1. The plaintiffs, who are villagers cultivating lands on the banks of the river Banka sue the Secretary of State for India in Council in consequence of proceedings purporting to have been taken under the Bengal Irrigation Act (Bengal Act III of 1876), by which they have been prevented from erecting a bund on that river, so as to obtain water for irrigating their lands.
2. They ask for an order declaring that the defendant has no right under that Act to interfere with them, or to act in any manner, and that they are entitled by prescriptive right to erect this bandh. The Munsif has found all the issues in favour of plaintiffs, and has given the plaintiffs a decree and the appeal by the defendant has been dismissed.
3. In second appeal the defendant raises only the question whether he is not protected by the terms of the Bengal Act of 1876. Section 1 of that Act declares that the ' Act shall take effect in those districts in the provinces subject to the Lieutenant-Governor of Bengal, to which the said Lieutenant-Governor shall extend it, by an order published in the Calcutta Gazette; and shall commence on the day which shall be in such order provided for the commencement thereof.'
4. When the Act has been thus brought into operation in any district, it becomes necessary to notify for what particular purpose it is to be applied, and accordingly Section 6 of the Act provides that the Lieutenant-Governor may, by notification in the Calcutta Gazette, declare that any particular water will be applied or used by the Government for the purpose of any existing or projected canal after a day to be named in the said notification, not being earlier than three months from the date thereof. On the 27th December 1881, an order was made and published in the Calcutta Gazette under Section 1 extending the Act to the district of Burdwan, and on the same date a notification under Section 6 was made, that it was the intention of the Government to apply the waters of certain rivers and channels including those of the river Banka for the purposes of the Eden (Jujuti) canal from the 1st day of April 1882. The law provides that, as soon as practicable after the issue of a notification under Section 6, the Collector shall cause public notice to be given at convenient places of this intention of Government, so that claims for compensation may be made to him. The Munsif held that all proceedings purporting to be under the Act were without authority of law, because no notification had been made under Section 6 of the Act, so as to put it into operation in respect of the waters of the river Banka, which were the subject of contention in this suit. He pointed out that the notification made in 27th December 1881 purporting to be under Section 6 was of no legal effect, since the Act was not then extended to the District of Burdwan and therefore it was not a notification under that Act applicable to any water in that District.
5. The same objection was taken before the Subordinate Judge on appeal and it was dealt with by that officer in the following terms: 'I do not agree with the learned Munsif in finding that the notification was inoperative on that ground.' No reasons, however, have been given for this opinion. This was certainly not a proper way to dispose of this objection, and especially because it was deserving of full consideration, for it went to the root of the defence set up and the right of the plaintiff to sue was founded on it. The Subordinate Judge, however, dismissed the appeal, because the Collector had not issued notice under Section 8 of the Act, holding that, until he had done so, the canal officer had no authority to proceed under the Act. Dr. Bash Behari Ghose for the respondent informed us that he intended to support the order not on these grounds, but on the grounds stated by the Munsif.
6. We have no doubt whatsoever that the opinion expressed by the Munsif is correct. No order or notification can be made under any Act having: the authority of law, until that Act has come into operation. The order made under Section 1 on the 27th December 1881, declared that the Act shall take effect in the District of Burdwan on the 1st January, 1882. The notification of the same date (27th December 1881) purporting to be under Section 6 could not be made under that section, because the Act was not then in operation in the District of Burdwan, to which the notification related. The result is that the acts of the officers of Government under that notification are without any legal authority, and plaintiffs are entitled to their legal remedies against them, so far as they affect their rights of property.
7. The second appeal does not challenge any of the findings of the Lower Courts on the merits of the suit, and, therefore, this second appeal must be dismissed with costs.
8. It is unnecessary to notice the grounds upon which the Subordinate Judge has held that the canal officer could not act, because the Collector had not issued public notice under Section 8, beyond stating that they are not sound. This neglect of the Collector might affect claims to compensation, but it could not affect the acts of the canal officers to carry out the objects of the notification under Section 6, if such a notification had been properly made. As it is, there has been no such notification.