PERNETI CHENCHURAGHAVA REDDY Vs. STATE OF MADRAS

JUDGEMENT

(1.) The plaintiff is the appellant. The suit was instituted by him as against the State of Madras represented by the Collector of Nellore and eight ryots of the village of Arlampadu. According to him, he is entitled to irrigate his lands by lifting water by the use of mechanical devices like oil engine. He prayed for a permanent injunction restraining the defendants from causing obstruction to his right to instal oil engine and lift water thereby frnm the Arlampadu tank. He also sought to recover a sum of Rs. 5,100 by way of damages frnm the defendants for having caused him loss by preventing him from using the oil engine to take water to his lands. The first defendant, i.e., the State of Madras, contended that by permitting him to use the mechanical device, the other ayacutdars would be seriously affected and that the plaintiff should take water by the immemorial practice of lifting water by ' gudalu '. It was further contended that the plaintiff was not entitled to recover any damages. The Subordinate Judge of Nellore held that there was no absolute light on the part ofthe plaintiff to instal the oil engine on the tank bund and that, by permitting him to do so, the rights of the other ayacutdars would be seriously affected and that he was not entitled to any damages. The plaintiff has consequently preferred the appeal.

(2.) The two questions that arise for consideration in the appeal are : (1) whether the plaintiff is entitled to instal an oil engine at Pallapu Madava and take water from the Arlampadu tank? (2) whether he is entitled to any damages as against the defendants for the loss of crop ? In order to appreciate these two contentions, it is necessary to set out a few relevant facts. Arlampadu village is situate within the Zamindari of Venkatagiri which was taken over under the provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act on 7th September, 1949. The Arlampadu tank is consequently vested in the Government under section 3 of the Estates Abolition Act. The facts of the case show that there are no sluices for the tank and that the tank is dependent upon rain for the supply of water. There are eight madavas or cuttings in the bund through which the ryots are supplied water All these madavas are not at the same level. When the water levelis below these madavas the ryots have been taking water to their lands from time immemorial either by a contrivance called ' gudalu', i.e., two labourers lifting water using a basket, or by the picota system. The facts show that during the relevant period, i.e., in April 1953, there was scarcity of water and the water stood below the level of the eight madavas The plaintiff wanted to instal an oil engine at the Pallapu Madava and pump water to his lands. The case with which he came forward was that he was taking water by installing oil engines even for several years before. But he had to admit during the course of the evidence that it was only for the first time in 1953 that he installed this oil engine at the Pallapu Madava. The other ryots, who depended for supply upon this tank, objected. The plaintiff instituted proceedings under section 144 of the Criminal Procedure Code, and the Sub-Inspector of Police, who was directed to investigate the matter, permitted the plaintiff to take water by means of the oil engine. The other ryots, i.e., defendants 2 to 9, petitioned to the revenue authorities for distributing the water from the tank equitably. The Tahsildar examined as p.W. 5 passed an order marked as Exhibit A-3 on17th April, 1953. In tlhe order it is stated that there was very little supply of water in the tank and no water would be left if the engines installed by the plaintiff were allowed to work; the Tahsildar directed that the plaintiff might take water by adopting the system of gudalu for his 17 acres on which there was crop from 6 A.M. on 19th April, 1953, to the evening of 21st April, 1953. He also directed him to supplement the supply by pumping out water from Swarnamukhi river. The order stated that no others should employ gudalu during the period fixed for the plaintiff. The case of the plaintiff is that as he was not permitted to instal the engines and pump out water for his lands, there was loss of crop and he is consequently entitled to recover damages from the 1st defendant the State of Madras represented by the Collector of Nellore. He also claimed damages as against defendants 2 to 9 on the ground that they petitioned to the revenue authorities and obtained the order under Exhibit A-3 which prevented him from getting the necessary supply of water by employing an oil.engine. The learned Subordinate Judge has accepted the evidence of the Revenue Inspector examined as D W.4 and the evidence of the Tahsildar examined as D.W. 5 and found that there was actual scarcity of water arid that if the plaintiff was permitted to instal the oil engines on the Pallapu Madava and pump out water the other ryots would be deprived of the necessary supply of water. Having perused the papers, we are inclined to agree with the Subordinate Judge that in the exercise of the rights of regulation of water the Tahsildar was quite justified in passing the order Exhibit A-3. The learned Advocate for the appellant has not been able to persuade us to hold that he had any absolute right to instal the oil engines on the tank bund at Pallapu Madava and take water to the prejudice of other ryots.

(3.) The law relating to the rights of distribution of water is clearly discussed by Wallace, J., in Basavama v. Narayana, (1931)61 M.L.J. 563 : I.L.R. 54 Mad. 793. It is stated in the following terms :