http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: Y.   LAKSHMINARAYANA REDDYAND OTHERS

       Vs.

RESPONDENT: THE STATE OF ANDHRA PRADESH

DATE OF JUDGMENT: 26/09/1962

BENCH: DAS, S.K. BENCH: DAS, S.K. KAPUR, J.L. SARKAR, A.K. HIDAYATULLAH, M. DAYAL, RAGHUBAR

CITATION:  1965 AIR  580            1963 SCR  (1) 308

ACT: Civil  Procedure-Irrigation  tank-Improving  efficiency  of- Government    proposing   alterations-Suit    to    restrain Government-If  barred-Madras Irrigation Tanks  (Improvement) Act,  1949 (Mad.  XIX of 1949), ss. 3,  4-Madras  Irrigation Tanks (Im- provement) Rules, 1950, r. 5.

HEADNOTE: The  lands  of village Gudur were irrigated by  tanks  which received water from the Venkatagiri river through the "Gudur anicut system".  The Government proposed to make alterations in  the Chennur anicut up the river for supplying  water  to the  Chennur tank for irrigating lands of  village  Chennur. The   residents  of  village  Gudur  filed  a  suit  for   a declaration  that  the Government had no right to  alter  or extend  or  add to the Chennur anicut over  the  river,  and stated in the plaint that it was not necessary to ask for  a permanent  injunction  as the Government was bound  to  give effect to the declaration granted by the Court. Held,  that  the  suit  was barred by s.  4  of  the  Madras irrigation   Tanks  (Improvement)  Act,  1949.   Section   4 provided 309 that no court shall entertain any suit for an injunction  to restrain the exercise of any powers conferred on  Government by s. 3. Section 3 empowered the Governtnent to "raise  the- full  tank level of any tank or to take any  other  measures for  increasing its capacity or efficiency".   The  proposed alterations  were  within s. 3 as they  would  increase  the efficiency of the Chennur tank by making a larger supply  of water  available within the holding power of the  tank.   It was   not  correct  to  say  that  s.  3   only   authorised improvements  in the tank itself or in the  supply  channels from the tank but not in the anicut.  Though the  plaintiffs did not formally ask for an injunction, the suit, in effect, was  one for an injunction to restrain the  Government  from exercising its powers under s. 3. It is clear that the action proposed to be taken by  Govern- ment was under the powers given under s.3. The mere fact

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

that no notice as required by r. 5 specifying the nature  of the  improvement, its cost etc. was issued did not  indicate that the action was not under s. 3 nor did it invalidate the order  proposing the improvement.  The proposed  action  had not  been taken when the suit was filed and there was  still time to publish the notice.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 614 of 1961. APpeal  by special leave from the judgment and decree  dated December  22,  1959,  of  the  Andhra  Pradesh  High  Court, Hyderabad in Second Appeal No. 428 of 1959. A.   V.  Viswanatha  Sastri and T.V.R.  Tatachari,  for  the appellants. A.Ranganadham Chetty and P. D. Menon, for the  respondent No. 1. 1962.   September  26.   The  Judgment  of  the  Court   was delivered by. S.K. DAs.  J.-This is an appeal by special leave and  the short question for decision is the true scope and effect  of s. 4 of the Madras Irrigation Tanks (Improvement) Act,  1949 (Mad.   XIX  of 1949), hereinafter referred to as  the  Act. The section is in these terms :-               "No  Court shall entertain any suit or  appli-               cation  for  the  issue of  an  injunction  to               restrain               310               the  exercise of any powers conferred  on  the               Government by section- 3." The  courts  below have dismissed the suit  brought  by  the appellants,  holding  on  a  preliminary  issue  that  S.  4 aforesaid  applies and the suit cannot be entertained.   The question before us is, whether this finding is correct. We must first state the relevant facts.  The appellants were the plaintiffs in the first court.  They brought the suit in a representative capacity on behalf of the roots of  several villages whose lands are irrigated by what is locally  known as  the "Gudur anicut system".  There is a stream  or  small river  known as Venkatagiri river which flows west  to  east and  then takes a turn to the south.  It passes by  or  near villages  Chennur, Gudur, etc.  The case of  the  appellants was  that  from time immemorial their lands  were  irrigated from four tanks; three of the tanks received their supply of water from the Venkatagiri river through a channel emanating from the Gudur anicut at a place called Ananthamadugu.   The fourth tank also received its supply of water from the ’same river  through a channel emanating from near the  "Pumbaleru anicut"  further  down the river.  In addition,  a  separate channel from the "Pumbaleru anicut" directly irrigated about Ac. 600--00 of land.  It was stated that on the whole, about Ac. 4000--00 of the land of the appellants were irrigated in the manner indicated above under the "Gudur anicut  system". The ryots of Chennur" a village situate higher up the river, had  also a tank for irrigating their lands.   These  ryots made  several attempts to secure a portion of the  water  of Venkatagiri  river by having an anicut constructed over  the river  at a place called Gollapalli, about one mile  up  the river,  in order to get supply of water to Chennur  tank  by means  of a supply channel emanating from near the place  of the  proposed Gollapalli anicut.  These attempts  failed  in 1929-1930.  But they renewed their attempts 311 and  in 1935, the Madras Government passed an order  (G.  O.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

