R. Sengottuvelan, J.
1. The second appeal is filed by the plaintiffs challenging the concurrent findings of both the Courts below in O.S. No. 719 of 1973 on the file of the Subordinate Judge of Madurai and A.S. No, 200 of 1977 on the file of the District Judge of Madurai.
2. The averments in the plaint are briefly as follows: Mela Urappannur Periakulam Kanmoi is a Government Irrigation source, which irrigates 800 acres of land by the water collected in it. Josier Alankulam Kanmoi is another Government irrigation source, northwest of Mela Urapanur Periakulam Kanmoi. There are two vents marked as B and B-l in the plaint plan in the Josier Alangulam Kanmoi from which a channel leads to Mela Urappannur tank. The channel is about a mile long. Josier Alangulam Kanmoi is fed by surplus water from Nochikulam tank, which is to the north of Josier Alangulam Kanmoi. North of Nochikulam is Ponnamakulam Kanmoi, which is another Government Irrigation source. Water from Ponnamakulam Kanmoi flows through two vents marked in the plaint plan to Nochikulam Tank. Ponnamakulam Kanmoi in turn gets its supply from Munswami, Koil Odai running west to east. At the point A-l shown in the plaint plan, water from Munuswami Koil Odai is diverted into two branches, one leading to Ponnamankulam Kanmoi and the other to Mela Urappannur tank as shown in the plaint plan. Fifteen years back, a new road was formed at the place marked A where a bridge was constructed in such a way as to affect the flow of water through A, A-l and the level of the Channel running to Urappanur tank called Urappannur Channel was raised and the channel along A. A-l was bunded at the place A and the flow of water through A, A-l, D was stopped and the entire water had been passing through the other channel XYZ into the Ponnamankulam tank. The Urappannur Channel, viz., A, A-l, D was thus blocked up and became defunct and useless. The Mela Urappannur Periakulam Kanmoi was all along getting its supply only from the two vents B and B-l from Josier Alangulam Kanmoi.
3. The Ayacutdars of Mela Urappannur Periakulam sent applications to P.W.D., authorities to restore the supply through the channel A, A-l and B by making rectification to the bridge at Point A and the authorities informed them that it was not possible to lower the level of the bridge and that it was also not necessary since the water flowing through the two vents B and B-l in the Marugal of Josier Alangulam Kanmoi and taken through the channel ED E to Mela Urappannur Periakulam is found sufficient to get the required supply of water to the tank. The Ayacutdars did not press further their demand to demolish the bridge at point 'A'.
4. There is another tank, to the north of Mela Urappannur Periakulam tank known as Ooranda Urappannur Kulam, which has got ayacut of 75 acres of land only. This tank gets its supply from two sources, one through the Odai carrying rain water from the east and another through the Marugal of Karaikkal Kanmoi, which is north of Ooranda Urappanakulam tank. The water flowing from those two sources is more than sufficient to irrigate the lands under the ayacut of Ooranda Urappanur Periakulam, which depends solely upon the surplus water from Mela Urappannur Periakulam.
5. About an year ago, at the instance of Ayacutdars of Ooranda Urappannur tank, P.W.D., authorities made arrangements to lay out a new channel from Ponnamankulam Kanmoi direct to Ooranda Urappannur Kulam, but the Ayacutdars of Josier Alangulam tank objected to this and filed a civil suit before the District Munsif, Thirumangalam, and obtained an order of injunction restraining the Government from laying out any channel from Ponnamankulam tank to Ooranda Urappannur tank. On the objections raised by the Ayacatdars of Mela Urappannur Periakulam, further action was dropped.
6. The Ayacutdars of Ooranda Urappannur tank again moved the Revenue and P.W.D., authorities to lay out a channel from Josier Alangulam Kanmoi to Ooranda Urappannur tank shown as BC in the plaint plan. The P.W.D., authorities while considering the objections raised by the ayacutdars of Mela Urappannur Periakulam Kanmoi recommended for laying of a channel along B C and the Government also had accorded sanction for the same. The ayacutdars of Mela Urappannur tank came to know of the same and protested and presented petitions to the Collector. Tenders were called for, for the digging of the channel along B C, but on the objections taken by Mela Urappannur Periakulam Ayacatdars by means of a petition to the Chief Minister, the tenders were withdrawn. But a similar tender was again called for by the P.W.D., authorities and the work was given to the third defendant. If the new channel BC is dug from the Marugal of Hosier Alangulam Kanmoi, there will be a diminution of water supply to Mela Urappannur tank and to other several tanks and a vast area of wet lands would be greatly affected. Hence the plaintiffs filed the suit for a permanent injunction restraining the government from digging a channel along BC, after notice under Section 80, Civil Procedure Code.
