Custom as Natural: Land,Water and Law in Colonial Madras

Historiographical Developments

Irrigation in colonial India has been subject to many studies and debates. Scholars such as Elizabeth Whitcombe and Ian Stone debated whether colonial policies on irrigation had been beneficial or detrimental to society. ⁵ Others have focused on specific regional circumstances. The canal colonies of Punjab, for instance, and its promising beginnings but ultimately disappointing ends have been catalogued by many scholars. ⁶ In South India, different regions, such as Tinnvelly and Nanchilnadu, have been examined in detail to understand the impacts of colonialism on agricultural life, including irrigation setups. ⁷ Scholarship over the decades has taken a theoretical turn by bringing the question of the environment into problems of agrarian ideas, policies and practices. ⁸ Working with this frame, it has been suggested that environmental histories cannot be separated from agrarian concerns. ⁹ K. Sivaramakrishnan and Arun Agrawal term such spaces which bring together forests, rivers and agrarian fields as ‘Agrarian Environments’. ¹⁰ More recently, Rohan D’Souza has argued that exploring a specifically ‘colonial hydrology’, or the ways in which the colonial state seeks to intervene in issues of water control, might be a productive frontier of future scholarship. ¹¹ In a related vein, Nitin Sinha has characterized specific kinds of lands in the Bengal Presidency, namely the ‘char’ lands, which appeared from the river bed for cultivation only for a period of time in a calendar year as ‘fluvial’ environments. ¹² In Madras, rivers did not throw up lands for cultivation in such spectacular fashion as the ‘chars’ of Bengal. ¹³ With such theoretical advances, it has been established that rivers and their water can seldom be separated from agrarian questions.

To the aforementioned mix, this article seeks to introduce the idea of custom, which has been examined by an entirely different body of literature largely concerned with colonial knowledge production and property relations. Custom, it has often been argued, emerged as a construct of historical human practice. In various parts of the colonial world, weaker sections of society have used the claim of customary practice to check the indiscriminate powers of colonial governments. ¹⁴ In Punjab, custom was formulated as a changing, liminal and fluctuating category created through ethnographic encounters between the colonial officials and natives. ¹⁵ In Bengal, as Andrew Sartori shows, custom emerged as a part of the rationale of political economy rather than its antithesis. ¹⁶ As a counterclaim, colonial governments often cited customary practice as a means to impose forced labour and unequal gender relations in different parts of the colonial world, including British India. ¹⁷ What does it then mean to understand the ‘natural’ as part of defining customary practice? Can customary practice have an inherent environmental physicality attached to it? Can historiography of land and water as environmental questions be linked with that of custom? Lands might have been relatively more stable in Madras as compared to char lands in Bengal but nevertheless interpretations of land and water as property by the state, landholders and courts rendered new meanings to the idea of customary property. Indeed, while contestation between zamindars and the state was central to interpreting what custom was, the legal text took on a life beyond the claims made by zamindars of Madras. That is, as this article argues, by following the life of the Irrigation Cess Act of Madras, customary property emerged in Madras as a historically reified product of the ‘natural’.

The Context

Post the 1840s, the Madras government, noting the decrepit condition of channels, canals, tanks and other works that allowed the drawing and storage of water for agriculture, began a sustained programme of commissioning river improvement works. ¹⁸ River systems across the Presidency were surveyed by government officers and engineers, and efforts to desilt older channels and construct new canal systems were undertaken enthusiastically. ¹⁹ As a result of such efforts, the major rivers in the Presidency, namely the Cauvery, Godavari and Kistna, and their hydraulic mechanisms were substantially transformed between 1840 and 1860. ²⁰ To supervize and coordinate these improvement works, the first ‘Public Works’ Department in British India was setup in 1852 in Madras. ²¹ Such endeavours, the colonial state calculated, would improve agricultural productivity, strengthen the revenue extraction mechanism and directly contribute to increasing monetary amounts desired by the state.

