This Second Appeal coming on for hearing, the Court (the Hon'ble Sir John Wallis. C.J and Oldfield, J.), made the following
Order of Reference to a Full Bench
Wallis, C.J:— The meaning of the words ‘river or stream belonging to the Government’ in Madras Act VII of 1865 has given rise to much diversity of opinion in recent cases in this Court:— Kandukuri Mahalakshmamma Garu v. The Secretary of State for India(3), Secretary of State for India v. Ambalavana Pandara Sannadhi(4). The Secretary of State for India v. Janakiramayya, Zamindar of Kapileswarapuram v. Secretary of State(5), Rajagcpalacharyulu v. Secretary of State(6), Sri Rajah Simhadri Raju v. Secretary of State(7), The Secretary of State for India v. Janakiramayya, Secretary of State for India v. Maharaja of Bobbili, Secretary of State for India v. Ambalavana Pandara Sannadhi. In the still more recent case in Prasad Row v. Secretary of State for India Lord Parker delivering the judgment of the Judicial Committee considered it unnecessary to decide the point, as in their Lordships' opinion, the appellants were entitled to succeed on either view. The case was accordingly dealt with at page 902 on the assumption that the river in question belonged to Government and at page 904 on the assumption that it did not. There is, however, some discussion in an earlier passage of the judgment at page 894:—
“In the next place, it is by no means easy to say what is meant by a river or stream ‘belonging to the Government.’ The same expression in an Act of the United Kingdom would probably connote a Government ownership of the bed or the banks of the river; but it is quite possible that the law of the Madras Presidency recognizes some proprietary right on the part of Government in the water flowing in rivers and streams. The law of the Madras Presidency as to rivers and streams certainly differs in some respects from English Law—Fischer v. The Secretary of State for India. Further the Madras Act No. III of 1905 appears to enact that (inter alia) all standing and flowing water not the property of private individuals is the property of Government, but subject to the natural and easement rights of other land-holders. If this section be relied on, it is a nice problem whether a riparian owner who, is exercising his natural or prescriptive right of taking water from a natural stream for purposes of irrigation, is taking water from a stream belonging to the Government within the meaning of the Cess Act. If he is, the natural and prescriptive rights of riparian owners are seriously diminished by the Act and, where the Government have not expended money in improving the natural stream, apparently without any sort of quid pro quo.”
In view of the great diversity of views expressed in this Court and in the light of the above observations, it appears desirable that there should be a binding decision of this Court as to the question which has again arisen in the present case. What we have to see is which of these meanings is more in conformity with the intention of the Legislature which passed the Act of 1865, and this intention is to be gathered from a careful consideration of the provisions of the Act and of the preamble. As has often been said, the preamble is as it were a key to the understanding of the Act and at the same time
“may legitimately be consulted for the purpose of solving any ambiguity, or of fixing the meaning of words which may have more than one, or of keeping of the effect of the Act within its real scope, whenever the enacting part of it is in any of these respects open to doubt.”—Maxwell, Fifth Edition, page 69.
The preamble cannot restrict or extend the enacting part when the language and the object and scope of the Act are not open to doubt. It is not unusual to find that the enacting part is not exactly co-extensive With the preamble. In many Acts of Parliament, although a particular mischief is recited, the legislative provisions extend beyond it.”—Maxwell at page 74.
In Act VII of 1865 the enactment goes beyond the preamble, as has often been observed, most recently in Lord Parker's judgment. If now the reason for this can be ascertained, it will help to define more clearly the scope, and purport of the Act and so throw light on the present question. The explanation is, I think, to be found in the fact of revenue history which is referred to in the judgments of Sankaran Nair, J., especially in Zamindar of Kapileswarapuram v. Secretary of State that, at the time the Act was passed and for reasons which do not concern us, the Secretary of State was pressing on the Madras Government the policy of showing the water-rate on irrigated land, separately from, and as additional to, the assessment fixed on the land as dry.
If now we read the Act as originally passed, in the light of this knowledge, it is apparent that it was drafted in deference to this policy so as to give effect or enable effect to be given to it, and that this is the explanation of the fact that the body of the enactment goes beyond the preamble and enables the statutory rate to be imposed irrespectively of the question whether or not the water is from a source on which public expenditure has been incurred and also irrespectively of the question whether the irrigation is old or new. Though this object is not mentioned in the preamble it is brought out in the title, which is—
“An Act to enable the Government to levy a separate cess for the use of water supplied for irrigation in certain cases.”
Section 1 which is applicable to ryotwari holdings, enabled Government—
“to levy at pleasure, on the land so irrigated, a separate cess for the use of the water which cess shall be additional to any land assessments that may be leviable on the said land as unirrigated or punja”
in accordance with the policy then favoured by the Secretary of State, and declared that thee provisions should extend to permanently-settled estates to the extent to which they were not entitled by virtue of engagements with Government to irrigation free of separate charge. It is now settled by their Lordships' decision after much divergence of opinion in this Court that the owners of these estates are entitled to nuke the fullest use of the facilities for irrigation which existed at the date of their grants without incurring liability to pay water-cess under, the Act.
We have thus what appears to me to be an adequate explanation of the fact that the Act goes beyond the preamble by providing for the imposition of the statutory separate cess, not only where expenditure from Government funds has been incurred in the construction and improvement of works of irrigation and drainage, the case contemplated in the preamble, but also in the terms of
“whenever water is supplied or used for the purposes of irrigation from any river, stream… belonging to Government.” It may be said, and truly, that in ryotwari tracts the system of charging separately a dry rate of assessment and a water-rate might have been introduced by Government without any fresh legislation, and that in the case of permanently-settled estates it has only been introduced by the Act in the very limited class of cases in which the statutory cess is payable in such estates. Whether for the purpose of complying with the policy of the Secretary of State or for whatever other reason the legislature proceeded in this manner, and we are only concerned with it in so far as it throws light on the meaning with which the words ‘belonging to Government’ were used in the Act. As already pointed out, this much seems clear that they were inserted to make it plain that the cease was to be imposed in cases not coming within the preamble.