7. The case of the State of Tamil Nadu is as follows: The proposal of the Government to excavate a link channel BC connecting Josier Alangulam Kanmoi and Ooranda Urappannur tank will not affect the rightsof Ayacutdars of Mela Urappannur Kanmoi in any manner. The scheme is intended to achieve increased production of paddy. Urappannur Big tank has got a free catchment area of 2.80 sq. ft., miles and rain water received from the said catchment area is about 20 million cubic ft. The said tank receives about 225 million cubic ft., of water from the Urappannur supply channel. It also receives surplus water from Josier Alangulam tank. The total flow of water into Urappannur big tank is about 292 M.C. ft. The requirements of the ayacut of Urappannur big tank is about 96 M.C. ft., of water. There is surplus of 196 M.C. ft., of water from Urappannur big tank, which flows into the lower down tanks, viz., Sangulam Alankulam tank. After feeding these series of tanks, the water falls into Gumnar river. There is ample water to irrigate the ayacut lands of the Urappannur big tank as well as the lower down tanks.
8. The Ooranda Urappannur tank has got an ayacut of 163 acres. It was getting water from its catchment area alone. The said water is inadequate to irrigate these 163 acres, which requires about 27 million cubic feet of water. The present proposal is to excavate a link channel between Hosier Alangulam tank and Ooranda Urappannur Kulam along BC, shown in the plaint plan in order to take about 19 million cubic feet of water from out of the surplus of Hosier Alangulam tank by putting up weir. The said diversion will also be regulated by suitable arrangements. Since there is a surplus of 195 million cubic feet of water in Mela Urappannur Periakulam tank, the Ayacutdars of the said tank will not be affected by the diversion. It may result in the reduction of the surplus from Urappannur Big tank from 195 M.C. ft., of water to 176 M.C. ft. The allegation that Urappannur big tank has got an ayacut of 800 acres is false. It has got an ayacut of 574 acres. The allegation that the supply channel, A, A-l, D from Munuswami Kovil Odai to Mela Urappannur Periakulam ceased to exist is not correct. The said channel is still there and is also a source of supply to Mela Urappannur tank. The said channel also receives the entire surplus of Hosier Alangulam. Kanmoi. The petition dated 25-9-1973 received by the P.W.D. authorities requesting repairs to the Urappannur Channel along A, A-l and D is also under consideration of the department. The proposed diversion will not in any way affect the Ayacutdars of Mela Urappannur Periakulam. There was a proposal to take water from Ponnammakulam tank to Ooranda Urappannur tank and the same was dropped. The objections to the proposed channel along B C appears to be only by a handful of interested persons, owing to improper motive. The first defendant also contends that the first defendant (Government) have a permanent right to regulate the distribution of water for the purpose of irrigation to the advantage of all concerned. The plaintiffs' attempt to interfere with its sovereign function is misconceived and mala fide.
9. The second defendant adopts the written statement filed by the first defendant.
10. In the additional written statement filed on behalf of the Government, a plea is taken that the plaintiffs' attempt to interfere with the sovereign rights of the Government to increase the capacity and efficiency of an irrigation tank is barred under Section 4 of the Tamil Nadu Irrigation Tanks (Improvement) Act, 1949, and the suit is liable to be dismissed On this ground alone.
11. In the reply statement, it is stated that the Government has no power to make the new source to the detriment of the Ayacutdars of another taluk.
12. The trial Court after considering the case of both the parties found that the proposal of the Government to excavate a link channel from Josier Alangulam tank to Ooranda Urappannur tank is only to increase the capacity or efficiency of the irrigation tank known as Ooranda Urappannur tank and will not in any way reduce the capacity or efficiency of Mela Urappannur tank to the detriment the Ayacutdars of Mela Urappannur. The trial Court also found that the suit is not maintainable under Section 4 of the Tamil Nadu Irrigation Tanks (Improvement) Act, 1949. As against the said judgment of the trial Court, the plaintiffs filed an appeal in A.S. No. 200 of 1977 on the file of the District Judge of Madurai. The lower appellate Court, after considering the evidence and the judgment of the trial Court, came to the conclusion that the excavation of the new channel along BC will not in any way affect the rights of ayacutdars of Mela Urappannur big tank and such channel will only increase the efficiency of the Ooranda Urappannur tank and the Government has got right to do so under Section 3(1) of the Tamil Nadu Irrigation tanks (Improvement) Act, 1949. The lower appellate Court also held that the words 'increasing its capacity or efficacy' occurring in Section 3(1) of the Tamil Nadu Irrigation Tanks (Improvement) Act, 1949 are of wide import and will take in bringing a fresh source of supply to the tank or to enlarge the existing sources either by widening the supply of channels or by any other convenient devices. The authority of the Government in this behalf cannot be limited to deepening the tank bed or repairing the weir or sluice. The Government is empowered to adopt any course which would ensure better supply of water and thus enhance the utility of the tank. The lower appellate Court specifically found that the Government in this case is only trying to improve the supply of water to the Ooranda Urappannur tank and enhance its utility by constructing a new channel BC from Josier Alangulam tank to Ooranda Urappannur tank and the action of the Government cannot be questioned under Section 3(i) of the Tamil Nadu Irrigation Tanks Improvement Act, 1949. The lower appellate Court also found that under Section 4 of the aforesaid Act, the suit is not maintainable. In view of the said findings, the lower appellate Court dismissed the appeal. Against the said judgment, this second appeal is filed.