Located within the broader paradigm of effecting agricultural expansion and improvement to increase revenue returns, discussions with respect to invigorating a regime of colonial water rights and control emerged around three axes in the 1850s. The first was to legally compel landed proprietors to contribute monetarily to the construction and upkeep of public works in the Presidency. The second was to revive and revitalize what the colonial government believed was an ancient practice—Kudimaramat, or the rendering of compulsory free labour by ryots and individual small proprietors for repair of embankments, drainage works and other repairs pertaining to water. ²² The third was to levy a fee for usage of water resulting from improvement works. While in all cases the Madras government, as is evident through its own internal discussions, felt certain compulsions and obligations between the ideological rule of government and practical conditions of governance, it is the third question of water cess that this article foregrounds.

As early as 1851, concurrent to such river improvement works, it was felt that the government might start charging a fee for water separate to that of land revenue. ²³ While this matter of levying a fee on water use began as a discussion on the protection of private property, the government quickly realized that the scale of their investments in cutting channels and remodelling anicuts would need substantive returns. In other words, the Madras government, in return for its investment in channelling water to agrarian fields, wanted a return separate of merely land revenue. In conclusion, the state wished to assert its proprietary rights over water, especially with reference to specific benefits from river improvement works, which it had undertaken. ²⁴

The idea to create a stream of revenue from the waters of the Madras Presidency was furthered by a directive from the Court of Directors to the Madras Government in 1854. ²⁵ In a letter to the Madras government, the Court outlined a radical separation of water from land as far as revenue was concerned. At the time of this suggestion, water and land were taxed together in Madras. That is, a single assessment was levied upon a field on the produce depending upon its soil category, either ‘wet’ or ‘dry’. The suggestion from the Court of Directors was to declare all lands of the Presidency as ‘dry’, then determine how much water they use in a given year, and subsequently levy a universal tax on the water as separate from land revenue. ²⁶ If carried through, this proposition, for all practical purposes, would have mandated all the waters of the Presidency as belonging to the government.

From the 1850s onwards, there was a concerted effort across British India to try and codify water laws to make water taxable. There was no law which dictated riparian and water rights across British India. Partially, this was in deference to the ecological and proprietary settings of various regions, which differed and therefore required separate treatment. Nevertheless, in the second half of the nineteenth century, a broad push towards formalizing water rights within law was promulgated. The earliest efforts were in the Bengal Presidency with the enacting of The Bengal Alluvion and Diluvion Act of 1847. ²⁷ This law evoked a fair amount of controversy and contradictions between a colonial legal regime, courts and the bureaucracy. ²⁸ With Lord Dalhousie establishing the first central Public Works Department in 1855 and Richard Strachey being appointed the first commissioner of irrigation, it was obvious that the economic potentiality of the river was being explored in new ways. ²⁹ The Northern India Canal and Drainage Act of 1873 was precisely aimed at fortifying the state’s new role in spearheading investment in irrigation. The Act was remarkable to the extent that it declared that all the waters the property of the state. The Act introduced the state as an active allocator of water in the most ‘rational’ and ‘productive’ manner, whereby any private claim to water could be superseded by invoking the idea of public purpose. ³⁰

The Madras government assessed its situation differently from North India. Arguing that it had not adequately developed its hydraulic resources to the extent of areas like the North Western Frontier, the government wished to adopt a more limited approach. ³¹ The Madras government argued that the province was environmentally uneven. Contending that imposing a universal water rate would in fact force the government to keep this rate artificially low, the Board of Revenue in Madras suggested that the province must adopt differential water rates for different regions and landscapes. ³² It stated that it would persist with the land categories of ‘wet’ and ‘dry’, which would largely allow cultivators on wet lands to continue cultivating without paying separately for water, as ‘wet’ lands were mostly rain-fed fields. ³³ It was the ‘dry’ lands of Madras that would come under scrutiny, as it was these lands whose yields would improve most with the construction of irrigation works such as channels, weirs and sluices and eventually dams leading water from the source to the destination. ³⁴ Thus, paying heed to its own political and economic conditions, the Madras government enacted the Irrigation Cess Act of Madras or Act VII of 1865.