No.   2241/1   dated  October  16,   1935)   directing   the construction of an anicut at Gollapalli for supply of  water to  the Chennur tank with certain safeguards to ensure  that the  supply to the "Gudur anicut system" was  not  adversely affected and to utilise only the excess water going to waste during   the  flood  season  for  the  Chennur  tank.    The appellants  objected to the scheme of G.O. No. 2241/1  dated October  16 1935 and the matter was further investigated  by Government.   Finally, G.O. No. 1161 dated May 6, 1939,  was issued  modifying  the earlier order in some  respects.   In pursuance  of  that  order, a masonry anicut  known  as  the Chennur anicut was constructed in 1944, the details  whereof were  stated in Ex.  A-6 and summarised in paragraph  11  of the  plaint.   With  those details we  are  not  at  present concerned, except merely to state that the anicut  consisted of two portions : a ’free’ portion 61 feet long on the  west and  a  ’fixed’  portion about 11. 4  feet  long,  the  free portion to be kept fully planked only when the river was  in flood  with a view to divert surplus water to  Chennur  tank and-  was  not  to be planked until  the  Gudur  anicut  was "surplusing".  The appellants alleged that the Chennur ryots did  not stick to the arrangements made as a result of G.  O No.  1161 dated May 6, 1939, but renewed their attempts  for getting a larger supply of water from Venkatagiri river  and the  appellants  came  to know that behind  their  back  and without notice to them, the State Government passed  another order  in 1952 in which they directed (i) the  extension  of the Chennur anicut by another 46 feet., (ii) removal of  the dam  stones and planks altogether and the construction of  a permanent  masonry wall over the crest of the anicut to  the entire  length of 175 feet, (iii) raising the height of  the wall  by 3 feet more, and (iv) installation of  three  vents with  screw-gearing-shutters for the flow of water down  the Chennur  anicut.   The appellants alleged  that  this  would seriously  affect  their accustomed right to the  supply  of water from 312 Venkatagiri  river  under  the  "Gudur  anicut  system"  and practically deprive them of water during the low supply  and spring periods.  They, therefore, prayed for a decree-               (a)   declaring  that  the  defendant  has  no               right  in  the circumstances stated  above  to               alter  or extend or add to the Chennur  anicut               over  Venkatagiri river at Gollapalli  in  any               manner whatsoever;               (b)   for costs of the suit ; and               (c)   and  for such other and further  reliefs               as in the circumstances the court may deem fit               and proper in the circumstances. They  specifically  said  in  the plaint  that  it  was  not necessary  to  ask  for  a  permanent  injunction  "as   the defendant  (meaning the State of Andhra Pradesh)  was  bound and certain to give effect to the declaration granted by the court".  At first, the State of Andhra Pradesh was the  only defendant.   Certain other defendants, presumably  ryots  of Chennur, were made parties-defendants on a later date. We have given above a summary of the case of the  appellants as alleged in the plaint.  A written statement was filed  by the  State of Andhra Pradesh, as also by the 4th  defendant, in which it was averred that the proposed alterations to the Chennur  anicut would not injuriously affect the  rights  of the  appellants  and certain details were given as to  the flow of water in the river at different times.  As we are no deciding this case on merits, we are not proposing to  enter into those details.  By a supplemental written statement the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

