M K RADHAKRISHNA IYER Vs. SECYOF STATE

JUDGEMENT

(1.) This Letters Patent appeal is from a judgment of Madhavan Nair, J. setting aside the lower appellate Court's decree and dismissing the plaintiff's suit with costs throughout.

(2.) The suit was by the plaintiffs as the representatives of certain ryots; and their case was that Government entered into an agreement with these ryots, and those of the adjoining villages through which the channel passes under which agreement Government is bound to clear the channel of silt and keep it in good condition, that the channel was formerly under the control of Government but later on was transferred to the Public Works Department, that the latter in neglect of its duty caused the channel to be silted up and that the villagers represented by the plaintiffs after giving notice to Government removed the silt from the channel in about August 1921 incurring expenses in so doing. They claimed that such removal was absolutely necessary for the purpose of irrigation and that they were entitled to claim from the Government a refund of the expenses incurred. The Government denied that there was any contract and also their liability to pay. The district Munsif dismissed the suit but the lower appellate Court set aside the District Munsif's decision and granted the plaintiffs a decree. In the lower appellate Court the following points were considered: (1) Was Government bound to maintain the suit channel free of silt? (2) whether the silt clearance was necessary in August 1921; (3) whether the plaintiffs cleared the silt from the channel, and (4) whether the plaintiffs were entitled to recover the cost of such silt clearance from Government. The lower appellate Court found all these points in favour of the plaintiffs. Points (2) and (3) being questions of fact Madhavan Nair, J. rightly accepted the findings thereon. The two remaining questions are questions of law; and our learned brother in second appeal formulated them as follows: (1) Whether a contract under which the Government undertook to clear the silt has been proved; and (2) whether the plaintiffs are entitled to claim a refund of the expenses incurred by them under Section 70, Contract Act. He answered question (1) in favour of the plaintiffs and question (2) against them.

(3.) On the first question our learned brother has given a short history of the matter. Briefly it is that there used formerly to be collected from the ryots a voluntary irrigation cess; and one of the objects for which the money so collected was spent, was silt clearance. This irrigation cess fund did not form part of the general revenues of the country. It was separately kept by the Government for the purposes for which it was to be used. We are told that there were also some channels in respect of which no irrigation cess was collected from the ryots because, they, in lieu of it, supplied the labour. In 1894-1895 there was a re-settlement of the district and, as this scheme had been found to be inconvenient, the Settlement Officer recommended to the Government that the voluntary irrigation cess should be abolished. At the re-settlement there was a re-classification of the wet lands irrigated by the channels from the Cauvery river and the assessment of these lands was substantially increased; and, although the voluntary cess continued to be collected till 1900, it was abolished in that year and the unexpended balance was refunded to the ryots. In substitution for the cess a sum of Rs. 25,000 a year was set apart in the Budget from general revenues for the purpose of maintaining the channels and the head works. Till 1907 this work continued to be done by the Revenue Department which had been doing it since the voluntary cess was instituted. In 1907 the management and upkeep of the channels was transferred to the Public Works Department.