The Irrigation Cess Act of 1865 then stopped well short of unilaterally declaring all water in the Presidency as the property of the government. Specifically, it also sought to honour settlement agreements with landholders of various categories, allowing the usage of water already agreed to in previous settlements and charging water rates only on the basis of new improvement works constructed. Under the new law, a zamindar, inamdar and mirasidar would have a right to water according to the settlement the colonial government had made with that particular landholder at various points from the late eighteenth to the mid-nineteenth century. Second, while the Act allowed for the levy of a water cess, it refused to impose a blanket rate for all the use of water made available through government-constructed improvement works in the Presidency. Instead, collectors could issue rules for every particular anicut, under which the water rates would be fixed.

However, throughout the second half of the nineteenth century, a range of commentators were dissatisfied with the state of irrigation laws in Madras. It was repeatedly emphasized by these observers, officials and otherwise, that the Madras government had failed to enact a strong enough law which lays out the government’s rights and duties over the waterbodies of the Presidency. After the devastating famines of the 1870s, a committee appointed to look into mitigating such effects lamented the government’s lack of control over water resources as a major causal factor. ³⁵ It singled out the inability of the government to enact improvement works and repairs on tanks, weirs and channels in the lands of the zamindars and made these landed proprietors pay for such works as a causal factor for famine. ³⁶ Furthermore, as river channels did not observe administrative or legal boundaries, the lack of repairs performed on zamindari land could adversely affect government villages. Given certain proprietary and hereditary rights on water, zamindars often abused their privileges, overdrawing water and blocking off passages to villages outside their lands. ³⁷ Invoking laws it claimed were comprehensive in Bengal and the North West, and the Famine Commission argued that the waters of the Presidency must be seen as an organic whole and legislated upon as such.

The views of the Famine Commission were echoed by the triennial Irrigation Commission at the turn of the century. Once again, it was the zamindari regions which were pinpointed as problematic areas requiring legislation. The Irrigation Commission pointed out that the vast programme of public works the government had undertaken had not merely extended cultivation (for which a fee could be levied under the Irrigation Cess Act) but also made existing supplies of water more assured and secure. ³⁸ Why could the government not charge for a more reliable and dependable supply of water, it asked. More fundamentally, the present law lacked teeth, as it failed to lay out the rights and responsibilities of government in water control. The multiple qualifications which existed in the Act left officers of the Public Works Department open to a plethora of legal suites on account of a maze of agreements pertaining to existing rights and settlements with the government. ³⁹ It was not only official commentators who had identified problems with the current state of legislation. K.V Naidu, a distinguished lawyer in Madras at the time, commented that under the provisions of the Act of 1865, the government was reduced time and again in court to being ‘a mere riparian proprietor under the English law’, as opposed to a central managerial authority. ⁴⁰

One may also recall the government’s earlier dilemmas of interfering with private property in the province. Two strands—forms of liberty and those of customary ownership in land and water—needed to be reconciled. The protection of private property, the government believed, was the duty of the state and a condition to improve land. Second, beginning in the second half of the nineteenth century, influenced by Henry Maine, British colonial governments across the empire began to venerate the Indian village community and its patronage networks as an ideal system of property management. ⁴¹ It was felt that irrigation law that grants the government unilateral control over water resources would interfere in the customary rules, laws and regulations in the extant revenue system, on which the British themselves had come to depend in order to extract revenue. ⁴² The government in Madras and its members were caught between intent and possibility. While there was recognition among a cross section of officialdom for stronger legislation on water rights, this was at cross-purposes with maintaining harmonious relations with landowners and the state protecting private property as sacrosanct. ⁴³

Politics of Irrigation Law

Failure to pass a more comprehensive law was not on an account of a lack of effort on the part of the Madras government. The government, taking into account these various criticisms of the present state of the Irrigation Cess Act, attempted to draft a bill, which would comprehensively set out its rights over water in the Presidency. ⁴⁴ The bill was further amended to a minor effect in 1900, redrafted and discussed in the Legislative Council (LC) in the years 1915, 1924, 1926, 1930 and 1938, and yet none of the bills moved were able to pass and were instead deferred to a hazy future. ⁴⁵ However, repeated failure did not deter the government, which persisted with introducing the Irrigation Bill in various forms in the LC. ⁴⁶