In an Act of the United Kingdom Lord Pakker save they would probably connote a Government ownership of the bad or the banks of the river, that is to say, that is the meaning they would have prima facie in an Act drafted by an English lawyer and it must be remembered that this Act, as appears from the papers referred to in some of the earlier cases, was drafted by the Government Pleader who was then an English Barrister. Now if for a moment we apply that meaning to the Act, we find that in ryotwari tracts it empowers Government to levy the separate water-cess in all cases where the banks and bed or at any rate one bank and half the bed of the river or stream are owned by Government. This comprises nearly the whole irrigated area in ryotwari tracts. There must, of course, be some cases in which ryotwari tracts are irrigated under easement rights from rivers of which Government has not the ownership of the bed and banks, but such cases must be comparatively rare, and, as already pointed out, the desired separation into dry rate and water-rate could be effected as regards them if so desired without legislative authority. As regards permanently-settled estates also this meaning appears adequate, because water taken pursuant to natural or easement rights existing at the date of the grant from rivers and streams the banks and beds of which are in permanently-settled estates is not chargeable under the Act, unless the supply, has been improved at the public expense—a case expressly provided for in the Act; and cases of water being taken in excess of such rights are too rare to require legislation of this character and could be dealt with under the ordinary law by restraining the user. Not only then is the sense that in which the words would prima facie be used by an English lawyer, but it is found to correspond with the scope of the Act, and it has also the great advantage over the rival meaning of giving some effect to the words ‘belonging to’ which must have been intended by the framers of the Act to have some effect and not to be purely otiose or even misleading as applied to rivers and streams. If all streams and rivers in the Presidency belong to Government, the words ‘belonging to’ would not have been made applicable to rivers and streams and the section would have read,
“whenever water is supplied or used for purposes of irrigation from any river or stream, or from any channel, tank, or work belonging to, or constructed by Government.”
This goes to show that these words were applied to rivers and streams because the framers of the Act proceeded on the view which English Lawyers might be presumed to take, that the ownership of the river at any point depended on the ownership of the banks and bad.
On the whole, as a result of the further consideration which I have now given to the subject, I am inclined to think that for the purposes of Act VII of 1865 the ownership of the river or stream was intended to depend on the ownership of the bed and banks. It is, as I have said, desirable that there should be a binding decision on this question, and also supposing this to be so, on the further question as to the effect if any of Act III of 1905.
The somewhat exceptional circumstances of the present second appeal are that there is a finding that water has been taken for irrigation in excels of natural and easement rights from a river at a place where the banks and bed belong to the zamindar. The river is one which rises in bills belonging to Government and passed through ryotwari tracts before entering the zamindari. I would therefore refer to a Full Bench the question:—
“Is the river in question a river belonging to Government within the meaning of Act VII of 1865.”
Oldfield, J.:— I agree to the reference proposed. But I desire to say that in doing so I commit myself to no opinion as to the legitimacy of resort to the matter referred to in the judgments in Zamindar of Kapileswarapuram v. Secretary of State for India, as a ground of decision or as to its comprehensive character or its effect.
On This Reference—
T.R Venkatarama Sastri with K.S Ramabhadra Ayyar for appellant.—The question is: what is the meaning of the words ‘river belonging to Government’ in Act VII of 1865. A river running through a zamindari is not such a river as the zamindar owns both the banks and the bed of the river within the limits of the zamin. Reference was made to the preamble and the sections of Act VII of 1865 to show that the enacting portion of the Act went beyond the preamble—the recent decision of the Privy Council in Prasad Row v. The Secretary of State for India. The preamble cannot be looked to interpret the clear and unambiguous words of the sections. According to English law, the bed of tidal and navigable rivers belongs to Government. The bed of non-tidal and non-navigable rivers belongs to proprietors on either side ad medium filum. But where the water is entirely within one person's lands, the river belongs to him absolutely: Halsbury's Laws of England, Volume 28, page 358. Flowing water is not generally the subject of property. Therefore when a statute uses in respect of flowing water passing through the lands of many, the words ‘owner of water,’ it means only a riparian proprietor as held in Bush v. Trowbridge Water Works Co.. The words are used in a non-natural sense: Stone v. Corporation of Yeovil. The words ‘river belonging to Government’ in the Act are not in accordance with the language of the text-writers or of English decisions. Though those words do not mean only rivers going through Government lands from beginning to end, they mean only such portion of the river as lies within the limits of ryotwari tracts. He referred to section 6 of the Water Works Clauses Act of 1847 (10 & 11 Vict., Cap. 17). The view stated in Blackstone's Commentaries, pages 14 and 18, is quoted with approval in Mason v. Hill by Denman, C.J Madras Act III of 1905, section 2, clause (2) and Madras Act VII of 1865 save private ownership in rivers; see Prasad Row v. The Secretary of State for India which overruled Kandukuri Mahalakshmamma Garu v. The Secretary of State for India and Secretary of State for India v. Ambalavana Pandara Sannadhi. Act III of 1905 deals only with land. Secretary of State for India v. Ambalavana Pandara Sannadhi. The wording of this Act is taken bodily from section 37 of the Bombay Act V of 1879, in which there is a comma before ‘and all lands’, so that the word ‘bed’ applies only up to ‘water courses’ The immediate reason for the passing of Act III of 1905 is the decision in the case relating no land encroachment in Madathapu Ramaya v. The Secretary of State for India(8). A comma wrongly placed ought not to make one wrongly interpret an Act. A comma is not part of a statute: Maxwell's Interpretation of Statutes, 5th Edition, pages 67 and 68. Act III of 1905 does not vest in the Government any new ownership in a river which it could not have otherwise owned. It has been said that the Act III of 1905 creates a presumption and that the onus is shifted. The exclusion of private ownership of a river does not lead to Government ownership. Section speaks of ownership of Government and ownership of private proprietors. The same tests which will connote ownership in a private person must also be the tests to arrive at a conclusion as to whether Government owns a particular river. Where both banks of a river belong to a proprietor at a particular place that portion of the river belongs to him [see Secretary of State for India v. Maharaja of Bobbili] and the Government cannot trespass even for regulating water Secretary of State v. Ambalavana Pandara Sannadhi. If one bank belongs to the proprietor and the other to the Government; it has been held by the majority of the Court in Secretary of State for India v. Janakiramayya, that the river belonged to the Government. In the case of a grant of land by Government as bounded by a river, Venkata Lashminarasamma v. The Secretary of State has held that the granter is proprietor of the river bed ad medium filum aquæ. Reference was made to Secretary of State v. Janakiramayya. ‘River’ may mean either the body of water between two banks or flowing water together with the bed. Mere water alone is not a river; see also Kandukuri Mahalakshmamma Garu v. The Secretary of State, and M'Nab v. Robertson, at page 134 per Lord Watson and per Lard Halsbury at pages 142 and 143. See page 77 in Coulson and Forbes on Waters.
