(YALLAMANCHILI) PITCHAYYA Vs. SECRETARY OF STATE

JUDGEMENT

(1.) The plaintiffs have brought this suit, for recovering from the 1 defendant, a sum of Rs. 1,053-4-0 said to have been illegally collected from them, by the 1st defendant. The plaintiffs are the owners of Zamindari land. They cultivated paddy with the help of water, from the Kistna canal. The 1 defendant levied prohibitive assessment from the plaintiffs and the 2nd defendant on the ground that they irrigated their land, with water from the 1 defendant's canal, without permission from the Government servants. The District Munsif decreed the suit in plaintiffs favour; but the Subordinate Judge, on appeal, reversed the decree of the District Munsif and dismissed the plaintiffs suit. The plaintiffs and the 2nd defendant have preferred this second appeal. The first contention urged is that the Subordinate Judge erred in holding that the period of limitation applicable to the suit was 6 months, from the date on which the cause of action arose and that the period of limitation applicable to a case of this kind is one year and not six months. This point was settled by the decisions in Secretary of State V/s. Venkatratnam A.I.R. 1923 Mad. 652 and The Secretary of State V/s. Nagaraja Aiyar A.I.R. 1923 Mad. 665 and the plaintiffs suit is not therefore barred by limitation.

(2.) The next question is whether the plaintiffs took water without permission from the Government servants. The Subordinate Judge, in dealing with this point in paragraph 14, has attached importance to the fact that the Tahsildar was taken to task and reverted as Sub-Magistrate. The fact should not have been allowed to weigh with the Court, in determining whether or not the Tahsildar gave permission to the plaintiffs, to take water from the 1 defendant's canal. The Court is not in possession of facts, which led to the Tahsildar being found fault with and reverted as Sub-Magistrate. Even if he was dealt with by his superiors for anything that he did in regard to the supply of water to the plaintiffs. I do not think that it is a circumstance which ought to weigh with a Civil Court, in determining whether the Tahsildar did give permission and whether that permission is valid or not. The Subordinate Judge's finding on this question, is vitiated by the fact that he assumes that the Tahsildar had no power to grant oral permission in this matter and by assuming that the fact that he was found fault with by his superiors, shows that his action was irregular. There is no clear finding by the learned Subordinate Judge that no permission was granted to the plaintiffs for the use of water. Revenue Board's Standing Order No. 4 empowers the Tahsildar to give permission to a ryot for taking water from a Government source. Order 4, Rule 10 is as follows: No Government water is to be taken under these rules, without express sanction of the head of the village, Revenue Inspector, or higher authority, or an officer of the Public Works Department, where the works are in charge of that department.

(3.) There is nothing in Order 4 or in the appendix to Order 4, to prevent the Tahsildar from giving oral permission to a person to take water from a Government irrigation source. No doubt an application has to be made in the proper form and the Tahsildar has to pass his orders. After the application has boon made in the proper form, if the water is urgently needed, there is nothing in the ruling, to prevent the Tahsildar from giving oral permission and afterwards recording it in the usual way. In this casa, the plaintiffs applied in time for supply of water to their fields. They had been given water for three faslis, before the one in question. Water was allowed to flow into the plaintiff's tank, after the application was made. The learned Government Pleader argues that the opening of the sluice in the canal for letting water into the plaintiffs tank would not lead to any presumption that the act was done with permission and he relies on a circular order of the Collector, dated 23 November 1917, in which he laid down under what conditions permission should be granted for the use of water. In the first place, this order cannot override the provisions of the Board's Standing Orders, which have the approval of the Government. Under Order 4, the Tahsildar is empowered to grant permission for supply of water. The Board's Standing Orders are published in the Gazette and the ryots are supposed to be aware of them. But any circular order of the Collector cannot be presumed to be known to the people at large. The order of the Collector cannot override the provisions of the Revenue Board's Standing Order No. 4.