JUDGMENT Chakravartti, J. - The Appellants, who are the Plaintiffs in the suit out of which this appeal arises, impugn a water rate assessed on them in the year 1939 by the Canal Officer of the Province of Bengal, with respect to 14-16 acres of khas land described in the schedule to the plaint. The assessment was made under sec. 79 of the Bengal Irrigation Act, 1876 (Bengal Act III of 1876), on the basis that the Plaintiffs had made unauthorized use of canal water which they had obtained by making cuts and holes in the ail bundhs of neighboring lands, with respect to which leases of canal water had been taken by other persons. The case made by the Plaintiffs in their plaint was that they had not made any cuts or holes, nor had they made any unauthorized use of water, and that in the year concerned, no water was available at all, as it was a peculiarly rainless year. They contended further that, in any event, the assessment under sec. 79 of the Bengal Irrigation Act, 1876, was, on the facts of the case, not warranted by that section. On these pleadings, they asked for a declaration that the assessment in question was illegal and ultra virus of the Province of Bengal and for a permanent injunction restraining the Defendant Province from realizing the amount of the assessment in question. The defence of the Province of Bengal was that the Plaintiffs had been found on due enquiry to have taken canal water without any authority by making cuts and holes in the adjoining ail bundhs. They pleaded accordingly that the assessment was perfectly legal. The rest of the pleas raised in the defence are not material for the purpose of this appeal. 2. The trial Court found that the Plaintiffs had been proved to have made unauthorized use of the canal water. On the question as to whether the Plaintiffs had been identified to have been the persons who made the cuts and the holes, there is, it is true, no express finding, but the Court seems to have thought that even that case had been proved. The Court held further that the water of which unauthorized use has been made was water supplied through a village channel within the meaning of sec. 79 of the Act, and in that view, upheld the assessment made. The Court held further that the water of which unauthorized use has been made was water supplied through a village channel within the meaning of sec. 79 of the Act, and in that view, upheld the assessment made. The area with respect to which the tax had been imposed was, however, reduced by 4.63 acres, and the decree made was one upholding the assessment with respect to 14 16 acres of land. 3. From this decision, there was an appeal by the Plaintiffs, as also a cross-objection by the Province of Bengal. The latter was concerned only with the reduction of area made by the trial Court. The lower Appellate Court found in agreement with the Court of first instance that the Plaintiffs had made use of canal water in an unauthorized manner. With respect to the other question as to whether they had been the persons who had made the cuts and the holes, there was again no express finding, but the implication of what the Court held seems to be that it was the Plaintiffs who had been responsible for the cuts and the holes. As regards the cross-objection, the lower Appellate Court pointed out that one of the witnesses on behalf of the Province of Bengal had stated the area which had benefited from the unauthorized use of the water to have been 18 acres, whereas another witness had stated it to have been only 12 acres. In those circumstances, the lower Appellate Court held that no ground had been made out for interference with the finding of the trial Court with respect to the area. In the result, the lower Appellate Court dismissed both the appeal and the cross-objection. 4. Two points were urged before us by Mr. Sen in support of the appeal by the Plaintiffs. It was contended, in the first place, that the water of which unauthorized use was alleged to have been made, was not water supplied through a village channel within the meaning of sec. 79 of the Bengal Irrigation Act, 1876. It was contended, in the second place, that, in any event, the Province of Bengal having proceeded on the basis that it was the Plaintiffs themselves who had made the cuts and the holes, they could not levy an assessment under sec. 79 of the Bengal Irrigation Act, 1876. It was contended, in the second place, that, in any event, the Province of Bengal having proceeded on the basis that it was the Plaintiffs themselves who had made the cuts and the holes, they could not levy an assessment under sec. 79 of the Act which had no application to a case where the persons responsible for the acts which made an unauthorized use of water possible could be identified. 5. With reference to the first point taken by the Appellants, it is necessary to refer to the topography of the place and the irrigation system to be found there. It appears that there is a natural channel called the Buxi Khal which is the private property of the Plaintiffs. The lands with respect to which the assessment has been made lie to the south of that natural channel. Above the Buxi Khal, about half a mile away towards the north, there is a canal along the sides of which two distributaries run. The Appellants' case before us was that the water of the canal, when it overflowed the fields, moved down the intermediate tract of land and ultimately found its way across the fields into the Buxi Khal and there from flowed but to the lands lying further below. There was no definite channel or any channel of any kind connecting the Buxi Khal with the Government canal towards the north. It was accordingly contended that the Buxi Khal was not a village channel as defined in sec. 3 (2) of the Bengal Irrigation Act, 1876, as water was not led by the Baxi Khal from the canal into the fields to be irrigated but moved down of itself when there was an overflow. If the Buxi Khal was not a village channel, then according to the Plaintiffs Appellants it followed that the water in the present case, though it was water flowing through the Buxi Khal into the lands below, was not water supplied through a village channel as required by sec. 79 of the Act. 6. The lower Appellate Court does not seem to have dealt with this question, but the matter was considered by the Court of First Instance. 