# r. Lakshminarayan1 &ddy v. 1k State of Andhra Pradesh

- **Citation:** [1963] Supp. 1 S.C.R. 308
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Case number:** Civil Appeal No. 614of1961
- **Bench:** S. K. Das, J. L. Kapur, A. K. Sarkar, M. Hidayatullah, Raghuber Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-lakshminarayan1-ddy-v-1k-state-of-andhra-pradesh-2711
- **Pages:** 14

## Headnote

Civil Procedure-Irrigation tank-ImprOIJing efficiency a/-
Government proposing alteratfons-Suit w restrain Gavernmen~
If barred-Madras Irrigation Tanks (Improvement) Act, 1949
(Mad. XIX of 1949), ss. 3, 4-Madras Irrigation Tanks (Improvement) Rules, 1950, r. 5.
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
Lhennur 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
1 S.C.R. SUPRE:ME COURT REPORTS
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 Government 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 cho.nnels 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 iajunction to restrain the Government
from exercising its powers under s. 3.
It is clear that the action proposed to be taken by Government was under the powers 15iven under s. 3.
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 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.

## Text

1962
Swami Motor Transport (P) Ltd.
v.
Sri
Sankaraswa~
migal Mutt
Subba Rao, J,
1'62
September, 26.
308 SUPREME COURT REPORTS [1963] SUPP.
disposal of the . applications filed by them under s. 9
of the Principal Act could not be granted.
. . In this view
1~ is not necessary to express our
opm1on on the question whether the appellants, by
reason of the specific stipulation in their lease deeds,
would not be entitled to any relief even under the
1955 Act. In the result, the appeals fail and are
dismissed with costs.
One hearing fee.
Appeals dismissed.
Y. LAKSHMINARAYANA REDDY
AND OTHERS
v.
THE STATE OF ANDHRA PRADESH
(S. K. DAS, J. L. KAPUR, A. K. SARKAR,
M. HIDAYATULLAH AND RAGHUBER DAYAL,jj.)
Civil Procedure-Irrigation tank-ImprOIJing efficiency a/-
Government proposing alteratfons-Suit w restrain Gavernmen~
If barred-Madras Irrigation Tanks (Improvement) Act, 1949
(Mad. XIX of 1949), ss. 3, 4-Madras Irrigation Tanks (Improvement) Rules, 1950, r. 5.
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
Lhennur 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
1 S.C.R. SUPRE:ME COURT REPORTS
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 Government 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 cho.nnels 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 iajunction to restrain the Government
from exercising its powers under s. 3.
It is clear that the action proposed to be taken by Government was under the powers 15iven under s. 3.
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 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.
CIVIL APPELLATE juRISDICTION : Civil Appeal
No. 614of1961.
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 application for the issue· of an injunction to restrain
1952
r. Lakshminarayan1
&ddy
v.
1k State of
Andhra Pradesh
Das,J.
1962
r. Lolcsliminarayana
Reddy
v.
The State of
Andhra Pradesh
Das, J.
310 SUPREME COURT REPORTS [1963] SUPP.
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 ryots of several villages whose lands are
irrigated by what is locally known a& 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 "Pumbalcru
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 V enkatagiri river by
having an anicut constructed over the river at a place
called GOl!apalli, 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
1 S.C.R. SUPREME COURT REPORTS
311
and in 1935, the Madras Government passed an order
(G. 0. 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 ll 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. 0. No. 1161 dated May 6, 1939,
but renewed their attempts for getting a larger supply
of water from Venkatagiri river and the appellants
canie 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 stoμes 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
1962
r. Lakshminarayan1
Reddy
v.
The State o.f
Andhra Pradesh
Das, J.
1962
.r. Lakshminarayana
Reddy
v.
The State of
Andhra Pradesh
Das, J,
312 SUPREME COURT 'REPORTS (1963] SUPP.
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 appel-f
Ian ts and certain details were given as to the flow o t
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 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 hciid
in favour of the State. An appeal to thci District
I S.C.R.
SUPREME COURT REPORTS
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 :-
(I) 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
e)fample, raising the height or increasing the width
of the bund, or lengthening the weir, or extending the
bed of the tank; it mafeven extend to improving the
supply channel but does not go any further ; the State
Government in proposing the alterations in the Chennur
anicut are 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 (l); the present suit is not a suit for injunction
and the appellents 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. 0. 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, 1950, the
action proposed to be taken by them cannot come
under s. 3 (l); therefore, s. 4 does not applv.
(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 sect~on is closely connected
1962
r. lakshmina1ayana
Rediy
v.
The State of
Andhra PradtJh
Das, J.
1962
-r. Lakshminarayana
Reddy
v.
The Stal• of
Andhra Pradesh
314 SUPREME COURT REPORTS [1963] SUPP.
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, inamdar~ 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
tLe 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 efficiency 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
O}Vner 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 s.5.
Secti~n 6 provides for
an appeal against the order of the Collector under
s. 5 to the Subordinate Judge's court having Jurisdiction 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.
I s:c.R. SUPREME COURT REPORTS
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 po ver 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 question 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 Cheunur
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 holdingpo\1 er 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. Lrarned counsel for the appellants,
1962
r. Lakshminarayana
Redd1
v.
The State of
Andhra Pradesh
Das, J.
1962
T. Lakshminarayana
Reddy
v.
The S1at of
Andhra Pradesh
Das, J.
316 SUPREME COURT REPORTS [1963] SUPP.
on the other hand, has submitted that the word
'efficiency' read in the context of the definition clause
ins. 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
fulfil 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-s. (I) of s. 3. The
supply channel to tlie 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
1 S.C.R.
SUPREME COURT REPORTS
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 th~
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
gf 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 over-ruled.
In the High Court as also before us, learned
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 authori~ed 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
1962
r. Lak.shminaravana
Reddy
v.
The State of
Andhra Pradesh
Das, J.
1962
Lakshminarayana
Reddy
v.
The State of
Andhra PradtJh
Das, J.
318 SUPREME COURT REPORTS (1963] SUPP.
rightly pointed out that the scope of the two statutes
was different : one dealt with prii•ate irrigatian works
and the other with impravement of irrigatian 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 bys. 8 (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 natu\le. 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
1 S.C.R.
SUPREME COURT REPORTS
319
respondent-State 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 now·! 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 pow~rs 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 published 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;
1962
r. Lakshminara1ana
Reidy
v.
The Stat of
Andhra Pradesh
Das, J.
1962
Lakshminarayana
Reddy
v.
The SJ~tt of
4.ndhra Pradesh
Das, J.
320 SUPREME COURT REPORTS [1963] SUPP.
(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.
I S.C.R. SUPREME COURT REPORTS
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.
190'2
r. Lal11·hminara;u
R,ddy
v,
The Stale of
Andhra PradesN
Das, J.