SRI RAJA VENKATA RANGAYYA APPA RAO BAHADUR, ZAMINDAR OF KAPILASWARAPURAM Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF KISTNA

JUDGEMENT

(1.) The appellant is one of the Nuzvid Zamindars whose judicial history will be found in Raja Venkata Bow v. Court of Wards(1878)I.L.R. 2 M. 128 and Sri Raja Venkatanarasimha Appa Row v. Sri Baja Rang ay ya Appa Bow, and others(1905)I.L.R. 29 M. 437. The Zamindar alleged that the defendant, the Secretary of State, constructed in 1863 the Ellore canal to carry the anicut water through the Zamindari and thereby obstructed the flow of water into one of his tanks Voddu cheruva from his other three tanks, and since that time, the Government have been supplying him with water free of charge for the cultivation of his lands about 507 acres 14 cents, which depended on these tanks for their irrigation from 1889 they allowed supply free of charge only for 427 acres, 91 cents, and on his appeal from such redaction it was still further reduced to 202 acres 67 cents. He prays for declaration of his right to the supply of water as before and for certain reliefs consequential on such declaration. The Government filed their written statement and issues were framed which covered all the questions of factrelied upon by the plaintiff. But without taking any evidence, the question whether the plaint discloses a cause of action was first argued and decided against the plaintiff.

(2.) The Subordinate Judge held that no express engagement under Act VII of 1865 having been alleged, all lands irrigated by Ellore canal water must pay cess. The Judge in appeal held that a promise by the Government in 1863 to supply water may perhaps be implied in the plaint though the issues according to him show that the claim was based on a letter of a Deputy Collector of May 1891 which, it may be remarked, however, is not referred to in the plaint. He was of opinion that unless there was an express agreement, the Government are entitled to levy water cess at pleasure.

(3.) The decisions of the Lower Courts go beyond the claim set up by the Government, who concede the plaintiffs right to water free of charge for 200 odd acres in their written statement. The Subordinate Judge states that plaintiffs pleader in agrument before him relied on a contract with the Government and the Judge states that the plaint apparently implies it. Issues 1 to 4 were necessary only if an implied agreement formed the basis of the claim. They certainly included it. In these circumstances as the evidence had not been taken and the plaintiffs relied only on the facts alleged in the plaint and raised by the issue, an amendment of the plaint setting forth that the plaintiff relied on an engagement with government should have been allowed if necessary. I do not think the omission to mention it is fatal to the suit. However to remove any difficulty we have allowed the plaint to be so amended. The question whether the facts set forth disclose a cause of action has been fully alleged before us. As the plaintiff relies upon on engagement in 1863 with the government in the sense in which that term is used in Act VII of 1865 it is necessary to refer to the events which led to the passing of that Act. We assume that the facts on which the plaintiff relies are true. When it was proposed in 1856 or thereabouts to undertake a general survey and reassessment of the lands in the Madras Presidency, the question arose how those lands irrigated from the Godavari and Ristna anicuts were to be assessed. Till that time the practice in the Presidency when water was supplied from irrigation works was to charge a consolidated wet assessment when water was permanently available and to levy a water rate only when it was temporarily required for cultivation. The lands were classified as either irrigated or non-irrigated . The Secretary of State suggested that this classification of lands according as they were capable of irrigation or otherwise from the Government sources should be abolished and all land should be classified with reference to its soil and productiveness without irrigation; a water rate being charged when water is used or permanently available.