Even if Act III of 1905 vests the ownership of the water in the Government, yet for the purposes of Act VII of 1895, it must be found that the river belongs to Government. That finding can be arrived at only if the banks and bed are found to belong to Government. Act VII of 1865 cannot be construed to have been indirectly altered by Act III of 1905; see as to rule of construction, Nairn v. The University of St. Andrews; see as to the meaning of the words ‘river belonging to Government’ Venkataratnammah v. Secretary of State; Secretary of State v. Janakiramayya. The case in Bombay is Secretary of State v. Balvant Ganesh. On the construction of Act III of 1905, see Sri Rajah Simhadri Raju v. Secretary of State, and Prasad Row v. The Secretary of State for India.
The Government Pleader (V. Ramesam) for the respondent:— The river is one ‘belonging to Government’ within Act VII of 1865. River primarily means ‘a body of flowing water’; Kandukuri Mahalakshmamrm Garu v. Secretary of State, Secretary of State for India v. Ambalavana Pandara Sannadhi, and Secretary of State for India v. Janakiramayya(9). As against these we have the meaning ‘bed and banks also’; see The Secretary of State for India v. Janakiramayya(10); and Secretary of State for India v. Ambalavana Pandara Sannadhi(11). But at page 74 of Coulson and Forbes on Waters, a ‘river’ is defined as a ‘body of waters’; see Woolwich on Waters, page 40, Callia, pages 71, 77 American Cyclopædia, Volume 34, page 1792, quoting from The Century Dictionary, Webster's Dictionary, Ogilvie's Dictionary, Bouvier 933, and Stormonth, Stroud's Judicial Dictionary under heading ‘Stream’. The word ‘river’ may include bed or banks according to the context. But Act VII of 1865 concerns itself with only flowing water (and not the banks or bed) and with imposing a cess for the water. If there is any ambiguity, that is cleared by the purpose for which the Act was passed. It is not permissible to refer to official correspondence prior to Act VII of 1865 to know its meaning as has been done in The Secretary of State for India v. Janakiramayya; see Rajagopalaacharyulu v. Secretary of State(12) on the meaning of Act III of 1905. Not only is there the comma before tanks, but the word ‘of’ is not repeated in section 2, clause (1), before the words ‘and all canals’. If we add the word ‘of’ to ‘land’ it will make the section absurd; see judgment of Wallis, C.J, as to the object of the Act in Secretary of State for India v. Maharaja of Bobbili, where at page 176 the learned Chief Justice holds that even the Bombay Act, in section 55, where there is a comma, imposes a tax for taking water belonging to Government. Act III of 1905 can be used to interpret Act VII of 1865. See the unanimous opinion of the Judges in The Secretary of State for India v. Janakiramayya. Section 2 of Act III of 1905 vests the ownership of running water in the Government unless it is proved to belong to another. But if running water is collected it is private water. The words ‘subject to rights’ mean only easement or riparian rights as no ownership can exist in flowing waters. The object of the Act is to protect all individual and all communal rights against trespassers. All residual rights are vested in the Government. The section does shift the onus of proof, but does not do away with the Evidence Act. There are several exceptions known to the rule that flowing water cannot be owned; one may be owner of flowing water without being owner of the bed; Halsbury's Laws of England, Volume 28, page 358 (eg.); see The Midway Navigation Company v. The Earl of Romney. A riparian owner is entitled to take water not because he is the owner of the bed, but because he is the owner of the bank; see Coulson, pages 78, 79, Easements Act, section 7, and Secretary of State for India v. Ambalavana Pandara Sannadhi. But the right to the water is in the Government. Act III of 1905 is certainly declaratory of the rights of the Government and it makes clear the once doubtful ownership of Government. By means of this declaration it vests the ownership in the Government. A declaratory Act may make clear pre-existing rights which were doubtful. If it creates new rights it may not properly be called declaratory; Maxwell, page 361. The cases in order of time on Act VII of 1865 and Act III of 1905 are Secretary of State for India v. Swami Naratheeswarar (which holds that to tax for water it is not necessary for the Government to own the bed of the river), Kandukuri Mahalakshmamma Garu v. The Secretary of State (as to Act III of 1905 being only declaratory and as to ‘river’ meaning only flowing and continuing water). The High Court says there was no grant in that case to the zamindar of the water or of an easement to use the water, while the Privy Council reversing the decision say there was an easement: see Prasad Row v. Secretary of State for India. Venkataratnammah v. Secretary of State, does not support the other side as will be seen from the fuller report of the finding in that case in Venkataratnamma v. Secretary of State (which shows that the stream is a natural stream issuing from jungle hills and that there was a grant of the channel to the inamdar). The reasoning even in The Secretary of State for India v. Janakiramayya is in my favour. If it is conceded, that in ryotwari tracts the Government owns the river, in zamindari tracts also the Government must be the owner. Customary rights mentioned and excepted, in the section do not affect the present question referred to the Court. See The Secretary of State for India v. Janakiramayya, which lays down that the water in a flowing river is owned by and is under the control of the Government after the demands of zamindars, etc. are satisfied. This residuary right remaining after riparian and easement rights is independent of the ownership of the bed of the river. Riparian owners in tidal navigable rivers have right to use water for irrigation even without ownership of the bed. The reasons given for the conclusion in The Secretary of State for India v. Maharaja of Bobbili are not consistent; see Prasad Row v. The Secretary of State for India. Reference was made to The Secretary of State for India v. Ambalavnna Pandara Sannadhi and Crawford Company v. Hill.
T.R Venkatarama Sastri in reply—The word ‘constructed’ in section 1 of Act VII of 1865 cannot refer to ‘body of water’ can refer only to physical locality in which the water flowing or standing exists. The words ‘other landowners’ at the end of the section indicate that the ownership of water arises from ownership of lands. If flowing water alone is meant by ‘river’ and if flowing water cannot be owned except by Act III of 1905, then ‘river belonging to Government’ in Act VII of 1865 would be meaningless. There has been no case which has decided the ownership of water apart from ownership of land.
