SECY OF STATE Vs. SANNIDHIRAJU SUBBARAYUDU

JUDGEMENT

(1.) The original plaintiff in this suit is dead and the suit is continued by his legal representatives. The plaintiff owned land abutting on a branch of the Godavari called the Chilapa Kaiva. From that in exercise of what he considered his riparian rights, he took water. The Government, through the Collector of Godavari, charged a water-cess of Rs. 8-5-8 for his use of the water. He paid under protest and then raised the present suit against the Government to recover the money so paid. The sole question therefore is whether the water-cess was legally levied. The cess bore to be levied in virtue of the provisions of the Madras Irrigation Cess Act 7 of 1865. The preamble of the Act is in these terms : "Whereas, in several districts of the Madras Presidency, large expenditure out of Government funds has been, and is still being, incurred in the construction and improvement of works of irrigation and drainage, to the great advantage of the country and of proprietors and tenants of land and whereas it as right and proper that a fit return should, in all cases alike, be made to Government on account of the increased profits derivable from lands irrigated by such works:"

(2.) Then follow the words of the Act which, so far as material to the present case, are to be found in S. 1 : " 1.-(a) Whenever water is supplied or used for purposes of irrigation from any river, stream, channel, tank or work belonging to, or constructed by Government, . . . . it shall be lawful for the Government before the end of the revenue year succeeding that in which the irrigation takes place to levy at pleasure on the land so irrigated a separate cess for such water and the Government may prescribe the rules under which, and the rates at which such water-cess as aforesaid shall be levied; and alter or amend the same from time to time.

(3.) Provided that where a zemindar or inamdar or any other description of landholder not holding under raiyatwari settlement is by virtue of engagements with the Government entitled to irrigation free of separate charge, no cess under this Act shall be imposed for water supplied to the extent of this right and no more." Now the facts which have not been a matter of dispute may be thus stated : (1) The plaintiff's land is bounded by the river. (2) At the place where he has taken the water there are Government lands on the opposite side of the stream. (3) He only uses the water he takes for the purpose of the irrigation of his own property. (4) The river at this place is tidal.