defendant-State, respondent before us, took the plea that s. 4  of  the Act was a bar to the entertainment of  the  suit. This  plea  was taken up for trial as a  preliminary  issue. The  trial court held in favour of the State.  An appeal  to the District  313 judge failed and so also a Second Appeal to the High Court. The points which have been urged on behalf of the appellants are these :- (1)The provisions of s. 3 (1) of the Act are restricted to effecting improvements to a tank as defined in s.2 (d),  and such improvement covers, for example, raising the height  or increasing  the width of the band, or lengthening the  wear, or  extending  the bed of the tat*; it may  even  extend  to improving  the supply channel but does not go any further  ; the  State  Government in proposing the alterations  in  the Chennur  anicut  arc proposing to do something which  is  in excess of the powers given by s. 3 (1) and, therefore, s.  4 does   not  bar  the  entertainment  of  the  suit  of   the appellants. (2)On any view, s. 4 bars the entertainment of a suit  for the  issue  of  an injunction to restrain  the  exercise  of powers conferred on the Government by s. 3 (1); the  present suit  is not a suit for injunction and the  appellants  have specifically  said that they do not ask for  an  injunction; therefore, s. 4 is no bar. (3)The State Government did not purport to act under s.  3 (1)  when  they passed G. O. Ms. 53 F. and  A  (F.P.)  dated February  15,  1952, and as they did not issue a  notice  as required   by   r.  5  of  the   Madras   Irrigation   Tanks (Improvement)  Rules, 1050, the action proposed to be  taken by them cannot come under s. 3 (1); therefore, s. 4 does not apply. (4)Section 3 (1) is ultra vires the Constitution and s.  4 must fall within s.3. We  shall now proceed to consider these points one  by  one. Earlier in this judgment, we have read s.    4  of the  Act. That section is closely connected 314 with  sub-s.  (1) of s._3 and we may now set out  that  sub- section.               "S.  3 (1) Notwithstanding anything  contained               in any other law for the time being in  force,               the  Government shall have power to raise  the               full-tank  level  of any tank or to  take  any               other measures for increasing its capacity  or               efficiency,  wherever it may be  situated  and               whether in a ryotwari, zamindari, inamdari  or               other area." It  will be useful if we briefly refer here to the  preamble and some of the other provisions of the Act in order to show what is the object or purpose of the Act.  The long title of the  Act  shows  that it is an Act  "to  empower  the  State Government  to  increase  the  capacity  and  efficiency  of irrigation tanks in the State of Madras." The preamble  also states :-               "Whereas it is expedient to empower the  State               Government to increase the capacity and  effi-               ciency  of  irrigation tanks in the  State  of               Madras;..." Section 2(d) of the Act defines a tank to mean an irrigation tank in the State of Madras.  Then come ss.3 and 4 which  we have  already quoted.  Section 5 deals with the  payment  of compensation  where,  in  consequence of  anything  done  in pursuance  of  s.  3,  the owner of  any  land  or  property