13. Gokulakrishnan, J., (as he then was) while admitting the second appeal, has formulated the following questions of law:
1. Whether Section 4 of the Tamil Nadu Irrigation Tanks (Improvement) Act 19 of 1949 will bar the filing of a suit by the ayacutdars whose accustomed supply of water for irrigation is sought to be diminished by Government?
2. Whether Government's power under Section 3 of the Tamil Nadu Act 19 of 1949 to raise the full tank level of a tank or to take any measure for increasing the capacity of a tank could interfere with the existing arrangements under which ayacutdars of a particular village had the accustomed supply of water for irrigation?
3. Whether the Government can invoke Section 4 of Act 19 of 1949, in a case where they dig a channel from the Josier Alankulam Kanmoi to connect it to Uranda Urappannur Kanmoi to the prejudice of the ayacutdars of Mela Urappannur Kanmoi?
14. The main contention of the appellants is by digging a channel along BC, the normal supply of water to Mela Urappannur Periakulam Kanmoi is affected. Apart from making a general allegation that the supply to Mela Urappannur Periakulam will be affected, the plaintiffs have not specifically shown as to how the ayacutdars will be actually prejudiced by digging the new channel BC. Unless it is shown that by digging the channel BC, the supply to Mela Urappannur Periakulam will be affected in such a way as to diminish the normal supply of water to the ayacutdars, digging a channel BC will not amount to interfering with the normal course of supply to Mela Urappannur Periakulam tank. The Government in its written statement have specifically stated that Mela Urappannur Periakulam, has got an ayacut of only 374 acres and the requirement is only 96 million cubic ft., of water to irrigate the ayacut, whereas it receives 292 million cubic feet of water from the two sources stated above. After irrigating the ayacut there is a surplus of 196 M.C. ft., which flows further into the tanks lower down. This statement of fact asserted by the Government has not been shown to be wrong. Apart from making an allegation in the plaint, no further proof is let in to show how the construction of the channel BC will diminish the water supply to the ayacutdars of Mela Urappannur tank. Unless the calculations with reference to the inflow of water into Mela Urappannur Periakulam and the requirement of the ayacutdars of Mela Urappannurmur Periakulam and the requirement is shown to be incorrect, the contention of the Government that by digging the channel along BC, the ayacutdars of Mela Urappannur Periakulam will not be affected in any manner, will have to be accepted. The lower appellate Court after considering the case of both the parties had come to the conclusion that the plaintiffs have not succeeded in proving that there will be a diminution of water supply to the ayacutdars of Mela Urappannur Periakulam tank by digging the channel BC. There are no grounds for interfering with the concurrent findings of both the Courts below in this regard.
15. The second contention to be considered is the maintainability of the suit. The legal rights of an ayacutdar of wet lands in a ryotwari village to receive water from Government source has been considered in the following cases:
Sankaravadivelu Pillai v. Secretary of State for India in Council, : (1905)15MLJ32 . Fischer v. The Secretary of State for India I.L.R (1916) Mad. 141. and Secretary of State for India v. Muthuveerama Reddi, 1911 20 M.L.J. 869 : 6 IND.CAS. 731 : I.L.R. (1911) Mad. 82.
16. The principles laid down in the above cited cases can be summarised as follows:
17. A ryot is assured of an adequate supply of water to meet his irrigational needs, provided the government have the necessary supply.
18. The Government are the owners of water and in the matter of distribution of water to the ayacutdars of the wet areas, they have got the permanent right to regulate the supply of water to the ayacut.