79 of the Act. 6. The lower Appellate Court does not seem to have dealt with this question, but the matter was considered by the Court of First Instance. The learned Munsif quoted the definition of "village channel" and proceeded to observe as follows: Now, it transpires in evidence that water from the distributary canal in the North comes into the Bnxi Khal through the lands lying between that canal and the Khal and then into the leased area by putting a cross dam in the Khal. The contention raised by the learned pleader for the plaintiffs therefore falls to the ground. 7. It will appear from the passage quoted above that the learned Munsif speaks of the water coming from the distributary's canal "through the lands lying between that canal and the Buxi Khal." The Respondent contended that this language was perfectly general and there was no clear evidence as to whether there was, in fact, any defined channel between the Government canal and the Buxi Khal. We have been referred to the evidence in the case by the learned Advocates appearing for both the parties. It is necessary only to refer to the evidence of one of the witnesses for the Defendant, namely, D. W. 1, Dharitri Kumar Chowdhury, an overseer under the Irrigation Department of the Government of Bengal. He states quite clearly that There are pipes but no channel connecting the distributary's with the lands on the south. The canal water falls into the Buxi Khal ultimately.... 8. It is not very clear what the witness meant by pipes or whether his evidence in this respect was quite correctly recorded but it is clear to our mind that there is, according to this witness, no defined channel leading the water from the Government canal to the Buxi Khal. It is hardly necessary to refer to the evidence adduced on the side of the Plaintiffs, at least two of whom, viz., P. Ws. Nos. 1 and 3, deposed in the clearest possible manner that there was no connection between the Government canal and the Buxi Khal by way of a defined channel, whether natural or artificial. "Village channel" is defined in sec. 3 (2) of the Bengal Irrigation Act, 1876, as "Any channel by which water is led from a canal directly into the fields to be irrigated;" 9. The rest of the definition is not material. "Village channel" is defined in sec. 3 (2) of the Bengal Irrigation Act, 1876, as "Any channel by which water is led from a canal directly into the fields to be irrigated;" 9. The rest of the definition is not material. It is not disputed that the condition required by the latter part of the phrase I have quoted is satisfied in the present case, because after the canal water reaches the Buxi Khal, it passes on directly into the fields to be irrigated, lying further to the south. But it is contended that the other condition laid down is not satisfied, namely, this is not a case where water is led from a canal inasmuch as the canal water, when it flows into the Buxi Khal at all, does so by reason of an overflow and finds its own way across the intervening tract of land without being drawn out from the canal by the Buxi Khal. It is accordingly contended that the Buxi Khal cannot be said to be a village channel within the definition contained in the Act. 10. The evidence on the record as to the topography of the area concerned and the existence or non-existence of a defined channel between the Government canal and the Buxi Khal is perhaps not as clear as it might have been. We are not prepared in this case to lay down finally any general proposition as regards the true meaning of the definition, particularly because, in our opinion, the present appeal can be disposed of more satisfactorily on the second ground. But if the topography of the place be as the evidence seems to suggest, viz., that to the south of the Government canal, the land slopes down towards the Buxi Khal and the overflow water finds its way into the khal by its own momentum, we should find it difficult to hold that the Buxi Khal could be said to lead the water from the canal as required by definition. Water which finds its own way is not "led"; and the use of the word "led" seems to suggest that there should be a defined channel by and through which water is taken out from the canal to be passed on to the fields concerned. Water which finds its own way is not "led"; and the use of the word "led" seems to suggest that there should be a defined channel by and through which water is taken out from the canal to be passed on to the fields concerned. The Buxi Khal is not connected with the Government canal, and it seems to us somewhat difficult to hold that it can be said to lead out water from the canal at all. We would, however, not express any final opinion in the matter beyond pointing out the difficulty of applying the definition of "village channel" to a water way of the nature of the Buxi Khal. 11. The second point urged on behalf of the Appellants was based upon the language of the opening paragraph of sec. 79 of the Bengal Irrigation Act, and the case made out by the Province of Bengal itself as regards the reason for the assessment. The opening paragraph of sec. 79 states in what circumstances the rate can be imposed and proceeds to indicate that when those circumstances exist, the persons whose land had derived benefit from the unauthorized use of water, or when no land can be found to have derived any benefit, all the persons chargeable in respect of the water supplied through the village channel in respect of the crop then on the ground shall be liable to the rate. Of crucial importance, for the purpose of the present case, is the opening paragraph which reads as follows: If water supplied through a village channel be used in an unauthorized manner, and if the person by whose act or neglect such use/has occurred cannot be identified........ 12. The contention of the Appellant was that since the Defendant's own case was that the assessment had been made because the Plaintiffs themselves had made the cuts and holes, and thereby obtained the water which they had used in an unauthorized manner, it could not draw upon sec. 79 of the Act for the purpose of justifying the assessment. 13. It seems to us quite clear from a plain reading of the section that the opening paragraph of sec. 79 lays down two conditions both of which must be satisfied before the assessing authority can proceed to impose a rate under the section. 79 of the Act for the purpose of justifying the assessment. 