The Malabar Irrigation Works (Construction & Levy of Cess) Act, 1947 Complete Act - Bare Act

An Act to provide for the construction of irrigation works and the levy of water-cess by the Government in the District of Malabar

Whereas the Government propose to undertake the construction of large and important irrigation works in the District of Malabar;

And Whereas the Government should have power to construct irrigation works and regulate the supply of water therefrom notwithstanding that such construction or regulation may interfere with private rights in watercourses;

And Whereas it is also necessary that payment of water-cess should be made obligatory in respect of lands the irrigation of which is permitted under this Act, whether water is actually taken for the cultivation of such lands, or not

It is hereby enacted as follows:-

(1) This Act may be called the Malabar Irrigation Works (Construction and Levy of Cess) Act, 1947.

(2) It extends to the whole of the district of Malabar.

(3) It shall come into force on such date as the Government may, by notification in the Fort St. George Gazette, appoint.

In this Act unless there is anything repugnant in the subject or context -

[Inserted by Act 7 of 1980 and again by Act 16/2000.] [(a) "Collector" means the Secretary as defined in clause (XL) of section 2 of the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in clause (43) of section 2 of the Kerala Municipality Act, 1994 (20 of 1994)];

(aa) "cultivator" means a person who cultivates lands solely by his own labour, or with the help of the labour of the members of his tarward or family or of hired labourers or of both;

[Inserted by Act 7 of 1980.] [(b) "district council" means the district council constituted under section 3. of the Kerala District Administration Act, 1979];

[Inserted by Act 7 of 1980.] (bb) "Government" means the *[State] Government;]

(c) Irrigation work includes-

(i) all canals, channels and reservoirs constructed, maintained or controlled by the Government for the supply or storage of water for purposes of irrigation;

(ii) all dams, embankments, weirs, sluices, groins and other works connected with such canals, channels and reservoirs;

(iii) all supply, escape or drainage channels connected with such canals, channels and reservoirs;

[Substituted by the Adaptation Order of 1950.] [(cc) "lift irrigation work" means an irrigation work by which water for irrigation purposes is supplied with the aid of pumping sets or other mechanical devices]

[Inserted by Act 16 of 2000.] [(d) "Municipality" means a Municipality constituted under section 4 of the Kerala Municipality Act, 1994 (20 of 1994);]

[Inserted by Act 16 of 2000.] [(da) "Panchayat" means a Panchayat constituted under section 4 of the Kerala Panchayat Raj Act, 1994 (13 of 1994)]

[Relettered by ibid.] [(db) "permit" means a permit issued under this Act;

(e) "prescribed" means prescribed by rules made under this Act;

(f) "watercourse" means a river, stream, natural channel, lake or natural collection of water and includes any tributary or branch of any river, stream or channel.

[Inserted by Act 16 of 2000.] [The powers conferred on the Government under this Act except the powers under sections 7 and 20 shall, subject to such conditions and restrictions as may be prescribed, be exercised by Panchayat or the Municipality or such other authority or officer as it may authorise, in respect of irrigation works other than major projects].

It shall be lawful for the Government on any land belonging to them or acquired by them for the purpose, to construct an irrigation work of any kind, for utilising the water in any watercourse for the purpose of irrigation, notwithstanding that such construction may interfere with the right of any persons or persons to take water from such watercourse for the purpose of irrigating his or their lands, or for any other purpose.

All lands required for the construction of an irrigation work shall be acquired in accordance with the provisions of the Land Acquisition Act, 1894, subject to the following modifications:-(l) It shall be open to the Government to make and publish a declaration under section 6 of the said Act without following the procedure laid down in section 4 (1) and 5-A of that Act, 1[in which case, references in that Act to the date of publication of the notification under section 4(1) thereof shall be construed as references to the date of the publication of the declaration under section 6 thereof]. (2) On the publication of a declaration under clause (1), it shall be lawful for any officer either generally or specially authorised by the Government in this behalf and for his servants and workmen, to do all or any of the acts specified in section 4 (2) of the said Act. (3) If any land acquired is or forms part of the bed of a watercourse, the compensation to be awarded for such land under the said Act shall exceed the value of an equivalent extent of land on either bank adjoining the land acquired and situated within such limits as may be prescribed.

Explanation:- For the purpose of this clause, the expression "land on either bank" shall not include land covered by buildings or structures.

(1) Notwithstanding any law, custom or usage to the contrary, whenever the Government construct an irrigation work for utilizing the water in a watercourse-

(i) all the water in such watercourse and all tributaries and branches thereof shall become the property of the Government and the Government shall be entitled to utilize and distribute such water in any manner they think fit;

(ii) it shall be lawful for the Government to lead the water for the purpose of irrigation through such watercourse or through any other watercourse with which it is or may be connected, although the bed of either watercourse may not belong to them;

(iii) no person shall, without the sanction of the District Collector or any officer authorised by him in that behalf, do anything which obstructs or interferes or is likely to obstruct or interfere with the flow of water in such watercourse or any other water course with which it is or may be connected;

(iv) no person shall, except in accordance with the provisions of this Act, take water for the purpose of irrigation from any such watercourse or any other watercourse with which it is or may be connected.

