PROVINCE OF MADRAS REPRESENTED BY THE COLLECTOR OF TRICHINOPOLY Vs. LADY OF DOLOURS CONVENT, TRICHINOPOLY, REPRESENTED BY THE MOTHER SUPERIOR

JUDGEMENT

(1.) These two appeals arise out of different suits but they raise the same question. The suits were filed by the Mother Superior of the Lady of Dolours Convent, Cantonment, Trichinopoly, to recover from the Government of Madras moneys which the Convent had been compelled to pay by way of water cess and road cess as the owner of certain lands in the Trichinopoly District. The suit out of which S.A. No. 1064 of 1939 arises was filed by the Mother Superior for the recovery of amounts collected in respect of the faslis which correspond to the years 1931-32, 1932-33 and 1933-34. The suit out of which S.A. No. 1047 of 1939, arises was filed by her for the recovery of similar exactions in respect of the fasli corresponding to the year 1934-35. The appeals are concerned merely with the question of the liability for water cess.

(2.) The plaintiff's case is that under an arrangement with the Government the lands in suit are held free from land tax and that a cess which is levied in respect of water used for irrigating land is a land tax. The lands originally formed part of the private properties of the Nabob of the Carnatic. In 1801, under the terms of a treaty entered into by the Nabob with the East India Company, his sovereign rights terminated but he was allowed to retain his private properties free from taxation. The Nabob of those days died soon after the treaty had been signed and was succeeded by another Nabob, who, according to the judgment of the Subordinate Judge now under appeal, died on the 7 October, 1855. He and Ms predecessor had incurred large debts and in 1858 the Legislative Council of India passed an Act (Act XXX of 1858) for the administration of these private lands in order that the debts might be discharged and suitable provision made for the children and the relations of the Nabob as the result of proper management. The Act vested the private properties of the Nabob in a receiver, who was given power to sell. The receiver having decided to sell the properties in suit, he applied to the Government of Madras for a certificate that they were permanently exempt from all demand on account of quit rent, assessment, or other land tax. A certificate was granted on the 1 March, 1866, and is one of the Exhibits in the present suits. It reads as follows: Whereas the receiver of the Carnatic property under Act XXX of 1858 has produced good prima facie evidence of the title of His Highness the late Nabob of the Carnatic to the premises hereunder specified, now held free of quit rent OOF other land-tax and not justly liable to any such payment according to the custom of the district or the regulations of the Government, and has applied for a certificate, I hereby declare accordingly under the authority of the Governor in Council of Madras, that the said land is permanently exempt from all demand on account of quit rent, assessment or other land tax.

(3.) It is common ground that the Government of Madras has never imposed water cess in respect of water supplied for the cultivation of the first crop raised on the lands in suit. The water used for irrigation is supplied from the Uyyakondan channel, which is connected with the river Cauveri. The Court has been told that this channel has been in existence from time immemorial. The exactions of which the plaintiff complains were made because the tenants cultivating the lands had taken water for the purpose of raising a second crop. Prom the Inam register of 1866, it is to be gathered that the area held by the plaintiff's predecessor in title measured altogether 59-50 acres, of which 50 .59 acres were single crop wet lands and 8 .91 acres double crop wet lands. The receiver appointed under Act XXX of 1858, sold these lands to the Rev. A. De Rochely, who was then the Superior of the Catholic Mission at Trichinopoly. On the 26 June, 1867, the Rev. A. De Rochely wrote to the Collector claiming that 45 cawnies (about 60 acres) were held free of "all kinds of taxation by virtue of the Government certificate", but that 6 3/4 cawnies (roughly 9 acres) had been by mistake classed among the Government lands "that pay tax for irrigtion, roads, etc." Accordingly he asked the Collector to issue an order that these 6 3/4 cawnies were also held free of all taxes. On the 6 July, 1867, the Collector passed an order in which he has declared that the lands were liable only to village cess and road cess. On the 7 September, 1930, the Collector directed that the lands should be registered as being held free of assessment or quit rent.