Why was the state unable to pass a more comprehensive bill? The backbone of the colonial system of governance in Madras rested on tacit agreements with large zamindars and smaller landholders, who were known as mirasidars or inamdars. These local landlords occupied power, influence and the capability to disrupt flows of revenue and political stability, which they often resorted to in order to have their politico-economic demands met. ⁴⁷ The colonial state through the nineteenth century and into the first half of the twentieth century was dependent on the zamindari population for a large segment of total land revenue. ⁴⁸ In the early twentieth century, it was zamindars and the landed population themselves who began occupying positions of power in the state. With political reforms aimed at the devolution of administrative functions to Indians enacted in 1909, a new arena emerged for a language of rights and claims by the landed class to be heard. All legislation now needed to pass through the LC before being ratified as law by the governor of the province. ⁴⁹ It is no surprise then that powerful landed interests confronted the colonial state in its attempts to appropriate further powers to tax water use in the Presidency. ⁵⁰ Politics therefore was a major hurdle to the colonial state of Madras in its attempts to enact comprehensive irrigation legislation.

Discussions around amending the Irrigation Cess Act of 1865 in the early twentieth century in the LC are instructive of the influence of landed interests. In 1910, the reason cited to abandon amending the bill was that the definition of what constitutes a ‘government source’ of water was too encompassing. ⁵¹ As a Salem-based newspaper Bhavani put it, the government had appropriated too many powers, infringing upon age-old water rights and customs, and had shirked the matter of defining its responsibility in maintaining old works and constructing new ones. ⁵² A little later, in 1915, during one among the many times when the government sought to amend the law in the LC, a range of objections were raised. The stage was set even before the bill could be introduced into the LC, with one member subtly suggesting that it be deferred until a ‘convenient date after the war’, as the government needed the backing of the agrarian classes. ⁵³ Rao Bahadur B. Narasimheswara, lawyer, theosophist and member of the Council, in moving for postponement of the bill, put forward in a few short words the paradoxical nature of the irrigation law problem in the Presidency. Identifying himself with a socialist outlook, Narasimheswara recognized the need for redistribution of water rights but argued that this would result in strong protests by those who would be forced to make additional payments, that is, the zamindars and mirasidars of the Presidency. ⁵⁴ Further, most of the non-official members of the Council picked up on the aspect of timing at this instance. Supporting Narasimheswara’s motion, K.R.V. Krishna Rao informed the government that people in the Godavari and Krishna delta tracts were holding meetings against the bill, as agriculturalists held their land rights dearly. ⁵⁵ Rao then offered the government a patchwork of reasons as to why it is unwise to take up the bill for discussion at the present moment. He claimed that while the bill had been translated into Telugu and circulated widely, he was unsure if the Tamil translation had reached its intended recipients. Additionally, Rao questioned the government on whether the bill had received comments and criticisms from eminent judges and lawyers in the Presidency. ⁵⁶ Taking into account the nature of discussions in the LC even prior to the bill being moved, the Madras Weekly Mail claimed that such uncertainty was fostering discord against the government. ⁵⁷ It quoted a member of the Madras government, A.G. Cardew, who admitted that this situation had created ‘grave misconceptions over the bill’, which would only grow if not addressed immediately. ⁵⁸ Cardew in effect had admitted defeat over perception around the law, that is, that the government would usurp water rights of the landed classes at a time when the government needed the contributions of landowners towards the war efforts.

In fact, between 1918 and 1920, the government of India had expressed a serious concern with the state of Irrigation Law in the Presidency. Without the ability of the Madras government to enforce water rates, the Government of India was hesitant in handing out loans for large dam projects being planned on the Cauvery and Tungabhadra rivers. ⁵⁹ Unsatisfied with the dithering of the Madras government in passing a bill, the GOI demanded reasons as to why a comprehensive irrigation bill continuously failed to be enacted. In reply to criticisms from the Central government, the Madras government’s revenue member stated its problem quite plainly:

What, however, principally influenced the Government to abandon the Bill was that the threatened opposition was so great that there was little hope of passing the measure and that, if Government had persisted in introducing it, they would have alienated the sympathies of the zamindars without any ultimate benefit to the tax payer at large. Such alienation, it was further considered, was politically undesirable at the time ⁶⁰ .

