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Kamulammal Vs. the Secretary of State for India in Council, Through the Collector of Madura - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in7Ind.Cas.402
AppellantKamulammal
RespondentThe Secretary of State for India in Council, Through the Collector of Madura
Excerpt:
statutory powers of government - delegation of powers, validity of--madras act (vii of 1865), section 1--prescribing rates--recording of proceeding of board of revenue. - .....made by the board of revenue. section 1 of act vii of 1865 empowers government to levy a separate cess for water supplied for irrigation and enables them to prescribe the rules under which and the rates at which such water-cess shall be levied. they have no right to delegate to the collector the statutory authority conferred upon them to prescribe the rules and the rates. a rule, therefore, made by government that the collector has power to impose prohibitive rates whenever water is taken without permission is a delegation of the authority to prescribe the rates which is not warranted by the act. it is, of course, open to government to levy at pleasure a cess for the use of water without permission. they are under no obligation to prescribe the rules and rates beforehand. but in.....
Judgment:

1. In this case the question is raised as regards the validity of the imposition of water cess at the rate of Rs. 10 an acre. We have not been referred to any rule of Government which authorizes the levy of this rate. In the rules for the levy of water-rate approved by Government in their Order dated the 25th of March 1874, the following appears: 'The Collector has power to impose prohibitory rates whenever water is taken without permission.' This was not originally applicable to Madura but appears to have been extended by the Board of Revenue by their proceedings, dated the 2nd of July 1878, No. 1827. The Government by their Order No. 1170, dated the 25th of July 1878 have simply 'recorded' the modification made by the Board of Revenue. Section 1 of Act VII of 1865 empowers Government to levy a separate cess for water supplied for irrigation and enables them to prescribe the rules under which and the rates at which such water-cess shall be levied. They have no right to delegate to the Collector the Statutory authority conferred upon them to prescribe the rules and the rates. A rule, therefore, made by Government that the Collector has power to impose prohibitive rates whenever water is taken without permission is a delegation of the authority to prescribe the rates which is not warranted by the Act. It is, of course, open to Government to levy at pleasure a cess for the use of water without permission. They are under no obligation to prescribe the rules and rates beforehand. But in this case it is not Government that has levied the cess of Rs. 10 an acre but the Collector under the authority conferred by the rule empowering him to impose prohibitory rates. Even this rule as to prohibitory rates as originally promulgated was not applicable to Madura. The Government have not since extended it to Madura. The Board of Revenue did so. The Government, however, only recorded the Board's Proceedings. Such a 'record' is not a prescribing of the rate under Section 1 of the Act. The levy of Rs. 10 an acre was, therefore, not warranted. The Rule 9 referred to in our judgment in S.A. No. 1597 of 1907 authorizes the levy of one and a-half times the ordinary rate and that comes to Rs. 6 only. The levy of the extra Rs. 4 appears to be illegal. The claim for the refund, however, of the excess levied is barred by limitation whether Section 59 of Act II of 1861 or Article 16 of the Limitation Act applies. We must, therefore, reverse the decree of the District Judge. We cannot restore the decree of the Subordinate Judge as it stands. For it might be competent to Government by proper rules under Section 1 of Act VII of 1865 to legalize the imposition of prohibitory assessment, a question on which we express no opinion. We would make a decree in the plaintiff's favour for a perpetual injunction restraining Government from imposing prohibitory assessment under existing rules. Each party must bear his own costs throughout.


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