13. It seems to us quite clear from a plain reading of the section that the opening paragraph of sec. 79 lays down two conditions both of which must be satisfied before the assessing authority can proceed to impose a rate under the section. The two conditions are: (1) that the water must be water supplied through a village channel and used in an unauthorized manner; and (2) that it should not be possible to identify the person whose act or neglect had made the unauthorized use possible. The section, in our view, does not cover a case where the person, by whose act or whose neglect, the unauthorized use had occurred, can be identified. There may be no good reason as to why a provision should not have been made in the Act for assessing persons who could be identified, but we cannot construe a taxing statute to cover a case to which its plain language does not extend. It was contended by the learned Advocate for the Respondent that the two parts of the opening paragraph of sec. 79 should be read distributively, and that an assessment under the subsequent paragraphs would be a valid assessment if either of the conditions was found to exist. In our opinion, it is wholly impossible, as a matter of language, to place that construction upon the section which seems to us to require, in the clearest manner, the simultaneous presence of both the facts contemplated by the opening paragraph. The learned Advocate for the Respondent further contended that the section should be so construed as to cover impliedly a case where the person responsible for the act which had made the unauthorized use of water possible could be identified. In our opinion, it is even less possible to read into the perfectly plain language of sec. 79 any implication of that character. The question as to whether the case of a person, who could be identified as having done the acts referred to in the opening paragraph of sec. 79, is covered by sec. 93 is in no way relevant. The fact that there is no provision outside sec. 79 for levying the rate on such a person is equally irrelevant. What is relevant is only the provisions contained in sec. 79, is covered by sec. 93 is in no way relevant. The fact that there is no provision outside sec. 79 for levying the rate on such a person is equally irrelevant. What is relevant is only the provisions contained in sec. 79, and they, in our view, do not cover a case where the Government's own case is that the persons responsible for the act or neglect contemn plated by the section were identifiable and had been identified. 14. As indicated in an earlier part of this judgment, there is no definite finding in the present case as to whether the Plaintiffs were the persons who had made the cuts and the holes. But it appears to us that no finding recorded by the Courts below in the present case would really be relevant. The matter must be judged by the view of the facts upon which the assessing authorities acted at the time when they imposed the rate. If they thought that the person whose act or whose negligence had made the unauthorized use of water possible could not be identified, or they thought that he could be, that perhaps would be a matter into which the Court could not go at all, except in cases where mala fides was alleged. The validity or otherwise of the assessment, in our opinion, must be judged by what the assessing authorities thought and the basis on which they acted at the time of imposing the assessment. With respect to that matter, there is not only the statement in the Defendant's own pleading that the Plaintiffs were the persons who had made the cuts and holes, but we have also the material of a first-hand character, viz., the evidence of the person on whose report the Canal Department acted in imposing the rate. He is D. W. No. 3, Nabadwip Adak, who describes himself as the patrol under the Canal Department and states that he had made the report upon which the rate was imposed. He states his report to have been, That the Plaintiffs have taken unauthorized canal water into the lands in question by making outs and ails. 15. He is D. W. No. 3, Nabadwip Adak, who describes himself as the patrol under the Canal Department and states that he had made the report upon which the rate was imposed. He states his report to have been, That the Plaintiffs have taken unauthorized canal water into the lands in question by making outs and ails. 15. The report itself was filed in the case and marked as Exhibit G. It has, however, been taken back and was not available to us, but it is clear to our mind that the report would not have been of any different import, since, in that case, there would most certainly be some cross-examination directed to the point. The position, therefore, is that on the evidence adduced by the Defendant itself, the assessment was made because the Plaintiffs themselves had made the cuts and the holes and had thereby obtained water of which they had made an unauthorized use. If this was the view of the facts upon which the canal authorities acted, as they seem clearly to have done, we are of the opinion that the present case was altogether outside the purview of sec. 79, and the assessment made was ultra virus and without jurisdiction. The second contention urged on behalf of the Appellants must, in our opinion, be accepted. 16. The learned Advocate for the Respondent made a prayer that we should direct a remand of the case in order that the facts relating to the flow of water from the canal into the Buxi Khal and the view upon which the authorities acted in imposing the tax might be more fully investigated. We consider it wholly unnecessary to add a further chapter to this litigation by taking the course suggested. In our opinion, the materials on record coming from the Defendant it self, are quite sufficient for the disposal of the appeal. For the reasons given above, this appeal is allowed. The judgments and decrees of both the Courts below are set aside and the Plaintiffs' suit decreed. It is declared that the assessment of a water-rate with respect to the lands described in the schedule to plaint by the Canal Officer of the Province of Bengal in the year 1939 was illegal, ultra virus and without jurisdiction, and the Defendant Province of Bengal is permanently restrained from realizing the amount assessed. It is declared that the assessment of a water-rate with respect to the lands described in the schedule to plaint by the Canal Officer of the Province of Bengal in the year 1939 was illegal, ultra virus and without jurisdiction, and the Defendant Province of Bengal is permanently restrained from realizing the amount assessed. The Plaintiffs will have their costs from the Defendant Province of Bengal throughout Blank, J. I agree.