In the 1920s, a renewed attempt was made to pass an Irrigation Bill in the LC. C.P. Ramaswami Aiyar, a prominent lawyer and statesman in the Presidency who was appointed as the law member to the Madras government in charge of irrigation, spearheaded this effort. ⁶¹ Even before Aiyar introduced the newly drafted Irrigation Bill on the floor of the house, a number of objections were raised, with many prominent zamindars like the Raja of Ramnad absenting themselves from consultations that were being held to arrive at a compromise. ⁶² Aiyar carefully negotiated the terrain of the LC, opting to have multiple select committees screen the proposed bill. These committees suggested major amendments. ⁶³ Aiyar argued that the Madras Presidency was being denied loans for large dam projects from the central government, such as the ones being planned on the Cauvery and Tungabhadra rivers on account of an insufficiently powerful legislation to control the waters of the Presidency. Accusing the legislature of stalling development of large irrigation projects, Aiyar appealed to the Council to pass the present version of the bill, which he believed was a fair compromise following exhaustive consultation. ⁶⁴ Winning the confidence of the LC through extensive dialogue and amendment to the bill, Aiyar was finally able to convince them to vote in favour of the irrigation legislation.

Opposition to the bill now coalesced outside the legislature. It took the form of multiple petitions sent by the landholding class to the new Governor of the Presidency, Lord Goschen. The Madras Landholders Association (MLA) had already fired a warning shot as discussions were ongoing in the LC over the proposed irrigation bill. In a welcome message to the governor in November 1924, the MLA assured the governor of their support to British rule but also reminded him that his predecessor viewed the landholding class as paramount to sustain the British government and political control in India. ⁶⁵ Prominent among the two issues plaguing the landholding class, the letter stated, was the proposed irrigation bill, which they felt would curb their powers over water resources in their respective estates. ⁶⁶ Soon after, in early January 1925, the Raja of Vizhinagaram sent a letter to Governor Goschen regarding the irrigation bill, which the council had recently passed and was awaiting Goschen’s assent. He argued that two sets of clauses, 18 and 20 and 8, 9 and 22, were particularly problematic. According to the Raja, while 18 and 20 prohibited zamindars from constructing improvement works in their lands where it did not affect government-owned improvement works, 8, 9 and 22 taken together implied that government would not merely have control over levying water cess across zamindari lands but also ownership of waterbodies. ⁶⁷ Soon after, Raghunath Rao, the Zamindar of Pudur (Tinnevely district) petitioned Goschen along similar lines, suggesting amendments to clause 8 as the Raja of Vizhinagaram had done and also asking for compensation when the government decided to take over maintenance of tanks or waterbodies in zamindari regions. ⁶⁸ A barrage of individual petitions objecting to the Irrigation Bill then followed from the Maharaja of Jeypore, V. Rama Bhadra Naidu, Zamindar of Dodappanyakannur, the proprietor of Kapileswaram, Raja of Bharaketa and Zamindar Khallikote (Ganjam). The nature of these petitions is notable, as aside from different opening paragraphs, the language of the petitions was a copy of that sent by the Raja of Vizhinagaram. ⁶⁹ Thus, this was not a case of sporadic protests by individual zamindars but a directed and concerted opposition across the Presidency to a bill perceived as threatening to the interests of the landed classes. Under pressure from the class of landholders, Goschen decided to shelve the Irrigation Bill and did not grant his ascent to it.