Opinion
Abdur Rahim, J.:— The question referred to us is whether a river called Marudarnathi which rising in hills belonging to the Government flows through ryotwari tracts, then through the Kannivadi zamindari and again through a Government village, can be said to be a river belonging to the Government within the meaning of section 1 of the Madras Irrigation Cess Act (VII of 1865) as amended by Act V of 1900. The question arose in connexion with the right claimed by a pattadar of the Kannivadi zamindari to take water from this river at a place within the limits of the zamindari for irrigating zamindari lands, without being liable to a separate cess levied under the above-mentioned Act. This Act enables the Government to levy a separate cess for “water supplied or used for purposes of irrigation from any river, stream, channel, tank or work belonging to or constructed by Government,” subject to certain provisos with which we are not concerned in this reference. It does not however purport to indicate the class of rivers or streams which were within the contemplation of the Legislature, but there is another Act of the Madras Legislature, the Madras Land Encroachment Act (Act III of 1905) on which considerable reliance has been placed in support of the contentions on behalf of the Secretary of State. It is enacted by its section 2(1):—
“All public roads, streets, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark, acid, of rivers, streams, nalas, lakes and tanks, and all canals and water courses, and all standing and flowing water, and all lands, wherever situated, save in so far as the same, are the property—
(a) of any zamindar, poligar, mittadar, jagirdar, shrotriyamdar or inamdar or any person claiming through or holding under any of them, or
(b) of any person paying shist, kattubadi, jodi, poruppu or quit-rent to any of the aforesaid persons, or
(c) of any person holding under ryotwari tenure, including that of a jenmi in Malabar, or of a wargdar in South Kanara, or in any way subject to the payment of land revenue direct to Government, or
(d) of any other registered holder of land in proprietary right, or
(e) of any other person holding land under grant from Government otherwise than by way of licence,
and, as to lands, save also in so far as they are temple site or owned as house-site or backyard,
are and are hereby declared to be the property of Government except as may be otherwise provided by any law for the time being in force, subject always to all rights of way and other public rights and to the natural and easement rights of other landowners, and to all customary rights legally subsisting.”
Within the last eight years these enactments have been the subject of discussion in a number of cases, but the decisions are conflicting and do not supply a clear preponderance of opinion in support of one view of the law rather than another. In the first Urlam case, Kandukuri Mahalakshmamma Garu v. The Secretary of State for India, Miller and Munro, JJ., ruled on the strength mainly of Section 2 of Act III of 1905 that the water of a stream or river belongs to the Government even though its bed or banks may belong to the zamindar and that the zamindar irrigating his land with such water is chargeable with a separate cess. Generally speaking this interpretation has been upheld by Oldfield, J., in The Secretary of State far India v. Janakiramayya and was accepted apparently without further discussion by Arnold White, C.J, and Ayling, J., in The Secretary of State for India v. Ambalavana Pandara Sannadhi. On the other band Sankaran Nayar, J., in The Secretary of State for India v. Janakiramayya Sadasiva Ayyar and Bakewell, JJ., in The Secretary of State for India v. Janakiramayya the learned Chief Justice and Seshagiri Ayyar, J., in The Secretary of State for India v. Maharaja of Bobbili and myself in The Secretary of State for India v. Ambalavana, Pandara Sannadhi, have expressed a contrary opinion. The judgment of Miller and Monro, JJ., in Kandukuri Mahalakshmamma Garu v. The Secretary of State has since been reversed by the Judicial Committee of the Privy Council (see Prasad Row v. The Secretary of State for India their Lordships holding that the Urlam Zamindar concerned in that case was protected by an engagement within the meaning of the proviso to section of Act VII of 1865. But Lord Parker, who delivered the Board's judgment while indicating in the passage cited in the Order of Reference the problems that might arise upon the construction of the two statutes as to the rights of the Government in the rivers and streams of this Presidency, refrained from expressing any opinion on the subject.
In construing the words ‘river or stream belonging to Government’ in Act VII of 1865 it would be quite legitimate to take into consideration the state of the law in this connexion as it existed at the time of the passing of the Act and we are also bound to give effect to any later statutory enactment by which the Legislature may have defined the ‘river or stream which belongs to Government.’
As regards the first, the learned Government Pleader at one part of his argument contended that Section 2 of Act III of 1905 was intended to clear away any doubt that might have been entertained as to the rights of the Government in the properties mentioned therein, but he did not make any attempt to prove that the common law of the Presidency was in accordance with the interpretation which he sought to place on the enactment. In fact the materials available for forming a definite conclusion on the point are meagre and insufficient. In Fischer v. The Secretary of State for India, it was laid down that the Government has power by the customary law in India to regulate in the public interests the collection and distribution of water of rivers and streams flowing in natural channels provided they do not thereby inflict sensible injury on other riparian owners and diminish the supply they have hitherto utilised. This paramount right of the Government is held to be independent of the ownership of the bed of a river, but for the purpose of exercising its control the Government would not be warranted in committing an act of trespass. It is not necessary for us to examine bow far there propositions, beyond which it may be mentioned, the learned Government Pleader was apparently not in a position to carry the rights of the Government in so far as they were established by the rulings of this Court apart from any legislative enactment, are well founded. For it is obvious that the ruling in Fischer v. The Secretary of State for India, which is referred to by the Judicial Committee in Prasad Row v. The Secretary of State for India, as showing that the law of the Madras Presidency as to rivers and streams is different in some respects from the English law, does not affect the question before us. It cannot be said that a river or stream belongs to Government because it has the power in the public interests to regulate the distribution of its water, since it is clearly recognized that this right of the Government is not in any way in supersession of the rights of the riparian proprietors.
As to section I of Act VII of 1865 a Full Bench of this Court in The Secretary of State for India v. Mahadeva Sastrigal, pointed out that it goes further than the preamble, enabling the Government to levy water-cess for use of waters derived from a natural stream belonging to the Government even though Government might not have incurred, any expenditure in connexion therewith. This is now placed beyond any doubt by the judgment of the Privy Council in Prasad Row v. The Secretary of State for India. Therefore even if Mr. Venkatarama Sastri is right in his contention that the word ‘constructed’ might be applied to ‘river or stream’ as well as to ‘channel, tank or work’ the power of the Government to levy case clearly extends to natural streams belonging to the Government.
