SECRETARY OF STATE FOR INDIA IN COUNCIL, REPRESENTED BY THE COLLECTOR OF TINNEVELLY Vs. MARY PONNAMMAL

JUDGEMENT

(1.) These appeals have arisen out of two suits filed against the Secretary of State for India in Council for the refund of money collected in the shape of irrigation cess under the provisions of the Madras Irrigation Cess Act. There were five plaintiffs but they all belong to one family and they represent the Inamdar of Rajapudukudi. It will therefore be convenient to speak of "the plaintiff" in the singular. The plaintiff's inam village Rajapudukudi is irrigated by a tank which receives its supply from a jungle stream called Uppar. There is a supply channel from the Uppar to the tank which for three quarters of its length runs through the Government land and for the other quarter through the inam land; in order to divert the water along the channel a stone anicut has been in existence across the Uppar from time immemorial. In 1888 the Inamdar took the permission of the Government to replace the then existing anicut which is described in the documents as an anicut built of rubble stones by a permanent masonry structure. Permission was given, and the anicut was completed sometime in 1888. In faslis 1332-33 it was reported that the plaintiff had newly brought under wet cultivation about 32 acres of dry land and the Revenue officials imposed a water cess at the rate of one rupee per acre on these 32 acres of punjah. The suits were filed to recover these amounts (approximately Rs. 32 per fasli) and for an injunction against the representatives of the Secretary of State forbidding them to make any such levies in the future.

(2.) The case on behalf of the Collector was that the Irrigation Cess had been properly levied. He alleged that by the construction of the new anicut in 1888 the supply to the plaintiffs tank had been increased. His case was that the new wet cultivation was made with the aid of the additional water supplied by means of the improved anicut. He contended also that at the time the anicut was constructed there was not indeed an express agreement, but an implied agreement between the Government and the plaintiff, that if the plaintiff should thereafter bring under wet cultivation any additional extent (over and above the immediately wet anicut under the tank) he would be liable to pay water rate. It was conceded that since the Government did not pay any contribution towards the cost of the anicut, the plaintiff would not be liable to pay the full water rate but a reduced water rate of one rupee per acre.

(3.) The issues framed by the learned District Munsiff were as follows: I. Whether the plaintiff has been getting an appreciably larger supply of water for his inam lands from the Uppar river because of the anicut he was allowed to build across the river in the year 1888 and if so whether he cultivated the lands assessed for water rate with such increased supply? II. Has plaintiff agreed to the levy of water cess now objected to by him and if so was the agreement made under mutual mistake of the parties and without consideration and is it void? III. Is plaintiff estopped from contending that the levy of the water cess by defendant is illegal? IV. Is the levy of water cess complained of by the plaintiff legal? V. Is plaintiff entitled to the injunction asked for? VI. What relief is plaintiff entitled to if any?