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

sustains  loss  or damage including any  diminution  of  the supply of water to any land or any tank or other source from which  water  is  supplied.   The  compensation  is  to   be determined  in  the  manner  laid down  in  s.5.  Section  6 provides  for an appeal against the Order of  the  Collector under s. 5 to the Subordinate Judge’s court having jurisdic- tion  over  the area in which the land or property  for  the damage  to  which compensation is to be  paid  is  situated. Section 7 deals with the power to make rules and one of  the rules,   viz.,  rule  5  of  the  Madras  Irrigation   Tanks (Improvement)  Rules, 1950, made in pursuance of that  power will be considered by us later. 315 Very  briefly put, the object of the Act is to increase  the capacity and efficiency of irrigation tanks in the State  of Madras and s. 3 (1) gives the State Government power to take measures  for  the  purpose of increasing  the  capacity  or efficiency of irrigation tanks, whether the irrigation tanks be  situated  in a ryotwari, zamindari,  inamdari  or  other area.  Obviously, the purpose is to increase facilities  for irrigation  of  agricultural lands  from  irrigation  tanks. Now,, there is no dispute before us that the Chennur tank as well  as  the  four tanks from which the  appellants  get  a supply  of water for irrigating their lands  are  irrigation tanks within the meaning of the Act.  The controversy before us  has  centered round the expression "to  take  any  other measures  for  increasing its capacity or  efficiency."  The expression  "its capacity or efficiency"  undoubtedly  means the  capacity or efficiency of the irrigation tank in  ques- tion  which,  in this case, is the Chennur tank.   The  word ’capacity’ in its ordinary dictionary sense means  "holding- power"  or "receiving-power" and must, we think,  depend  on the  cubic  content of the tank.  Learned  counsel  for  the respondent-State  has conceded before us that  the  proposed alterations  in  the  Chennur anicut  do  not  increase  the capacity of the Chennur tank.  He has however very  strongly contended  that  the  proposed alterations  in  the  Chennur anicut  will increase the efficiency of the Chennur tank  by making  a  larger  supply  of  water  available  within  the holding power of the tank.  He has also contended that there is no reason why a narrow interpretation should be put on s. 3  (1)  so as to restrict the improvement  measures  to  the width,  breadth or depth of the tank or its  supply  channel only.  He has submitted that if by the proposed ’alterations in the Chennur anicut there is a, larger supply of water  to the  Chennur  tank  through its  supply  channel,  then  the measures  which ’the State Government are proposing to  take are  undoubtedly measures ’for increasing the efficiency  of ’the Chennur tank.  Learned counsel for the appellants, 316 on the other hand, has submitted that the word  ‘efficiency’ read  in the context of the definition clause in s.  2  (d), means only efficiency in the distribution of water from  the tank  itself.  The same contentions were urged in  the  High Court also and, dealing with these contentions, the  learned Chief justice said :-               ""The efficiency of a tank depends in a  large               measure  upon  the quantity of Water  that  is               available  for  irrigation  purpose.   Without               sufficient  volume of water, a tank could  not               fulfill  the  purpose for which  it  was  dug.               Therefore, it should have sufficient  quantity               of  water  to maintain ’its  efficiency’.   To               construe  it  in the manner suggested  by  the               counsel for the appellants is to deprive these

