ORDER OF REFERENCE TO A BENCH.
Venkatasubba Rao, J. — These appeals raise a question of difficulty and importance. The suits, out of which they arise, were brought to recover penal water rate alleged to have been illegally collected from the plaintiffs, in respect of certain ryotwari lands belonging to them. The Trial Court gave the plaintiffs a decree, but its decision has been reversed by the learned District Judge.
The plaintiffs' lands are registered wet lands, the source of irrigation assigned by the Government being, a shuttered sluice in the channel in the Periyar system. On 3rd July 1925 a lascar of the P.W.D discovered that the shutter of the sluice, intended to allow 2 1/2 inches of water to pass, had been forced open, with the result that water 2 feet deep was passing into the distributory channel feeding the plaintiffs' lands. It was found that the lock of the shutter had been removed, as also the cross-bar. The plaint lands were then partly under seedlings and partly ploughed. The next morning at about 11 a.m the shutter was replaced. The plea of the Government is that there having been irregular irrigation, the penal water rate was rightly imposed.
First, the view taken by the lower Courts in regard to there having been a different or an additional source of irrigation, seems perfectly correct. The assigned source is the shuttered sluice and there can be no doubt that the sluice forced open is different from the sluice fitted with a shutter. I therefore agree that water from a source different from, or in addition to, that which has been assigned, has been enjoyed.
Both the Courts below have concurrently found (1) that there is no evidence to fix the responsibility for forcing open the shutter either on the plaintiffs or anyone else and (2) that the irrigation with the excess water was beneficial to the plaint lands. On these facts the question arises, are the plaintiffs liable to pay penal water rate?
In the lower Courts (though not here), the Government contended that the facts of the case bring it within S. 1 (a) of the Irrigation. Cess Act. That applies “whenever water is supplied or used for purposes of irrigation.” There is no question of supply in the present case; the point to decide is, was water “used” for purposes of irrigation? In Venkatappayya v. Collector of Kistna it was held by a Bench of this Court, that the use contemplated is a voluntary use, as the term presupposes a freedom either to take or to refuse, the water. This case was followed by another Bench in Krishnayya v. Secretary of State for India , where it was pointed out that where a person has no choice in the matter, he cannot be said to have used the water within the meaning of the Act; In other words, the option either to take or to refuse the water is necessarily involved in the word “use”. According to these two decisions, it would be wrong to penalise a person when there has been augmentation of water even against his own wish. It was subsequent to these rulings, that Cl. 1 (b) was newly inserted by the Amending Act of 1900. That clause was presumably intended to abolish the distinction in certain cases between voluntary and involuntary enjoyment of the water. The question is, has that distinction been done away with only in a limited class of cases or altogether and for all purposes? For the Government it is contended that on a proper construction, even Cl. (a) applies as much to involuntary as to voluntary enjoyment. I must confess to some difficulty in accepting this argument. If no distinction was intended to be maintained between voluntary and involuntary enjoyment, why was Cl. (a) retained at all? That some difference was intended between Cl. (a) and Cl. (b) cannot be gainsaid. Under the latter clause, that the irrigation has been beneficial, is a necessary ingredient; under the former it is not. If involuntary enjoyment is what both the clauses refer to, can the Government at its pleasure, rely upon either Cl. (a) or Cl. (b) irrespective of the question of benefit? Had the intention been to wipe out the distinction between voluntary and involuntary enjoyment, the proper and natural course would have been, to remove Cl. (a) altogether when the amendment of 1900 was made. That clause having been retained, it may be assumed, as was pointed out in Secretary of State for India v. Swami Naratheeswarar , that the same interpretation must be placed upon the word “used” in Cl. (a) even subsequent to the amendment, as was done previously. The amendment of 1900 was the result of the two decisions in Venkatappayya v. The Collector of Kistna and Krishnayya v. Secretary of State for India and yet Cl. (a) in its original form was retained. From this, as Sankaran Nair, J. points out, it may be fairly inferred that the judicial interpretation of the term received legislative sanction: see Secretary of State v. Janakiramayya . What is more, the second proviso to the first section was also newly inserted by the Amending Act. The words there occurring are “unless the same be irrigated by using without due authority.” It seems right to hold that the identical word occuring in both the provisos and the substantive part must receive the same meaning. If that be so, the proviso strengthens the conclusion that what is comtemplated is the voluntary obtaining of the water. If the matter has rested there, I should, without much difficulty, hold that the act being voluntary is a necessary ingredient under Cl. (a).