In short, there was no shortfall in the number of reasons advanced by the zamindari class over the years to elide and evade the problem of water resources in the province, particularly with reference to the Irrigation Cess Act. ⁷⁰ In the nineteenth century, the colonial state faced dilemmas between appropriating water rights for agricultural improvement and protecting the customary rights of zamindars over water bodies in their land. In the early twentieth century, a new language of rights and claims of the landed class came to disrupt what was now a recognized need for the state to exert greater control over water in the Presidency. ⁷¹

Yet, even within Madras, the influence of the zamindars differed in different regions of the Presidency, which was in turn related to the water ecology. In certain regions, such as those lying in the upstream areas, zamindars would take the state to the court frequently or protest and rebel in other ways as they would be required to compromize on the amount of water they could draw from rivers. ⁷² In other regions, the zamindars were simply unable to maintain irrigation works and tanks due to a collapse of internal revenue collection and administration. ⁷³ As the government had pointed out early in the 1850s, the very logic of public irrigation in differing riverine environments pointed to inevitably differentiated rates. Channelling water into fields was not an even process. Across the Presidency, the delta regions were the most fertile areas, where the construction of channel works was most effective and indeed desirable. These lands saw an immediate rise in productivity. On the other hand, the drier tracts of the plains, while experiencing increase in production and agricultural income, did not do so at the level of the delta regions. Innately then, improvement through water control was uneven and produced irregularity. If a landowner or cultivator was not likely to get as much benefit from water as a similar landowner in a different region of the Presidency, water was unlikely to be of similar value. This produced valuation of water differed in various parts of the Presidency, and it depended upon not merely the enhanced productivity of land but also the negotiating (and enforcing) ability of the state to reify its rates in certain spaces.

Life of Law

As previous sections have established, the Irrigation Cess Act was the framework for defining and demarcating the state’s rights in levying water cess. ⁷⁴ Definition wise, waterways of different kinds constituted the property of either an individual, community or the state. However, the law, as many reports, commissions and commentators had affirmed, and as detailed in previous sections, was not comprehensive in its definitions of who controlled water and consequently irrigation facilities in the Presidency. More specifically, it did not unilaterally declare the waters from rivers of the Presidency as the property of the government. The so-called failure, or partial enactment of law, meant that the Irrigation Cess Act took on a life in the courts of Madras and British India that was quite different to the administration’s intentions in passing the Act. Frustrated officials and lawyers often remarked that courts were a gamble. ⁷⁵ Decisions did not always go the way of the colonial government, and colonial law produced its own logic, which officials often viewed with suspicion as antithetical to the aims of the state. One visibly frustrated engineer in the public works department remarked that ‘once the courts take a hand in the matter there is no knowing what curious decisions may be given’. ⁷⁶ From the 1880s onwards, as Christopher Baker has detailed in his monumental study of the Madras countryside, zamindars and inamdars began to realize that they could challenge the water rates and amounts in the courts and often came away with favourable decisions. ⁷⁷ By the end of the century, the sheer amount of litigation pertaining to water rights pending in courts reached monumentally high proportions. ⁷⁸

What kinds of gaps did the present law on irrigation leave? How did it implicate the state in the rights and customs surrounding ownership and use of water? There was, as many contemporaries and historians have noted, one case that stood out in the Madras Presidency which lends insight into this question. Bala Surya Prasada Rao Vs. the Secretary of State for India in Council, better known as the ‘Urlam Case’, weaved its way all the way to the Privy Council and became what might be called a landmark judgement in its finality of decision (as this was the last court of appeal for either party) and establishment of precedent. In what follows, this article will sketch out the details of the case to construct an argument for its importance in Madras.

The Urlam estate lay in the southern regions of the Ganjam District, located in the Northeastern part of the Madras Presidency, where the Eastern ghats or mountainous terrain met the sea. ⁷⁹ Imperial records indicate that the district was difficult to administer, marked by vast forest lands and rebellious zamindars. ⁸⁰ Prior to the Permanent Settlement (PS), the territory occupied by the Urlam estate was not a zamindari as such. In 1801, the government carved out four estates, one of which was the Urlam estate. ⁸¹ Adjoining these lands was the Vamsadhara River and four important channels leading from the river into the Urlam estate, waters which were the lifeblood of agriculture in the region. ⁸²