There has been much discussion as to what the words ‘river or stream’ in Act VII of 1865 were intended to import, whether merely bodies of flowing water or whether also the bed and the banks as forming part of a river. Jessel, M.R, in Taylor v. Corporation of St. Helens, defines a stream of water as ‘water which runs in a defined course so as to be capable of division’ and ‘a water course’ has been defined by Lord Tenderdon, C.J, in Rex v. The Inhabitants of Oxfordshire, as ‘water flowing in a channel between banks more or less defined.’ Lord Watson in M'Nab v. Robertson, says:
“the word ‘stream’ in its primary sense denotes a body of water having as such body a continuous flow in one direction.”
Lord Wensleydale's definition of a river is ‘a running stream pent in on either side with walla and banks.’ But these definitions do not necessarily imply that the bed and the banks do not form part of a water course. (See Angeli on Water Courses, 30.) Whether by a river or stream only the flowing water is intended or also the banks and the bed must depend on the context and the question therefore is, in what sense did the Legislature intend that a river or stream should be understood as ‘belonging to the Government’ in section 1 of Act VII of 1865.
In the absence of any indication to the contrary, we must give to the expression a meaning and significance known to the law. When a river or stream rises and terminates entirely within the limits of any person's land that person is its owner in the fullest sense, just as much as he is the owner of the soil of his domain and of the trees growing thereon. If therefore any river runs in its entire course within Government land that river is undoubtedly within scope of the section.
But there is a qualified sense in which in law a natural stream flowing through the lands of a number of persons, each one of whom is entitled to use the water of the stream as it passes through his land as a natural advantage belonging to the land and as incidental to his right to the soil itself may be said to be the property of such persons collectively or individually. Lord Wensleydale in the following well-known passage in Chasemore v. Richards observes:
“It has been now settled that the right to the enjoyment of a natural stream of water on the surface, ex jure naturae, belongs to the proprietor of the adjoining lands, as a natural incident to the right to the soil itself, and that he is entitled to the benefit of it, as be is to all the other natural advantages belonging to the land of which he is the owner. He has the right to have it come to him in its natural state, in flow, quantity and quality and to go from him without obstruction; upon the same principle that he is entitled to the support of his neighbour's soil for his own in its natural state.”
The same learned Judge as Baron Parke had laid down in Parke v. Owen:—
“The right to have the stream to flow in its natural state without diminution or alteration is an incident to the property through which it passes; but flowing water is publici juris, not in the sense, that it is a bonum vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that all may reasonably use it who have a right of access to it, that none can have any property in the water itself except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only; see Mason v. Hill. But each proprietor of the adjacent land has the right to the usufruct of the stream which flows through it.”
Lord Selborne in Lyon v. Fishmongers' Company after reviewing the above and other authorities points out that it is by reason of his ownership of the adjoining land that a riparian proprietor acquires the right to the usufruct of the water, for it is that which enables him to have access to the stream and to exclude others from it. The owner of land on the bank of a river is also presumed in law to be the owner of the bed opposite to his land ad medium filum aquae. We find therefore that learned Judges, having in view the nature of the rights of a riparian proprietor in the water of a stream adjoining his land, have spoken of him as owner of the stream, such as, James, L.J, in Bush v. Trowbridge Waterworks Company, Cockburn, C.T, in Stone v. Corporation of Yeovil. Except in the above sense ownership cannot be predicated of a river any more in India than is England.
It is not the contention of the Government that riparian rights are not recognized by the law of the Presidency, or are substantially different here from those established in England except perhaps to the extent indicated in Fischer v. The Secretary of State for India. That very judgment takes the right of the riparian owners to be well recognized in this Presidency. The Legislature has also assumed the prevalence of such rights. [See section 7, illustration (h) of Easements Act V of 1882 and Section 2 of Act III of 1905 itself on which reliance is placed by the Government (not as taking away riparian rights but as conferring on the Government the power to levy cess for the use of waters of rivers and streams belonging to the Government, irrespective of such rights.) Riparian rights are not unoften asserted and exercised by the Government itself in connexion with ryotwari lands in which they claim proprietary rights analogous to those of a landlord.
Apart from such ownership as the possession of the banks of a river gives to a riparian proprietor I do not find that before the Urlam case the Government had ever claimed any other form of proprietorship with respect to it or its waters. So far, therefore, it would seem that by ‘a river or stream belonging to the Government’ the Legislature primâ facie intended in section 1 of Act VII of 1865 to connote a Government ownership of the banks and the bad.
Has Section 2 of Act III of 1905 then conferred on the Madras Government a right of property in the water of a natural stream higher than, and different in its nature from, what the law recognizes as incidental to riparian proprietorship? The history of the Act is well known. It was passed in consequence of a decision of this Court in Madathapu Ramayya v. The Secretary of State for India to legalize the practice of imposing what was known as penal assessment on lands claimed by the Government which are encroached upon by a private individual. For that purpose section 2 declares what shall be deemed to be the property of the Government and the rest of the Act lays down the mode of levying assessment or ejecting trespassers from Government lands. To define the incidence of water cess is clearly not within the professed objects of the Act. At the same time if by section 2 it has designated a class of rivers or streams as belonging to the Government, the Government will be entitled to levy cess for the use of such waters under the Irrigation Case Act, Section 2 of the Act, the language of which appears to have been borrowed from the Bombay Act V of 1879, cannot be said to be very happily worded. It is undoubtedly a wide and sweeping enactment, for there can be no question that so far as lands are concerned including those covered with water, it declares such of them as are not the property of any of the various classes of land-owners in the Presidency to be the property of the Government. At the same time every endeavour is made to make it clear that the Legislature did not by this enactment mean to deprive any private individual of his property or of any rights connected with immoveable property.
The contention on behalf of the Government based on this Act may perhaps be best expressed in the language of Miller, J., in the following passage in Kandukuri Mahalakshmamma Garu v. The Secretary of State for India.
“So far as this case is concerned the provisions of section 2 amount to a declaration, that subject to easement and natural rights of other land-holders, all standing and flowing waters which are not the property of any one else are the property of the Government. Now clearly the waters of the Vamsadhara river do not belong to any one else; the owners of land on the bank of the river do not own the water: their natural right as defined by the Easements Act is saved by Act III of 1905, but it is not contended that the water is their ‘property’. It follows that it is the property of the Government.