CI. (b) seems, in my opinion, restricted to a limited class of cases. The words “river, stream, channel, tank or work” are qualified by the phrase “from or through adjoining land.” In construing the clause, the qualifying words must not be ignored and they have the effect, in my opinion, of limiting the scope of the provision. But then a difficulty arises. In the second part of the clause referring to a reservoir, the word ‘used’ again occurs. Does this mean that under the first part which refers to adjacent land, the enjoyment may be involuntary, but that the second part, which deals with a reservoir, requires that there should be a voluntary enjoyment? Is an intention to make this distinction to be imputed to the legislature? There is yet a further difficulty. At least the first part of Cl. (b) must, as I have shown, refer to involuntary enjoyment. The second proviso referring to ryotwari holders applies alike to Cls. (a) and (b); but that proviso, as already stated, is restricted, if properly construed, to voluntary enjoyment. The result is that the second proviso contradicts the first part of the substantive Cl. (b); in other words, the provision that the enjoyment may be involuntary in certain cases, becomes nullified by the proviso.
The section is thus badly worded. The matter becomes more obscure by reason of the conflict in judicial decisions, which, incidentally I may observe, have not adverted to these difficulties. To the cases already mentioned, may be added Secretary of State v. Janakiramayya , Krishna Row v. The Collector of Kistna and Kanakamma v. Secretary of State for India . In the second of these three cases it is worthy of remark that it is assumed that every part of the Act applies to the involuntary enjoyment also.
Ordinarily if the case was to be referred to a Bench of two judges, I should have myself made the order, but they would in their turn in all probability refer the question to a Full Bench. The orders of the learned Chief Justice may therefore be obtained as regards the posting of this case. If it goes before a Full Bench the questions to be referred will be: (1) Does S. 1 (a) apply both to voluntary and involuntary enjoyment? (2). If to voluntary enjoyment alone, were the plaintiffs liable to pay penal water rate? In this case, the finding is that the plaintiffs did nothing beyond keeping the usual vents in their ridges open. The closing of those vents would have had the effect of depriving the plaintiffs of even their legitimate supply of water. The distinction made by the learned District Judge between (1) flow which is easily preventable and (2) flow that cannot be prevented without unreasonable expenditure, seems equitable enough, but is it warranted either by the section or the authorities? The legislature may bear such distinction in mind when enacting a new provision, but the duty of the Courts is to interpret the provision as it stands.
These Second appeals coming on for hearing again before the Bench (Ramesam and Venkatasubba Rao, JJ.) in pursuance of the above order of reference on Monday, Tuesday and Wednesday, the 18th, 19th, and 20th days of March, 1935, and having stood over for consideration till this day the Court (Ramesam and Venkatasubba Rao, JJ.) delivered the following,
JUDGMENT*
The plaintiffs are ryotwari holders of lands registered wet, the source of irrigation assigned by the Government being a shuttered sluice in a channel in the Periyar system. On 3rd July 1925 a lascar of the P. W. D. discovered that the shutter of the sluice intended to allow 2½ inches of water to pass had been forced open, with the result that water 2 feet deep was passing into the distributory channel irrigating the plaintiffs' lands. It was found that the lock of the shutter had been removed, as also the cross bar. The plaint lands were then partly under seedlings and partly ploughed. The next morning at about 11 A. M. the shutter was put back in place, the water having by then irregularly, flowed on to the plaintiffs' lands for about 20 hours. The Government on the ground that there was unauthorised irrigation, collected water-rate from the plaintiffs under the provisions of the Madras Irrigation Cess Act (VII of 1865). The plaintiffs brought the suits out of which the present appeals arise claiming a refund of the water-rate, which according to them was illegally collected.
The first question that arises is, did the water flow from a source which is different from or in addition to that, which has been assigned by the revenue authorities as the source of irrigation of the lands in question? (S. 1 proviso 2). The lower Courts have answered this question in the affirmative and in our opinion rightly. The source assigned to the plaintiffs' lands was not the sluice but the shuttered sluice, and it can hardly admit of doubt, that the sluice with the shutter removed is different from the sluice fitted with the shutter and regulated in a particular manner. It must therefore be held that the water that flowed was from a source different from the assigned source.
We shall presently consider the applicability of the several parts of S. 1 to the facts of the case in hand; but we may at once mention that Cl. (b) requires as a condition precedent to the levy of the cess, that the irrigation is, in the opinion of the revenue authorities, beneficial to and sufficient for the requirements of the crop. The lower Court's view that such an opinion must be deemed to have been expressed, has not been assailed and must be accepted as correct. Another fact which needs mention is, that the lower Courts have concurrently found that for the occurence in question the plaintiffs are in no way responsible, the shutter having been forced open, if by human agency, by some persons unknown. On these facts the question arises, was the water cess legally levied from the plaintiffs?
