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6. For the purpose of this decision, the Subordinate Judge found (though this issue was not specifically raised on the pleadings) that the defendant was a riparian proprietor at the north end of the Peranai dam. He hold that there must be a permanent injury and not a prospective one or the suit was premature, that the defendant was entitled to take out the water that he put in 86 miles higher up the stream and lastly that no substantial injury had been proved.

7. It will be convenient to describle briefly the nature of the Vaigai river and the character of the irrigation works carried out by Government. The Vaigai is the chief river in the Madura district and drains the major portion of it. From its mouth, near Ramnad, to the source of its chief tributary, the Suruliyar (called the Vyravanar in its upper reaches), its length is about 200 miles. Nearly midway and on its south bank, lies the town of Madura. Some 20 miles above Madura and 40 miles below the junction of the Vaigai and the Suruliyar was an ancient "anicut" called the "Peranai" or the great dam. It crossed the river obliquely from south to north and was 1,319 feet in length. It conducted the water of the river without a head sluice down an old channel on the north bank called Vadagaran" which irrigated some 4,200 acres of Government land. The dam and channel were maintained by Government. Some 2 1/2 miles below the ' Peranai" was another dam called Chittanai," or the small dam. This is also an ancient work maintained by Government which, by means of a similar channel called the "Thengarai" irrigates a largo acreage on the south bank of the Vaigai.

10. So far we have merely dealt with the methods employed in restoring the 'status quo in the case when a dam has been silted up. A contrivance is also employed for preventing such silting up of the dam. All these river dams are supplied with what are called sand sluices. These are passages for water provided in the dam generally close to the mouth of the channel taking off from it, and capable of being closed at will. The sill level of such a sluice usually indicates the level of the bed of the off-take channel. In times of flood such sluices are opened with the result that the silt that would otherwise accumulate in front of the dam and the channel head is carried down the stream below the dam. The sluice can of course be utilised at other times also if the supply of water is in excess of the needs of the irrigation channel that the darn is intended to supply.

11. So far as the Peranai dam is concerned the conditions were as follows: The old dam was 1,319 feet in length and consisted of two portions with crests of different height and a sand sluice in between. The floor of the sand sluice was 619.19 feet above the mean sea level and the sluice had only three vents 3 1/2 feet square. The portion of the dam south of the sand sluice was 915 feet in length with an average height at the crest of 628.88 or 4.69 feet above the floor of the sand sluice. The portion of the dam north of the sand sluice was 375 feet in length with a height of 624.88 or 5.69 feet above the floor of the sand sluice. The upper portion of the old Vadagarai channel has ceased to exist and its width is disputed. The first plaintiff avers that it was only 20 feet wide. The real width, however, must have been about 40 feet. We may neglect the oral evidence as vague and discrepant. The fact is put beyond reasonable doubt by the following evidence. In 1882 when the Periyar Project was being investigated a plan was prepared. It is exhibit XIX and is drawn to scale. It shows the head of the old channel and the head sluice then proposed but not the one actually constructed. This plan shows that the head of the channel as it then existed was 40 feet wide and at the first bend it was about 70 feet wide. This evidence is corroborated by measurements taken after the commencement of the suit of the width of the channel at a point lower down its course where the "Chakkarai Anicut," a masonry work, still exists.[See the evidence of the defendant's eighth witness and, exhibits LXXI and LXXII] As already stated the old channel had no head sluice. As it was the object of the Periyar Project to divert the Periyar river into the Vaigai and withdraw the water so diverted at the Peranai dam a wider channel was required to carry the increased supply of water. To prevent an excessive supply of water being taken down the wider channel in time of flood (when the Periyar tunnel is of course kept closed to prevent waste) the new channel was provided with a head sluice. As the increased supply of water would naturally bring down more silt the sand sluice had to be enlarged. The old sand sluice was accordingly blocked up and a new sluice opened beyond the northern portion of the dam having 5 vents instead of 3 and with each vent 5 1/2ft. by 6 ft. instead of 3 by of. The sill level of the sand sluice was also lowered it being placed at 616.12 or more than 3 feet lower than the old sluice. As the sill level of the head sluice of the now channel was 617.12 feet the sand sluice was actually 1 foot lower than the bed of the channel at its head.

13. From the foregoing statement it will be observed (1) that the mere raising of the dam could not effect the customary flow of water down the stream provided the dam was not raised to a greater extent than that justified by the deposit of silt (the plaintiffs did not allege that this had been done); (2) that the increased width of the channel did not diminish the flow of water -down the stream at ordinary seasons, for even in the pre-Periyar days the only water that flowed down the stream at such seasons was that which the defendant chose to allow to flow down through the small sand sluice and even this was intercepted by his own Chittanai dam 2 1/2 miles below; and (3) that in consequence of the regulator and head sluice constructed at the head of the new channel, the defendant had provided against the contingency of taking an excessive supply down the new channel in times of flood.