19. The contention that a ryot acquires the right by prescription for the required supply of water with reference to the wet lands possessed by him was not recognised by Varadachariar, J., in : AIR1936Mad923 . (The Secretary of State for India in Council v. Nageswara Aiyar). In dealing with the question, the learned Judge observed as follows:
A right by prescription can be acquired as against the proprietary right of another but not as against the sovereign right which under the Indian Law the State possesses to regulate the supply of water in public streams so as to utilise it to the best advantage. The, learned Subordinate Judge fell into an error in thinking that the decision in Tinakowri Pathak v. Ram Gopal Pathak I.L.R. (1922) Cal. 356, and Secretary of State v. Subba Rao : AIR1927Mad382 , are sufficient to support the claim for prescriptive right in the present case.
In Lachunna Goundan v. Pandiyappan : AIR1951Mad679 , Viswanatha Sastri, J., observed as follows:
The obligation of the Government is to supply water necessary and sufficient for the accustomed requirements of the ryotwari proprietor so long as such supply is not adversely affected by natural causes (such as deficiency of rainfall or scarcity of water in the rivers from which the supply channels take off). From this it follows that the ryotwari proprietor has a claim against the government only when the Government diverts, to his prejudice, water which is available in the channel so as to materially diminish the supply of water that he had been accustomed to receive from the channel for the cultivation of his wet lands. In other cases the interference by the Government with the existing rights of irrigation from artificial channels constructed by Government is not an actionable wrong and the ryotwari proprietor is not entitled to insist that the entire volume of water which had been flowing through the artificial channel should, for all time, be allowed to run along the channel without diminution or diversion by the Government. In other words, damage to the ryotwari proprietor, actual or inevitable, is the gist of the action as well as the basis of government's liability.
20. A single Judge of this Court in S.A. Nos. 839 and 1864 of 1981, Ponnu Thevar and Ors. v. Arokia Nadar and Ors., after considering the earlier decisions in the case summed up the legal position as follows:
(1) The ryotwari proprietor has no right of property in the irrigation channels supplying water for his wet cultivation either in respect of the bed of the channel or in respect of the flow of water.
(2) The ryotwari proprietor has no enforceable legal right to compel the Government to maintain the status quo in the matter of the source of distribution and supply of water; such a right cannot be acquired by prescription or by any other mode known to law by reason only of the long customary use of the water in the same manner, through the same machinery or contrivance.
(3) There is no vested right in the ryotwari proprietor in the registered source or in the accustomed medium of supply so as to prevent other ryots from interfering with them.
(4) His only right is to expect and be assured of the supply of water which is essential and necessary for irrigating his wet ayacut, provided water is available and the Government are is in a position to make the supply. Any diminution in the supply of water would be as actionable wrong and the aggrieved ryot can seek the appropriate remedy not merely against the government, but also against other ryots who have been instrumental or responsible in causing such injury.
In this case the plaintiffs have not succeeded in showing that there will be a diminution of water supply to their ayacut by the constructions of the Channel BC. The prerogative right of the Government recognised in the above decisions with respect to maintenance of irrigation sources will enable the Government to dig the channel BC and the plaintiffs cannot complain about the same.
21. It is contended on behalf of the State that the suit is not maintainable in view of the provisions contained in the Tamil Nadu Irrigation Tanks (Improvement) Act, 1949 (Act No. 19 of 1949). Section 3(a) of the abovesaid Act runs as follows:
Notwithstanding anything contained in any other law for the time being in force the Government shall have power to raise the full-tank level of any tank or to take any other measure for increasing its capacity or efficiency, wherever it may be situated and whether in a ryotwari, zamindari, inamdari or other area.
22. As per the above provision the Government has the power to raise the level of the tank or do any other act for increasing the capacity or efficiency of the irrigation sources. According to Section 4 of the above Act, no Court will entertain any suit or application for the issue of an injunction to restrain the exercise of any of the powers conferred on the Government by Section 3. Section 4 of the aforesaid Act is as follows:
No Court shall entertain any suit or application for the issue of an injunction to restrain the exercise of any powers conferred on the Government by Section 3.
The contention of the first respondent, State of Tamil Nadu is that according to Section 3 of the Tamil Nadu Act 19 of 1949, the Government has got the right to dig a channel along BC and no order of injunction can be issued restraining such digging of a channel as per Section 4 of the abovesaid Act. Both the Courts below had accepted this contention. In Lakshmi Narayana v. State of Andhra Pradesh : AIR1965SC580 , the Supreme Court found that as per Sections 3(1) and 4 of the Tamil Nadu Irrigation Tanks (Improvement) Act, 1949 (Act No. 19 of 1949), a Civil Court cannot grant an injunction restraining the Government from doing any act intended to improve the efficiency of the Government irrigation source. In view of the provision contained in Sections 3 and 4 of the above act, and in view of the above decision of the Supreme Court, the conclusions arrived at by both the courts below that the suit is not maintainable are correct.
In the result, there are no merits in the second appeal and the same is dismissed. However, there will be no order as to costs.