It was water from the Vamsadhara River and its tributaries which proved a contentious issue over several decades between the state and the proprietors of Urlam. While the proprietors of Urlam alleged that they had paid water cess unfairly and in excess of their liability, the government challenged them on three grounds. First, the government alleged that the proprietors of Urlam had irrigated lands in excess of what had been agreed in the PS. ⁸³ Second, the first crop of a certain section of inam lands, of which, according to the government, the plaintiff was also the inamdar, was not in proportion to the mamul or custom when these lands had been settled. ⁸⁴ And third, the government argued that the second crop on the whole of these inam lands had been irrigated in excess of the settlement. ⁸⁵

While the district court had upheld the government’s claim, the High Court in 1907 reversed this decision. The judgement was challenged in the Privy Court, which confirmed the High Court’s decision, but crucially on a different basis. One of the first issues which the district court sought to settle was the ownership of the Vamsadhara River. If the river itself belonged to the Urlam zamindar, then the proprietors would be allowed free access to waters from channels and sluices and the legal suit could be decided at this point. This was so as the Irrigation Cess Act allowed the government only to levy a cess from a ‘Government source’. The district court argued that since three of the four channels originated outside the Urlam estate, the proprietors and the ryots needed the permission of the government to irrigate from the channels. However, they were free to use the waters of the one channel originating within the Urlam estate itself, thus largely upholding the government’s claim. ⁸⁶ In a rather remarkable judgement, the High Court reversed this interpretation. The court argued that unless a river runs from source to mouth (rather than source alone) through a single owner’s land, the government had the right to levy a water cess on all other kinds of rivers and channels. ⁸⁷ In other words, the government had the express right to levy a water cess in the case of all channels in the Urlam estate.

The question for the High Court however rested not on ownership of the river but on the nature of the zamindar’s settlement and engagement with the colonial state. Owing to a temporal lag between the PS, which was enacted in 1802, the inam settlements (IS) enacted in the 1850s with the many zamindars of the province, and the Irrigation Cess Act enacted in 1865, the government had struggled to correlate the settlements and the legislation. Thus, what constitutes an ‘engagement’ with the colonial state was not defined in the Irrigation Cess Act of 1865 (amended in 1900). Faced with such a gap, the High Court relied on precedence and what it believed was in the general interests of the province. Since the Irrigation Cess Act was not in operation at the time of the PS or IS, the High Court concluded that the settlements and engagements between the government and landholder cannot be explicit but can be implied. ⁸⁸ Second, following from the first provision, it shifted the burden on to the government to show that there was an express agreement with a particular zamindar, limiting the extent to which that zamindar could use waters from channels entering their lands. ⁸⁹ In other words, the onus was not on the zamindar to provide proof of an engagement with the government limiting the use of water but the other way around. On the basis that the government could not produce such evidence, the High Court settled the case in favour of the Urlam zamindari. ⁹⁰

The Madras government, armed with an opinion from the attorney general of the province that not appealing against this decision would spur further litigation against the state, chose to take the case to the Privy Council, also the highest court of appeal in the land. ⁹¹ The Privy Council too began with examining whether the River Vamsadhara belonged to the government or the Urlam zamindar. The Privy Council, after much debate, stuck to the High Court ruling, although not ruling in the same manner. ⁹² While the Council made it clear that the term ‘government water’ was not always connected to the government possessing ‘riparian right’, it argued that this aspect was nevertheless not relevant to the merits of this particular case. ⁹³

The real question lay in whether the engagement between the government and the Urlam zamindar allowed for the use of water to irrigate the lands of the estate. While the Council accepted that the PS constituted an agreement between the government and zamindar, it was once again, like the High Court, befuddled, as there was no particular written measure or a logic of measuring water mentioned in the sanads (title deeds). The government had argued that any additional irrigation based on the quantum of water used beyond that which was performed during the time of the PS would need to come under the ambit of the Irrigation Cess Act and therefore subject to a fee. The Council however disagreed and stated that in the absence of any quantification of water use, the natural features of the irrigation source at the time of the agreement—that is, the size of the channel, sluice or weir—must be the determinant of whether cess can be levied. In other words, the quantum of water and the purpose for which it was used was irrelevant. ⁹⁴ Rather, if the state had altered the dimension of the source of irrigation in terms of the riverine environment to improve the channel, sluice or weir, only then could the proprietor be held to pay additional cess. Based upon this premise of foregrounding the natural environment, the Privy Council awarded the decision to the zamindar with costs and court fees imposed on the government. In this case then, custom was not merely produced on the relationships of proprietary rights established between persons in a community but also took the natural environment as an essential component of determining custom.

