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 TVR Tatachari for the appellants
ARanganadham Chetty and P D Menon for the respondent No 1 1962
September 26
SK DAs
J This is an appeal by special leave and the short question for decision is the true scope and effect of section 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 section 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 No 22411 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 GO No 22411 dated October 16 1935 and the matter was further investigated by Government
Finally GO 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 exhibit 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 defendant State respondent before us took the plea that section 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  1The provisions of section 3 1 of the Act are restricted to effecting improvements to a tank as defined in s2 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 section 3 1 and therefore section 4 does not bar the entertainment of the suit of the appellants
2On any view section 4 bars the entertainment of a suit for the issue of an injunction to restrain the exercise of powers conferred on the Government by section 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 section 4 is no bar
3The State Government did not purport to act under section 3 1 when they passed G O Ms 53 F and A FP 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 section 3 1 therefore section 4 does not apply
4Section 3 1 is ultra vires the Constitution and section 4 must fall within s3
We shall now proceed to consider these points one by one
Earlier in this judgment we have read section 4 of the Act
That section is closely connected 314 with sub section
1 of s_3 and we may now set out that sub section
section 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 2d of the Act defines a tank to mean an irrigation tank in the State of Madras
Then come ss3 and 4 which we have already quoted
Section 5 deals with the payment of compensation where in consequence of anything done in pursuance of section 3 the owner of any land or property 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 s5
Section 6 provides for an appeal against the Order of the Collector under section 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 section 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 section 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 section 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 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 section
1 of section 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 section 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 section 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 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 section 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 section 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 section 4 to entertain a suit of this nature
Under section 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 section 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 section 31 of the Act
If that be the true nature of the reliefs asked for by the appellants section 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 section 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 section 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 exhibit B 1 was based on the communication of the Board of Revenue dated April 8 1950 exhibit B 10 and that communication states clearly enough that Government was advised that it could take action under section 3 1 of the Act
Obviously therefore it is not correct to say that Government did not purport to exercise its powers under section 31 as the order exhibit 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 section 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 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 section 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 exhibit B 1
We are unable to accept either of these two contentions as correct
We have already pointed out earlier that exhibit B 10 on which exhibit B 1 is based shows that the State Government was proposing to exercise its powers under section 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 r5 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 section 4 of the Act
As to the fourth and last point it is sufficient to point out that the validity of section 31 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 section 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


Summary:
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 section 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 section 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 section 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 section 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 section 3
It is clear that the action proposed to be taken by Govern ment was under the powers given under s3
The mere fact 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 section 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