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

             words of a part of their content." We  are  in agreement with the view thus  expressed  by  the learned  Chief justice.  Learned counsel for the  appellants has  submitted that the Chennur tank and its supply  channel only can be the objects of improvement measures by the State Government,  but not the Chennur anicut on  the  Venkatagiri river.  We are unable to agree and see no reason why such  a narrow construction should be put on sub-s. (1) of s. 3. The supply channel to the Chennur tank takes off water from  the Venkatagiri  river  and  it starts  from  near  the  Chennur anicut.   It is obvious that if the supply channel does  not supply sufficient water to the tank, then the tank loses its efficiency.   If the supply of water is increased, then  the efficiency  of  the tank is also  increased.   The  proposed alterations  in the Chennur anicut are intended to  increase the volume of water which will go through the supply channel to the Chennur tank and in that sense, the measures proposed to  be taken are measures to improve the efficiency  of  the Chennur tank.  A question was mooted before us as to how far the State Government can go up the river in order to improve the  Chennur tank.  Perhaps, the answer to that question  is that  317 the improvement measures proposed to be taken must have  a direct and proximate relation to the tank, the efficiency of which  is’ to be increased.  The State Government cannot  go up  the  river  to  a distance of  several  miles  and  take measures  which have no direct or proximate relation to  the tank  in  question.   In the case before  us,  however,  the supply  channel to the Chennur tank emanates from  the  very place  where the Chennur anicut has been  made.   Obviously, therefore,  the Chennur anicut is meant for the  purpose  of feeding  the  supply  channel  to  the  Chennur  tank.   The connection is both direct and proximate.  We are, therefore, of  the  opinion  that the view concurrently  taken  by  the courts below is the correct view and the measures which  the State  Government  are proposing to take in  the  matter  of improving the Chennur anicut are measures which come  within s.  3 (1) of the Act.  The first contention urged on  behalf of the appellants must therefore be overruled. counsel for the appellants wished to read from the  speeches made by some of the members of the State legislature and the answers given by the Minister piloting the Bill, in order to show that s. 3 (1) was not intended to cover alterations  to an  ’anicut’.  It is, however, well settled and  this  court has  so  ruled in more than one decision,  that  legislative proceedings  cannot  be  referred  to  for  the  purpose  of construing an Act or its provisions, though such proceedings may   be   relevant   for  the   proper   understanding   of circumstances under which the legislation was passed and the reasons  which  necessitated it.  Learned  counsel  for  the appellants has also referred to the provisions of the Madras Irrigation  Works  (Repairs, Improvement  and  Construction) Act,  1943  (Mad.  XVII of 1943) and  submitted  that  those provisions  authorised the Government to repair  or  improve irrigation  works or construct new irrigation  works.   This contention was also considered by the learned Chief Justice, and he 318 rightly  pointed out that the scope of the two statutes  was different : one dealt with private irrigation works and  the other  with  improvement of irrigation tanks  situate  in  a ryotwari,   zamindari,   inamdari,   or   other   area   and furthermore,   the  proposed  alterations  in  the   Chennur ’anicut’  would not amount to improvement of any  irrigation

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

work within the scope of the 1943 Act. We proceed now to a consideration of the second point.  Here again,  we  think that the courts below are  right.   It  is indeed true that the appellants did not formally ask for  an injunction;  but-,  in  effect, what they asked  for  was  a declaration  which they said the State Government must  obey and.  would  be thus restrained from exercising  the  powers conferred on it by s. 3 (1).  We agree with the courts below that  having regard to the pleadings and the  reliefs  asked for,  the  suit was in reality a suit  for  restraining  the State  Government  from exercising its powers  under  s.  3, though framed in such a manner as to give the appearance  of a suit for mere declaration.  In our opinion, it would be  a circumvention  of s. 4 to entertain a suit of  this  nature. Under s. 42 of the Specific Relief Act, any person  entitled to any right as to any property may institute a suit against a  person  denying  such right, and the court  may,  in  its discretion,  make  therein  a  declaration  that  he  is  so entitled; but no court shall make a declaration which  would be  futile, assuming that by reason of s. 4 of the  Act  the appellants  are  prohibited  by  law  from  asking  for   an injunction.   If, on the contrary, the State  Government  be bound by the declaration asked for (if granted by the Court) as is pleaded by the appellants, then the effect would be to restrain  the  State Government from exercising  its  powers under s. 3(1) of the Act.  If that be the true nature of the reliefs asked for by the appellants, s. 4 would  undoubtedly apply  and  the entertainment of the suit  would  be  barred under that section.  Learned counsel for the  319 respondents  suggested  an alternative  submission  for  our consideration.  He attempted to construe s. 4 in such a  way as  would,  in  his view, bar even a  suit  for  declaration against the State Government.  This construction  introduced into the section a number of words which do not occur  there and  dissected  ’the section in a way not warranted  by  the plain  words used therein.  We have come to  the  conclusion that the somewhat novel reconstruction of s. 4 attempted  by learned counsel for the respondent-State does not merit  any further examination and we prefer to rest our decision as to the  second point on the finding concurrently arrived at  by the courts below. As to the third point, it may be disposed of on a very short ground.   The  High Court has rightly pointed out  that  the order  dated February 15, 1952, (Ex.  B-1) was based on  the communication  of the Board of Revenue dated April  8,  1950 (Ex.   B-10)  and that communication states  clearly  enough that Government was advised that it could take action  under s.  3  (1)  of the Act.  Obviously., therefore,  it  is  not correct  to say that Government did not purport to  exercise its  powers  under s. 3(1) as the order (Ex.  B-1)  did  not mention  it.  If the entire proceeding is considered, it  is clear that Government was purporting to act under the powers given to it by s. 3 (1). Rule  5 of the Madras Irrigation Tanks (Improvement)  Rules, 1950 states:               "’A  notice  specifying  the  nature  of   the               improvement to be effected under section 3 and               the  probable cost thereof, according  to  the               technical  plan  and estimate, shall,  in  all               cases,  be polished or caused to be  published               by the Collector of the district.  The  notice                             shall be in form B. Such publication shall be- -               (1)   in the District Gazette;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