“And if the body of the water forming the river is the property of the Government, the river, it seems to me, belongs to the Government within the meaning of Act VII of 1865, even though the bed may be vested in the owners of land along the banks, so as to give them the right to accretions or “lankas” forming therein. The Vamsadhara river is undoubtedly a natural stream, and the definition of a natural stream given in the explanation to section 7 of the Easements Act indicates that in the eye of the law the stream is the flowing body of water—and a stream was defined by Lord Watson in ‘M'Nab v. Robertson as ‘a body of water having as such body a continuous flow in one direction.’”
If this interpretation be correct we must give effect to it even though the natural or prescriptive rights of riparian owners would, as stated by Lord Parker, be seriously diminished by the Act and where the Government have not expended money in improving the natural stream, apparently without any sort of quid pro quo.
In the first place it must be pointed out, though it hardly affects the question under consideration, that section 2 cannot properly be said, as has sometimes been assumed, to have made any change in the ordinary rules regarding burden of proof, for I find nothing in it which necessarily implies that whenever the Government lays claim to any land or water it lies upon the party against whom the claim is made to show that the property belongs to him quite apart from other considerations regulating the onus of proof as dealt with in the Evidence Act. Then, whether a body of flowing water can be said to be the property of the owner of the land by which the stream flows depends on the meaning to be attached to the word ‘property’ as used in this section. According to the Common Law of England, running water, strictly speaking, cannot be the property of any one except by statutory enactment. But a riparian proprietor, as I have stated, is in a qualified sense the owner of the stream adjoining his land. Section 2 itself proceeds on that assumption; otherwise there would have been no need to enumerate the land-owners whose property in a water course and in flowing water among other things is left intact. Now it would be a violation of the ordinary rules of interpretation to hold that when ‘flowing water’ is declared by section 2 to be the property of the Government save in so far as it is not the property of a zamindar or other land-owner that the proprietorship in contemplation in the two cases was intended to be of a different character. That the rights of the Government in water, declared by this section, are in connexion with its position as a land-owner may also well be deduced from the use of the words ‘other land-owners' in the saving clause. Rights in water are incidental to the ownership of the land by which it flows or on which it stands so that by the conveyance of a parcel of land the rights in the water covering any portion of it will pass. This is the law not only in England but, so far as I am aware, in India as well. If it was the intention of the Madras Legislature to confer on the Government new fights in flawing, Water of a nature hitherto unknown to the general law either of India or England which would materially diminish, if not practically destroy, extensive and valuable vested rights of riparian proprietors in this Presidency, one would have expected them to carry out such intention by a more direct and lucid process than by the, introduction of certain general words capable of more than one construction in a Statute dealing with a wholly different subject. In my opinion when the Legislature says that all ‘flowing water’ in the Madras Presidency is the property of the Government save in so far as it is the property of a zamindar or any other land-owner it means only to declare with respect to flowing water passing through the lands of Government as well as of a zamindar, that the Government has in them rights of the same kind as the zamindar himself as a riparian owner enjoys under the ordinary law and not rights of a higher character materially impairing it not altogether superseding the landowner's rights.
The conclusion that I come to is, that where, as in the case in which the question under reference has arisen, both the banks and the bed of a river at the place at which water is taken by the zamindar do not belong to the Government, the river cannot be said to belong to the Government for purposes of section 1 of Act VII of 1865. The answer to the question referred will therefore be given in the negative.
Ayling, J.:— I agree that the answer must be in the negative.
The main authority in support of the position contended for by the learned Government Pleader is the judgment of Miller, J. (concurred in by Munro, J.), in Kandukuri Mahalakshmamma Garu v. The Secretary of State for India. This ruling was quoted without comment or discussion by the late Chief Justice and myself in a case which came up for disposal very shortly afterwards [The Secretary of State for India v. Ambalavana Pandara Sannadhi] and relied on as one of two alternative grounds for our decision therein. We must, no doubt, be taken to have followed it: though the report of the case does not show, and my memory does not enable me to say, whether any attempt was made to question the correctness of the ruling. However that may be, sitting as a member of a Full Bench, on which the ruling is not binding, and after hearing a full argument on the point, I can only come to the conclusion that the learned Judge's application of Section 2 of Act III of 1905 is one from which I should respectfully dissent.
There was considerable discussion before us as to the meaning to be attached to the word ‘river’ in section 1 of Madras Act VII of 1865, whether as including the bed, banks and water, or only the water flowing down the river bed. I do not think it makes any practical difference in the present connection, and the choice of meaning must always depend mainly on the con’ text. In construing section 1, I should be inclined to interpret the word ‘river’ as including both the bed and banks as well as the water: and I think the close juxtaposition of the term ‘work’ in the same clause tends strongly to support this view. But whichever meaning be given seems to me to make little difference. The bed and banks are found as a fact to belong to the zamindar: and I agree with the opinion expressed by the learned Chief Justice in his Order of Reference that for the purpose of construing Act VII of 1865, the ownership of the water of a river must follow the ownership of the bed and banks. In fact, no authority has been cited, nor so far as I can see, any argument has been seriously addressed to us for the proposition that, apart from the effect of Madras Act III of 1905, the water of the river while flowing through zamindar limits was the property of Government. Some reference was made to Fischer v. The Secretary of State for India, but this contains nothing to support it. What has been contended is that it was the property of no one, relying on the doctrine of English Law expressed in Halsbury's Laws of England, Volume 28, paragraph 649, that flowing water cannot be the subject of property. Construing the term ‘property’ in the most complete and absolute sense, this, of course, commands assent. It is not suggested in the present case for instance that the zamindar could pursue the drops of water after they had flowed out of the territorial limits of his zamindari and claim them as his own. But as long as they are flowing within his zamindari, they may be his and, I think, are hip, in a very real and valuable sense whether we call his property usufructuary or use any other word. And this kind of ownership of flowing water is recognized in the clearest, manner in the judgments of English Courts, Vide, Jambs, L.J, in Bush v. Trowbridge Waterworks Company, to which may be added Stone v. Corporation of Yeovil. This seems to me sufficient legal authority for what I should be inclined to hold on grounds of common sense and equity that the owner of the bed and banks of a river, is also the owner (though in a special and qualified sense) of the flowing water, so long as it passes between those banks and over that bed: and that the term ‘property’ may not be inaptly applied to such ownership.
