SECRETARY OF STATE FOR INDIA IN COUNCIL, REPRESENTED BY THE COLLECTOR OF VIZAGAPATAM Vs. MAHARAJAH SIR VENKATA SWETHA CHALAPATTI RANGA RAO BAHADUR GARU, KCIEMAHARAJA OF BOBBILI

JUDGEMENT

(1.) This appeal was heard in the first instance by Sir Arnold White, Chief Justice, and Mr. Justice Oldfield and after certain questions had been decided, the further hearing was adjourned to wait the decision of the Letters Patent Appeal No. 39 of 1915 [Secretary of State v. Kannepalli Janakiramayya 30 Ind. Cas. 609; 2 L.W. 763; 29 M.L.J. 389; 18 M.L.T. 277; (1915) M.W.N. 671] from the decree in A.S. No. 124 of 1906 [Secretary of State v. Kannepalli Janakiramayya 18 Ind. Cas. 770; 24 M.L.J. 365; 13 M.L.T. 235; (1913) M.W.N. 225; 37 M. 322] in which owing to a difference of opinion between Miller and Sankaran Nair, JJ., the learned Judges who heard the appeal, the decree of the lower Court was confirmed in accordance with the opinion of Sanknran Nair, J. His decision has since been reversed by Oldfield and Bakewell, JJ. dissentient Sadasiva Aiyar, J., and the present appeal has now come before this Bench for further argument and disposal.