For the Government it is first contended that the facts of the case bring it within S. 1 (a) of the Irrigation Cess Act. That applies “whenever water is supplied or used for the purpose of irrigation.” It has not been suggested that any question of the water having been ‘supplied’ arises in the present case. When the providing of the water was not intentional on the part of the Government, to refer to the water as having been ‘supplied’ would be to distort the word from its true meaning. In Venkatappayya v. The Collector of Kistna it was held by a Bench of this Court that the expression ‘supply’ implies in its ordinary sense a previous request expressed or implied. Apart from that, as we have said, the word ‘supplied’ necessarily connotes that the water was intentionally provided and makes the provision inapplicable when the water flows of its own accord. Then the question arises, on the facts of the case, can it be said that the water was ‘used’? In the same case, it was held, that the use contemplated by the Act is a voluntary one and that it presupposes a freedom either to take or refuse the water. This view was affirmed by another Bench in Krishnayya v. Secretary of State for India where it was clearly pointed out that where a person has no choice in the matter, he cannot be said to have ‘used’ the water within the meaning of the Act. According to these two decisions, it would be wrong to penalise a person when there has been augmentation of water even against his own wish. Subsequent to these rulings, the legislature has by amending the Act in 1900 introduced very important changes. To appreciate the true effect of the amendment, the changes not only in the wording, but in the structure of the Act should be carefully noticed. The present S. 1 (a) corresponds roughly to S. 1 of the Act prior to the amendment and what appears now as the first proviso corresponds to the old S. 4. The point to note is, that in the old Ss. 1 and 4 the words that occurred were ‘supplied’ and ‘used’. Those words, as interpreted by the two decisions above cited, had reference to voluntary and not to involuntary user. The word ‘supply’ under those decisions implied a previous request and the word ‘use’ presupposed a freedom to refuse. The legislature, while re-enacting the provisions in an amended form, has retained the two words ‘supplied’ and ‘used’ and it may be presumed that it has been so done with the object of adopting the legal interpretation put upon those words by the Courts: Maxwell on the Interpretation of Statutes (1929) 7th Edn. p. 265.
“There is a well known principle of construction that where the legislature uses in an Act a legal term which has received judicial interpretation, it must be assumed that the term is used in the sense in which it has been judicially interpreted, that is to say, unless the contrary intention appears.” Statute Law by Craies, (1923) 3rd Ed. p. 163.
The legislature would have made its meaning clear by the use of apt words, had it intended to depart from the construction placed by the Courts on the words in question; on the contrary, as Sankaran Nair J. points out in Secretary of State v. Janakiramayya from the retaining of Cl. (a) in its original form (so far as this matter is concerned), it may be fairly inferred that the judicial interpretation of the terms ‘supplied’ and ‘used’ received legislative sanction. See also an observation to the same effect in Secretary of State for India v. Swami Naratheeswarar . While, however, the legislature gave effect to the view judicially expressed, that in cases falling within Cl. (a) the liability arose from voluntary enjoyment alone, it provided by enacting a new provision in Cl. (b) that even in respect of involuntary enjoyment, if certain conditions were satisfied, watercess was leviable. Cl. (b) consists of two parts: (1) whenever water by direct or indirect flow or by percolation or drainage from any such river, stream, channel, tank or work from or through adjoining land irrigates any land under cultivation, or (2) flows into a reservoir and is thereafter used for irrigating any land under cultivation. The word ‘used’ has been carefully omitted from the first part and the expression ‘irrigates any land’ in that part stands in marked contrast with ‘used for irrigating any land’ in the second part. The inference is irresistible that the first part deals with involuntary enjoyment, whereas the second with voluntary enjoyment, although it may be mentioned that even in the second part, the preliminary process of the water flowing into the reservoir, is independent of the volition of any person. In short, the effect of the amendment may be thus stated: Cl. (a) was retained and it refers to voluntary enjoyment alone; under Cl. (b), in certain cases of involuntary enjoyment the tax may be imposed, provided the irrigation is beneficial to the crops. The argument that Cl. (a) refers to involuntary enjoyment also, is untenable. If that argument were sound, it would follow that in the case of involuntary enjoyment the Government can at its pleasure rely either upon Cl. (a) or Cl. (b) irrespective of the question of the benefit to the crops. Had the intention been to wipe out the distinction between the two kinds of enjoyment, the proper and natural course would have been to remove Cl. (a) altogether when the amendment of 1900 was made. The resulting position is both clear and logical. Where a ryot enjoys the water voluntarily, nothing further need be shown and his liability directly arises under Cl. (a); but where the enjoyment is involuntary, he can be made liable provided the conditions in Cl. (b) are satisfied, the chief condition being that the irrigation has proved beneficial; this statement is subject to the reservation already noticed, that even under Cl. (b) which refers to the flow into a reservoir, the second part contemplates voluntary user; but in the main what distinguishes Cl. (b) is the involuntary nature of the enjoyment.