The Urlam judgement proved pivotal to both state and zamindar in the years following 1917, when it was enacted. Dredging of canals and desilting of channels by the colonial government, which did not physically alter the nature of the water source, could not now attract a cess charged by the government for additional water use. Many zamindars obtained favourable judgements on account of the unaltered physical nature of canals, waterways, weirs, sluices and ravines. Indeed, the Madras state often decided not to effect improvement and works in many cases for fear that the levy of water cess would not be possible based on the Urlam judgement. ⁹⁵ The decision of the Privy Council was Lockean in one sense and yet evaded that definition. On the one hand, the decision by the Privy Council did recognize that if productivity of landowners increased through government improvements to irrigation facilities, a cess could be charged for that improvement. However, this was not a straightforward relationship. That is, the decision suggested that improvement was defined as transforming the physical features of the apparatus of improvement (such as canals, weirs and sluices), rather than affecting a greater productive output. Most river improvement schemes in the latter half of the nineteenth century were designed to redistribute water from regions where it was in abundance to regions where it was scarce. This implied rearranging of the flows of linked rivers, desilting of rivers and installation of weirs, shutters and gears. None of these processes necessarily implied a change in the physical size of the river but did result in an increase in water flow. According to the Privy Council’s judgement, it was not how much water was used, how long such use prevailed, or what water was used but the very size of the source or physical feature of the source that determined what constituted customary practice.

The law thus became a particular and distinct force in shaping and dividing value of water and land. As this article highlights, the legal regime of delineating exclusive proprietary rights in water in the name of the state faced complications in three different ways. First, there was the internal deliberation within the government as to the question of custom as a mediator to law; second, the question of politics in LCs and outside; and last, a legal opinion by courts that sought to embed the natural as a combined act of contract and custom rather than labour activity, with the intent to improve the productive value of land.

Conclusion

By following the life of the Irrigation Cess Act 1865 in Madras, this article has sought to argue that the complexities of enacting legislation created customary practices of water rights as a historically produced consequence of what the privy court termed ‘natural’. While the Madras government desperately sought to bring in a law appropriating powers of water ownership and distribution to itself, it struggled to do so due to the might of the zamindars in the state. The Irrigation Cess Act of 1865, considered a weak legislation, was then put to test through the courts. In this respect, the Urlam judgement had a significant impact on water law and river improvement. Up until the time individual agreements with the zamindars were executed in the 1850s, and improvement was viewed in terms of increased productivity created by the government. According the Privy Council decision in the Urlam case, however, the physical dimensions of the channel, sluice or river at the time of the agreement would be the measure through which improvement was calculated. This had two implications. First, that any improvements made after the agreements would not merit payment for additional quantities of water used. Second, not every improvement work on a water body necessarily altered the physical dimension of the work. Gears and shutters, for instance, ensured greater temporal regulation of water, letting out water only when crops were ready for them.

The Privy Council ruling in the Urlam case brought together three elements in its definition of custom: history, labour and the natural. Nature, in the court’s interpretation, did not only refer to the natural as an untouched (by humans) spatial category. Rather, the natural came to represent a physical space of a canal, weir or river, which might or might not have been laboured upon. Application of labour on a waterbody however did not constitute sufficient grounds for proprietary rights. ⁹⁶ Rather, what was foregrounded was a historical idea of a natural physicality, embedded at the moment of a contractual agreement between the government and proprietor, not subject to claims made by a labouring force (in this case government) for the improvement of the natural environment.