(2) The provisions of sub-section (1) shall also apply to any water course utilized by the Government for leading water for purposes of irrigation from a tank constructed by them.

(1) Any person who, by reason of the construction of an irrigation work in exercise of the powers conferred on the Government by or under this Act, is deprived of the right which he had of taking water from a watercourse for the purpose of irrigation his land or any other purpose, or suffers materials diminution in the supply of water which he has been accustomed to get for any such purpose, shall be entitled to compensation for such deprivation or diminution, as the case may be.

(2) The compensation payable under sub-section (1) shall be assessed.

(i) in case water was being used for the purpose of irrigating a land, at fifteen times the reduction in the net annual profits of the land caused or likely to be caused by such deprivation or diminution;

(ii) in case water was being used for any other purpose, at twelve times the net annual loss suffered by such deprivation or diminution.

(3) Every claim for compensation shall be preferred in the prescribed form, to such authority, as the Government may direct-

(a) in the case of deprivation of the right referred to in sub-section (1),

within one year from the date on which a notification is published in the District Gazette intimating the completion of the irrigation work;

(b) in the case of diminution in the supply of water, within one year from the date thereof.

(4) Such authority shall place the claim before, or forward it to, the Special Court constituted under section 7.

(5) The Special Court shall inquire into the claim if it finds that compensation is payable, assess the same in accordance with the provisions of sub-section (2). If two or more persons are interested in the amount of the compensation so assessed such amount shall be apportioned in such manner as the Special Court may determine.

(1) The Government shall constitute a Special Court for the disposal of claims for compensation preferred under section 6 and appoint a District Judge as Judge of that Court.

(2) The Judge of the Special Court shall conduct the inquiry with the aid of two assessors appointed by the Government for the purpose, either generally or for any particular case.

(3) One of the assessors shall be an officer of the Revenue Department not below the rank of Deputy Collector and the other shall be an officer of the Public Works Department not below the rank of Executive Engineer.

(4) The assessors appointed under sub-section (2) shall attend through out the inquiry. At the conclusion of the inquiry, the Judge shall ascertain and record the opinions of the assessors. He shall after taking into consideration the opinions of the assessors pronounce his decision, but he shall not be bound by their opinions.

(5) If, in the course of the inquiry with the aid of assessors, any assessor is prevented from attending the inquiry or absents himself and it is not practicable to secure his attendance, the inquiry shall proceed with the aid of the remaining assessor. If both the assessors are prevented from attending or absent themselves, the inquiry shall be held with the aid of fresh assessors appointed by the Government.

(1) The Special Court, shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters:-

(i) enforcing the attendance of any person and examining him on oath

(ii) compelling the production of documents; and

(iii) issuing commissions for the examination of witnesses.

(2) The special Court shall also have such further powers as may be prescribed.

(3) Every inquiry by the Special Court shall be deemed to be judicial proceeding within the meaning of section 193 and 228 of the Indian Penal Code.

(1) From every decision of the Special Court as regards the amount of compensation or its apportionment, an appeal shall lie to the High Court.

(2) Subject to the decision of the High Court in cases in which an appeal is preferred under sub-section (1), the decision of the Special Court shall be final and shall not be liable to be questioned in any Court of law.

(1) Permits shall be issued in respect of all lands the irrigation of which is allowed by or under the orders of the Government from any irrigation work.

(2) Every such permit shall be issued by such authority and shall be in such form and subject to such condition, as may be prescribed; in particular the permit shall specify the period in every fasli during which the land may be irrigated and the source from which water may be taken or irrigation thereof:

Provided that where the Government, by notification in the District Gazette so direct, a permit shall not be issued under this sub-section in respect of any land after the date fixed in that behalf in the notification, except on payment of such fee, by such authority, and on such terms, as may be specified therein.

(3) Every permit shall be served on, or tendered to, the cultivator of the land in respect of which it is issued, in such manner as may be prescribed.

(4) The cultivator may, within two months from the date of service or tender of the permit, apply to the Revenue Divisional Officer for the cancellation or modification of the permit on the ground that it is not advantageous for him , to use the water for irrigating his land or any specified portion thereof. The Revenue Divisional Officer may, after such inquiry as he thinks fit, by order in writing, cancel or modify or refuse to cancel or modify the permit.

(5) Against any order of the Revenue Divisional Officer under sub-section (4), the cultivator may, within two months from the date on which the order is served on, or tendered to him, appeal to the District Collector who shall, after giving him an opportunity of being heard, pass such order on the appeal as he thinks fit.