Now Act III of 4095 declares that flowing water (inter alia) is the property of Government “save in so far as it is the property” (so far as we are here concerned) “of the zamindar”. If at the time of the passing of the Act, it was already the property of the zamindar the Act makes no difference; and the contention put forward for Government and accepted in Kandukuri Mahalakshmamma Garu v. The Secretary of State for India, is simply that because the zamindar's property in the flowing water is not absolute, it should be treated as a nullity, and the saving clause held inapplicable. I cannot accept this. It is not seriously suggested that, this Act operated to confiscate existing private rights, and, in my opinion, it was not intended to. In so far as the river, whether in the broader or narrower sense, was the property of the zamindar before the passing of the Act it remained his property, afterwards: and before the Act, his rights to use flowing water and prevent others from using it were certainly such as to make it impossible to call it the property of Government.
In my view therefore the enactment of Act III of 1905 does not affect the present case, and apart from its operation, the decision can only be against the ownership of the river by the Government.
Oldfield, J.:— The question whether Section 2 of Act III of 1905 involves any declaration regarding the burden of proof of the right to water or of its ownership does not arise directly in this case and I therefore think it unncessary to express any opinion regarding the portion of the judgment of Abdur Rahim J., in which it is considered. With this reservation I concur in the judgments just delivered and in a negative answer to the question referred.
Sadasiva Ayyar, J.:— In the course of my judgment in the case in The Secretary of State for India v. Janakiramayya the following remarks occur at page 419:—
“There were some arguments advanced at the Bar on the question whether words ‘river, stream, channel and tank,’ found in section 1(a) of the Madras Act VII of 1865 meant (1) the beds, banks and the volume of waters (all taken together) of and in the river, stream, channel or tank, (2) or whether it meant the bed alone or bed and banks alone of the river, stream, channel or tank or (3) whether it meant only the collection of the waters in the river, stream, channel or tank. I think, clause (b) of section (1) of that Act which speaks of ‘water from any such river, stream, channel or tank’ clearly indicates that the words ‘river, stream, etc.’ are used in the sense of the collective body of waters which are called river, stream, channel or tank according to the respective configurations of the receptacles.”
After the full arguments I have heard in the case, I feel confirmed in my view that the primary meanings of the words ‘river and stream’ connote the collection of waters and exclude the bed and banks. I do not deny that by a justifiable use of words (called Jahath Latchana Vritti in Sanskrit), the words may be made to mean the bed alone or one bank alone or both banks to the exclusion of the body of water (as when we say, a village on the Ganges). But the ordinary and primary meaning is clearly the collection of waters (instance—the usual expressions ‘water of or from a stream or river, bed of a river, banks of a river, bathing in the river, the river is muddy’ and so on). Especially the word ‘stream’ from its very root meaning primarily connotes the body of water flowing in a current and in Sanskrit also, the primary meaning of a river is the “Jala Pravaham.” In Murray's Dictionary, the primary meaning of the word ‘river’ is given as ‘a copious stream of water, etc.’
At page 423 of the same judgment, I said with reference to the Madras Act III of 1905—
“There can be no doubt that the Government starts with a strong presumption in their favour under Madras Act III of 1905, that all standing and flowing waters belong to them, but it is a rebuttable presumption.”
Section 2 of the Act says that
“All standing and flowing waters” (save in so far as the same are the property of others) “are hereby declared to be the property of Government.”
On this language I am still of opinion that the Legislature intended that when a dispute arises between Government and a private person, the burden should rest on the latter of proving that a particular ‘water’ belongs to him, though of course proof by him (or admission by Government) of present use and possession will easily shift the burden on to Government. I do not think it necessary to consider at length the argument that the language of section 2 grammatically considered does not make all standing and flawing water itself the property of Government but only the bed of all standing and flowing water. In my opinion the language could not bear, such construction and the matter seams to be concluded by the following sentence in the judgment of their Lordships of the Privy Council in Prasad Row v. The Secretary of State for India.
“Further the Madras Act III of 1905 appears to enact that (inter alia) all standing and flowing water not the property of private individuals is the property of Government but subject to the natural and easement rights of other land-holders.”
In The Secretary of State for India v. Janakiramayya at pages 424 and 425 I said:
“In this ???, I wish to point out that not only all ‘standing and flowing water’ wherever situate are and are declared to be the property of Government, but the words just coming after the words ‘all flowing and standing water’ in section 2(1) of Act III of 1905 are ‘all lands wherever situated.’ Thus as regards all lands also wherever situate, the presumption is created by that section that they belong to Government unless proved to belong to zamindars, inamdars, etc. As regards standing water in tanks, can it be reasonably argued that the ownership of the tank bed has nothing to do with the ownership of the water standing on it? Can it be said that, even though the rain water fills the tank, the standing water in it is the property of Government?… The section again assumes that zamindars, Poligars, Inamdars, etc., can have the same kind of ‘property’ or ownership in standing and flowing waters as Government is declared to possess…. That flowing water by its very nature can never be the absolute property of the Government or anybody else (though the ownership in a very real sense can be predicated of it as vesting in a person so long as the water continues to be situated vertically over land belonging to that person) is clear to my mind; and when section 2(1) says that all standing and flowing water are hereby declared to be the property of Government (except as may be otherwise provided for by any law for the time being in force, subject always to all public rights and natural and easement rights of other land-owners and to all customary rights) it seems to me that the Legislature did not intend to give to the Government greater rights of ownership in flowing water than the principles of general jurisprudence would allow.… When water flows in a river over the bed portion belonging to one owner, that water is temporarily and usufructuarily his property (subject to well-known natural rights of others). As soon as it leaves that portion of the bed and begins to flow over another bed-portion belonging to another owner, the water becomes the property of the owner of that bed-portion, subject again to the same rights…. I can find nothing in section 2 of the Madras Act III of 1905 which was intended to give the Government greater rights over standing or flowing water vertically over their land than any other proprietor of land (like a zamindar or inamdar) has over water standing or flowing over his.”
