SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OFTRICHINOPOLY Vs. MUTHU VEERAN REDDI

JUDGEMENT

(1.) The plaintiff alleges that a certain caligulah which regulated the supply of water for irrigation to his land had fallen into disrepair, and the Government officers, being bound to repair it, failed to do so. In consequence of this failure his land received no water and his crop was lost. He sued for compensation to the extent of the value of the crop which, but for the failureof the water-supply, he might have got.

(2.) Both Courts below have considered the question whether the plaintiff has a cause of action against the Government, and though the written statement does not distinctly raise this question, we have dealt with it. In the circumstances, we are of opinion that the District Munsif was right and that the Government is not under an obligation with regard to each individual ryot to repair irrigation works whenever they require repair. There is no case, so far as we know, in which a claim like the present has ever been made in India, whether against the Government or against a Zemindar, though opportunities for such claims have been sufficiently frequent ever since a system of irrigation works was inaugurated in the country. The Courts in this Presidency have held that a ryot is entitled to prevent the Government from doing any act resulting in a material diminution of the usual supply of water for irrigation to his land, but it has never yet been held that an action will lie for mere failure to repair, when repair is required to enable the ryot to receive the usual supply. For the respondent reliance is placed on Madras Railway Company V/s. Zemindar of Karvatenagaram (1874) 1 I. A. 364 but that case does not help him. It may very well be-it is a question which we need not decide- that the Government when handing over large tracts of the country to Zemindars at the Permanent Settlement laid upon them an obligation to preserve and repair the irrigation works handed over to them at the same time, and consequently, that there may be on a Zemindar an obligation more onerous than any that is upon the Government, and that what is discretionary in the Government has been made by the Government obligatory in the case of the Zemindar. But, however that be, we have to remember that what the Privy Council had to decide was not a question as to the extent of the obligation, if any, to maintain the works, but a question whether the rule laid down by the House of Lords in Fletcher V/s. Rylands (1868) L.R. 3 H.L. 330 could properly be applied so as to make a Zemindar liable for damage done by the breaching of an irrigation tank maintained by him. In discussing the question their Lordships observe that the Government of India have undertaken the public duty of maintaining what may be called a national system of irrigation essential to the welfare of a large portion of the population, and that this public duty has in some cases devolved upon Zemindars, who cannot do away with the irrigation works in which many persons are interested, but are charged by Indian Law, by reason of their tenure, with the duty of preserving and repairing them. These considerations are advanced to demonstrate the difference between the position of a Zemindar and that of the defendants in Fletcher V/s. Rylands (1868) L.R. 3 H.L. 330. That is to say because the Zemindars are under an obligation to preserve and repair these tanks as a part of the public duty undertaken by the Government, they cannot be held liable for damages caused by the accidental destruction of one of those tanks. The Zemindar's position is further likened by their Lordships to that of a person or corporation on whom statutory powers are conferred and statutory duties imposed.

(3.) Their Lordships had not to decide, and did not decide, the extent of the duty undertaken by the Government and cast upon the Zemindar, and if we consider the suggested analogies, we find that it has never been held that a person bound by reason of his tenure to keep a way in repair is liable to an action by individuals injured by his failure to do so-vide Young V/s. Davis (1862) 7 H. and N. at 772 and Rundle V/s. Hearle (1898) 2 Q.B. at 88 -while as regards persons and corporations on whom statutory powers have been conferred and statutory duties imposed the rule derivable from the English cases seems to be that in the absence of a common law liability as regards indiduals, no such liability arises in cases of non-feasance merely because the statute imposes duty; the statute must impose the liability expressly or by clear implication.-vide Saunders V/s. Holborn District Board & Works (1895) 1 Q.B. 64 and the cases therein cited ; also Municipal Council of Sydney V/s. Bourke (1895) A.C. 433. It is clear then that there is nothing in their Lordships judgment which requires us to decide that a Zemindar is under an obligation to a ryot to keep a tank in repair, or failing that, to pay the value of the crops which the ryot might have raised. That question was outside the case before their Lordships, and if their observations are to be taken as dealing with it at all they amount only to this, that the extent of the public duty which lies on the Zamindar is to be ascertained on the analogy of those public duties cast upon persons or corporations by reason of tenure or by statute and the analogies, as we have shown, do not assist the respondent.