             320               (2)   by affixture at the site of the proposed               work;               (3)   by  affixture in the village Chavadi  in               the village or villages where the lands  under               ayacut  of the tank and the lands proposed  to               be benefitted under the work are situated; and               (4)   by  beat of tom-tom in the said  village               or villages." The argument based on this rule is that the notice  required by it in not having been published, it must be held that the State  Government.  did  not  purport to  act  under  s.  3; secondly,  the  rule being mandatory in nature,  failure  to publish the notice as required by the, rule invalidates  the order of the State Government dated February 15, 1952,  (Ex. B-1).   We  are  unable  to  accept  either  of  these   two contentions as correct.  We have already pointed out earlier that  Ex.  B-10 on which Ex.  B-1 is based, shows  that  the State Government was proposing to exercise its powers  under s.  3  (1) and asked the Board of Revenue "to  get  suitable rules  and  regulations  made."  Secondly,  the  High  Court rightly  pointed out that the proposed action had  not  been taken  when  the appellants filed their suit and  there  was still  time for the State Government to publish  the  notice under r. 5. In this view of the matter, it is unnecessary to determine  at this stage whether r.5 is mandatory or  merely directory,  and we do not think that non-publication of  the notice  in  the circumstances can stand in the  way  of  the application of s. 4 of the Act. As  to the fourth and last point, it is sufficient to  point out  that the validity of s. 3(1) was not challenged in  any of  the  courts  below and in an appeal  by  special  leave, counsel for the appellants cannot be allowed to take a point which was not urged before. 321 For  the reasons given above, we would dismiss  this  appeal with costs.  We may, however, point out that Narasimham, J., in  the  course  of  his  judgment  made  some  observations regarding  the merits of the claim of the  appellants  which were  not  justified  and may prejudice  the  appellants  in subsequent proceedings.  The learned judge said that it  was not  correct  to  say  that  the  appellants  would   suffer diminution  of  water-supply  by  reason  of  the   proposed alterations in the Chennur anicut; and furthermore that  the proposed measures would augment the supply of water to  both Chennur  ryots and Gudur ryots.  Perhaps, the learned  judge forgot that he was not dealing with the case on merits.  The only   point  before  him  was  whether  s.  4  barred   the entertainment  of the suit.  We must therefore say that  the learned  Judge’s observations on the merits of the claim  of either   party   were  premature  and  not   necessary   for determination of the only issue which was before the court. Appeal dismissed. 322