(6) The cultivator shall not be entitled to call in question the permit issued to him except in the manner provided for in sub-section (4) or subsection (5).

(7) Any authority empowered by the Government in this behalf may, at any time, for reasons to be recorded in writing, by order, cancel or modify the permit.

(8) Every permit issued under sub-section (1), with such modifications, if any, as may be made therein under the foregoing provisions, shall remain in force until it is cancelled under this section and be binding on the cultivator for the time being of the land.

The grant of a permit shall not confer any enforceable right against the Government and they may, if circumstances so require, cut off or reduce the supply of water or restrict the extent of the land which may be irrigated with such water.

It shall be lawful for the Government to levy every fasli, water-cess on all lands in respect of which a permit has been issued under this Act and is in force, in accordance with such conditions and at such rates as may be prescribed, whether the lands, are actually irrigated from the irrigation work or not.

The water cess payable by any person under this Act shall be first charge upon his interest in the land and the crops raised thereon.

[Inserted and substituted by Act XXXIII of 1951.] [Save as provided in the Malabar Tenancy Act, 1929] any increase in the yield of the land or in the extent of land cultivated by reason of the supply of water from any irrigation work 1[shall not (i) entitle a landlord as defined in that Act to claim any enhancement of the rent payable to him or (ii) be taken into account] in determining "fair rent" under that Act.

Where any water is taken or used otherwise than under and in accordance with the conditions of a permit in force issued under this Act, the Government may levy water -cess under the Madras Irrigation Cess Act, 1865.

The Government shall have power to prohibit or regulate by licences or otherwise, navigation in any water course to which section 5 applies.

[Inserted and substituted by Act XXXIII of 1951.] [(1) Notwithstanding anything contained in this Act, the State Government may entrust the maintenance of any lift irrigation work constructed by them to co-operative societies of farmers benefited by such work, subject to such terms and conditions as may be prescribed.

Explanation:- For the purposes of this section, 'co-operative society' means a co-operative society registered or deemed to be registered under the Kerala Cooperative Societies Act, 1969 (21 of 1969).

(2) Where the maintenance of any lift irrigation work is entrusted to a co-operative society under section (1), the State Government may authorise the collection by such society of the water cess levied under section 12 or section 15 in relation to such irrigation work, or any portion of such water-cess, subject to such terms and conditions as may be prescribed].

(1) Any officer of the Revenue Department not below the rank of Revenue Inspector or of the Public Works Department not below the rank of Supervisor may, with or without assistants or workmen, enter upon any land in order to make any inspection, test, examination, survey or measurement for the purpose of executing any work in connection with the construction or maintenance of an irrigation work.

(2) In case of any damage to an irrigation work due to accident or other

wise or in case of apprehended danger to any work, any officer aforesaid may, with or without assistants or workmen, enter upon any land adjacent to such work and execute works necessary for the purpose of repairing such damage or the prevention of danger to the irrigation work.

(3) In every case in which action is taken under this section, the officer aforesaid shall tender compensation to the proprietors or occupiers of the lands concerned for ali damage done to the same. If such tender is not accepted, the officer shall refer the matter to the District Collector who shall proceed to award compensation for the damage as though* the Government had directed the temporary occupation of the lands under section 35 of the Land Acquisition Act, 1894.

(1) Whoever does any act in contravention of clause (iii) of sub-section (1) of section 5 or that clause read with sub-section (2) of that section shall be published with imprisonment which may extend to six months or with fine which may extend to one thousand rupees or with both.

(2) Whoever contravenes an order of the Government prohibiting navigation in a watercourse or does not any act in contravention of a rule regulating navigation in a watercourse shall be punished with fine which may extend to one hundred rupees.

(1) No suit or other legal proceeding shall lie against the Government, at the instance of any person-

(a) in respect of any act done or purporting to be done under this Act, or

(b) on the ground that an irrigation work interferes or is likely to interfere with his rights in any manner:

Provided that the liability of any person to pay water-cess under this Act may be questioned in a Civil Court on the ground that he is not the cultivator of the land in respect of which the cess has been levied.

(2) No suit, prosecution or other legal proceeding shall lie against any officer or servant of the Government for anything which is in good faith done or intended to be done in pursuance of this Act or any rule made thereunder.

(1) The Government may by, notification in the Fort St. George Gazette, make rules to carry into effect the provisions of this Act.

(2) In particular and without prejudice to the generality of the foregoing provision, such rules may provide for-

(a) any matter required or allowed by this Act to be prescribed;

(b) regulating the practice and procedure of the Special Court;

(c) regulating the navigation in watercourse, the grant of licences for navigation and the levy of fees therefor.

(d) the fees to be paid on applications under this Act.

(3) All such rules shall be laid before both [Inserted by Act 3 of 1978.] [Houses] of the [Inserted by Act 3 of 1978.] [State] Legislature.