(2.) The important and difficult questions in these appeals, as to which there has been much difference of opinion, relate to the effect and construction of the Madras Water Cess Act, VII of 1865, as amended and of the Madras Land Encroachments Act, III of 1905, and have nothing to do with any right of Government to control the distribution of water for irrigation, as to which see the saving in the Easements Act and the decision in Rober Fischer v. Secretary of State 2 Ind. Cas. 325; 32 M. 141; 5 M.L.T. 149; 19 M.L.J. 131. With regard to the right of Government to charge separately for the supply of water the history of the question has been elaborately considered by Sankaran Nair, J., in Secretary of State v. Kannapalli Janakiramayya 18 Ind. Cas. 770; 24 M.L.J. 365; 13 M.L.T. 235; (1913) M.W.N. 225; 37 M. 322, but the restrictive construction based upon this history which he placed upon the Act has not been accepted by any of the learned Judges in the Letters Patent Appeal and it is unnecessary for me to refer to it. What seems to me perfectly clear from the terms of the Act itself is that it authorised the levy of statutory [water-cess on cultivation effected by means of water taken from a river belonging to Government, subject to an exception in favour of zemindars, etc., to the extent to which by virtue of their engagements with Government they were entitled to irrigation free of separate charge. The question whether the plaintiff in this case is entitled to exemption by virtue of an engagement with Government has been dealt with by the learned Judges in the judgments they have already pronounced and I, therefore, refrain from discussing it; and confine myself to the question whether, assuming there is no such engagement, Government are entitled to levy water-cess by virtue of the fact that the river from which this irrigation channel takes off is a river belonging to Government within the meaning of the Act. Unfortunately the Act contains no definition as to what is a river belonging to Government. Where both banks belong to Government it is hardly disputed that, as Government owns the bed, the river at such places may be treated as belonging to Government. What however if one bank belongs to Government and the other to a zemindar, as in the case which gave rise to Secretary of State v. Kannapalli Janakiramaya 30 Ind. Cas. 609; 2 L.W. 763; 29 M.L.J. 389; 18 M.L.T. 277; (1915) M.W.N. 671? It cannot be said there was any judicial decision on this point before the passing of Act III of 1905. Though the immediate object of that Act was to provide a method of dealing with encroachments on land belonging to Government and the immediate occasion of passing it was the decision in Madathapu Ramaya v. Secretary of State for India 27 M. 386 as to penal assessment, it does not, in my opinion, admit of doubt, having regard to the language and history of the measure, that those responsible for it intended the declaratory clause to deal with running as well as standing water and to remove doubts which might exist as to the extent of the rights of Government over such water. The language of Section 1 was copied from the Bombay Act V of 1879 which, after in these terms declaring the ownership of Government among other things in standing and following waters, proceeded in Section 55 to authorise Government to fix rates for water the right to which vests in Government. It was probably considered that there was no necessity to insert a clause of that kind in the Madras Act, because under Act VII of 1865 Government already had power to impose water-cess for water taken from a river belonging to Government, and it was thought sufficient to declare what running water belonged to Government. The saving clauses of the section in the Madras Act are not the same as the saving clauses in the Bombay section but more elaborate, and the new saving in favour of natural rights appears to have special reference to natural rights to the use of flowing water as defined in the illustrations to Section 7 of the Easements Act closely following the English Law. I am, therefore, unable to agree with Sankaran Nair, J., that we are entitled to disregard the provisions of Act III of 1905 in construing Act VII of 1865. On the contrary, I think, the Legislature clearly intended that the declaratory section should be used in the interpretation of the words "rivers belonging to Government" in Act VII of 1865, and in any case I should feel bound to follow the unanimous decision on this point of the Full Bench in Secretary of State v. Kannapalli Janakiramaya 30 Ind. Cas. 609; 2 L.W. 763; 29 M.L.J. 389; 18 M.L.T. 277; (1915) M.W.N. 671 until it is reversed by higher authority. I may further mention that in 1905 the subject of the extension of irrigation and the terms on which it could be undertaken were engaging attention. 1903 was the year of the Irrigation Commission and of the Peranai Dam suit, the appeal in which was decided in 1905, and the Irrigation Bill to enable the execution of general projects which was subsequently introduced was then under consideration, and at the same time Government was asserting its claim to levy water-cess in such a way as to give rise to all those more or less connected suits. In these circumstances I can see no reason for refusing to give full effect to the statutory declaration the Act contained as to Government ownership of running water not the property of anybody else or for refusing to construe Act VII of 1865, which had left it doubtful what was meant by a river belonging to Government, in the light of its provisions as the Courts at once proceeded to do. In Kandukuri Mahalakshmamma Garu v. Secretary of State for India 8 Ind. Cas. 67; 34 M. 295; 8 M.L.T. 389, (1910) M.W.N. 595; 20 M.L.J. 823, Miller and Munro, JJ., held that the effect of Act III of 1905 was to declare that all rivers are the property of Government, running water not being the property of anybody else, and Oldfield, J., would appear to have accepted this view in the Letters Patent Appeal. But in Secretary of State for India v. Kannappalli Venkataratnammah 15 Ind. Cas. 594; (1912) M.W.N. 771; 23 M.L.J. 109; 37 M. 369 note, Benson and Sundara Aiyar, JJ., as I read the judgment, held, applying the provision of Act III of 1905, that as the channel in that case belonged to the inamndar the running water in it also belonged to him and not to Government and that there was no case for levying water-cess under the Act of 1865. Sankaran Nair, J., has given his reasons at great length for putting this construction on Act III of 1905, and Sadasiva Aiyar, J. has agreed with him in the Letters Patent Appeal. So, too, Bakewell, J., observed as to the words river belonging to Government" in Act VII of 1865 that the English authorities showed that the owner of the river-bed has a qualified ownership in the stream of water which follows over it by virtue of which the river and the stream may be said to belong to him--a proposition which was supported in the argument before us by reference to the language of James, L.J., in Bush v. Trowbridge Waterworks Company (1875) 10 Ch. App. 459; 44 L.J. Ch. 645; 33 L.T. 137; 23 W.R. 641 and to Lyon v. Fishmongers Company (1876) 1 App. Cas. 662 at p. 673; 46 L.J. Ch. 68; 35 L.T. 569: 25 W.R. 165. He was, however, apparently of opinion that where only one bank and the bed ad medium filum acquits belonged to the zemindar, the river must be treated as belonging to Government by virtue of Act III of 1905. In the present case, however, both banks and the whole bed at the place in question belong to the zemindar and not to Government, and, therefore, on this view as I understand it, the river is not the property of Government. The balance of authority appears to me to be against the extreme view taken by Miller and Munro, JJ., in Kandukuri Mahalakshmamma Garu v. Secretary of Stale for India 8 Ind. Cas. 67; 34 M. 295; 8 M.L.T. 389, (1910) M.W.N. 595; 20 M.L.J. 823 that the effect of Act III of 1905 was to vest all running water in the Presidency in Government on the ground that there was no other owner. Construing Act VII of 1865, I think this much is clear that at places where the whole bed belonged to Government it was a river belonging to Government, and at places where none of the bed belonged to Government as here, it was not a river belonging to Government. If this part of the river belonged to the zemindar before the passing of Act III of 1905, his ownership is preserved by the saving clause of the section and is unaffected by it. Admittedly Government does not own the banks or any part of the bed of this river until far below the point where the channel in question takes off. It cannot, therefore, be considered a river belonging to Government so as to warrant the levy of water-cess under Act VII of 1865. This is the only question which has been argued before this Bench and I confine myself to it. The result is that the appeal must be dismissed with costs. Seshagiri Aiyar, J.

(3.) I agree. If the ancient doctrine that following water is publici juris is to be abandoned, proprietorship over it can only be based on the right to the bed and banks of the stream through which it runs. This was recognised by Lord Justice James in Bush v. Trowbridge Waterworks Company (1875) 10 Ch. App. 459; 44 L.J. Ch. 645; 33 L.T. 137; 23 W.R. 641, and by the Lord Chancellor in Lyon v. Fishmongers Company (1876) 1 App. Cas. 662 at p. 673; 46 L.J. Ch. 68; 35 L.T. 569: 25 W.R. 165. Lord Blackburn in Orr-Ewing v. Colquhoun (1877) 2 A.C. 839, stated that "The Lord Advocate admitted that he understood the law of Scotland to be that if the same person is proprietor of the ground on both sides of a river, in which there is no right of navigation, he can change its channel as he pleases, provided he restores it to its old channel before it leaves his ground." On this principle, the Government who owned neither the bed nor banks of the river in question up to the point where the diversion took place can lay no claim to the water. It was argued that this view will be inconsistent with Act III of 1905. If that Act is only declaratory of existing rights, the declaration would cover not only the substantive proposition enunciated in Section 2, Clause (1), but also that contained in the saving Clause (a).