The learned Government Pleader further contends that the facts of the present case even bring it within the first part of Cl. (b). The trial Judge points out that this clause does not apply as the water does not flow to the lands in question “from or through adjoining land.” The question is, is the entire part qualified by that phrase or are we to leave that phrase out of account in the case of ‘direct flow’? The learned Government Pleader urges that ‘direct flow from or through adjoining land’ involves a contradiction and there is a good deal to be said for that position; but we must say that grammatically the phrase “from or through adjoining land” governs and qualifies the entire part. To give effect to the learned Counsel's contention, the first part should be split up suitably in such a manner as to show that the words ‘direct flow’ have no reference to any ‘adjoining land.’ The desired result may be achieved by adding the word ‘flow’ after the word ‘direct’, but unless the clause is re-cast, there will still remain some ambiguity. Next, the Government Pleader contends that even the facts here disclose the existence of an adjoining land, for the water before it reaches the lands in question, is necessarily led along a small distributory channel kept up by and belonging to the ryots themselves (the plaintiffs) and the soil of that channel answers the description of ‘adjoining land’ in the section. According to the learned Government Pleader, it was such land only that was treated as ‘adjoining land’ in Secretary of State for India v. Swami Naratheeswarar (see p. 23). In regard to the contentions noted above dealing with ‘adjoining land’ in Cl, (b), it is unnecessary for us to express our final opinion, in the view we take of the second proviso to the section with which we shall now proceed to deal.
The object of both the provisos is to lay down that where the enjoyment can be traced to a legal right, no liability arises; as regards landholders other than those holding under ryotwari settlements, such as zamindars and inamdars, they are protected to the extent of their engagements with the Government and the first proviso deals with exemption from cess in the case of such landholders. As regards holders under ryotwari settlements, it would obviously be wrong to tax them for their enjoyment of water from an authorised source, i. e., a source specially assigned and the second proviso is intended to protect their rights to that extent; but the point to note is, that under this proviso which relates to ryotwari holders, it is specially enacted that no cess shall be leviable, unless the land be irrigated by ‘using’ the water without due authority. The employing of the word ‘use’ negatives the idea that the user here intended may be involuntary. “It is a sound rule of construction,” said Cleasby, B. in Courtauld v. Legh “to give the same meaning to the same words occurring in different parts of an Act of Parliament,” (cited at p. 153 of Craies on Statute Law already referred to.) This rule is by no means inflexible and if special reasons exist, may be departed from; but “unquestionably the interpreter is bound in general to disclaim the right to assign different meanings to the same words on the ground of a supposed general intention of the legislature:” Per Lord Denman in R. v. Poor Law Commissioners cited in Maxwell on the Interpretation of Statutes, 7th Edn. p. 273. Further, how can there be user “without due authority” unless the user is voluntary? This, in our opinion, clinches the question. The result is that except in the case of voluntary enjoyment, the ryotwari holders coming within proviso (2) are not liable for water cess under the Act.
Before concluding, we must point out that the judgment of Ayling, J. in Krishna Bow v. The Collector of Kistna on which the Government Pleader relies, does not really help him much. In the first place, that case was concerned with zamindari lands and not with ryotwari holdings. Secondly, the decision proceeded upon an admission wrongly made, that the Act draws no distinction between involuntary and voluntary user and thirdly, that admission having been made in regard to the Act itself, the only question that Ayling, J. considers is as regards the meaning of the word ‘taken’ in the rules, as distinguished from the Act. We must respectfully dissent from the view, if this is what is involved in Ayling, J's judgment, that every provision of the Act applies to both voluntary and involuntary user alike. Our attention has also been called to the following observation of Sadasiva Iyer, J.,
“The amendment of 1900 fully established the rights of the Government to levy assessment in respect of water even involuntarily supplied to such ryotwari lands,”
in Secretary of State for India v. Janakiramayya ; but for the reasons already stated, we must express our respectful dissent from it.
In the result, in each of these Second Appeals, the Lower Appellate Court's decree is reversed and that of the first Court is restored and the suit is decreed with costs throughout.
N. R. R.Appeals allowed.