At pages 427 and 428 I said:
“There are two well-known legal may ??? usually come to mind in such cases. One is Aqua ??? ut currere solebat which signifies that water flows ??? to flow as it used to flow. Grounding on this maxim, it is ??? that there is no property in running water, but merely a ??? to use it, and this right may only be exercised so as not to interfere with the use of the water by other persons similarly entitled. But the right to use it can itself be called ‘property’ in running water, and (as I have said already) it is not wise to confuse ourselves by juggling with the word ‘property’, or the word owner.
“The other maxim is cujus est solum, etc., meaning that whoever is the owner of the soil, it is his even to the firmament and to the middle of the earth. This maxim is the basis of the rule that waters in ponds, tanks, and wells situated on land owned by a person belong to him in a very real sense, and that in the flowing water also running over his land, he has got a real right of property though of a qualified kind…. How else is a Zamindar or Inamdar to prove his ‘property’ in ‘standing or flowing water’ except by proving his ‘property’ in the land situated under such water, it being clear from section 2(1)(a) itself that such ‘property’ can exist in him? Narasimha Sastrial v. The Secretary of State for India.
“There is, no doubt, a distinction in the extent of the proprietary or ownership rights of a man in water over his soil, according as the water is standing water (as in a tank) or water naturally flowing as a river (though the water cannot be said to belong to anybody else so long as the waters are still vertically over his soil).”
(The existence in a man of a very real proprietary right over even flowing water within the limits of that portion of the river bed which belongs to him is well brought out by his power to prevent other persons fishing in that portion of the current or floating over or doing any acts in that portion of the flowing water and he can effectually exercise that power by driving stakes in the river bed from bank to bank or drawing nets across, without interfering of course with the flow of the water down the river).
I am confirmed in the opinions quoted above by the referring judgment of my Lord the Chief Justice in this case, and by the opinion of Ayling, J., just delivered. In Prasad Row v. The Secretary of State for India, their Lordships of the. Privy Council state that if section 2 of the Madras Act III of 1905 be relied on for the contention that the water of a stream belong to Government even when the property in the bed belongs to a riparian owner,
“the natural and prescriptive rights of riparian owners are seriously diminished by the Act and where the Government have not expended money in improving the natural stream, apparently without any sort of quid pro quo.”
I think from this sentence a clear indication is given as to the inclination of the minds of their Lordships of the Privy Council. Their Lordships (it seems to me) suggest that the words ‘property of Government’ in the Madras Act III of 1908 should not be given as wide a meaning as is connoted by the words ‘belonging to Government’ in the Madras Act VII of 1865, as such a construction would lead to startling and inequitable results.
For the above reasons I agree in answering the question referred to us in the negative.
Coutts Trotter, J.:— The short contention for Government is that the Act of 1905 created a property in Government in all flowing water in this Presidency, without reference to any question of ownership of the banks or bed of the river.
English lawyers do not ordinarily regard flowing water as the subject of property. The owners of land on the banks of the river are owners of the soil of the river bed usque ad medium filum aquæ; and by virtue of the ownership of that land, they acquire certain rights over the water flowing past the banks which they own. Those rights are known both to English and Indian law as riparian rights; and they arise as an incident of the land through which the water passes. When judges are using scrupulously accurate language, they are careful to point out that neither riparian owners nor others have any property in the water, e.g, Embrey v. Owen. But the rights of riparian owner are extensive, and it is very natural that they should often be described as rights of property or ownership, the necessary qualification that the ‘property’ is only usufructuary being left unexpressed, see, e.g, James, L.J, in Bush v. Trowbridge Water-works Co.. Statutes sometimes' use similar language, e.g, section 6 of the Water-works Clauses Act, 1847. It is especially natural when the ownership of both banks is vested in the same person to speak of him generally as the owner of the river.
The material portion of Act III of 1905 is effect declares that all flowing water save and in so far as it is the property of any one else is henceforth to be the property of Government. What the judges did in the Urlam case [Kandukuri Mahalakshmamma Garu v. The Secretary of State for India] was to apply the English Common Law conception to the saving clause with the result that they held that no one had any property in flowing water, except perhaps in the abnormal case of a river which from source to mouth runs through one man's land. The result was that all flowing water would become automatically the property of Government. That is in itself a startling conclusion; but it involves a still more startling process. We are to suppose that the draftsman and the enactors of this short local Act designed, not directly but by mere intendment, to introduce a wholly new juridical conception, viz., that of property in flowing water without reference to any question of ownership of the banks or bed of the river in which it flows. That seams to mo obnoxious to all the evils pointed out by the House of Lords in Nairn v. The University of St. Andrews. In my opinion Kaadukuri Mahalaksh mamma Garu v. The Secretary of State was wrongly decided, and I think the Act of 1905 when it spoke of water ‘belonging’ to any one, only used the term in the lax but commonly understood sense of water over which rights, were exercised by virtue of ownership of bed or banks. This construction necessitates no new legal conception of property in water; for flowing water will only go to Government as a bonum vaxus, when the bank or banks are bona vacantia, and it will become their property only in the sense with which every one is familiar and which is correlated to their property in the banks or bed.
Some attempt was made during the argument to draw conclusions from the linguistic implications of the word ‘river’. I do not think such considerations go for much, but they certainly do not help the case of Government. ‘River’ is not derived from the Latin ‘rivus’ as most people would suppose off-hand, but through the French riviere from ‘riparia’, i.e, the thing with banks (ripa). Nor would the case be better if the derivation was from rivus, for I find this in the Digest (43-21): rivus est locus per longitudinem depressus, quo aqua decurrat.
The Second Appeal coming again for hearing before the Division Bench (Wallis, C.J, and Mr. Justice Oldfield), the Court delivered the following Judgment:—
As a result of the answers of the Full-Bench we reverse the decree of the lower Appellate Court and give the plaintiff a declaration that the Government is not entitled to levy water-cess on the plaintiff in respect of the suit lands under Act VII of 1865 as amended, seeing that the river Marudarnathi where it flows past the suit lands is not a river belonging to the Government within the meaning of that; Act read with Act III of 1905.
The question of the plaintiff's alleged excessive use of the river water for his own irrigation cannot be disposed of in this suit in which he is arrayed as a plaintiff.
We reverse the decree of the lower Appellate Court and grant the plaintiff the declaration above mentioned with costs throughout.
N.R