ANNAPURNABAI GOPAL Vs. GOVERNMENT OF BOMBAY

JUDGEMENT

(1.) THIS appeal arises in a suit filed by the plaintiff-appellant for a declaration that she as the widow of one of the inamdars of the village of Pimpalgaon Garudeshwar had got the right to have all the income, from whatever source, recovered by the Government, and by virtue of that right she sued to recover certain' taxes levied by the Government from a company, called A. B. Godrej & Co. , for six years from 1932 to 1938. The plaintiff had filed this suit in a representative capacity on behalf of herself as well as all the other inamdars of that village, claiming under a common grant of the Peshwas in 1754. Her case in substance was that this village was granted to the plaintiff's ancestor as a hereditary jahagir inam, that the British Government continued the same in 1883 under a sanad by which on the payment of a fixed sum of about Rs. 93 all the rights which the inamdars enjoyed in the village were continued, that the village was situated on the bank of the river Godavari and. that the water of the river was also granted under the sanad. In 1926 the Godrej Company purchased some lands in the village and put up a pump for drawing the flowing water of the river for use in their factory. The Government levied certain water charges from the company under the provisions of the Bombay Irrigation Act. The plaintiff's case was that under the sanad the right to the water was granted to the inamdars with the result that all cesses levied in the village belong to the inamdars and that although the water tax under the Irrigation Act was payable by the company to the Government and not to the inamdars, the latter had the right to recover it from the Government on the ground that the waters of the river in the village belong to them. The present suit, it appears, is a sequel to a previous litigation consisting of two suits. One of them, No.319 of 1930, was filed by the present plaintiff against the Godrej Company for claiming the amount of the water tax and for an injunction that the company should not pay the same to the Government. Thereafter, in 1931 the Godrej Company filed an interpleader suit against the plaintiff as well as the Government with a view to decide as to who was entitled to the water tax. It was ultimately held by this Court that the water tax was properly payable by the Godrej Company to the Government, but it was not necessary to decide any question between the plaintiff and the Government inter se in that litigation because the Government was not a party to the suit filed by the plaintiff. That point, therefore, was left open. It was for that reason that the present suit was filed in 1938 after the termination of that litigation. It may be noted that the plaintiff accepts in this suit the right of the Government to impose water rate on any terms it likes. All that she contends is that whatever amount is levied by the Government by way of water rate from the riparian owner must be paid to the inamdars if it is levied for the use of the water on the lands belonging to them.

(2.) THE defence of the Government was, among other things such as want of proper notice under Section 80 and the suit being time-barred, that the jahagirdars were not the owners of the flowing waters of the river Godavari, which passed by one of the sides of the village of Pimpalgaon, and even assuming that the water belonged to them, the plaintiff had no right to levy any cess from the riparian owners using the same or to recover it from the Government. It was further urged that the right of the jahagirdars over the river water, even if it be assumed to exist before, was extinguished by the Government Resolution, of February 17, 1913, by which Section 5 of the Bombay Irrigation Act was made applicable to that part of the river Godavari which passed by the side of this village, that as a result of the notification the water rate was leviable by the Government and the inamdars had no right whatever either to levy any rate for themselves or to demand that the amount levied by the Government should be paid over to them.

(3.) THE answer to the question raised in this appeal really depends on the construction of the sanad granted to the plaintiff's ancestor. Mr. Coyajee on behalf of the plaintiff-appellant has exhaustively argued this appeal on the various grounds raised by him, viz. that the sanad makes a grant of the village including the river bed and the waters flowing on it, that the same has been continued by the British Government with the rights to levy all future cesses connected with it, and that the water rate falls under the class of cesses stated in the sanad. He has further contended that even assuming that a notification under Section 5 of the Irrigation Act can be validly promulgated with regard to the portion of the river flowing by the side of this village, that does not necessarily mean that the inamdars are deprived of the rights to the water which they had under the sanad. It is also urged that the provisions about compensation in Section 31 and the subsequent sections apply only to such riparian owners as are not the owners of the lands in the village, but that they cannot apply to the inamdars to whom the village itself had been granted by the sanad. On the other hand, the provision about the levy of the water rate, instead of causing any harm to the inamdars, is beneficial to them because those water rates which are levied by the Government are for the benefit of the inamdars to whom they are to be paid.