend the Act so as to make it clear that the water cess levied under the Act is not a tax on land, but is a fee levied for the water supplied or used for the irrigation of land. It is also considered desirable to make it quite clear that the persons referred to in the first proviso to Section 1 will be liable to pay the cess or fee for all irrigation in excess of that for which under their engagement with the Crown they are entitled to water free of charge. The Government further consider it necessary to validate the long-standing practice referred to above and to indemnify the officers who have followed it hitherto.
The above extract from the objects and reasons makes it clear that water cess was taken to be a fee and not a tax on land for a specific purpose i.e. with reference to-the lands granted tax-free under various inam title deeds and permanently settled estates granted under sanads, so as to see that the tax-free grants cannot be relied on in the matter of levy of cess for water supplied as the decisions above referred to prevented them from collecting cess for the water supplied by the Government for irrigation on the ground that it is a tax. on land. Section 1(2) cannot, therefore, be taken as conclusive on the question as to whether the water cess collected is a tax on land for other purposes.
8. Even assuming that water cess collected under Madras Act VII of 1865 is a fee, so long as Section 115(1) enabled the levy of local cess at a particular rate on every rupee of land revenue payable to the Government in respect of any land for each fasli, it is not possible to limit the meaning of the term 'land revenue', by restricting it to land tax. The term ' land revenue ' has been defined under the explanation to include water cess for purposes of Section 115 and 116. Under Section 115 the levy is only on land, but the measure of tax is based on the land revenue payable on it. So long as the power to tax is there, then the Legislature is entitled to adopt any measure to effectuate the levy of tax. In H.R. S. Murthy v. Collector of Chittoor : 6SCR666 , the Supreme Court has held that land cess imposed under the provisions of Sections 78 and 79 of the Madras District Boards Act is in truth a tax on lands within entry 49 of the State list and not a tax on minerals within entry 50 of the State List and that what a lessee or licensee actually pays for the land for working the minerals on the land can be used as a measure for collecting the land cess which is nothing else but a tax on land. In Assistant Commissioner, Madras v. B. & C. Co. : 75ITR603(SC) , the Supreme Court, while considering the validity of the provisions of the Madras Urban Land Tax Act of 1966 expressed the view that the mere fact that the Legislature while levying a tax under Entry 49, List II has adopted, for determining the incidence of tax, the annual or capital value of the lands and buildings will not make the legislation as one under Entry 86 of List I, and that the capital value of the asset, has been taken only as a measure for imposing the tax on lands and buildings.
9. In this case also, while levying a tax or. land the aggregate of the amounts paid in respect of the land by the owner has been taken as a measure for determining the tax liability. Reference may be made in this connection to the definition of 'public revenue' in the Revenue Recovery Act of 1864. Public revenue due on lands has been taken for the purpose of that Act as including cesses or other dues to the State Government on account of water supplied for irrigation. Though that definition is only for the purpose of that Act, cesses or other dues payable to the Government on account of water supplied for irrigation is normally taken as a revenue due on the land. In the light of the above discussion it is not possible to accept the petitioner's contention that the cess for the use of water supplied for irrigation purposes by the Government cannot be taken to be land revenue. The petitioner's contention is that the word 'land revenue' should be equated to land tax. The word 'revenue' is in my view of a wider connotation than the word 'tax'. Even assuming that water cess is not land tax alleged by the petitioner, it is still a revenue due on the land and, therefore, it has to be taken as land revenue. As already stated, land revenue has not been specifically defined in Madras Act XXXV of 1958 except in the explanation to Section 115(1), and it is open to the Legislature to give a special definition of land revenue for the purpose of determining the tax leviable on land under Section 115(1). Hence there is no merit in the contention of the petitioner that the Explanation to Section 115(1) is unconstitutional and invalid. The writ petition is, therefore, dismissed. But in the circumstances of the case, there will be no order as to costs.